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HomeMy WebLinkAboutCP-21-CR-0000347-2011COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) CRIMINAL SOLICITATION TO CRRvf[NAL HOMICIDE (3 COUNTS) V. (2) CRIMINAL ATTEMPT TO CRIMINAL HOMICIDE (3) AGGRAVATED ASSAULT : (4) BURGLARY—ADAPTED FOR OVERNIGHT : ACCOMMODATION LANCE PATRICK GREENAWALT OTN: T0299482 : CP -21 -CR -0347-2011 c w IN RE: DEFENDANT'S MOTIONS FOR RECUSAL AND CHANGE OF VENUE~° ORDER OF COURT o nn -0 M AND NOW, this a day of July, 2018, upon consideration of Uefennlant"sem Amended Motions for Recusal and Change of Venue, filed June 25, 2018;:�ollong a hearing and for the reasons stated in the accompanying opinion, the motions are denied, with a caveat that the parties consult Rule of Professional Conduct 1.12 for further guidance. BY THE COURT, J. esley , Jr., .J. !.� . Charles J. VolkeM Jr. Esq. Chief Deputy District Attorney For the Commonwealth Gerald A. Lord, Esq. LORD LAW, LLC 45 North Queen Street York, PA 17403 For the Defendant COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) CRIMINAL SOLICITATION TO CRIMINAL HOMICIDE (3 COUNTS) V. (2) CRIMINAL ATTEMPT TO CRIMINAL HOMICIDE (3) AGGRAVATED ASSAULT (4) BURGLARY—ADAPTED FOR OVERNIGHT ACCOMMODATION LANCE PATRICK GREENAWALT OTN: T0290482 : CP -21 -CR -0347-2011 IN RE: DEFENDANT'S MOTIONS FOR RECUSAL AND CHANGE OF VENUE OPINION OF COURT OLER, S.J., July 6, 2018. In this criminal case in which Defendant was found guilty' and sentenced several years ago on charges of criminal solicitation to commit criminal homicide (three counts), criminal attempt to commit criminal homicide, aggravated assault, and burglary, he has filed a petition for collateral relief under the Post Conviction Relief Act.3 For disposition at this time are Defendant's motion for recusal of the Cumberland County District Attorney's Office and Defendant's motion for change of venue, incident to the PCRA petitioti.4 A hearing was held on Defendant's requests on June 6, 2018. For the reasons stated in this opinion, the motions will be denied, with a caveat. See Order of Court, dated March 22, 2013; Order of Court, dated July 11, 2014. a See Order of Court, dated April 16, 2013; Order of Court, dated November 4, 2014. 3 Defendant's Second Amended Motion Pursuant to the Post Conviction Relief Act, filed June 28, 2017. 4 Defendant's Amended Motions for Recusal and Change of Venue, filed June 25, 2018. The amended filing elaborated upon a previous filing requesting the same relief. See Defendant's Motions for Recusal and Change of Venue, filed June 4, 2018. 1 STATEMENT OF FACTS By a criminal complaint filed on January 14, 2011, Defendant was charged with burglary, aggravated assault, and attempt to commit criminal homicide as the result of an incident occurring on April 30, 2006, and three counts of solicitation to commit criminal homicide as the result of events occurring between September 1, 2010, and October 1, 2010.5 One of the designated victims of the solicitation was the earlier victim of the burglary, aggravated assault, and attempt to commit criminal homicide; another was that person's half-brother; and the third was an Adams County judge who had previously sentenced Defendant for other criminal activity.6 Trial on the charge related to the Adams County judge was severed from the trial on the other charges.7 The jury trial on the charges not related to the Adams County judge was presided over by the Honorable M.L. Ebert, Jr.; the jury trial on the charge related to the Adams County judge was presided over by the Honorable Kevin A. Hess. Defendant was ultimately found guilty on all charges.8 With respect to the trial on the charges not related to the Adams County judge, a summary of the facts in an opinion written by Judge Ebert includes the following: L Background The relevant facts of this case begin in April 2006 when Daniel Keys (hereinafter "Keys") was attacked as he returned home from dinner. However, before getting into those facts, some background information is necessary concerning the relative parties. Keys has a half-brother, John Lloyd (hereinafter "Lloyd"). In April 2006, Lloyd was the beneficiary of Keys' will and stood to inherit a substantial amount of money. Back in April 2006, Lloyd was living at 491 Cunningham Road (hereinafter "Cunningham Road Property"), outside the Borough of Gettysburg in Freedom Township. Lloyd owned another property located at 4525 Carlisle Road, Dickinson Township, Cumberland County (hereinafter "Mount Holly Property"). Lloyd also owned a property at 906 Hershey Heights Road in York County (hereinafter "Hershey Heights Property"). 