Opposition Brief — Eric Matthew Frein, Petitioner v. Pennsylvania

No. 19-5998

____________________________________________

In the

Supreme Court of the United States

__________________________________________________________________

ERIC MATTHEW FREIN,

Petitioner

v.

PENNSYLVANIA,

Respondent

_____________________________________________

On Petition for Writ of Certiorari

to the Supreme Court of

Pennsylvania

_____________________________________________

BRIEF FOR PENNSYLVANIA IN OPPOSITION

_____________________________________________

RAYMOND J. TONKIN

DISTRICT ATTORNEY

(Counsel of Record)

506 Broad Street

Milford, PA 18337

(570) 296-3482

rtonkin@pikepa.org

QUESTIONS PRESENTED

This is a Capital Case

Whether the jurisdiction of this Court, as invoked by Petitioner under

28 U.S.C. 1251(a), is unavailable as the judgement below is a state

court judgment in a state criminal proceeding, and not within this

Court’s original jurisdiction enumerated in Section 1251(a)?

Whether Petitioner’s Sixth Amendment right to counsel had not yet

attached, as the initiation of formal judicial proceedings had not yet

begun?

Whether jurors are presumed to follow an instruction on how to

consider victim impact evidence, when a jury finds aggravating

circumstances but no mitigating circumstances, and therefore the

evidence was not to be considered?

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TABLE OF CONTENTS

CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATEMENT ................................................................................................................. 1

ARGUMENT .................................................................................................................. 8

CONCLUSION............................................................................................................. 16

APPENDIX ..................................................................................................................... i

ii

TABLE OF AUTHORITIES

Cases

Booth v. Maryland, 482 U.S. 496 (1987) ............................................................................................ 13

Commonwealth v. Eric Matthew Frein, 206 A.3d 1049 (Pa. 2019) ...................................... passim

Jones v U.S. , 527 U.S. 373 (1999) ..................................................................................................... 15

Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................................................ 4

Moran v. Burbine, 475 U.S. 412 (1986) ............................................................................................. 11

Payne v. Tennessee, 501 U.S. 808 (1991) .............................................................................. 13, 14, 15

Rothergy v. Gillespie County, Texas, 554 U.S. 191 (2008) ............................................................ 11

Satterwhite v. Texas, 486 U.S. 249 (1988) ........................................................................................ 12

United States v. Gouveia, 467 U.S. 180 (1984) ................................................................................ 10

United States v. Williams, 504 U.S. 36 (1992) ............................................................................. 9, 13

Statutes

18 P.S. § 11.103 ....................................................................................................................................... 13

18 P.S. §11.201 ........................................................................................................................................ 13

18 Pa. C.S.A. Section 2502(a) ................................................................................................................. 2

18 Pa. C.S.A. Section 2507(a) ................................................................................................................. 2

18 Pa. C.S.A. Section 2702.1(a) ............................................................................................................. 2

18 Pa. C.S.A. Section 2705...................................................................................................................... 3

18 Pa. C.S.A. Section 2707.1(a) ............................................................................................................. 2

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18 Pa. C.S.A. Section 2717...................................................................................................................... 4

18 Pa. C.S.A. Section 901(a) ................................................................................................................... 2

18 Pa. C.S.A. Section 907(a) ................................................................................................................... 3

28 U.S.C. § 1251 .................................................................................................................................... 1, 8

28 U.S.C. §1251 ......................................................................................................................................... 8

28 U.S.C. 1251(a) ....................................................................................................................................... i

Rules

Pa. R. Crim. P. 502 ................................................................................................................................... 9

Pa. R. Crim. P. 542 ................................................................................................................................... 9

Pa. R. Crim. P. 543 ................................................................................................................................... 9

Pa. R. Crim. P. 560 ................................................................................................................................... 9

Constitutional Provisions

U.S. Const. Amend. V .......................................................................................................................... 5, 6

U.S. Const. Amend. VI.................................................................................................................... passim

U.S. Const. Amend. VIII ......................................................................................................................... 6

U.S. Const. Amend. XIV .......................................................................................................................... 6

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In the Supreme Court of the United States

No. 19

ERIC MATTHEW FREIN, PETITIONER

V.

