ORIGINAL

COMMONWEALTH OF PENNSYLVANIA

       vs.

MICHAEL REUBEN BROWN

No. 228 of 1998

TRANSCRIPT OF PROCEEDINGS held in Courtroom No. 2 of the Warren County Courthouse, Warren, Pennsylvania, on October 9, 1998, before the Honorable Paul H. Millin, President Judge, Court of Common Pleas of the 37th Judicial District of the Commonwealth of Pennsylvania.

APPEARANCES:

PAUL E. von GEIS, Jr., ESQ.,
SENIOR DEPUTY ATTORNEY GENERAL
appeared on behalf of the Commonwealth

ELLIOT J. SEGEL, ESQUIRE
appeared on behalf of the Defendant

Reported By:

Jenny L. Cataldo
Official Court Reporter
Warren/Forest Counties
Warren County Courthouse
204 Fourth Avenue
Warren, PA 16365

(Proceedings commenced at 9:30 a.m.)

THE COURT: Good morning. This is the time set for sentencing court. We are going to take the sentencing in the case of Commonwealth vs. Brown first, then the Court is going to take a short recess, and then we will continue with the remainder of the sentences. Mr. Segel, do you want to bring your client before the Court here?

Comments concerning sentencing, Mr. Segel?

MR. SEGEL: Thank you, Your Honor. Your Honor, I provided a written memorandum earlier this morning to the Court and to Mr. von Geis for the Commonwealth, and much of my comments in general are noted in that written memorandum, and I refer the Court to that.

I am not going to go through it at length here, but the memorandum does set forth our basic position with respect to Michael's sentencing and outlines that position. It reiterates - - it's to a large extent based upon and draws reliance upon Judge Wolfe's opinion that he authored in October of 1991, and I will make reference to that a little bit here.

What I would like to do today is take this opportunity to refer to some specific examples of mitigating circumstances that I think are present in this case. The nature of the offenses, I believe, are covered

in the sentencing memorandum, and these current offenses, as we all know, relate back to the proceedings that happened essentially after Michael was arrested in October of 1989 and some before then regarding the murder of Kathy Wilson.

The history of those proceedings are set forth in the memorandum, and the Court is familiar with them, and I am not going to repeat them at this time, it's not really necessary. I would acknowledge, as I did in the memorandum, and Michael has acknowledged the seriousness of that matter and of the perjury charges to which he has pled guilty and to which he now stands before this Court to be sentenced on. He has acknowledged that, and accordingly, he had admitted the falsehoods.

If you look at the record in this case, the clear indications of what really happened and the admissions and so on came from Michael Brown in 1988 and 1989 and 1990 and 1991 all the way to the trial and after the trial of Mr. Buckley, and I am going to get into that a little bit for purposes of sentencing.

As I indicated, however, in my sentencing memorandum, Judge, one of the basic and I think fundamental mitigating circumstances, and I am referring to my memorandum, is that the very law enforcement officials in New York State and Pennsylvania and the

officers of the court, and I refer to both prosecuting attorneys and defense attorneys in this case, we believe, were more culpable than Michael Brown in posturing and pushing and implementing these known falsehoods all the way through the trial of Mr. Buckley, which ultimately compounded the tragedy for the family of Kathy Wilson and for this county and having Mr. Buckley's trial proceed to five weeks as it did.

Now, I am not saying that to condone what Michael did, and I made that very clear in the sentencing memorandum, but we are going to get into a little bit of Michael's culpabilities and how we got from Point A to Point Z in my remarks.

As far as Michael's circumstances and in his own background, those are matters that are, again, relevant for sentencing, and those were pretty much laid out in the sentencing memorandum, Judge, and just to mention a few here. He is 27 now; he was only 17 years old at the time he was arrested. He was 16 when he first had contact with the police and that's important to keep in mind. We are talking about a 16, 17, 18-year old kid in the face of what was going on and his interactions with his attorneys, the police from both states and with the prosecution officials involved.

He is married. He has a child he has never

seen. The child, I believe, is approximately two months old. The child was born while Michael was in prison here. The presentence report does note that he is to receive 149 days' credit for time served subsequent to this arrest. It doesn't make note - - and I called the probation office to try to get specific dates on this - - but the fact is Michael served over two years in jail in the Warren County prison from October of 1989 until he was released in 1991 on the initial charges that were filed and were dismissed against him, and I believe that's a circumstance of mitigation as well.