5 Criminal Complaint, filed January 14, 2011. 6 N.T. 163-64 220 (Vol 1, Trial, March 18-19, 2013); Criminal Complaint, filed January 14, 2011. ' Order of Court, dated March 22, 2012, 8 Jury Verdict, March 22, 2013; Jury Verdict, July 11, 2014. 2 Lloyd met Lance Greenawalt (hereinafter "Defendant") in June 2005. Defendant thereafter began working for Lloyd fixing up homes. In addition to working together, Lloyd and Defendant would share personal information with each other. Therefore, Lloyd believed it was very likely he told Defendant that he was the beneficiary of Keys' will. At one point, Lloyd even included Defendant on his will to receive his ashes because he thought it would be too rough on Keys. Problems arose, and Lloyd complained to Keys about Defendant's work and Keys advised Lloyd to fire him. Keys believed that Lloyd told Defendant about Keys' advice to fire him. When Lloyd attempted to fire Defendant, Defendant pulled Lloyd out of a truck and slammed his head into the ground, creating more problems between the two. In 2008, Lloyd was the victim of a theft by deception committed by Defendant. Keys knew of Defendant, but had never met him prior to the 2006 assault. IL 2006 Assault With that background in mind, we now turn to April 30, 2006. At the time, Keys was living at 3635 Old Route 30, Orrtanna, Pennsylvania, Adams County. Keys' residence is located near the intersection of Route 30 and Old Route 30 in Adams County. On April 30, 2006, Keys went to dinner with Lloyd. Lloyd picked Keys up at 6:00 p.m. and returned him home around five minutes to 8:00 p.m. After dropping him off, Lloyd returned to his Cunningham Road Property. After he was dropped off, Keys proceeded to unlock his front doors, first the storm door and then the interior door. After Keys opened the interior door, he "got a glimpse of movement" and a pan of boiling water was thrown in his face. He was then immediately hit with a baseball bat on his head. Keys could not describe the pan used to throw the water, but he did see that the baseball bat was aluminum. He also saw that the assailant shut both front doors and then continued to hit him with the baseball bat. Keys originally thought there were multiple attackers but then realized it was only one person. He saw a man wearing a hood over his face that hid everything except his eyes. Keys made it to his front door and struggled to get outside as the assailant continued to hit him with the baseball bat. Keys stated he was hit everywhere: "side, front, back, shoulders, neck", but that most of the blows were concentrated on his head and neck area. After he got outside, Keys began yelling for his neighbor, George. Then the assailant had Keys down on the ground as he stood above him and hit him on the head with the bat, knocking Keys unconscious. After Keys woke up, he could not see, but he was able to locate his cell phone and feel the buttons to dial 9-1-1. Trooper David J. Rush was on his way home from work when he responded to the dispatch. After Trooper Rush arrived, he saw Keys lying on the ground in a pool of blood. Trooper Rush contacted the State Police at Gettysburg and had an ambulance sent for Keys. While waiting for the ambulance, Trooper Rush noticed open lacerations on the top of Key's head and "blood all over his face, his clothes and his hands." Keys was able to tell Trooper Rush his name, and that he had been attacked by people with baseball bats. He also provided Trooper Rush with details about the assault, but he was not able to say who the assailant was or how many assailants there were. Keys also asked if Trooper Rush could call his brother, Lloyd. A helicopter arrived to transport Keys to York for treatment. After receiving the phone call from Trooper Rush, Lloyd went to see Keys in the hospital where he appeared "very badly beaten." In fact, Keys had three broken fingers on both hands as well as broken wrist and hand bones. Dr. Suzette Song treated Keys for the injuries to his hands. He required surgical intervention for the broken wrist