IN THE COURT OF COMMON PLEAS
OF THE 37th JUDICIAL DISTRICT OF PENNSYLVANIA WARREN COUNTY BRANCH CRIMINAL
Defendant has timely filed a motion for reconsideration of sentence and a motion to withdraw his guilty plea entered on April 26, 1991. Initially, Defendant was charged as a co-defendant with Jay William Buckley on one count of criminal homicide, kidnapping and rape. The Commonwealth and Defendant entered into a plea negotiation wherein the Defendant agreed to testify truthfully for the Commonwealth against the Defendant Buckley, who was similarly charged, and in exchange therefor the Commonwealth agreed to permit the Defendant to enter a plea of guilty to one count of felonious restrain, one count of indecent assault and one count of hindering apprehension. Following a five-week trial, the Defendant Buckley was acquitted of all charges on June 6, 1991. During the course of the trial, Defendant testified for the Commonwealth of his involvement with Buckley in the kidnapping, rape and homicide of the victim. 1 ___________________________________________________________
1. The victim, Kathy Wilson, disappeared on May 18, 1988, from Chautauqua County, New York. Her remains were found in a wooded area in Warren County, Pennsylvania, on September 24, 1989.
On cross examination by counsel for Buckley, Defendant
repeatedly recanted written statements given to both the New York State Police and Pennsylvania police pertaining to his and Buckley's involvement in the commission of the crimes.
2
On June 28, 1981, Defendant was sentenced on the charges entered by him on the plea negotiation to stand committed to total incarceration for an aggregate minimum of 7 years to a maximum period of 14 years.
We scheduled a hearing on Defendant's post-sentence motion with Defendant and his counsel present, and under oath Defendant recanted his trial testimony that he was in any way involved as an eyewitness as he had testified at the Buckley trial.
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Defendant's reason for telling the police he was an eyewitness is he was promised a $25,000 reward from residents of the Chautauqua County area where the victim resided, handled by the New York State Police and a $1,000 reward from "Crimestoppers" of the Pennsylvania Police.
Defendant, then 16 years old, under promise of the reward, was surrepticiously (sic) picked up by a limosine (sic) at Falconer, New York, the place of his domicile, and readily entered the vehicle on expectation that he would receive the reward money when he arrived in Warren County, Pennsylvania. On arrival at the State Police Barracks in Warren, he was arrested and charged.
Thereafter, the record is replete with taped interviews with the Defendant at different times by the police and extensive questions
and answers given correcting and recorrecting dates, times and places that would corroborate Defendant was an eyewitness.
This procedure culminated in the plea bargain agreement entered into by Defendant and the Commonwealth on December 20, 1989, that reduced the charges against Defendant.
In consideration of the reduced charges, the Defendant agreed to
fully cooperate with the Commonwealth in the prosecution of Jay William Buckley;
to provide, under oath, a complete and truthful account to the Commonwealth of his involvement in the crimes;
to waive his right to a preliminary hearing;
3 to truthfully testify at all Commonwealth criminal proceedings against Buckley, commencing with Buckley's extradition hearing from Chautauqua County, New York; and in the event Defendant failed to abide by the terms and conditions of the agreement, the Commonwealth
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would not be bound, and the Defendant would be fully prosecuted on all proper charges. The agreement carries no mention of reward monies for Defendant's testimony. We have reviewed the Defendant's Exhibit No. 1, a taped interview between Defendant; Trooper Herzog, who was the primary investigator for the Commonwealth and his then attorney, John Aranyos, Esquire. This statement makes it clear the Commonwealth urged the Defendant to make a full and honest disclosure of his knowledge of the events that led to the death of the victim. It is apparent from a reading of the interview Defendant is being urged to fully cooperate with the Commonwealth by Trooper Herzog and his counsel, and it is also apparent Trooper Herzog had some misgivings that Defendant was, in fact, being truthful. When confronted with Defendant's switch of events, Defendant's response was the crime occurred twenty months ago and it was difficult for him to remember everything in detail. On April 26, 1991, Defendant entered into an extensive plea colloquy with the Court wherein the Defendant was informed of his right to a jury trial on the initial charges, that (sic) he voluntarily entered into the plea negotiations, that he was aware of the extent of imposition of sentence; that he agreed that he had no defense to the negotiated charges against him, that he understood the definitions of the charges against him, that he entered the plea negotiations freely and voluntarily without any promises given to him of imposition of sentence, and that he was entering into the plea negotiations because of his understanding that in exchange for truthful testimony against Jay William Buckley he would get reduced charges
due to the fact that he was not the principal actor in any of the crimes that had taken place. Further, Defendant's counsel, Mr. Bonavita, Esquire, entered into the record an extensive written guilty plea colloquy containing forty questions answered personally by the Defendant, primarily addressing Defendant's constitutional right to a jury trial and to the assistance of counsel and the lack of any promises other than the reduced charges.
