COMMONWEALTH OF PENNSYLVANIA	)
	)
VS	)
MICHAEL REUBEN BROWN	) No. 228 of 1998
	)

COMMONWEALTH OF PENNSYLVANIA	)
	)
v.	)
MICHAEL REUBEN BROWN	) No. 228 of 1998
	)

     On September 11, 1998, the defendant, MICHAEL RUEBEN BROWN, appeared before the Honorable Paul H. Millin, P. J., and entered guilty pleas to two counts of perjury, Counts I and 2 of the above-captioned Information. This was done pursuant to a plea agreement with the Commonwealth, represented by the Pennsylvania Attorney General's office, wherein the Commonwealth has agreed to dismiss the remaining counts of this Information.

     Mr. Brown is scheduled to be sentenced before Judge Millin on October 9, 1998. The purpose of this Memorandum is provide this Court with information regarding both Mr. Brown's background, and the very unique nature and circumstances underlying the above offenses, so that the Court will have benefit of consideration of all individual sentencing-relevant factors before fashioning an appropriate sentencing in this case. Counsel will also attempt herein to justify a specific sentencing proposal as a rational and just sentence for this case, which serves and balances the interests of the citizens of the Commonwealth, those of Mr. Brown, and again, the unique circumstances including the plethora of mitigating circumstances which dominate this matter.

     Incidentally, defense counsel will in many respects rely heavily upon the October 22, 1991 Opinion and Order of the Honorable Robert L. Wolfe, at docket No. 6 of 1990 of this Court. Said Opinion was the culmination of Judge Wolfe's having presided over all of the pre-trial, trial and post-trial proceedings in the related murder prosecution of Jay William Buckley and former-related prosecution of Mr. Brown. For this Court's convenience, counsel has attached a copy of Judge Wolfe's Opinion and Order and incorporates it in its entirety herein as Exhibit "A".

     The pending offenses against Mr. Brown arise from the ashes of the ruins of the Commonwealth's flawed investigation and failed prosecution of the murder of Kathy Wilson. To understand the nature of the instant offenses, then, one must first understand at least the history and background of these underlying cases.

Kathy Wilson disappeared from Chautauqua County, New York on May 18, 1988, and her remains were found in a wooded area in Warren County, Pennsylvania on September 24, 1989. In October of 1989, Mr. Brown, then age 17, was charged as an adult with one count each of criminal homicide, kidnapping and rape. On December 20, 1989, represented by the Warren County Public Defender's office, executed a plea agreement with the Commonwealth, whereby he agreed to plead guilty to the reduced charges of felonious restraint, indecent assault and hindering apprehension in return for truthful cooperation against the co-defendant in the murder case, Jay William Buckley. Mr. Brown entered guilty pleas pursuant to this agreement on April 26, 1991.

     In May of 1991, Mr. Brown testified for approximately one week as a Commonwealth witness at Mr. Buckley's trial. Mr. Brown's extensive trial testimony revealed literally hundreds of recantations and contradictions with statements he had given to various law enforcement and prosecution officials on approximately 27 other occasions during their investigation of this matter. After a five week trial, Mr. Buckley was acquitted of all charges on June 6, 1991.      Judge Wolfe had presided over all pre-trial and trial proceedings related to both Mr. Brown and Mr. Buckley's cases. On June 28, 1991, Judge Wolfe sentenced Mr. Brown on the aforesaid plea-reduced charges to an aggregate term of incarceration of 7 to 14 years.

     Following his sentencing, Mr. Brown filed a motion to withdraw his guilty pleas. Judge Wolfe presided over arguments of counsel on July 9, 1991; a lengthy evidentiary hearing held on September 4, 1991 at which testimony was taken from Mr. Brown and some of his family members as well as from a number of the police and district attorney officials involved in the investigation and prosecution of the matter; and a day-long proceeding held on October 9, 1991 during which four previously un-disclosed tape recorded statements of Mr. Brown were presented and played as evidence for the Court's consideration. On October 22, 1991, Judge Wolfe issued an extensive Opinion and Order which vacated Mr. Brown's June 28, 1991 sentence, granted his motion to withdraw his guilty pleas, and granted the Commonwealth leave to prosecute Mr. Brown on the initial charges filed against him, i.e., the homicide, kidnapping and rape charges. [It is extremely significant that Judge Wolfe, after his extensive first-hand review of all of the foregoing proceedings, parties and witnesses, wrote that "if the Defendant is to be punished  (it must not be) for his fabrications".] See, p. 12 of Judge Wolfe's Opinion, attached hereto as Exhibit "A". The pertinence of this is elaborated upon below.

     Within a few days after Judge Wolfe's Order, the Warren County District Attorney's office nolle prossed all of the charges against Mr. Brown. He was then released from the Warren County Prison where he had been continuously incarcerated on the charges ever since the date of his October 1989 arrest, a period of over two years.