bone. Keys' broken hand bones healed normally and as expected. Dr. Song was able to state to a reasonable degree of medical certainty that the injuries to Keys' hand could have been the result of being hit with a baseball bat. Keys also needed 103 stitches in his head and had severe headaches for months. Keys stated he has had problems with his memory since the assault. Additionally, Keys' eyes were harmed from the boiling water thrown in his face. He stated that for months after the incident he had blurred vision. Through a stipulated letter, Christianne Schoedel, M.D., who saw Keys for his eye injuries, indicated that Keys' eye movement was completely normal and he had no loss of vision in any area. Keys had minor defects on the surface of his left eye and received antibiotic drops. Keys did not make a follow-up appointment with her. After Lloyd saw Keys at the hospital on April 30, 2006, he left and called Defendant. Lloyd wanted to know where Defendant was because he had suspicions that he might have been involved in the attack. Lloyd believed that he may have told Defendant that he was going to dinner with Keys the night of April 30, 2006. Defendant was at the Hershey Heights Property, and Lloyd met him there and confronted him. Defendant appeared normal to Lloyd and denied any involvement. III. Investigation Following 2006 Assault On the night of the assault, Trooper Benjamin Wilson arrived at the Keys' residence scene. Trooper Rush and Trooper Wilson were able to locate the point of entry as a window at the back of the house. The screen was removed and there was a footprint on the air conditioning unit directly underneath the window. Trooper Rush determined the sliding glass door in the back of the house, which was unlocked, was the assailant's exit point that night. In the front yard, they saw a pool of blood and Keys' vomit from when he was knocked unconscious. Trooper Rush indicated that someone would have to have been injured pretty severely to leave that much blood on the ground. Inside the house, Trooper Rush noticed water on the floor near the front door and on the inside of the front door, consistent with the fact that Keys was hit in the face with boiling water. Blood smears were also found inside the house near the front door. Corporal Matthew Frampton processed the scene for fingerprints. He was unable to find any latent fingerprints within the residence. Trooper Rush interviewed Keys neighbor, George Nas (hereinafter Nas), who lives across the street from Keys. On the night of the assault, Nas heard Keys scream. As he looked across the street, he saw legs going back and forth under the branches of the trees and eventually saw that the legs were headed east. He was unable to tell how many people he saw. Deborah Carr who owns the Pines Candle Gallery store, located next to Keys property, was also interviewed. She is familiar with Defendant because he came into her store approximately six times. All the times Defendant came into her store were before Keys was attacked. Trooper Rush also talked with Keys within a few days of the incident. Keys was able to describe the attacker as having a medium build, approximately "5'9" or "510", and that he could not see his face because he was wearing a gray knit cap pulled over it with just eyeholes cutout. At a third interview, Keys was able to remember that the assailant had light-colored eyebrows. Keys also indicated that he could see eye -to -eye with the attacker. 4 Through his investigation, Trooper Rush determined that Defendant was a person of interest, but he was not designated an official suspect on the investigation form. Trooper Rush knew that Lloyd employed Defendant fixing up homes, but he was unable to establish a relationship directly between Defendant and Keys. Trooper Rush decided to interview Defendant sometime around June 2006. Defendant came voluntarily to the State Police barracks in Gettysburg for the interview. Defendant was not read his Miranda warnings because he was not under arrest and was informed he was free to go. Although Trooper Rush told Defendant that he wanted to talk to him about an assault on Keys, he provided no details about the investigation to Defendant. Defendant stated that he had never met Keys but had heard of him through Lloyd. Defendant asked Trooper Rush if he thought the people