Going back to something I said, it leads up to the proposal we made. Our view that it's significant for purpose of sentencing that the Commonwealth knew that Michael - - all along that Michael Brown - - and not just the Commonwealth, the New York State authorities knew he was not an eyewitness, he was not a participant and yet they - - as Judge Wolfe found and wrote in his October '91 opinion, in their eagerness to use him at trial, nonetheless in spite of that knowledge they persisted to an unbelievable 27 statements before trial, painfully contradictory statements, Judge, to which Michael patched testimony, to which Judge Wolfe correctly noted, unraveled at the trial.

This was important for Judge Wolfe in his

opinion in October of 1991, and I specifically refer to his remark on Page 12, his finding, that simply because of that and just because of that, he wrote that if the defendant, meaning Michael Brown, is to be punished for anything, it must be for the crime he committed and not for his fabrications. The reason is, it wasn't just Michael Brown's fabrications, it was New York State police authorities' fabrications and Commonwealth of Pennsylvania's fabrications in prosecuting this case.

Now, the second alternative we have proposed, and I set forth is that he not receive any further punishment of any kind, and as I said in the sentence memorandum, the starting and end point of the justification is Judge Wolfe's opinion. Everything in between are the mitigating circumstances that are unique to this very unique case. It's our position that Judge Wolfe was probably in the best position of anybody to come to an opinion about this matter. He presided over all of the pretrial matters, and he presided through the five-week trial. He presided through the posttrial motion and motion for Michael to withdraw his plea. There were additional hearings and additional tapes that weren't disclosed prior to the trial that were disclosed then, and I recall being here on October 9, 1991, and listened to previously undisclosed tapes with Judge Wolfe and other

attorneys from nine o'clock in the morning until past four o'clock in the afternoon, and he presided over all of that. He painstakingly analyzed all those things in his opinion, and again, I quote the same line is, if the defendant is to be punished, it must be for the crime he committed and not for his fabrications.

What are the mitigating circumstances? What brings us to that conclusion? What brought Judge Wolfe to make that statement? It's our position that the mitigating circumstances are best found in this general reality that existed in the statements.

If you look at the voluminous record in this case, which I have done and the attorney general's office has done, and you try to look at it objectively - - I say this knowing I am Mr. Brown's advocate - - if you try to look at it objectively, Judge, what you find is that the facts are very clear - that Michael Brown, number one, was not a eyewitness and was not a participant.

Number two, it was clear to the New York State authorities and Pennsylvania authorities that that was true. There was unrefuted and irrefuted evidence in the form of documentary evidence, work records, time card sheets at work, work orders that he signed that day; statements from his employer and co-employee, and there is other things I will get to in a second.

All of those things were known to the officials in New York State, all these things were known to the officials in Pennsylvania, and they show up conclusively. He wasn't there. He couldn't have been an eyewitness.

Fact No. 2 is that from the very beginning, even before he was arrested, that's what he said consistently to the New York State authorities, who was the sole law enforcement agency that was investigating this case. He wasn't there. And there were polygraphs done and hypnosis, and all came up with the same thing.

The next thing that we see in, again, addressing this generally is that he is arrested under surreptitious circumstances. As found by Judge Wolfe, he is brought here to Pennsylvania, he tells his own lawyers the same thing he tells the enforcement officials, the same thing, I wasn't there, and then what goes on for 25 statements is a continuing process of statements that change, pushing, prodding and intimidation by the Commonwealth on the one hand and providing special favors on the other hand until we get to the point where he testified at trial.

Now, in an effort to speak a little bit more specifically to those things, again, the investigation in this case, the New York authorities were aware of the

records from work, the documentary evidence from Michael Brown's - - which is A, which shows he was there; his signature on work orders, the time cards, the interview with the employer and employees, and could not be an eyewitness or a participant.

He was taken by the New York authorities, Jamestown Police Department, very early on, to Buffalo, New York and given a polygraph, and he has never seen the report, and I have never seen a report, but he was told by Detective Welsh, by the Jamestown Police Department, he passed, they believed he wasn't there. He told this to his lawyer, Attorney Aranyos, who was his first defense attorney.