PENNSYLVANIA, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE PENNSYLVANIA SUPREME

COURT

BRIEF FOR PENNSYLVANIA IN OPPOSITION

______________

OPINION BELOW

The opinion of the Pennsylvania Supreme Court is published at Commonwealth v.

Eric Matthew Frein, 206 A.3d 1049 (Pa. 2019).

JURISDICTION

The judgment of the Pennsylvania Supreme Court was entered on April 26, 2019.

The Pennsylvania Supreme Court denied re-argument on June 17, 2019. Petitioner

seeks jurisdiction of this Court under 28 U.S.C. § 1251(a). (Pet. 1).

STATEMENT

Following a jury trial in the Pike County Court of Common Pleas before a jury

selected from Chester County, petitioner was convicted of numerous state criminal

offenses related to the shooting death of Pennsylvania State Police Corporal Bryon

K. Dickson, II, and the shooting of Trooper Alex Douglass at the Blooming Grove

Pennsylvania State Police barracks in Pike County, Pennsylvania on September 14,

2014. The same jury imposed a sentence of death upon petitioner for the crimes of

murder in the first degree1, first degree murder of a law enforcement officer2. In

doing so the jury determined the existence of numerous aggravating circumstances

and found no mitigating circumstances.

1. Corporal Benjamin Clark and two other members of the Pennsylvania State

Police filed a criminal complaint and affidavit of probable cause seeking an arrest

warrant for petitioner on the charges of ; murder of the first degree, 18 Pa. C.S.A.

Section 2502(a), two counts of criminal attempt to commit murder of the First Degree,

18 Pa. C.S.A. Section 901(a), criminal homicide of a law enforcement officer, 18 Pa.

C.S.A. Section 2507(a), criminal attempt to commit criminal homicide of a law

enforcement officer, 18 Pa. C.S.A. Section 901(a), assault of law enforcement officer,

18 Pa. C.S.A. Section 2702.1(a), discharge of a firearm into an occupied structure, 18

Pa. C.S.A. Section 2707.1(a), possessing instruments of crime, 18 Pa. C.S.A. Section

1 18 Pa. C.S.A. §2502(a).

2 18 Pa. C.S.A. § 2507.

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907(a) and recklessly endangering another person, 18 Pa. C.S.A. Section 2705 on

September 16, 2014. The offenses related to the shooting and killing of Pennsylvania

State Police Corporal Bryon K. Dickson, II, and the shooting of Pennsylvania State

Police Trooper Alex Douglass on September 12, 2014 at the Pennsylvania State Police

Barracks in Blooming Grove Township, Pike County.

Magisterial District Judge

Shannon L. Muir issued an arrest warrant on the same day.

After a large scale manhunt, Frein was captured on October 30, 2014, by a team of

Deputy United States Marshalls and placed under arrest. Frein, 206 A.3d at 1060.

Thereafter, petitioner was taken back to the Blooming Grove State Police Barracks

and attended to by a medic for an injury on his face. Id. Shortly thereafter, members

of the Pennsylvania State Police entered the interrogation room and advised

petitioner of his Miranda3

rights. Id.

The troopers then began interrogating

petitioner.

During the interrogation, an Attorney James Swetz telephoned the State Police4

and advised that a member of petitioner’s family had retained him and that he was

travelling to the barracks to see petitioner. Id. at 1061. Ultimately, Attorney Swetz

travelled to the Blooming Grove barracks where upon his arrival he was denied entry

3

Miranda v. Arizona, 384 U.S. 436 (1966).

4 The Pennsylvania Supreme Court Opinion indicates Attorney Swetz telephoned the Blooming

Grove barracks. While the number Attorney Swetz called was the telephone number for the

Blooming Grove barracks, the phone calls were being routed to the Honesdale State Police barracks

as a result of the shooting incident at the Blooming Grove barracks.