who attacked Keys were trying to kill him. This was odd to Trooper Rush, since Defendant acted like he had no interest in Keys throughout the interview. Trooper Rush noted that Defendant is 5'8" tall, while Keys is 57'. Trooper Rush determined that the attack on Keys was planned. The fact that boiling water was thrown in Keys' face indicated that the assailant must have had some idea of when Keys was returning home that evening. Additionally, nothing was taken from the residence or from Keys' person, including his wallet. However, despite the thorough investigation by all of the officers involved, this case remained unsolved. IV. 2010 Solicitations Sometime in late July or early August 2010, the informant, [name deleted], (hereinafter "[the informant]"), who also goes by [name deleted], met Defendant while they were both incarcerated at SCI Camp Hill. "[The informant] has an extensive criminal history, including: (1) a 2004 conviction in Maryland for impersonation of a person in uniform, (2) a 2005 conviction in Maryland for impersonating a police officer, (3) two misdemeanor convictions for theft from Maryland in 2006, (4) a 2010 felony conviction for retail theft in Pennsylvania, (5) a felony conviction for possession/selling a stolen vehicle from South Carolina in 2011, (6) a 2011 conviction for larceny of a vehicle in North Carolina, (7) a 2012 felony conviction for larceny of a vehicle in North Carolina, (8) two misdemeanor larceny convictions from North Carolina in 2012, and (9) three 2012 misdemeanor convictions from York, Pennsylvania of unsworn falsification, false reports to law officials, and obstructing administration of law (hereinafter "York incident"). "[The informant] previously informed on fellow inmates. In 2007, [the informant] informed on an individual in Maryland which resulted in a charge and a conviction of that individual. [The informant] also attempted to inform on an individual in South Carolina that resulted in the charges against that individual being nal prossed. The York Incident occurred in 2010, when [the informant] offered to provide information in exchange for favorable treatment in a pending retail theft case about an individual who wanted a state trooper killed. [The informant] fabricated details and eventually ended up pleading guilty to the three 2012 Pennsylvania charges listed supra. After meeting in 2010, [the informant] and Defendant developed a friendship and became cell mates. Defendant began to tell [the informant] how he committed the 2006 assault on Keys. Defendant provided [the informant] with many details about the assault. Defendant also solicited [the informant] to kill both Keys and Lloyd for him. [The informant] informed the authorities and eventually spoke with Trooper Wilson and Trooper Pugh on September 7, 2010. [The informant] provided specific details of what Defendant told him through both interviews and letters he wrote to Trooper Wilson and Captain Leggore. [The informant] also provided Trooper Wilson with maps that Defendant drew. Defendant admitted at trial to drawing the maps of Keys' home, Lloyd's Cunningham Road Property, and Lloyd's Mount Holly Property. These maps were incredibly detailed and included road names, landmarks, and floor plans of the homes. [The informant] indicated that Defendant wanted him to be as familiar with the areas as possible in order to pull off the hits. Corporal Frampton processed the maps for fingerprints. He was able to find a few prints on the four maps he was given: to process. All of the prints found belonged to [the informant]. During the initial September 7, 2010, interview, [the informant] told Trooper Wilson what Defendant told him of the assault he committed in 2006. As [the informant] relayed details of the assault, Trooper Wilson immediately remembered the 2006 assault on Keys because he was one of the officers who responded to that assault. Therefore, Trooper Wilson was able to immediately corroborate some of the details that [the informant] was telling him. Trooper Wilson immediately called Adams County District Attorney, Shawn Wagner, who confirmed more details. [The informant] also told Trooper Wilson that Defendant asked him to murder Keys and Lloyd for him. Trooper Wilson remembered both names from the 2006 assault. After meeting with Trooper Wilson a couple times, [the