Shortly after that, he was again taken by Detective Welsh and Detective Stewart of the Jamestown Police Department to the Holiday Inn in Jamestown, New York, where for four hours he was put under hypnosis and, again, I don't have a report. This was someone from Albany, and he was told afterwards by Detective Welsh that the hypnosis confirmed that he was not involved in this murder.

This was related by Mr. Brown to Trooper Herzog when he came to Pennsylvania, because Michael specifically told Trooper Herzog what are you going to do about my work record and the hypnosis session and the

polygraph in Buffalo - that all says I wasn't there, and Trooper Herzog told him not to worry, that that would be taken care of.

So very early on everybody involved in this investigation knew from all that evidence, overwhelming evidence, that Michael Brown wasn't an eyewitness and wasn't there and wasn't a participant. What he said consistently was he had information that was related to him by Mr. Buckley after this all occurred.

Now, there was this $26,000 reward - - 25,000 from New York and $1,000 from the Crime Stoppers in Pennsylvania. Michael contacts the authorities. He is clearly motivated by the reward. He is 16 years old. He tells the police about this, and again, he has the information through that Mr. Buckley told him and then the work records, and the polygraph and hypnosis and all that, and it's consistent and it stands up that he wasn't there.

So what do the authorities do with that information? As Judge Wolfe characterized, they had the surreptitious limousine ride from Falconer to the Warren County Jail where they were there extensionally (sic) to pick him up to give him the reward money, and Richard Hernan, who was the district attorney in Warren at the time, testified later in 1991 at one of the hearings before Judge Wolfe that he arranged the whole thing.

He arranged this scenario to have Michael brought to the Warren County Jail so it would look like he was being brought voluntarily. So with all that information that they had that Michael wasn't there, but he had information related by Mr. Buckley, to all the investigation that confirmed he wasn't there, they begin what is a course of manipulation of the then 16-year-old. Now, he is 17 years old. This is October of '89. And that begins the manipulation by the law enforcement authorities with Michael to patch together this string of 27, 26 statements and trial testimony which fell apart completely at the trial. When he was first brought here after that limousine ride and arrested he, again, told his lawyers and the authorities, I wasn't there, I wasn't a participant.

He was charged with murder, kidnapping and rape and told he could receive a life sentence or possibly the death sentence, if, in fact, the prosecution wanted to go with that.

So Michael, now 17, is continuing to tell his own lawyers and initially, the prosecuting authorities and the police, that he wasn't there, and this is what he is getting. So then what happens? On the one hand he is told this is going to happen, if you keep saying you weren't there, the charges are going to stick. You can

face a life sentence or a death sentence, and at the same time when they wanted to get his cooperation, he was given special privileges while he was an inmate here.

I have a letter - - there is a phone message from the public defender's office - - from Tom Bonavita's office, from February 5, 1991. He writes a letter to Mr. Bonavita, who then is his lawyer. And he says, "I would like you to file for bail reduction. I want this to go in front of the judge as soon as possible. Also, I want the money receipts that I gave John Aranyos. They are the ones from when Herzog put money in my account, and he goes on.

There was money deposited into the account by Trooper Herzog. In addition, he was given conjugal visits with his girlfriend at her home. In addition, he was given approximately eight visits with his parents at their home in Falconer, New York, and each time it was brought there was after he made a new statement different from a prior statement and left alone by the officials to get together with his family so they could get together with his new statement.

So, on the one hand he knows in January of 1991 there is a letter from Mr. Massa to his attorney saying we are not sure Mr. Brown is being truthful, we are going to revoke the plea agreement, he is going to face a

life sentence if he is convicted, and always on the other hand there is the prosecution officials with the money in his account the visiting privileges and conjugal.

You might ask how did Michael know some of the details he talked about, which by the way, changed over time? Again, this was something that Judge Wolfe wrote about and something that came forth clearly on the tapes listened to. He got the information from the lawyers and the police who spoon-fed the information.

