Argument Court

These are the transcripts of the Argument Court of July 9, 1991. This argument hearing was the result of Mr. Brown's public announcement of the fact that had not, in fact, been an eyewitness to the kidnap, rape, and murder of Kathy Wilson.

More directly, it is the result of "attorney" Bonavita's Motion to Withdraw Guilty Pleas. This petition is in fact the initial source of the fraud that has been perpetuated throughout these entire (plea withdrawal) proceedings.

The timing of Mr. Brown's actions should be noted. Michael was sentenced on Friday, June 28, 1991. This story ran on Wednesday, July 3, 1991. It is significant that Mr. Brown's assertions, and his subsequent efforts to withdraw his guilty pleas, occurred after sentencing, as there is a tremendous distinction between the standards for withdrawal of plea before sentencing, and after sentencing. Prior to sentencing, the court is required to grant withdrawal for "any just reason". This has been interpreted in case law as including the simple claim "because I am innocent".

After sentencing, it as entirely different story. Once sentenced, a defendant may only be permitted to withdraw his guilty plea if he can show that his plea was not knowingly, voluntarily, and intelligently entered. The short of it is that it is far easier to obtain a new trial after a conviction in a trial by jury than it is to withdraw a guilty plea.

The reason this is all mentioned here is that these circumstances, including this timing (after sentencing) of Mr. Brown's attempts to withdraw his plea are logically supportive of his claims - that he was duped (by the authorities, and his own attorneys) into believing he would be released after Buckley's trial - if he continued his false testimony.

Of course this was only part, a very small part of the lies, duplicity, and manipulation to which Mr. Brown was subjected to by the authorities (and his own attorneys) in their effort to coerce his false testimony - as well as his guilty pleas. A small but very significant deception - primarily because it was the final deception, the ultimate double-cross that motivated Mr. Brown to expose this entire sordid affair - or try to.

So this is no ordinary Motion to Withdraw Guilty Plea. This is someone saying - BULLSHIT! This is the last straw - I don't care if I go to jail for the rest of my life for perjury, I'M NOT TAKING ANY MORE OF THIS SHIT!

One question we have concerning this hearing is what the hell is "attorney" Bonavita trying to say that has anything whatsoever to do with the validity of Michael Brown's guilty pleas? Let alone indicates this plea was not knowingly, voluntarily, and intelligently entered? Other than those "magic words" of "manifest injustice".

The fact is, "manifest injustice" is not grounds for the granting withdrawal of a plea, per se. It is simply the level to which a violation of Rule 319 must rise in order to require the granting of such a motion. If you can't understand that from the rule, Judge Millin's Opinion in the current proceedings concerning Mr. Brown's attempt to withdraw his plea to the perjury charges may help.

The truth is, whether Michael was coached and coerced in his TESTIMONY is about as relevant to the question of whether his GUILTY PLEA was knowingly, voluntarily and intelligently entered as the man in moon is to humpty dumpty. Of course his testimony WAS both coached and coerced. And so was his GUILTY PLEA. And it was done with the complicity of his own attorneys. And THAT is precisely the corruption this decade long farce is designed to disquise, suppress and to deny. A farce that stretches from this argument session - all the way to the Supreme Court of Pennsylvania - and BACK.

And compare what REAL attorney (well, as "real" as they get around here) Elliot Segel had to say during sentencing court (October 9, 1999) about the circumstances surrounding Mr. Brown's "perjuries". Of course attorney Segel wasn't involved in the coercion of Mr. Brown's guilty pleas, the suborning and coercion of Mr. Brown to commit these perjuries, and the suppression of Mr. Brown's attempts to tell the truth in these matters either. (He just stabbed Michael in the back at the most critical moment).

You might also note that this was seven years later. And that this is the first, last, and only proceeding where Michael Brown has ever had even a semi-legitimate advocate.

It is also important to recognize that what Michael Brown is saying here is exactly what he has been saying all along - or rather what he has tried to say all along. This is what Michael told police in the very beginning, it is what he told Dr. Steinmeyer in December of 1989, it is what he testified to at his juvenile certification hearing, it is consistent with what he told other inmates throughout this entire (year-and-a-half) period. It is what he told police at the Holiday Inn, and it is what he is saying now. The difference is that this time, rather than telling the authorities and his own attorneys, this time he said it publicly - in an interview with the Warren Times Observer.

Of course this hearing is a farce too. Michael did not know that the real issue at this point was whether or not his guilty plea had been knowingly, voluntarily, and intelligently entered - and sure as hell nobody was going to tell him.

There is one little gem in here though, and that is Michael's response to Judge Wolfe's inquiry as to why he didn't expose this fraud earlier. His response refers to his trying to tell Ruth Mills the truth of how he was deceived. The significance of this is somewhat clouded because Michael is mistaken about which proceeding this occured at. The certification (juvenile) hearing he refers to was, in fact, presided over by Judge Wolfe - two months after his arrest.

