Petitioners Reply Brief — Pennsylvania v. Lovette

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IN THE" SUPREME COURT

OF THE UNITED STATES dAW 21° 1983

OCTOBER TERM, 1982 ALEXANDER L. STEVAS

CLERK

FILED

NO. 918

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Vv.

ANDRE LOVETTE, AND SIMONA LOVETTE,

Representative of the Estate of

Andre Lovette, Respondents

PETITIONER'S REPLY BRIEF ON

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

ERIC B. HENSON

Deputy District Attorney

Law Division

(Counsel of Record)

MARK S. GUREVITZ

Assistant District Attorney

GAELE MCLAUGHLIN BARTHOLD

Assistant Chief

Appeals Division

EDWARD G. RENDELL

District Attorney

Philadelphia County

1300 Chestnut St.

Phila., Pa. 19107

(215) 875-6010

ADDITIONAL QUESTION PRESENTED

Whether a writ of certiorari should

issue to determine whether the federal

mootness doctrine defeats this Court's

jurisdiction and prevents further appel-

late review, in derogation of public and

state interests, where in the state court

the respondent, a deceased criminal defen-

dant, and his substituted personal repre-

sentative, successfully opposed a Petition

to Abate his appeal and obtained a favor-

able result?

INDEX

Supplemental Statement of the Case

Additional Reasons for Granting

the Writ

Respondents' assertions that

this case is moot and that the

decision of the court below

rests on an adequate and inde-

pendent state ground do not

vitiate this Court's jurisdic-

tion.

Conclusion

Appendix A:

Answer to the Commonwealth

of Pennsylvania's Petition

to Abate Pennsylvania Supreme

Court appeal, including Simona

Lovette's Application for Sub-

stitution as a Party

ii

PAGE

2-5

LA-9A

TABLE OF CITATIONS

Federal Cases

Delaware v. Prouse, 440 U.S. 648,

99 Ss. Ct. 1391 (1979)

Dove v. United States, 423 U.S.

325, 96 S. Ct. 579 (1976)

Jacobs v. New York, 388 U.S. 431,

87 S. Ct. 2098 (1967)

Pennsylvania v. Linde, 409 U.S.

1031, 93 S. Ct. 523 (1972)

Constitutional and

Statutory Provisions

Pa.R.A.P. 502(a)

iii

PAGE

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1982

NO. 918

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Ve

ANDRE LOVETTE, AND SIMONA LOVETTE,

Representative of the Estate of

Andre Lovette, Respondents

PETITIONER'S REPLY BRIEF ON

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

Petitioner, the Commonwealth of Penn=-

sylvania, seeks a Writ of Certiorari to

review the Judgment and Opinion of the

Supreme Court of Pennsylvania entered in

this case on October 5, 1982.

SUPPLEMENTAL STATEMENT OF THE CASE

In this reply brief, petitioner, the

Commonwealth of Pennsylvania, pursuant to

U.S. Sup. Ct. Rule 22.5, addresses only

respondents' challenges to the jurisdic-

tion of this Court.

ADDITIONAL REASONS

FOR GRANTING THE WRIT

RESPONDENTS' ASSERTIONS THAT

THIS CASE IS MOOT AND THAT THE

DECISION OF THE COURT BELOW

RESTS ON AN ADEQUATE AND INDE-

PENDENT STATE GROUND DO NOT

VITIATE THIS COURT'S JURISDIC-

TION.

Respondents contend that this Court

is without jurisdiction to consider the

significant legal issues here presented.

Their fervent attempt to avoid this Court's

review inadvertently establishes the appro-

priateness of such review: they raise a

substantial additional question which is

worthy of this Court's consideration,

The doctrine of mootness, upon which

respondents primarily rely to vitiate this

Court's jurisdiction, is expressive of the

need for antagonistic litigants who will

advance vigorous arguments to protect sub-

stantive rights and thus focus the issues

presented. Jacobs v. New York, 388 U.S.