There is a painstakingly long conversation on the tape from June 20, 1991, where - - actually it was June 19 and June 20, where Michael is brought to the Holiday Inn in Warren and Trooper Miles from the Troop E barracks, state police in Erie, is brought down to give him a polygraph and over two days when he went in to Trooper Miles he said, I wasn't there, and I didn't participate, and I don't know anything about it. He was brought back into the adjoining room to get the story straight, and we had the tapes we listened to that day, October 1991, when they were disclosed for the first time after the trial.

There is a long discussion about discrepancies and Michael asked about what Kathy Wilson was wearing, what - - describe the clothes, and the discrepancies and the discussion on the tape goes on and on and on and on and it appears in other places.

What happened, his description of the clothes kept changing, and when they kept changing he was asked by the prosecution officials, are you sure, wasn't it this and so on. What happened, Judge, is Michael wasn't there. He has no idea what Kathy Wilson was wearing. He went back and told that to John Aranyos. John Aranyos hands him a picture of Kathy Wilson and the description of the clothes that Michael gave and the reason that the police knew it wasn't right and why they had this long discussion was that the description of the clothes she was wearing in the picture, it wasn't what she was wearing that day.

When he told his attorney, who is supposed to be looking out for his interest, that I don't know what she was wearing, I wasn't there. His attorney hands him a photograph, and this, I believe in talking with attorney general's office, was corroborated from their investigation.

How did he know about the crime scene? There is a description in statements he gave about where the purse was found, and again, this is a subject of a lot of discussion on that tape. He was asked how do you know that. He described where other things were found at the crime scene. Do you know how he knew it? He was taken by Trooper Herzog to the crime scene, and they had stakes with labels, "purse" over here and "body" over here. It

was all mapped out, and Michael was taken there, and after he had a chance to look at all that, then they took a statement and asked him where were the - - where were the things left and he describes it. They never came forward and said that they showed him the photo and they showed him the crime scene.

This is something I believe the attorney general's investigation also corroborated. When Michael was having problems because he wasn't there, and they knew he wasn't there, they went along with it, and they - - when I say, "they," I am not just talking about the prosecution officials, I am talking about his own attorney. They were giving him the information to regurgitate, and it's no matter that it all unraveled when it finally went to trial.

Then we have the facts that, as Judge Wolfe stated, it's very evident from early on after his arrest in addition to the matters I have already pointed to that Michael made it very clear and tried to make it clear he wasn't there and he wasn't an eyewitness, and Judge Wolfe points specifically to the December 1989 report from the psychologist who interviewed Michael on a couple of occasions because of the certification hearing from juvenile to adult court, and the psychologist report says Michael repeatedly said he wasn't there, he wasn't an

eyewitness. He knows what he knows because Buckley told him. That became an official part of the record of this case. The Commonwealth obviously had it.

So that's another independent source to corroborate that Michael was telling people all the while the prosecution was working out a deal with him, that he wasn't there. Then there is the Trooper Miles' incident that occurs in June of 1991 and wasn't even known before the trial, and I already mentioned that. It bears a few other comments. Trooper Miles, I believe, is now retired. I came to know Trooper Miles fairly well. He was always stationed in Troop E barracks in Erie, and that's where I practice.

When I got involved in this in 1991 for a brief period of time when Michael wanted to withdraw his plea, I talked to Trooper Miles and I asked him about these tapes after I found out about the tapes. I asked him what happened, and he had said the DA's office in Warren asked me to do a polygraph and told me about the case, and I strongly urged them not to have me come down there and do that. 1 told them beforehand there is no way that after he had already given 12 or 13 contradictory statements that a polygraph would be of any use, there is too much old baggage with all the old statements to have a polygraph guy come down and give a statement and determine

this is truthful or not. They insisted I come down. They had me in a room in the Holiday Inn, and in the next room in the Holiday Inn was Michael Brown and his lawyer at the time and the DA and Trooper Herzog and so on and so forth, and it was a long time before I even got to talk to him.

They then bring him into my room, he sits down. I tell him what I was going to do. And Michael tells him I wasn't there and I didn't do it and I have been trying to tell these people, and Trooper Miles, before he did anything else, went into the other room and told that to Mr. Brown's lawyer and to the DA and Mr. Herzog and people that were all there.