informant] asked to have a body wire so Trooper Wilson could hear what Defendant was saying. However, [the informant] was never provided a body wire because of the risky nature of pulling that off in the prison setting, where inmates could be searched many times a day. Eventually, Trooper Wilson received permission to place a wiretap into Defendant's cell. Mervin R. Rodriquez, an information technology specialist with the FBI, secreted the recording device into the cell Defendant and [the informant] shared. The wiretap was placed in the cell on September 21, 2010, around midday. [The informant] was not told at first that the wiretap was recording but, at some point, he was made aware of the recording because he was getting very upset that nothing had been done. Trooper Wilson did not tell [the informant] what to say on the recording but instructs him to talk about things as normal. After the wiretap was concluded, DVDs of the Conversations were made and [the informant] was able to identify the voices on the wiretap as Defendant and himself. Defendant also admits that it is his voice on the wiretap recording. [The informant] was moved out of SCI Camp Hill after the conclusion of the wiretap. On the wiretap, Defendant describes in detail the 2006 assault he committed on Keys. Defendant indicated he performed the assault with his ex -SF guys. While the Defendant did in fact begin the Special Forces (SF) training course in the Army, he did not graduate from the Special Forces course. Defendant instructs [the informant] on how to kill Keys. Defendant describes -the layout of Keys house and Keys' usual routine. Defendant also describes the layout of Lloyd's Mount Holly property and how [the informant] should kill Lloyd. Defendant tells [the informant] he will give him a Harley Davison motorcycle for killing Keys and Lloyd for him. After [the informant] is moved from SCI Camp Hill, Defendant wrote a letter to the security office accusing [the informant] of taking some of Defendant's documents, including maps of his hometown, and how he is worried about the safety of his girlfriend and new baby. This letter provided the reason for Trooper Wilson to initiate an interview with Defendant. M, The interview of Defendant consisted of three parts. Before each part of the interview, Trooper Wilson and Trooper Denisch inform Defendant that he was not under arrest, he did not have to talk to them, and he can leave the room or stop the interview whenever he wants. Defendant also signed a rights waiver form, which clearly explained his Miranda warnings. The first part consisted of responding to the letter Defendant wrote. Defendant denies drawing any maps at this time. In the second segment, Trooper Wilson tells Defendant that he already looked into the report and talked to [the informant] and that [the informant] made serious accusations against him. Defendant denies making any statements or asking [the informant] to kill anyone for him. During the third segment, Trooper Wilson confronts Defendant with the wiretap recordings and Defendant admits that he might have made some statements, but it was "stupid ass jailhouse talk." Defendant stated that the conversations he had with [the informant] went both ways, with [the informant] asking Defendant to whack people too. Defendant described his tone when discussing these things with [the informant] to be "filled with vengeance, anger" and that the conversations were a "stupid way to vent aggression". Defendant further stated that [the informant] was the one that began conversations with him about the 2006 assault and asked him questions pertaining to details [the informant] must have learned from speaking with Glen Toney, another inmate who also used to work for Lloyd. Defendant maintained that he knew nothing would actually happen and that [the informant] was not a killer.' With respect to the trial on the charge related to the Adams County judge, the Commonwealth's evidence was of a similar nature in terms of demonstrating Defendant's meticulous planning,'0 including a scheme to frame someone else for the crime," detailed information provided by him to the informant, 12 and purposefulness. 