     As we all know, however, the matter did not end there. Mr. Buckley, through his attorney, Barry Smith, filed a private criminal complaint naming Mr. Brown, Pennsylvania State Police Trooper John Herzog and Warren County District Attorney Joseph A. Massa, Jr. as defendants, alleging that they had conspired to present false testimony at Buckley's trial. The Pennsylvania Attorney General's office stepped in to review the merits of this matter and in July 1993 disapproved this private complaint.

     Mr. Buckley, through attorney Smith, appealed this decision to this Court, which entered an order directing the Attorney General's office to prosecute Mr. Brown only (i.e., not Trooper Herzog or District Attorney Massa) on charges of perjury, false reports to law enforcement agencies, tampering with evidence, hindering apprehension, obstruction of justice, and unsworn falsification to authorities. On the Commonwealth's appeal, a divided Superior Court affirmed the trial court's decision in this matter. Finally, on the Attorney General's appeal to the Pennsylvania Supreme Court, the orders of the trial court and the Superior Court were affirmed by virtue of an evenly divided, 3-3 opinion. Thus, by virtue of the September 11, 1998 plea in the above matter, Mr. Brown now faces sentencing on one count charging him with committing perjury during the preliminary hearing held in Mr. Buckley's case, and another count charging him with committing perjury during Mr. Buckley's trial.

     Mr. Brown has openly admitted and accepted responsibility for performing the acts which constitute the bases of the instant perjury offenses. Indeed, as discussed more fully below, he acknowledged all of this from 1989 through and beyond the 1991 trial of Mr. Buckley. (It cannot go unnoticed, however, that those law enforcement officials from both New York and Pennsylvania and those officers of the court, i.e., the attorneys involved in both the prosecution and defense of Mr. Brown in the underlying case, who must be considered in the eyes of the defense more culpable in perpetrating and fostering the botched investigation and presentation of knowingly, false evidence which led to the fiasco of Mr. Buckley's trial, ultimately compounding the tragedy for the family of Kathy Wilson, have yet to admit or accept their responsibility and, of course, will not be standing along side of Mr. Brown at sentencing for their roles in this mess.) We do not attempt here or at any place in this Memorandum to condone Mr. Brown's conduct. We view it, and know that this Court does with the seriousness it deserves. As this Court knows, the seriousness of offenses are only one of several factors which are to be considered by a sentencing court in fashioning an individualized sentence based on the specific factors of a given case. It is in this context that counsel will address several other relevant factors in an attempt to provide this Court with both a fuller understanding of the circumstances surrounding Mr. Brown's involvement in these offenses, and a fully-justified explanation for the sentencing proposal made herein.

     Michael Brown was born on June 1, 1971. He is currently 27 years old. More telling, he was only 17 when he was initially charged on the underlying offenses and first had contact with

the various -law enforcement officials who helped steer his way to his date with destiny before this Court on October 9, 1998.

     He is married and with his current wife has one child who was born approximately two months ago while Michael was incarcerated on the current charges. He has another dependent, a 7-year old daughter born from a prior relationship. He continues to enjoy the strong support of his parents, siblings and other family members.

     Michael left school in the ninth grade. However, in August of 1990 he obtained his G.E.D. Certificate. Michael accomplished this during his previous two-year incarceration in the Warren County Prison mentioned above. (A copy of the G.E.D. Certificate is attached hereto as Exhibit "B".)

     Speaking of that incarceration, counsel notes that the pre-sentence investigation report accurately sets forth that Michael will have served and should receive credit for 149 days of incarceration on the perjury charges filed in the instant case. The Pre-Sentence Report does not, however, mention the approximately two years of incarceration Michael spent from 1989 through 1991 in the Warren County Prison awaiting disposition of the underlying case. While technically, Mr. Brown may or may not be entitled to credit for this first, lengthy period of incarceration, since that was served pursuant to the initially filed charges at docket No. 6 of 1990, it is the strong contention of counsel that Mr. Brown should receive credit, at least in mitigation, for this two plus year period of incarceration. Counsel will speak more to this issue below in this Memorandum and/or at the time of sentencing.

     At the time of his arrest on the charges filed in the instant case, Mr. Brown had been employed for approximately three months as a clerk at Summers Auto and Truck Parts in Morgantown, West Virginia. Prior to that he worked for approximately six months with his

father, as a mechanic at D & J Equipment in Kentucky. Generally speaking, he has worked at a number of various jobs since his mid to late teens. At the time of his arrest in 1989, he had been gainfully employed at A. M.O. Marina in Chautauqua County, New York.

     Several years ago Michael was diagnosed as suffering from schizophrenia, and received Social Security disability benefits as a result. For several years he has been under medication, specifically Haloperidol and Cogentin, for side effects of the former. Michael's illness for the most part controlled through the medication.

     The extent of Mr. Brown's criminal record which existed prior to the commission of the perjury offenses at issue herein is limited to a single 1988 attempted petit larceny conviction which arose out of a Town Court in Jamestown, New York. On that record, counsel is in agreement with the Sentencing Guidelines which are presented at page 7 of the aforesaid Pre-Sentence Report.