Ruth Mills, in fact, was a Magistrate (District Justice), who conducted Mr. Brown's preliminary arraignment. That proceeding was, by law, conducted within hours of his arrest. In my view, Michael's confusion in this matter renders his statement all the more credible - and more powerful. Of course it is only an incidental indication of what transpired during this time, but it is significant. It is both logical, and consistent with the other facts of this case - that he was in fact DUPED into making the statements that resulted in his arrest. And that he tried - IMMEDIATELY - to expose what was really happening.

The funniest part of all this (if you have a sick sense of humor) is that District Attorney Massa is exactly right in his counter-argument. Of course he is arguing against an argument that Bonavita never even makes - that Mr. Brown's guilty plea was not knowingly, voluntarily, and intelligently entered.

If you have read these transcripts previously, you may wish to skip right over Bonavita's and Massa's blathering - to Michael's testimony.

IN THE COURT OF COMMON PLEAS OF THE
37th JUDICIAL DISTRICT OF PENNSYLVANIA
WARREN COUNTY BRANCH CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

VS. No. 6 of 1990

MICHAEL R. BROWN

Before the Hon. Robert L. Wolfe, P.J,

Tuesday, July 9, 1991,

commencing at one-thirty o'clock p.m., in the

Courthouse, Warren, Pennsylvania.

APPEARANCES:

Joseph A. Massa, Jr., Esq., District Attorney, for the Commonwealth,

Thomas J. Bonavita, Esq., Public Defender, for the Defendant.

Reported by: Charles R. Rapp Court Reporter Warren County, Pennsylvania.

start

July 9, 1991
130 p.m.

PROCEEDINGS

THE COURT: I am going to ask you to take down argument in this proceeding, Commonwealth versus Brown.

MR. BONAVITA: May it please the Court? Your Honor, there are two motions before the Court for consideration, one is a motion to withdraw the guilty plea of Mr. Brown, the second is a motion for reconsideration of the sentence. As the Court is well aware, Mr. Brown was the key witness in the Prosecution of Jay William Buckley in the abduction, rape and murder of Kathy Wilson.

Specifically Mr. Brown, at that time, gave testimony which indicates that he was an eyewitness to the events, that he personally witnesses the abduction, rape and murder and that he attempted to have various police agencies follow him in an attempt to get Mr. Buckley to indicate his guilt, was trying to get Mr. Buckley to try and get him back to the crime scene and have the police follow him and further that Mr. Buckley intimidated and threatened him with serious bodily injury should he

make any statement to police.

As a result of that testimony he entered a plea of guilty on April the 26th, actually prior to the testimony, to a charge of accomplice to unlawful restraint, hindering apprehension and indecent assault and as the Court is well aware of on June 28, 1991 he was sentenced to a maximum term of seven to fourteen years to the Western Diagnostic and Classification Center.

Since that time, Your Honor, Mr. Brown has recanted his testimony in that he has indicated that he was not present when the incident took place, however, he was never -- he never did recant at any time that Jay William Buckley was the Perpetrator of the crimes. Specifically his statement that was given recently indicates that this is the exact same sequence of events that he first gave a statement to upon his arrest in 1989.

In addition, Mr. Brown gave this information to a Trooper Miles of the Pennsylvania State Police, who was an expert -- who is an expert in lie detector

test giving. This recanted testimony has indicated - -

THE COURT: Did you say he gave the polygraph?

MR. BONAVITA: Pardon me.

THE COURT: What did you say about Trooper Miles?

MR. BONAVITA: Trooper Miles, my understanding is, an expert in the giving of polygraph examinations.

THE COURT: All right. You didn't say he, in fact, gave the polygraph?

MR. BONAVITA: I did not, in fact, say that.

THE COURT: I wanted to make that clear.

MR. BONAVITA: As far as the motion to withdraw his guilty plea, the case law generally holds that after a sentence has been handed down the grounds to allow the withdrawal of the sentence can only be grounds that would rise to the level of manifest injustice and there are several cases that use those magic words “manifest injustice" after a sentence has

been given.

In this case I would ask the Court to consider that manifest injustice has been indicated in that if Mr. Brown was not present and was only a witness to the events, then --

THE COURT: If he weren't present and only a witness to the events?

MR. BONAVITA: A witness as to what Mr. Buckley told him

THE COURT: Oh.

MR. BONAVITA: -- occurred. Okay So that would make him a witness as far as being told by Mr. Buckley as to what occurred. If this is the case, then there is manifest injustice because Mr. Brown was not as involved as he testified and had told the Police that he was and to give him a sentence of seven to fourteen years would indicate manifest injustice. I would also - -

THE COURT: Before you leave that, what objective evidence exists, objective evidence exists, that he was not an eyewitness and was merely told by Buckley

that he, in fact, did these crimes? Where is the objectivity?

MR. BONAVITA: What I can tell you, Your Honor, is that to my knowledge the first statement that he made to police were that Mr. Buckley -- and I am para-phrasing, Your Honor, I don't know exactly, "Mr. Buckley told me that he committed this crime". There is, of course, the time card from his place of employment - -

THE COURT: You're just going back in to the testimony of Brown.

MR. BONAVITA: That's correct, Your Honor.

THE COURT: We know he recanted his testimony.

MR. BONAVITA: That's correct.