13 Defendant's motivation for assassination of the judge, as indicated by his recorded statements, included its supposed facilitation of a nol. pros in the event his appeal of the Adams County conviction was successful: Lance Greenawalt Listen, if this Dude gets whacked and if I can get this overturned on appeal, they're not going to take this to tr[ia]l. They won't. [The district attorney] will not let this go to trial, guaranteed. Guaranteed sure as you're laying there. Positive. Positive. ' Opinion Pursuant to Pa. R.A.P. 1925, dated November 4, 2013, at 4-17 (citations to record omitted). 10 Commonwealth's Ex. I 1 (transcript of recorded conversations), at 4-6, 11-15, 28-30, 32-37, 41-42, 45- 48, 55-58, 66-69, 75-88, Trial, July 7, 2014. " CommonweaIth's Ex. 11 (transcript of recorded conversations), at 59-61, 76-77, 86-88, Trial, July 7, 2014. 'Z Commonwealth's Ex. 11 (transcript of recorded conversations), at 4-6, 28-32, 36-42, 51-55, 57, 59-64, 69, 74-77, 100-02, Trial, July 7, 2014. 13 Commonwealth's Ex. 11 (transcript of recorded conversations), at 48 ("[The judge] is imperative. He's imperative, yeah."), 50, Trial, July 7, 2014. 7 [The informant]: All right. Lance Greenawalt: I know for a fact. Know it.14 Lance Greenawalt: I'm telling you [the judge], man, you know [the judge], he bites the bullet and I can get this appeal, I'm telling you. I know for a fact as sure as I'm sitting here that there won't be a new trial. I'll make sure .... 15 The judgment of sentence in the case not involving the Adams County Judge was affirmed by the Pennsylvania Superior Court on direct appeal. 16 No direct appeal was taken from the sentence imposed in the case involving the Adams County judge. Defendant thereafter filed a petition for collateral relief pursuant to the Post Conviction Relief Act. 17 In the petition, grounds for relief are broadly categorized as "Wiretap Violations," "Mental Health Examination," and "Ineffective Assistance for Failing To Request Severance of the Crimes of Violence." The first category encompasses prior counsel's purported "Failure To File Motion To Exclude" and "Failure To Cite Specific Pennsylvania and United States Constitutional Violations"; the second encompasses prior counsel's "Failure To Conduct a Pretrial Mental Health Examination" and "Failure To Conduct a Post -Trial Mental Health Examination"; and the third relates to prior counsel's failure to move to sever Defendant's trial on the April 30, 2006, offenses from his trial on the subsequent solicitation offenses.'8 Incident to the petition, Defendant has filed motions for recusal and change of venue19 in the form of a motion to recuse the Cumberland County District Attorney's 14 Commonwealth's Ex. 11 (transcript of recorded conversations), at 17-18, Trial, July 7, 2014. 15 Commonwealth's Ex. 11 (transcript of recorded conversations), at 71, Trial, July 7, 2014. 16 Order of Court, filed August 26, 2014, No. 1577 MDA 2013 (Pa. Super. Ct.). " Defendant's initial petition under the Post -Conviction Relief Act was filed on August 25, 2015. See Defendant's Motion Pursuant to the Post Conviction Relief Act, filed August 25, 2015. It has been subject to various amendments and continuances since then. The outstanding version of the petition was filed on June 28, 2017. Second Amended Motion for Post -Conviction Collateral Relief, filed June 28, 2017. " Defendant's Second Amended Motion for Post Collateral Relief, filed June 28, 2017, at 10-20. 19 Defendant's Amended Motions for Recusal and Change of Venue, filed June 25, 2018. This filing represented an elaboration of a similar filing on June 4, 2018. See Motions for Recusal and Change of Venue, filed June 4, 2018. 8 Office and a motion for change of venue .20 The motion to recuse the district attorney's office is premised upon the facts of record (a) that the Defendant's trials had been presided over by Judge Ebert and President Judge Hess, as related heretofore, (b) that Judge Ebert had recused himself from the current Post Conviction Relief Act proceeding on November 6, 2017,21 in response to a motion of Defendant premised upon a possible acquaintanceship between Judge Ebert and the Adams County judge ,22 and (c) that Judge Ebert had subsequently left the Cumberland County bench to assume the duties of 23 Cumberland County District Attorney, Defendant's motion concludes that "the Cumberland County District Attorney's Office [should] be recused from prosecution because of the transition of Judge Ebert into the position of Cumberland County's District Attorney. "24 The motion for a change of venue is premised upon the aforesaid purported conflict of interest of the Cumberland County District Attorney's office and, in view of Defendant's military background, the absence of a "veteran's court" in Cumberland County. 