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to the barracks. Id. Attorney Swetz made a request to speak with undersigned

counsel. Id. Undersigned counsel telephoned Attorney Swetz and advised him of the

preliminary arraignment for petitioner that would take place the next day on October

31, 2014. (N.T5. April 3, 2017 pages 44-8). Attorney Swetz did not attend the

preliminary arraignment citing that it was not a critical stage of a criminal

prosecution in Pennsylvania. Attorney Swetz did not seek to have the preliminary

arraignment continued so that he could be present. Id. Ultimately, Attorney Swetz

never entered an appearance on behalf of petitioner.

On November 13, 2014, police filed an amended criminal complaint adding offenses

of Terrorism under 18 Pa. C.S.A. Section 2717.

A Preliminary Hearing was held before Magisterial District Judge Shannon L. Muir

on January 5, 2015, wherein all charges were held for trial.

A jury trial ultimately commenced in April of 2017. After petitioner was found

guilty on the charges of first degree murder and first degree criminal homicide of a

law enforcement officer, the trial proceeded to a sentencing hearing before the jury

pursuant to 42 Pa. C.S.A. § 9711 (related to Sentencing procedure for murder of the

first degree). Frein, 206 A.3d at 1054.

Respondent will use the designation N.T. to refer to the notes of testimony in the proceedings

below.

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4

Pursuant to § 9711(a)(2), respondent called witnesses that included family members

of Corporal Dickson and witnesses regarding evidence of who Corporal Dickson was

as a person.

Id. at 1072-4. Petitioner called witnesses in an attempt to establish

mitigating circumstances. Id. at 1078.

In accord with § 9711(c)(2), the trial court instructed the jury regarding the evidence

related to Corporal Dickson and the victim impact evidence provided by the testimony

of the family of Corporal Dickson. Id. at 1074. The trial court specifically instructed

the jury that the victim impact evidence was not to be considered an aggravating

circumstance, and that the evidence was only to be used if the jury found at least one

aggravating circumstance and at least one mitigating circumstance. Id. at 1075.

Ultimately, the jury found several statutory aggravating circumstances and no

mitigating circumstances. Id. at 1077 & 9. The jury then imposed a sentence of

death. Id. at 1079.

2. On direct appeal, the Pennsylvania Supreme Court affirmed the judgment of the

death sentence imposed upon petitioner.

While, the Pennsylvania Supreme Court determined that the interrogating state

troopers had violated petitioner’s invoked right to remain silent under the Fifth

Amendment of the Constitution, the Court held that such error was harmless beyond

any reasonable doubt. Id. at 1070. In doing so, the Pennsylvania Supreme Court

recognized the substantial physical evidence establishing petitioner’s guilt of the

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offenses. Id. at 1071. The Court found harmless error went “without any hesitation”

in light of the overwhelming evidence and largely uncontested evidence of petitioner’s

guilt. Id. The Pennsylvania Supreme Court noted that in closing argument the

prosecutor made only one reference to petitioner’s statement “noting simply that

[petitioner] stated the obvious about the recovered Jeep, the campsite and his

involvement.” Id. at 1071, n.22.

Given the conclusion of harmless error under the Fifth Amendment, U.S. Const.

Amend. V, the Pennsylvania Supreme Court did not review the alleged error in

admitting petitioner’s statement under the Sixth Amendment, U.S. Const. Amend.

VI. Id. at 1071.

3. Before the Pennsylvania Supreme Court, petitioner argued that the admission of

the evidence regarding Corporal Dickson and the impact his death had upon his

family violated the Due Process Clause under the Fourteenth Amendment, U.S.

Const. Amend. XIV, and the Eight Amendment, U.S. Const. Amend. VIII, prohibition

against cruel and unusual punishment. Id. at 1072.