Well, that's why they went into a second day at the Holiday Inn, because they had to take Michael Brown back in and go through this long process on the tape that - - the tape we listened to in Judge Wolfe's chambers in October '91, to try to get him straight. Again, when he goes back to Trooper Miles and does the polygraph, Trooper Miles says it's inconclusive. Like he said, he could have told you that before he started.

Again, when he was given another opportunity he tells, again, Trooper Miles, who is going to do the polygraph, I wasn't there, and I didn't do this. And it didn't stop there, Judge. He spoke to his lawyers on several occasions and wrote them and said, look, this has to stop. I can't continue to do this. I need to talk to 16 you. Now, Michael first told me that back in 1991 when I got involved with his motion to withdraw, and when I got the file, I said, do you have any letter that you wrote. He said, no, I sent them all - - any letters I sent, if there are any, would be in the public defender's office. When I was given the file from the public defender there were a series of letters. Some are not specific, and I asked him. He said there are certain things that you can't say when you are writing from the prison. Here is the first letter that I will show the Court. October - - or I am sorry February 25, 1991, he writes to Mr. Bonavita, who is his attorney. He says here is what you requested. I hope it's what you wanted. There are several things I would like to discuss with you in person, just the two of us. I feel I must open up and tell you everything from day one until now. I just don't want it to cause any conflict between us, I want to work with you, but I don't think we can do so unless you know everything. Michael tells me he couldn't state what he wanted to talk to Mr. Bonavita, which is we have got to stop this road show because it's not true. He never got a response to this letter. Here is a letter that was sent, and this is 17 marked, received, public defender, Warren County, received May 29, 1991, which is during the trial. This letter was sent to - - it was to a Mr. Baumer, and it says, "I need to get ahold of Ross McKeirnan immediately. Ross McKeirnan was in the public defender's office. Mr. Bonavita was still the attorney for Mr. Brown and Mr. Bonavita was away. He was trying to get ahold of Mr. McKeirnan. He sent messages from the jail to the public defender's office. He needed to see his attorneys to talk to them. He didn't get any response. He writes this letter. There are some things I need to talk to him about. I can't let it go any longer. Please either let me use the phone to call him or would someone down there call him this morning. I need to talk to him. It pertains to this trial. He did get a response from Mr. McKeirnan to that. He told Mr. McKeirnan he wanted him to set a meeting up with the judge because he wanted to tell the judge that everything he was testifying about and all that those prior statements were untrue, he wasn't there, he wasn't a participant, which is significant even legally, because if someone recants during the procedure when they were giving false testimony, it's no longer perjury. It's more significant because it would have been the right thing to do, and it could have put a stop to that fiasco that was this trial that was going on. 18 What happened was on a Friday afternoon, the next Friday after that letter there was a - - at the end of the day after the end of the testimony - Mr. Brown had been testifying - - at the end of the day there was a meeting in chambers with Judge Wolfe. Michael was present, Mr. McKeirnan was present, and Mr. Smith was present on behalf of Mr. Buckley, Mr. Massa was present and John Aranyos was present also. Now, Michael says to himself, this is it, this is where I get my chance to tell the judge. If you look at the record, and Michael told me about this, and the * trial transcript corroborates this, the only thing discussed then was whether or not a specific tape was going to be admissible or not. When that discussion was ended everybody stood up to leave, Mr. McKeirnan stands up to leave and Michael yells Ross, Ross, and he keeps walking out the door - - and Michael thought the purpose of the meeting was so he could tell this to the judge, consistent with this letter, but everybody walked out of the room and left him there.

Here he is, 19 years old, and he has gone through this 16, 17, 18 and 19, and basically he is the actor. He is not the writer or the producer or the director. His own attorneys had a hand in that; the New York officials had a hand in that; the Pennsylvania Law

enforcement officials had a hand in that, and they weren't 16-year-old kids or 17-year-old kids, and every time Michael, whether it was to the psychologist or Trooper Miles or his own attorneys, tried to stop that slippery slope, he was thwarted in each attempt until after the trial, and then with his motion to withdraw the plea, and then we had the additional hearings and Judge Wolfe comes to the same conclusions. The Commonwealth knew that Michael Brown wasn't there. They knew he wasn't a participant. For whatever reason, they participated in patching together these stories and this testimony with Michael that was presented at the Buckley trial and that unraveled.