THE COURT: Of what he told this jury for a period of two weeks.

MR. BONAVITA: That's right.

THE COURT: Now, he wants the Court to believe him now that he was not an eyewitnesss, he was told by the Defendant Buckley that Buckley committed these crimes, that's his whole, involvement, so again in

light of his past testimony and constant changing of his involvement, if the Court is to give serious consideration to withdrawal of the guilty plea to prevent a manifest injustice, the Court has to have some objective corroborating evidence, otherwise aren't you just saying here is Mr. Brown again now with a different story, that's what I'm probing.

MR. BONAVITA: The only things I can point to are things that were testified to at the trial - -

THE COURT: We know that.

MR. BONAVITA: other evidence, physical evidence, meaning the time card - -

THE COURT: Well, you see, Mr. Bonavita, that's the problem here, we know that, you know it, the Court knows it, the District Attorney knows it. We know what Mr. Brown is saying now, we know what he said then, but how do we know he is telling the truth?

MR. BONAVITA: Well, that is something the Court will have to decide in its consideration of this motion.

THE COURT: All right.

MR. BONAVITA: I can't point to anything else that the Court does not already know as far as what was brought out in the testimony of trial, the physical evidence and also Mr. Brown's own statement which I would point out seems to be consistent with his initial statements at the time of his initial arrest before he was extensively interviewed by the police regarding this incident. As far as anything else, Your Honor, I really cannot point to anything new, as far as new evidence that's come up.

The case law also goes in to whether there is after discovered evidence that is brought up and could be used as a basis for the withdrawal after a sentence. There are some other instances regarding other testimony that might come up after the sentence is handed down that might be the basis for withdrawal. These are the only things I can point to, Your Honor, as far as a basis for showing manifest injustice and it is for the Court to decide

whether this rises to that level of manifest injustice as the case law points out. Some of this, Your Honor, I would also ask you to consider for a motion for reconsideration of sentence if the Court would - - do you want me to go in to that or do you want the District Attorney to respond?

THE COURT: That's right, you go ahead with your full argument.

MR. BONAVITA: Okay. As far as the motion for reconsideration of sentence, Your Honor, I would ask you to take in to consideration that he has made -- he has indicated now that he is not -- he was not an eyewitness, he was told this by Buckley which indicates his similarity to the statements that he initially gave and that a sentence of seven to fourteen years is unduly severe given the fact that MR. Brown does have strong family support, he does have a G.E.D., he does have a which was written in some of the letters to you, a job waiting for him upon his release which may not be waiting for him if it's five years from now.

Also there were several signatures of individuals asking the Court for a sentence within the standard range, some eighty or some signatures on that one area. Also, the constant pressure that Mr. Brown has received throughout his incarceration, coercion from the police, coercion from Mr. Smith which there is a letter from Mr. Smith to Mr. Brown's mother that has been made part of the record which I would ask the Court to take in to consideration, again, urging Mr. Brown to change his testimony or to possibly alter his testimony. I believe that not giving a copy of this letter to the District Attorney or to myself is - - is at the very least irregular and not what I would consider a standard of professional procedure, however, that's what was done, but I point this out for the purpose of pointing out to the Court that this was again more pressure, more coercion, and something that he has always had to live with.

Mr. Brown, as you well know, was

brought to Pennsylvania in a limousine and told by the police that he was the only witness and he was kept over five hours before he was able to be released and he was never released. He tried to get proper evidence regarding Mr. Buckley's involvement, which you know he went to the Jamestown Police Department and tried to get himself wired up, but there were a lot of problems there, it just turned out to be a big fiasco.

With all this in mind, Your Honor, and with the fact that there are mitigating circumstances present, I would ask that the Court reconsider Mr. Brown's sentence and sentence him. to a sentence within the standard range of the guidelines. At the time of sentencing he was given the maximum sentence which was outside the guidelines and I ask you to reconsider that in light of his testimony and in light of his statement that he has made which indicates his involvement less than what he testified to and sentence him within the standard range. Thank you, Your Honor.

MR. MASSA: May it please the Court? Your Honor, I can address both motions at the same time. The Commonwealth at the time of the imposition of sentencing relied upon the sound discretion of the Court in the imposition of sentence and the Commonwealth takes the position that the sentence was a legal sentence and, therefore, has no further comment in regard to the sentence that was imposed by the Court. In regard to the motion to withdraw the guilty plea, Mr. Bonavita was quite correct in that the standard that the Pennsylvania Supreme Court has established for a motion to withdraw a guilty plea is that to prevent or correct double, "manifest injustice", double. I would ask the Court to focus upon the timing of this motion which is after the imposition of sentence. The cases, if they are read by the Court, establish two factors for the Court to consider. One is that it's a very strange standard because all the various and diverse protections, Constitutional Rights that have been proffered to a

Defendant throughout the course of the proceedings against him are very broad up to the point of the imposition -- up to the point of entry of a guilty plea and after that the imposition of a sentence by the Court.