The Pennsylvania Supreme Court considered and rejected petitioner’s claim. Id. at

1072-6. The Pennsylvania Supreme Court, in rejecting petitioner’s argument, noted

that the trial court had properly instructed the jury regarding the use of the victim

evidence under §9711(a) (2). Id. at 1075. Regarding their use of the victim impact

evidence during deliberations, the trial court instructed the jury as follows:

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This evidence is subject to two special rules. First, you cannot regard it

as an aggravating circumstance. Second if you find at least one

aggravating circumstance and at least one mitigating circumstance,

you may then consider the victim and family impact evidence when

deciding whether the aggravating outweigh the mitigating

circumstances.

Id.

The trial court specifically instructed the jury the victim impact evidence was not

to be considered an aggravating circumstance.

Additionally, based upon the

presumption that jurors follow a court’s instructions, the Pennsylvania Supreme

Court concluded that petitioner had failed to establish he was prejudiced by the

admission of victim impact evidence, since the jury found aggravating circumstances

and no mitigating circumstances, as the jury was presumed to have not considered

the victim evidence. Frein, 206 A.3d at 1075.

The Pennsylvania Supreme Court concluded that “despite the victim impact

evidence presented, the predominant evidentiary consideration in this case was “the

murder and attempted murder of two police officers,” “for which ‘the evidence of

[petitioner’s] guilt was pervasive and largely unchallenged” Id. at 1076, n.24.

Finally, the Pennsylvania Supreme Court conducted a statutorily mandated review

of the entire record and held “that [petitioner’s] death sentences were not the product

of passion, prejudice, or any other arbitrary factor . . .” Id. at 1079.

7

Petitioner filed a petition for re-argument, which was denied by Court Order on

June 17, 2019. Petitioner filed the instant petition for writ of certiorari on September

16, 2019.

ARGUMENT

Petitioner invokes 28 U.S.C. §1251(a), as this Court’s jurisdiction to issue a Writ of

Certiorari to the Pennsylvania Supreme Court to review that Court’s judgment

affirming the sentence of death imposed upon petitioner. (Pet. 1)

Simply stated,

petitioner invokes a jurisdictional statute of this Court that is entirely inapplicable

to the instant case.

Section 1251(a) codifies this Court’s original and exclusive jurisdiction of

controversies between two or more states of the United States. The present case is a

state criminal prosecution of an individual convicted of crimes defined by state law.

Therefore, the invocation of jurisdiction by this Court by petitioner under 28 U.S.C.

§ 1251(a) is inapplicable, and the petition is properly denied.

1. The substance of the petition claims that the Pennsylvania Supreme Court, in

declining to address petitioner’s claim that the introduction of his statements to police

violated the Sixth Amendment, contravened this Court’s clear Sixth Amendment

jurisprudence. (Pet. 5). In doing so, petitioner claims the Sixth Amendment violation

was “structural error”, which is not subject to a harmless error analysis. (Pet. 6).

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Petitioner failed to assert the structural error claim, he now advances, before the

Pennsylvania Supreme Court below. Rather, petitioner merely sought suppression

of his statement and in his reply to respondent’s harmless error argument, simply

asserted that the error was not harmless. Thus, petitioner’s Sixth Amendment claim

is not properly before this Court, as it was not “pressed or passed upon below.” United

States v. Williams, 504 U.S. 36, 41 (1992).

2. Further, petitioner’s argument relies on a misstatement of fact, namely that prior

to the interrogation of petitioner, the Commonwealth filed a criminal information

against him. (Pet. 5). In fact, police had filed a police criminal complaint and affidavit

in support of the issuance of an arrest warrant. This distinction is central to the

review of a claim of deprivation of counsel under the Sixth Amendment.

Under Pennsylvania law the filing of a police criminal complaint and affidavit in

support of an arrest warrant is prior to any initial appearance of the individual before

a judicial officer. See Pa. R. Crim. P. 502. The formal charging instrument under

Pennsylvania Law is a criminal information pursuant to Pa. R. Crim. P. 5606.