Now, Judge, the relevance of that is this. The only person I see standing to be sentenced is Michael Brown. He is certainly culpable for what he did. There is certainly something to be said for him for trying, with his lawyers, and to Trooper Miles and the psychologist, and the New York authorities - from the start, to stop this. But again, we are dealing with a 16, 17, 18, 19-year-old kid who is interfacing with experienced police officers, attorneys, prosecutors and so on - - particularly, his own attorneys who are supposed to be watching out for his interest. He has admitted what he did was wrong. He always acknowledged - - he tried to acknowledge it from

1989, and it was just, okay, we are going to go with the murder, number one, with you then.

On the other hand, here is some money, go have a conjugal visit. That's what he got. Nobody else from the New York - - Jamestown, from the state police, or from the district attorney's office, or his other attorneys have ever admitted they had anything to do with this. It would be ridiculous to think that Michael Brown did this all by himself. He is the puppet and they are the ventriloquists. He spent two years in jail for something that he came forward, whatever his motives were, as a 16- year-old with good information for the investigating authorities that he received from Jay Buckley.

Instead, he got charged with it and was in jail for two years, charged with something that they all knew he could not have done, because he wasn't there, and he wasn't an eyewitness. And he is led through this maze of lies which unraveled at the trial, and everybody else gets to walk away from it and pretend that - - I shouldn't say "pretend" - - it didn't happen, but not take any accountability at all for it, and here he is today after spending 149 days in jail for these charges.

I don't believe that you can find any more mitigating circumstances in a case than those presented there. The sentencing guidelines, which we do not

dispute, have a standard range of zero to 1 and a half months and mitigated range of nonconfinement. This is a mitigated range sentence, Judge, we believe very strongly. We believe if you take into account the 149 days he has already done and the two years for - - technically, he may get credit. No one can give him those two years back, and certainly, the time he spent is beyond even the aggravated range, if you ran consecutive for these two charges.

Based on all of that, it's our position today that the most appropriate sentence would be a sentence which does not punish him any further, however that is fashioned. Having said all of that, I would be remiss if I didn't say this. Nothing that I have said, again, on Michael's behalf is meant to condone what he was involved in, and nothing that I say on his behalf should take away from the larger picture here, which is this was a botched investigation, inexcusably so.

I submit you can go to any courtroom and search for the last century and you will never find an investigation where a witness who, if prosecuting officials knew was not a witness, was not there, went through 25, 26, 27 statements. You don't do that. Nobody does it. Nobody, I don't have an answer why it was done in this case. But we all know what the result is. The result is, there was a trial which was doomed before it

started, and to this day, and for purposes of Kathy Wilson's family, nothing has been resolved. That's not on the shoulders of Michael Brown. The people who have never been held accountable for that are the Jamestown Police Department and Trooper Herzog and the district attorney's office. That's on their shoulders, and that's the larger picture. Again, I say that because nothing I say on Michael's behalf is meant to detract from that.

Having said all of that, Judge, I defer to whatever sentence the Court gives to the defendant.

THE COURT: Thank you. Mr. von Geis.

MR. von GEIS: If it pleases the Court, pursuant to the plea agreement, Commonwealth agrees to nolle pros Counts 3 through 7. I have a petition for that proposed purpose.

THE COURT: It's granted.

MR. von GEIS: In response to Mr. Segel's argument concerning comments made by Judge Wolfe, and this is in his opinion concerning allowing Mr. Brown to withdraw his guilty plea and the quotation was, if the defendant is to be punished for anything, it must be for the crime he committed and not his fabrication.

Mr. Segel misconstrues this to apparently infer that Judge Wolfe is saying that the defendant shouldn't be punished for these admitted perjuries,

That's not what the judge was saying. He should not prevent him from withdrawing his plea and punishing him for his fabrications which is he was not charged with at that time.

With respect to the argument made by Mr. Segel concerning giving Mr. Brown credit for previous time served, I am now referring to the time served in prison prior to withdrawing the guilty plea on the indecent assault and restraint and hindering apprehension terms, I submit to the Court that's covered by statute 9760 sentencing code title 42 which prohibits a Court granting time served for that kind of charge that is totally unrelated to these charges he is before the Court today.