On July 9, 1991, we held argument court to permit Defendant to advance his position in support of his post-sentence motions, after which we concluded an evidentiary hearing would be necessary. At argument
Defendant stated Trooper Herzog told him everything to say to the jury and Mr. Massa, Esquire, the District Attorney, more or less
went through Trooper Herzog to alter his testimony
that the victim would have to have been abducted from the Quality Market area in Falconer, New York,
rather than the Chautauqua Mall as Defendant had previously stated.
Trooper Miles of the Pennsylvania State Police, a polygraph expert of 18 years experience, stated he interviewed the Defendant prior to the Buckley trial at the Holiday Inn over a period of two days; and, after administration of the polygraph exam could not determine if Defendant's recantations were true or if his initial statements were true.
It was this officer's opinion Defendant was attempting to stay one step ahead of the Commonwealth
and was playing a game with the police.
We are now confronted with the enigma of Defendant recanting his trial testimony despite numerous opportunities to do so before and during trial.
WITHDRAWAL OF NEGOTIATED GUILTY PLEA
During the extensive colloquy to Defendant on April 26, 1991, Defendant meticulously identified his association with the Defendant Buckley in committing the crimes. During the course of the Buckley trial Defendant tenaciously clung to his eyewitness observation of his co-defendant's conduct, despite his admission of repeated falsehoods.
450 Pa.485 (197), held a sentenced defendant may have his guilty plea withdrawn to prevent a manifest injustice. Rule 320 of Rules of Criminal Procedure permits withdrawal of a guilty plea if justice dictates at any time before sentence. The rationale of the STARR case is the courts are more lenient in withdrawal of a guilty plea before sentence in that there is more likelihood the defendant may wait until the imposition of sentence to determine his dissatisfaction therewith and thereafter attempt to withdraw his plea and thus manufacture false reasons therefore. The CAPPELI court, following tt's precedence in COMMONWEALTH VS. BROWN, 242Pa. Super. 240, 363 A.2d 1249 (1976), stated:
It is apparent the Commonwealth, instantly, was
eager to utilize Defendant's identity
and confronted him with his various stories when they did not meet other physical specifications of incriminating evidence against Buckley.
Defendant at one point stated he and Buckley had taken the victim to Buckley's campsite and had her tied to a tree for a period of time, which Defendant subsequently recanted. Defendant claimed the victim was in the basement of his house for a period of time, and subsequently recanted that statement. Defendant had the victim in a gravel pit for a period of time, and subsequently recanted that statement. Defendant recanted
his two days of testimony to Trooper Miles at the Holiday Inn where he was interviewed
preparatory to his preliminary hearing held one month thereafter.
The tapes are replete with ambiguous answers, with Defendant constantly backfilling his answers by changing minute details and leaving his answers open-ended.
The tapes reveal the Defendant did not know the style of dress the victim wore or its color. There is no evidence from the tapes Defendant was directly told to correct errors that did not match other evidence the Commonwealth had or that he was prompted to give his answers the way the Commonwealth desired them;
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Defendant's testimony at trial indeed had the victim in the Brown residence for a period of time shortly after the victim's disappearance. *5
Another disturbing feature occurred during trial wherein the Commonwealth joined in an exhibit counsel offered in the Buckley defense of beer cans and a Southern Comfort bottle that were in the exclusive custody of the Commonwealth, given it by Defendant which the dates thereon precluded any credibility of Defendant's account he and Buckley had the victim in a gravel pit on May 18, 1988, in that both containers were manufactured
subsequent to
the victim's disappearance.
No logical explanation was given as to why the Commonwealth would join the Defendant's defense,
thereby discrediting it's own prosecution.
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was not disclosed to counsel for the Defendant per the court order mandating the disclosure of all exculpatory evidence.
If the Defendant is to be punished, it must be for the crime he committed and not for his fabrications.
We are compelled to conclude
For the foregoing reasons we enter the following Order:
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IN THE COURT OF COMMON PLEAS
OF THE 37th JUDICIAL DISTRICT OF PENNSYLVANIA WARREN COUNTY BRANCH CRIMINAL
AND NOW, to-wit, this 21st day of October, 1991, the sentence of June 28, 1991, is vacated.
The Defendant's motion to withdraw his negotiated guilty plea entered April 26, 1991, is granted.
_____________________ (signed)
Robert L. Wolfe, P.J.
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