6 In Pennsylvania, after a criminal complaint is filed pursuant to Pa. R. Crim. P. 502, a preliminary

hearing is held before a magistrate to determine whether a prima facie cases exists to send the

charges to a Court of Common Pleas, a court with jurisdiction over both felony and misdemeanor

cases. See Pa. R. Crim. P. 543. An attorney for the Commonwealth may, but is not required, to

appear at the preliminary hearing. See Pa. R. Crim. P. 542. If a case is held for court, the attorney

for the Commonwealth then files the formal charges in a criminal information. See Pa. R. Crim. P.

560.

9

This Court has clearly determined that the Sixth Amendment right to counsel

does not attach at the time that adversarial judicial proceedings have been initiated

against a criminal defendant. United States v. Gouveia, 467 U.S. 180, 187-8 (1984)

The Sixth Amendment right to counsel applies at the first appearance before a

judicial officer where he is informed of the charges against him and his liberty

restricted. Rothergy v. Gillespie County, Texas, 554 U.S. 191, 194 (2008).

This

understanding

the

of

Sixth

Amendment

jurisprudence

therefore

engulfs

understanding of this Court that the Sixth Amendment right to counsel attaches at

the filing of a formal charge, preliminary hearing, indictment, information or

arraignment. Id. (quoting Gouveia, 467 U.S. at 188).

This Court has already firmly decided that an individual subject to custodial

interrogation prior to the commencement of adversarial judicial proceedings does not

have to be informed that a family member has retained an attorney on his behalf.

Moran v. Burbine, 475 U.S. 412, 432 (1986). Indeed, this Court stated: “[T]he

possibility that the encounter, [an interrogation], may have important consequences

at trial, standing alone, is insufficient to trigger the Sixth Amendment right to

counsel.” Id.

Here, the facts clearly demonstrate petitioner’s Sixth Amendment right to counsel

had not been triggered at the time of the police interrogation, as police had obtained

a warrant for petitioner’s arrest and petitioner had yet to make his first appearance

10

before a judicial officer.

Indeed, Attorney Swetz stated that a preliminary

arraignment, which is the initial appearance before a judicial officer, was not a

critical stage of criminal proceedings, and as such he did not even attend. (N.T. April

3, 2017 pages 44-8).

3. Moreover, counsel was afforded to petitioner at all proceedings following his

preliminary arraignment, including his preliminary hearing, arraignment, pre-trial

proceedings, trial and appeal before the Pennsylvania Supreme Court. As such, at

no point was petitioner denied counsel at any critical stage of the prosecution where

“structural error” might have occurred. Lastly, even if there were a violation of the

Sixth Amendment right to counsel, the harmless error review still applies.

Satterwhite v. Texas, 486 U.S. 249, 258 (1988). Therefore, as the Pennsylvania

Supreme Court concluded the admission of petitioner’s statements were harmless,

there is no compelling reason to grant the petition.

Based on the foregoing, this Court should not grant the petition as to petitioner’s

Sixth Amendment claim.

5. Petitioner’s argument, regarding the introduction of evidence regarding the life

of Corporal Dickson and the impact of his death upon his family, likewise does not

present a compelling reason for the grant of a writ of certiorari.

As an initial consideration, the record does not reflect a specific objection to the

description of the child birth of one of Corporal Dickson’s sons raised by the dissenting

11

opinion of Justice Wecht. (N.T. April 20, 2017 67-8). Despite petitioner’s reliance

upon the dissent, the majority opinion noted that this evidence was presumptively

offered, as conceded by the dissent, to demonstrate Corporal Dickson was a

committed and caring father. Frein, 206 A.3d.at 1073, n.23.

The argument by petitioner relating to the testimony regarding the childbirth of

Corporal Dickson’s son was noted but not a major point in his brief before the

Pennsylvania Supreme Court. Pursuant to Williams, a matter not pressed or passed

upon below is not a matter which is proper for the grant of a writ of certiorari.