2' The Commonwealth filed a response in opposition to both motions .26 As noted, a hearing on the motions was held on June 6, 2018. 20 Defendant's Amended Motions for Recusal and Change of Venue, filed June 25, 2018, at 1-4. 2' Order, dated November 6, 2017. 22 Defendant's Motion for Recusal, filed October 27, 2017. The motion postulated that "another judge [had been] assigned to the second trial[, relating to the Adams County judge,] due to the fact that the victim was [this particular judge]." Id., �9. It stated further that "[b]ecause [Defendant's] Post Conviction Relief Act Motion involves a request for relief as to both trials, which necessarily includes the victim, [the Adams County judge, Defendant] believes it would be in his best interest, and to avoid the appearance of impropriety, to reassign the Post Conviction Relief Act Hearing to another judge."Id., $10. 23 Defendant's Amended Motions for Recusal and Change of Venue, filed June 25, 2018, ¶Tl -14. 24 Defendant's Amended Motions for Recusal and Change of Venue, fled June 25, 2018, ¶14. 2s Defendant's Amended Motions for Recusal and Change of Venue, filed June 25, 2018, IT 15-22. 26 Commonwealth's Response to Petitioner's Motion To Disqualify the County District Attorney's Office and Change Venue, filed June 13, 2018. 9 DISCUSSION Disqualification of prosecutor in Post Conviction Relief Act proceedings. It would seem to be apparent that the role of a district attorney's office at the PCRA stage of a case is more defensive and ministerial than at the earlier stages, where prosecutorial discretion can be a significant factor, Thus, it has been said that, "in order to appoint [a] special prosecutor in PCHA proceedings, the defendant must show an actual impropriety which taints the proceedings." Commonwealth v. Breakiron, 556 Pa. 519, 528, 729 A.2d 1088, 1092 (1983), citing Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747 (1983). In the present case, the sparse record is inadequate to justify a finding that the Cumberland County District Attorney's Office is conflicted as to its responsibilities due to personal bias and should be disqualified for that reason. However, the parties' attention is drawn to Rule of Professional Conduct 1.12 for further guidance on grounds not cited by Defendant. Venue. By rule of court, venue, and arguably jurisdiction, with respect to a proceeding under the Post Conviction Relief Act are relegated to the court of common pleas in which the defendant was convicted and sentenced. Pa. R. Crim. P. 901(B). Under Section 5106 of the Judicial Code, "[t]he power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided or prescribed by law." 42 Pa. C.S. §5106. In a criminal case, as a general rule "t]he determination of whether to grant a change of venue rests within the sound discretion of the trial court ...." Commonwealth v. Tharp, 574 Pa. 202, 218, 830 A.2d 519, 528-29 (2003) (citation omitted). No case has been cited to the court in which venue of a Post Conviction Relief Act proceeding has been transferred to another county. As noted previously, the court is not persuaded, by Defendant's rationale, that the entire Cumberland County District Attorney's Office is conflicted out of representing the Commonwealth in this Post Conviction Relief Act proceeding. In addition, the bases for relief under the Post Conviction Relief Act asserted by Defendant represent legal issues, the correct resolution of which is independent of judicial discretion and nature of the 10 forum; accordingly, the absence of a Veterans Court in Cumberland County does not appear to be a valid reason to change venue at this stage of the case. For the foregoing reasons, Defendant's motions for recusal of the Cumberland County District Attorney's Office and change of venue will be denied, with a caveat. Charles J. Volkert, Jr. Esq. Chief Deputy District Attorney For the Commonwealth Gerald A. Lord, Esq. LORD LAW, LLC 45 North Queen Street York, PA 17403 For the Defendant 11 BY THE COURT, — / i" .� J, J esley O r Jr., S.J.