Secondly, the burden of proof is strictly and solely upon the Defendant to show "the manifest injustice". In order to weigh the petition objectively, Your Honor, I would ask the Court to consider a number of factors. First of all, the Defendant or the Petitioner, Mr. Brown, was represented throughout by the Warren County District Attorney's Office and in that generic term was represented by two separate attorneys, first by - -

THE COURT: You mean the Public Defender.

MR. MASSA: Strike that, by the Public Defender's office by Mr. Aranyos through January 31st of 1991 and upon his resignation from that position by Mr. Bonavita as assisted by Ross McKeirnan throughout. Second, I ask the Court to

focus that the negotiated plea agreement itself, the document which triggered the reduced charges to which Mr. Brown was ultimately sentenced, I will provide the Court with a copy of it.

THE COURT: That's not necessary.

MR. MASSA: It states, Your Honor, and signed by Mr. Brown and by his then attorney, Mr. Aranyos, that he would provide "eyewitness testimony" or testimony to his eyewitness participation eyewitness testimony to the abduction, rape and, homicide of Kathy Wilson. Third, Mr. Brown, Your Honor, appeared before this Court on April 26, 1991 at change plea court and the day prior to that, on April 25, 1991, at regular arraignment court, he appeared and was given the lengthy colloquy that this Court by uniform practice gives to Defendants. The following day he appeared before the Court at which time Your Honor instructed the District Attorney to engage a colloquy with Mr. Brown to determine the voluntariness of his plea. I would ask the Court to review the

transcript of that change of plea hearing which has been prepared by the Court Reporter. At that change of plea colloquy, Your Honor, the Commonwealth, as an Officer of the Court at Page 22, after going through the regular colloquy, the rights, the right to trial, the right to a jury trial, the burden of proof of the Commonwealth, et cetera, read verbatim the elements of the crimes, the three crimes to reduced charges to which Mr. Brown was pleading. The question was asked, "Do you understand that if the Court accepts your plea of guilty to the three charges as just outlined, the Court could impose, according to the maximum term of imprisonment as I have explained to you, consecutive terms, that is, one sentence after another totaling seven to fourteen years' imprisonment and/or a fine of $30,000 or both? Answer, Yes. "Mr. Brown, other than reducing the charges, your original charges, from criminal homicide, accomplice to rape and accomplice to unlawful restraint, hindering apprehension or prosecution of another, or indecent

assault, has anybody promised you anything in order to induce you to plead guilty today? Mr. Brown, no". "Mr. Massa, has anybody used any force or threats to get you to plead guilty today? Mr. Brown, no." "Mr. Massa, are you pleading guilty today of your own free will? Mr. Brown, yes." "Mr. Massa, do you understand that the District Attorney's office had held out no other understanding to you including the sentence which would be solely up to the Judge? Mr. Brown, yes." At that time, Your Honor, at the request of the Court the Commonwealth outlined what it would intend to proffer, made an offer of proof and the question was asked, "Do you understand the Commonwealth's offer of proof to this Court? Mr. Brown, yes." The question was asked, "Have you talked to Attorney Thomas Bonavita and discussed with him whether you should plead guilty to those three charges of unlawful restraint, indecent assault, and hindering apprehension or prosecution of another today?

"Question, on the basis of that discussion what did you decide to do and what do you want to do at this time? Mr. Brown, I would like to enter a plea of guilty to the three reduced charges." Mr. Massa, do you admit to the facts as outlined by myself to the Judge in explaining what the Commonwealth would intend to prove? Mr. Brown, yes."

Mr. Brown was then engaged in a colloquy by his own Counsel, Mr. Bonavita and at that time Mr. Bonavita at Pages 27 and 28 handed to the Court a lengthy colloquy containing some forty questions which were individually answered and initialed by Mr. Brown and then the Court, itself, engaged in a colloquy and asked Mr. Brown at 27 and 28 - "Mr. Brown, the Court has been handed a colloquy, written colloquy, by your Counsel, Mr. Bonavita, and it carries forty questions; do you understand that? Mr. Brown, yes. Did you personally answer each of those questions in your own handwriting? Yes, sir. Did you have any difficulty in

understanding any of the language in any of those questions? No, sir. Do you consider Mr. Bonavita to be a competent and effective criminal trial attorney? Mr. Brown, yes. Do you have any complaints, et cetera? No. Has he or any one else told you what the sentence of this Court would be on your negotiated plea? Mr. Brown, yes. The Court, what were you told? Mr. Brown, in what I would be facing would be seven to fourteen statutory max. The Court, do you understand that when you entered a Plea as negotiated that you agree and admit that the Commonwealth has sufficient evidence to prove you guilty beyond a reasonable doubt? Mr. Brown, yes."

On Page 30, "The Court, so that the Court may understand and be aware that you know what you are pleading to, you briefly tell the Court what you did that brought these charges upon you. What did you do?" And by the way, Your Honor placed Mr. Brown under oath prior to this. "For the hindering apprehension, I offered false and misleading statements to the

State of Pennsylvania authorities; the indecent assault, at the request of Jay William Buckley I began to remove Miss Wilson's blouse against her will; and accomplice to felonious restraint, I accompanied Jay William Buckley while Miss Wilson was brought against her will in to Pennsylvania."