With respect to the present charges, Your Honor, in fashioning a recommendation to the Court, I have found the sentencing court to be very useful, and I am sure Your Honor referred to it as well. As the Court is aware, Sections 9722 and 9725 deal with, first of all, conditions relative to probation, and secondly, conditions relevant to total confinement, as in sentences.

I am referring to this in response to Mr. Segel's indication or recommendation to this Court that the defendant be simply sentenced to time served and permanently be placed on probation or receive no further punishment.

With respect to 9722 of the sentencing code, it contains a list of factors, the first of which is, "the criminal conduct of the defendant neither caused nor threatened serious harm." In this case, either one of two things happened. Either the false testimony of Mr. Brown for some two years caused a guilty man to be freed for this heinous crime who now is forever prevented to be retried in the state of double jeopardy, or cause an innocent man to be needlessly be placed on trial for his life. In either case defendant's conduct is harmful to the social fabric of Warren County and Jamestown, New York and the very judicial system in Warren County.

"The defendant did not contemplate that his conduct would cause or threaten serious harm." I submit to the Court this defendant couldn't have been contemplating anything but serious harm resulting from his conduct. "The defendant acted under strong fabrication." In this case the defendant acted under pure greed in seeking a $25,000 reward in exchange for the lives of Jay Buckley and Kathy Wilson.

"There were substantial grounds tending to excuse or justify the activity of the defendant, though failing to establish an offense." There isn't any excuse or justifications.

"The victim of the criminal conduct of the

defendant induced or facilitated its commission." In this case Kathy Wilson and Jay Buckley happened to be targets of Mr. Brown's greed.

"The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained." I submitted to the Court, Your Honor, even if Mr. Brown was inclined to provide compensation, there has been no amount paid to reconcile the damage sustained in this case.

"Criminal conduct of the defendant was the result of circumstances unlikely to recur." As I indicated earlier, the defendant's criminal conduct was a result of taking advantage of a reward opportunity, which is virtually - - "the character and attitudes of the defendant indicate that he is unlikely to commit another crime." The character attitude of this defendant reflect a person who is in complete disregard of a social duty.

“The defendant is particularly likely to respond affirmatively to probationary treatment.” I submit, Your Honor, that a defendant like Mr. Brown who is capable of pressing forward with his knowingly false testimony for a period of two years is not likely to respond to probation or treatment.

Section 9724 of the sentencing code deals with total confinement and "the Court shall impose a sentence

of total confinement if, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because: (3) a lesser sentence will depreciate the seriousness of the crime of the defendant."

I submit to the Court, Your Honor, that in this case any sentence less than total confinement would simply demean the gravity of this defendant's actions, blindfolds the fact these crimes each carry a maximum sentence three to seven years' imprisonment or a $15,000 fine. I would recommend on behalf of the Commonwealth of Pennsylvania that the defendant be sentenced to total confinement for a period of time which this Court deems to be appropriate. Does the Court have any questions?

THE COURT: Thank you. Mr. Brown, do you have anything to say to me before sentence?

THE DEFENDANT: I am sorry the way - - of what the outcome of this was and what had actually transpired there in the investigation. I am sorry. My lawyer covered - -

THE COURT: I am a new player in this scenario. I was not in office when all these events occurred. Only recalled, before getting somewhat involved in this sentencing proceeding, from that what I read in

the newspaper.

Given my limited involvement with it and my review of the record, I think that there is a great deal of truth in a lot of the things that Mr. Segel has pointed out. You were a very young person when all this occurred. Obviously, what was going on - - obviously, the authorities had to be aware of what was going on prior to presenting you at the time of trial. I don't think anyone can come to - - who reviewed it can come to any other conclusions. And in fact, that's the conclusion that every independent analysis of this has resulted in.

Notwithstanding that fact, what Mr. von Geis has pointed out is also true. You initially got involved in the perpetration of this crime for the purpose of greed. You had to know that what you were about was either creating substantial harm to an innocent man would go to prison or that a guilty man would go free, and that you would contaminate an investigation in first degree murder.

In either case, your actions have resulted in untold grief of the Wilson family, untold grief to everyone that was connected with the victim in this case, and generally both this community and the larger community across the state line. The fact that you were aided and/or abetted in committing this crime by other individuals