     Mr. Brown submits that it would not be appropriate for this Court to give weight to any of the other matters listed at page 2 of the Pre-Sentence Report regarding his criminal record, since all of these occurred after the offense dates of the perjury charges pending in this case. To the extent that the Court does give consideration to same, counsel would simply note that all of these subsequent offenses are relatively minor. In those regards, counsel's records, which were obtained through discovery from the Attorney General's office, indicate that the 1995 possession of a forged instrument offense listed in the Pre-Sentence Report as a felony, is in reality a Class A misdemeanor.

     Finally, the Pre-Sentence Report is correct at page 5 in indicating that Mr. Brown was arrested in Morgantown, West Virginia on May 14, 1998 and taken into custody by Warren County officials on May 18, 1998. However, it is not correct, as apparently characterized by the

Commonwealth at Mr. Brown's plea proceeding, that he was a fugitive in West Virginia eluding law enforcement officials in this matter. To the contrary, as set forth above, he was employed in Morgantown, West Virginia at this time. Further, on May 12, 1998, Mr. Brown called undersigned counsel at my office in Erie, Pennsylvania and related that his parents in Kentucky had contacted him because they were informed by Agent Charles Becker of the Pennsylvania Attorney General's office of the arrest warrant for this matter. During this telephone conversation, Mr. Brown related that he wanted to hire me and to have me make arrangements for him to turn himself in to authorities in Warren County. He indicated that he had to talk to his parents in Kentucky and have them contact me to work out these arrangements. Mr. Brown, his family, and I were in the process of doing that when two days later he was arrested. In short, rather than attempting to avoid this matter, Mr. Brown was actually taking steps to voluntarily surrender himself to the authorities here to get the matter resolved.

     Mr. Brown has employment opportunities awaiting him in both West Virginia and Kentucky pending the outcome of this sentencing. It has taken him a long time to work through the events and consequences of the past decade, all of which began at the young age of 16. He now has a wife, a young baby who he has never had an opportunity to be with, and family and employment awaiting him in areas where he can leave all of this behind and he hopes to have the opportunity to do so following the sentencing in this case.

Counsel for Mr. Brown respectfully commends to this Court's consideration that the sentence imposed in this case contain no additional elements of punishment of any kind whatsoever. Counsel strongly suggests that the beginning and ending point for this proposal is

Judge Wolfe's October 22, 1991 Opinion. As a result of his having presided over all of the lengthy proceedings involved in this episode and thereby having the best opportunity to observe all of the participants and players involved, Judge Wolfe it is suggested was in the best position to thoroughly analyze all matters relevant thereto. He did that in a painstakingly thorough fashion in the aforesaid Opinion and reached this conclusion:

     Counsel submits that the extreme mitigating circumstances omnipresent in this case do not allow for any other sentence. Certainly, if the interests of Mr. Brown are considered, anything more we submit would be entirely unjust. If the interests of the Commonwealth are considered, nothing more is required, and anything more would be utterly hypocritical.

     Sentencing at best is an imperfect process that can only hope to approximate, if ever achieve, certain societal interests and objectives. It is our contention, carefully considered, that our proposed sentencing alternative is sufficient to meet all of these contending interests.

     Counsel will discuss the specific mitigating circumstances and other pertinent factors which he contends clearly supports the above proposal during Mr. Brown's sentencing proceeding. In the interests of brevity herein, suffice it to say that most of these matters focus upon the reality that any dispassionate and objective review of the entire voluminous record of the proceedings and investigation in this matter clearly demonstrates that Mr. Brown had no connection whatsoever, either as an eyewitness or a participant with the criminal acts perpetrated upon Mrs. Wilson. There was undisputed and irrefuted evidence (work time cards, signed work orders, statements from Mr. Brown's employer and fellow employees, etc.) known to both the New York and Pennsylvania police officials, the Commonwealth detectives and attorneys, and Mr. Brown's own defense attorneys, which conclusively showed that at the specific date and

time of Mrs. Wilson's disappearance and death Mr. Brown could not have been a participant or an eyewitness. Mr. Brown from the very beginning told the above people at various times the very same thing. Nonetheless, Mr. Brown, who was a mere teenager in the face of these experienced police officers, prosecutors, defense attorneys, etc., was pushed, prodded, manipulated, and intimidated by the very same into perpetrating the numerous falsehoods at issue all the way through Mr. Buckley's trial. And the evidence further shows, which counsel will also discuss during sentencing, that each time Mr. Brown attempted to steer the course true, he was thwarted by all of the above and ultimately by his own attorneys.

     These matters, as stated, will be discussed at Mr. Brown's sentencing. To close here, counsel will rely on those matters and the other factors set forth herein in our position that the sentence of no further punishment proposed fully serves the interests of justice in this specific case. Counsel believes that it is the most appropriate sentence compelled by the totality of the facts and circumstances and we respectfully commend it to this Court and request that it be implemented at Mr. Brown's sentencing.