In addition, Your Honor, as the Court has acknowledged, Mr. Brown testified under oath for, I believe, the better part of twelve days during Mr. Buckley's trial and thereafter the Court's ex parte order ordered Mr. Brown's Psychiatric evaluation by Jackson Haverly, the clinical director of the Department of Psychiatry of the Warren General Hospital, after which time Doctor Haverly submitted a written report to the Court which it made available to defense, Mr. Smith, the Defense Counsel for Mr. Buckley, to the Commonwealth, and to Counsel for Mr. Brown. Doctor Haverly related that Mr. Brown knows the difference between lies and the truth, and he admits that he has lied significantly

in the past, he has admitted that he has reason to lie, i.e., the reward money and he now maintains he is telling the truth, that is in reference to his trial testimony. In reference to a specific question about the report from the doctor to relate this, does Mr. Brown have the ability to relate the truth in a given factual situation, "Mr. Brown maintains that he is relating the truth about the events leading up to and including the abduction, rape and murder of Mrs. Wilson, i.e., that his trial testimony was truthful. Your Honor, considering the posture, considering the fact that Mr. Brown was represented by competent Counsel throughout, from the time of his initial arrest to the present time, considering the fact that the Commonwealth entered in to a negotiated plea upon the assurance of Counsel for the Defendant that Mr. Brown was an eyewitness to the charges which he was originally brought before the Court and as reduced, considering his testimony at the Preliminary Hearing which followed

his interview with Trooper Miles after which and before the Preliminary Hearing he recanted what was told to Trooper Miles, testified under oath at the Preliminary Hearing, considering his change of Pleacolloquy and the answers on the record which the Court has for its review, his trial testimony, the answers that he gave to Doctor Haverly or the clinical psychiatrist, the totality of the circumstances, Your Honor, would indicate to the Commonwealth that Mr. Brown has not met the burden of proof to show that a manifest injustice has been done and that he should not, therefore, Your Honor, be permitted to withdraw his guilty plea particularly in light of the fact that the petition for withdrawal follows close on the heels of the sentence.

The examples of manifest injustice which the Pennsylvania Appellate Court have followed in granting a post-sentence motion for withdrawal of a guilty plea including such things and after discovered evidence, I believe that was the thrust of the Court's initial questions

of Mr. Bonavita that the Defendant was not informed of one or more elements of the offense and I believe a fair reading of the change of plea colloquy will indicate otherwise; that the Defendant was not specifically informed of the possibility of the imposition of a consecutive sentence, that was laid right on the line by both the Commonwealth and by the Court; that the Defendant was not informed of the maximum sentence, that was not the case by his own acknowledgment and for these reasons the Commonwealth requests that the motions be dismissed or not granted.

THE COURT: Gentlemen, the argument to withdraw the guilty plea is bottomed on the recantation of the trial testimony and to my knowledge we don't have Mr. Brown on the record withdrawing his testimony; is that correct? Is that your recollection?

MR. BONAVITA: That's right, Your Honor.

MR. MASSA: That's Correct, Your Honor.

THE COURT: Mr. Brown, you come up before the Court, please, I want to ask you some questions. You raise your right hand. Do you swear or affirm the answers you will give to the questions the Court puts to you will be the truth, the whole truth and nothing but the truth so help you God?

MR. BROWN: Yes.

THE COURT: What is your name?

MR. BROWN: Michael Brown.

THE COURT: Now, Mr. Brown, you have been in Court during argument on your motion for reconsideration of sentence and to withdraw your plea of guilty; is that correct?

MR. BROWN: Yes.

THE COURT: You heard the argument of your Counsel, Mr. Bonavita?

MR. BROWN: Yes.

THE COURT: You heard your Counsel tell the Court in this argument that you were not involved with Mr. Buckley in the commission of the crimes that Mr. Buckley was charged with; is that correct?

Did you hear that?

MR. BROWN: Yes. Yes.

THE COURT: Do you recall during the course of the Buckley trial that you testified extensively over approximately two weeks, twelve days or so, of your personal involvement with Mr. Buckley in the commission of the crimes to which Mr. Buckley was charged; do you recall that?

MR. BROWN: Yes.

THE COURT: Now, was your testimony before that jury and this Court true?

MR. BROWN: No, sir.

THE COURT: What part of it was untrue, if any, or if all however you want to explain that?

MR. BROWN: Most of it, just about all of it. The fact that I was an eyewitness to the events was false.

THE COURT: What is your position to the Court now to support your motion to withdraw your guilty plea?

MR. BROWN: I feel that the evidence presented at the trial by

Mr. Smith clearly shows that, you know, it would be virtually impossible that I was an eyewitness to the crime scene, due to the fact that the time during the afternoon I've got a timecard and work orders proves that I was, in fact, at work and, also, throughout the statements and I feel that clearly showed me being led and a lot of the evidence being, you know, offered to me, you know, and which I feel the District Attorney had it right the first time. Basically I have been defended by the District Attorney's office. Each time I tried to withdraw my -- recant my testimony I got a letter from the District Attorney saying that he was going to charge me with the death penalty and I believe if you recall the Friday night in your Chamber before I got sentenced, before the end of the trial when my mother come down, it was to my understanding Ross McKeirnan was to set up that meeting with you to where I could recant my testimony and explain to you and show you what had actually occurred - until he backed down and that's when my

mother, she was here, she was here with the paper from the District Attorney with the death penalty, pictures and stuff of conjugal visits to where they would - - the District Attorney and Trooper Herzog would set conjugal visits and every time we found a new piece of evidence to where I could show my parents and fiancee what they have to know, what they have to testify to, which like I said, I feel Mr. Smith made all that very, very clear, you know, throughout the trial which -- and I have tried several times to recant my testimony and each time I have tried I got threatened with the death penalty, so where does that leave me?