Williams, 504 U.S. 36, 41 (1992).

6. Regarding victim impact evidence, this Court has previously recognized:

[T]he state has a legitimate interest in counteracting the mitigating

evidence which the defendant is entitled to put in, by reminding the

sentencer that just as the murderer should be considered as an

individual, so too the victim is an individual whose death represents a

unique loss to society and in particular to his family.

Payne v. Tennessee, 501 U.S. 808, 827 (1991) (quoting Booth v. Maryland, 482 U.S.

496, 517 (1987) (White, J. dissenting)). This Court thereafter, held that the Eight

Amendment did not erect an impassable barrier to the admission of such evidence.

Id. at 827.

The Court decision in Payne left the decision to permit the introduction of such

evidence to the individual States. Id. In leaving the decision to permit such evidence,

12

this Court concluded “[t]here is no reason to treat such evidence differently than other

relevant evidence is treated.” Id. This Court did leave open the possibility that

evidence introduced could be so unduly prejudicial that it would render the

sentencing fundamentally unfair, and therefore, implicate the Due Process Clause of

the Fourteenth Amendment as an avenue for relief. Id. at 825.

7. At the sentencing hearing, each of the members of Corporal Dickson’s family who

testified were within the definition of a victim in a homicide prosecution under

Pennsylvania statute. See 18 P.S. § 11.103. Pennsylvania Law provides for the right

of a victim, as defined above, to provide an oral statement “detailing the physical,

psychological and economic effects of the crime on the victim and the victim's family.”

18 P.S. §11.201.

In accord with Payne, Pennsylvania specifically permits the

introduction of both evidence regarding the victim as a unique person and the impact

of the death of the individual upon his family in a sentencing hearing for murder in

the first degree. 42 Pa. C.S.A. § 9711(a) (2).

The testimony related to the victim, Corporal Dickson, directly related to who he

was as a human being, a husband, father, son, and as a member of the Pennsylvania

State Police. This is exactly the type of evidence permitted by this Court’s decision

in Payne. Indeed, even the dissent conceded “that viewed item by item and in

isolation, much of the victim impact evidence was relevant and admissible as such.”

Frein, 206 A.3d at 1095.

13

8. The Pennsylvania Supreme Court held the trial court properly instructed the jury

that the evidence was not to be considered an aggravating factor. Id. at 1075. As a

jury is presumed to follow a court’s instructions, and the trial court properly

instructed the jury, there is no compelling reason to grant the petition for writ of

certiorari.

9. This Court has also previously determined when a harmless error analysis may

be employed when a non-statutory aggravating factor is introduced into a death

penalty sentencing proceeding. In doing so, this Court stated: “[a]n appellate court

appellate court may choose to consider whether absent an invalid factor, the jury

would have reached the same verdict . . .” Jones v U.S. , 527 U.S. 373, 402 (1999).

The majority opinion of the Pennsylvania Supreme Court decision found that the,

despite the victim impact evidence presented, the predominant evidentiary

consideration in this case was the murder and attempted murder of two police

officers.” Id. at 1076, n.24.

With the above finding by the Pennsylvania Supreme Court, which is essentially a

finding of harmless error, there is no compelling reason to grant the petition, as the

review would be that of the particular facts of this case and whether, if found

inadmissible, whether the admissibility of the evidence was harmless error.

14

Respondent respectfully submits given the findings of the Pennsylvania Supreme

Court this individual case would not be a vehicle for this court to provide any further

guidance than this Court has already provided to state courts in death penalty cases.

15

CONCLUSION

For theses reasons, the Commonwealth of Pennsylvania, respectfully requests that

this Court deny the petition for a writ of certiorari.

Respectfully submitted,

RAYMOND J. TONKIN

DISTRICT ATTORNEY

(Counsel of Record)

506 Broad Street

Milford, PA 18337

(570) 296-3482

rtonkin@pikepa.org

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