Another thing with John Aranyos, he's the one that talked me into entering this plea, he refused to file a writ of habeas corpus, he refused to file a lot of motions, he talked me into the Plea on the ground that that is my only way out from the original charges. Like I said, I feel that it is very obvious, I feel that I have, and I could present all the evidence

to prove that I was not involved in this in any way. Like I said, I feel Mr. Smith proved that, I feel that I have been definitely mislead (sic). The coercion, as he pointed out, in several aspects. Now if I was there - present, for just for instance, why would I say she had a black skirt and red blouse on, it's obvious why I said that - because I did not know and just like the tan T-shirt that they had mentioned to me. This was found at the Riverside Road, that's why I testified that that was found there. Which is this Riverside Road, I don't know where it is. First it was a logging road, then it turned in to Riverside Road, but that shirt I testified that was found, they needed this, they said it was found there and I testified to that. Mr. Smith mentioned a statement from the Jamestown Police Department that that was found at the campsite.

I've gotten -- several times we would come over here, like I said, for conjugal visits to where I could explain to my parents what they are going to have

to know and to testify to in the trial because they planned on being called to the trial and it was on several occasions that they had explained to my Mom, "He’ll be getting out of here after the trial, we know he wasn't involved." They wanted me to be an eyewitness so that they could get Jay Buckley and they put me in a position where I could basically make their case easy being an eyewitness that the eyewitness accounts that I here testified to throughout the trial and basically they concocted this whole story up, me, the District Attorney, John Herzog concocted this whole story up with little bits and pieces of evidence that they had gathered up, you know, throughout their little version here. And I also feel that is also very obvious. And just the fact - I feel that the evidence and the proof, you know, that I was not involved, I feel that is very obvious, you know, I feel everything I just said has been proven over and over again.

I feel that you probably know that, like I said, I tried setting up, you

know, a meeting with you throughout the trial through Ross McKeirnan to where I could tell you what was going on and all this and that, but that day that we come over here, you know, when my mom was down here, he backed out of it and took off, and he tried over and over again to get away from me.

I never really been - - it is a good plea, if I was involved in this, I would probably thank you for the seven to fourteen years and went and did my time, you know, and I do realize if I can withdraw my plea I am facing the original charges, I am facing several perjury charges, which in perjury itself will give me more time than this seven to fourteen years. All right. I am sure there is a lot of the perjuries, but on the same token I would rather do ten to twenty, twenty to forty, on perjury and prove to the public and whoever - what the Commonwealth has concocted here and the way this system has worked throughout their whole investigation. And I would much easier

accept, like I said, more time for what I am guilty of just to be able to say the truth and that's the same thing that Trooper Miles felt, he was the first one that they would let me talk to besides John Herzog and the District Attorney. They knew what the truth was, they needed an eyewitness' testimony, that's why it specifically says in my plea bargain we need your eyewitness testimony, you know, for this $26,000 and we'll leave you alone. That's one choice. My other choice was not to cooperate and get the death penalty, you know, for something I had no involvement in and I tried telling them, I tried telling them the truth several times and every time, like when they took me to the Holiday Inn, I tried telling him. He told me if I told him the truth he would help me out. I told him exactly the truth, never seen that guy again. Got another letter from the District Attorney, I have no other alternative but to pull your plea and let Jay Buckley go and seek the death penalty on you. So there I was again.

I had to continue working with these people and I just -- the reconsideration of the sentence I basically -- what I would like to do is get the opportunity to withdraw my guilty plea and to prove my position and which I feel the evidence makes it so obvious. The fact that I got, like I said, my timecard and work orders put me in work all day long.

THE COURT: You have sort of come full circle. Is there anything else?

MR. BROWN: I don't believe so, Your Honor.

THE COURT: Now, Mr. Brown, do you have these letters to which you make reference that you received from the District Attorney?

MR. BROWN: Yes, sir, I do, my Mom brang them down here that Friday to show you.

THE COURT: They are in your mother's possession?

MR. BROWN: Yes, all the paperwork.

THE COURT: Who wrote that letter?

MR. BROWN: Joe Massa.

THE COURT: All right. Now, you have made reference numerous times that you were requested to testify that you were an eyewitness. I want you now to be more specific, you keep using the word "they". Let me ask you this, Mr. Brown, did any member of the New York State Police tell you what to say at this trial?

MR. BROWN: No, sir.

THE COURT: At the Buckley trial.

MR. BROWN: No, sir.

THE COURT: Did any member of the Pennsylvania Police tell you what to testify to at the Buckley trial?

MR. BROWN: Yes, sir.

THE COURT: Who?

MR. BROWN: John Herzog.

THE COURT: What did he, Trooper Herzog, tell you?

MR. BROWN: Trooper Herzog, he basically --

THE COURT: I want you to be specific.

MR. BROWN: Everything.

THE COURT: I know who he is.

MR. BROWN: Everything. He is the principal actor, I would say, in concocting this whole story.

THE COURT: Why do you say that? What did he tell you to say?

MR. BROWN: He told me the color of the clothes she had on.

THE COURT: No, what did he tell you to testify about?

MR. BROWN: I don't think I understand what you're asking. I am trying to explain exactly what he told me.

THE COURT: Let me tell you again and I want you to understand this, you have told the Court in your general disseration that they concocted this, including yourself, this whole story against Buckley, to wit, that you were an eyewitness as to what Buckley did and your involvement on the plea negotiations?

MR. BROWN: Yes.

THE COURT: I am asking you now to be more specific, to identify the personnel that concocted this and after you

identify them specifically, what did they tell you to testify about, not what they showed you, but what did they tell you to say at the time of the Buckley trial; do you understand that?

MR. BROWN: I understand that.

THE COURT: Now, start over again, what did Trooper Herzog tell you to testify as to anything specific at the Buckley trial. Did he tell you what to say?

MR. BROWN: Everything I said.

THE COURT: What? Tell me.

MR. BROWN: The fact that I witnessed him stabbing Mrs. Wilson, the fact that she took off running to the right, everything.

THE COURT: Let's stop there. Did Trooper Herzog tell you to tell the jury that?

MR. BROWN: Yes, sir, he told me to tell the jury everything I said.

THE COURT: All right. Did Mr. Massa tell you to tell the jury anything?

MR. BROWN: Mr. Massa more or less went through John Herzog, but yes, he

did come over the Sunday -- the day before the trial and that's when I decided that he told me that she had to have been abducted from the Quality in Falconer, that's why I changed right then from the Chautauqua Mall to the Quality in Falconer.

THE COURT: Was that at your jail cell the Sunday before the commencement of the trial Monday morning?

MR. BROWN: Yes, that was down stairs in the one - -

THE COURT: Did Mr. Thomas Bonavita tell you to say anything at the time of the trial?

MR. BROWN: He told me to cooperate and do everything they tell me to do basically.

THE COURT: Now, did you have any papers in your cell that came from any source whatsoever telling you what to say at the time of your trial?

MR. BROWN: What they were, Your Honor, were all statements, some of them were like statements that I had made, some of them were statements, supplementary

reports from other individuals that were involved in this case, to where I could corroborate what they are saying, I can put them at the places they're saying that they seen Buckley or what have you, the other people, whether they, you know, which the statements that Mr. Smith come over looking for, yes, they were there, but sent them out like three days before, my mother - -

THE COURT: Where are they?

MR. BROWN: My mother has them all, she presented some of them a short time back.

THE COURT: Do they have questions and answers that you may be asked by Mr. Smith and answers you should give Mr. Smith?

MR. BROWN: That was - -

THE COURT: Yes or no?

MR. BROWN: No, sir.

THE COURT: All right. Now, I asked your Counsel and I am going to ask you, Mr. Brown, but first I am going to predicate it with this thought that you

should know you have cried wolf quite a few times and it should be apparent that any objective, reasonable person may have extreme difficulty in accepting your statements you are making to the Court today, you understand that?

MR. BROWN: Yes, sir.

THE COURT: What objective - - that is, evidence, outside of what you're telling the Court exists to support what you're telling the Court, to wit, that you and the District Attorney and Trooper Herzog concocted your testimony to give to the jury? Where is something the Court can look at outside of what you’re telling the Court? Do you have anything of that nature, papers, witnesses?

MR. BROWN: I do have two witnesses to that.

HE COURT: Who are they?

MR. BROWN: My Mom and my fiancee, my Dad.

THE COURT: Which one of your fiancees? Which one?

MR. BROWN: My - - Brenda Snow,

the one that has my son, she is like really my only fiancee, but okay, now like I said, they came down for these meetings several times, but - -

THE COURT: What meeting are you making reference to?

MR. BROWN: That's what he called them was witness preparation, that's where they brang me over here.

THE COURT: Who is he?

MR. BROWN: Mr. Massa, that's where they brang me over here, he had everything out and basically this is what I am going to ask you and this is what I want you to say is exactly what they were. This is what we think Mr. Smith will ask you, this is probably what Mr. Smith is going to ask you, and this is what we want you to say.

THE COURT: Where did that transpire?

MR. BROWN: In - - I think it's the second floor courtroom, that little room across from the District Attorney's office, second or third floor in here.

THE COURT: Who was present during that time?

MR. BROWN: During those meetings there was me, Joe Massa, John Herzog - -

THE COURT: That's Mr. Massa, the District Attorney, not Joe Massa.

MR. BROWN: Yes, Mr. Massa. John Herzog and some times my -- I guess, my Counsel, if that's what you call him.

THE COURT: What Counsel at that time?

MR. BROWN: Throughout the whole thing - some times it was when I had Aranyos, it was Aranyos - -

THE COURT: Mr. Aranyos.

MR. BROWN: Mr. Aranyos, and then Mr. Bonavita, I got him after Mr. Aranyos.

THE COURT: Is there anything else in line of objective, outside evidence other than what you told the Court?

MR. BROWN: Just basically, Your Honor, I feel that all the statements and the individual video tape statements which I believe Barry Smith only got a

hold of two of them and the statements themselves I think make everything that I am saying very clear, but on the same token, if I may, the pages that are missing, all right, that just come up missing somehow in the video taped statements that all of a sudden disappeared, I think them are the ones that, you know, have a lot - - are saying a lot of what I am saying.

THE COURT: Did you give any video tapes that weren't used during the course of the Buckley trial?

MR. BROWN: I believe I gave four video taped statements altogether.

THE COURT: To whom?

MR. BROWN: Well, Mr. Herzog and Mr. Herzog -- I'm, sorry, and Mr. Pavlich he's an Erie Policeman, I guess, they were the questioners and Mr. Tridico was the filmer, he is the one that filmed the --

THE COURT: Where were they taken?

MR. BROWN: In the courthouse here.

THE COURT: Are you telling the

Court there were four video tapes of you and your testimony?

MR. BROWN: I believe there was at least four, yes. Yes.

THE COURT: Did you state on those tapes that you were not present with Buckley during the course of his conduct?

MR. BROWN: In the first video taped statement that I gave them I told them the truth.

THE COURT: What did you tell them?

MR. BROWN: The fact that I wasn't there, which I didn’t have to say that because I never told them I was there, I just told them Jay came to my house that morning, you know, he wanted to use the van, I couldn't let him, I had to go to work and I got out of work and I had to go to the store and I picked up Jay on the way and that he confided in me as a friend and - -

THE COURT: Now, Mr. Brown, you were arraigned before this Court - and thereafter you were before the Court and

changed your plea on your plea negotiations, you recall that we have it here?

MR. BROWN: Yes.

THE COURT: Why didn't you tell the Court at that time all of these matters? Why didn't you say, "Judge you just now expounded at length, very articulately, "Judge, this is all a fraud, it's not true, I wasn't involved, what am I doing here."?

MR. BROWN: I left, like I said, I left my - - Mr. McKeirnan, I said, for the longest time he was supposed to set up all these different meetings with you where I could come out and tell you and at my certification hearing. I believe I made that very clear with Ruth Mills she said in the certification hearing, I believe, when I explained how I was deceived, how they offered me this money - -

THE COURT: We know about that, we know all about the money, your limousine ride and alleged promises, we know that.

All right, Mr. Brown, you may sit down.

MR.BROWN: Thank you.

THE COURT: Anything else, gentlemen?

MR. BONAVITA: No, Your Honor.

THE COURT: Mr. Massa?

MR. MASSA: Your Honor, this is not an evidentiary hearing - -

THE COURT: No, it's not.

MR. MASSA: - - but the Commonwealth categorically denies any coercion or coaching of the witness. As a matter of fact it wasn't the Sunday before the trial, it was Saturday, April 20, 1991, that I personally met with Mr. Brown at the Warren County Jail and at that time I advised him that all I requested from him was his truthful testimony, I asked no questions, I asked him to provide for me in a statement or narrative form the substance of what he would testify to under oath at the time of trial and he offered me a lengthy statement and at that time I gave him no evidence, I gave him no coaching, I provided him with absolutely no indication of what his testimony should be other than the truth.

As a mtatter of fact, at that time, Your Honor, I had advised him that there was no Statute of Limitation on murder, that the Commonwealth, if he wanted to do anything other than testify truthfully, would put a halt to the prosecution and things of that nature and at no time did this individual coach, intimidate, coerce or educate Mr. Brown as to what to state. If and when an evidentiary hearing were scheduled, the Commonwealth would be prepared to rebut the various allegations that Mr. Brown has made.

THE COURT: Mr. Bonavita, do you have any objection to inquiring or if you can, the letters or whatever is in the possession of Mrs. Brown, so the Court can review the letters or any other materials?

MR. BONAVITA: I certainly don't, Your Honor, just also the only letter that I am aware of is there was a letter some time ago when I first became the Public Defender and which indicated that there was going to be a revoking of the plea agreement, however, that was subsequently

reaffirmed, the original plea agreement was reaffirmed and later on and that's the only letter that I am aware of.

THE COURT: All right.

MR. MASSA: I will be happy - - I am aware of one letter that I wrote to Attorney Aranyos on or about January 15, 1991 and I will be happy to provide a copy to the Court.

THE COURT: I would appreciate that and the Court is going to defer on these motions and the Court is adjourned.

(Whereupon, the Court was adjourned at 2:37 p.m.)

CERTIFICATE OF COURT REPORTER

I hereby certify that the proceedings are contained
fully and accurately in the notes taken by me on the hearing
of the above petition and that it is a correct transcript of
the same.

Charles R. Rapp
Court Reporter

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