431, 87 S. Ct. 2098, Dissenting Opinion

of Mr. Justice Douglas (1967). This objec-

tive is met here.

Respondents' counsel, the Defender

Association of Philadelphia, vigorously

sought, in the Pennsylvania Supreme Court,

to "vindicate" their client, Andre Lov-

ette, and to reverse his well-warranted

burglary conviction despite Lovette's pre-

mature demise. ~ When petitioner, the Com-

monwealth of Pennsylvania, learned of

Lovette's death, after full briefing and

argument in the Pennsylvania Supreme

Court, it promptly filed a Petition to

Abate the Appeal. Respondents' counsel,

contrary to its present stance, urged

that this case be decided on its merits.

1 espondent Andre Lovette died on June

6, 1980, the victim of five (5) gunshot

wounds. His defense-requested, discre-

tionary Pennsylvania Supreme Court appeal

was orally argued on April 15, 1982.

The Defender Association contended that

the legal questions presented "are of vital

importance not only to other defendants

accused of crimes, but to the general pub-

lic," and also relied on Simona Lovette's

application to be substituted for her

deceased son as a party on appeal (Answer

to Petition to Abate Appeal, infra at 2A-

3A, 4A, 7A-8A; Pa.R.A.P. 502).

Under these circumstances, an actual

case or controversy exists, and invocation

of the mootness doctrine is, therefore,

manifestly inappropriate. Certainly, full

briefing and argument on the putative moot-

ness question are warranted. Here uniquely

this Court has an opportunity to decide

whether a criminal defendant, who obtains

post-mortem "vindication" in a state court,

can then disingenuously invoke the mootness

doctrine to avoid review by this Court.

Compare Dove v. United States, 423 U.S.

325, 96 S. Ct. 579 (1976) (death of

4

petitioner-defendant during pendency of

petition for certiorari resulted in dismis-

sal of petition); Pennsylvania v. Linde,

409 U.S. 1031, 93 S. Ct. 523 (1972) (same

where defendant-respondent dies during

pendency of petition).

Respondents' alternative attempt to

avoid this Court's review, on the ground

that the decision below rested upon an ade-

quate and independent state ground, is sim-

ilarly meritless (see, e.g., Pending Peti-

tion at 12). Despite their artifice, they

effectively contend only that the decision

in question might have been based on non-

federal grounds. This Court's jurisdiction,

however, is unimpaired “even if the State

Constitution would have provided an adequate

basis for the judgment," where, as here, the

state Supreme Court "did not intend to rest

its decision independently on the State

Constitution." Delaware v. Prouse, 440

U.S. 648, 653, 99 S. Ct. 1391, 1395 (1979).

5

CONCLUSION

For the foregoing reasons, as well as

the reasons set forth in its prior petition,

the Commonwealth of Pennsylvania respect-

fully requests that a Writ of Certiorari

issue to review the decision below.

Respectfully submitted,

ve, \

~

qe a an

ERIC B. HENSON

Deputy District Attorney

Law Division

(Counsel of Record)

MARK S. GUREVITZ

Assistant District Attorney

GAELE MCLAUGHLIN BARTHOLD

Assistant Chief

Appeals Division

EDWARD G. RENDELL

District Attorney

Philadelphia County

1300 Chestnut St.

Phila., Pa. 19107

(215) 875-6010

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1982

NO. 918

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Vv.

ANDRE LOVETTE, AND SIMONA LOVETTE,

Representative of the Estate of

Andre Lovette, Respondents

CERTIFICATION OF SERVICE

I, ERIC B. HENSON, ESQUIRE, Counsel

for Petitioner, Commonwealth cf Pennsylvania,

hereby certify that I have served three (3)

copies of Petitioner's Reply Brief on Peti-

tion for Writ of Certiorari to the Supreme

Court of Pennsylvania by hand delivery upon

Counsel for Respondents, John W. Packel,

Esquire, Defender Association of Philadel-

phia, 121 North Broad Street, Philadelphia,

Pennsylvania 19107, on January 20, 1983.

ERIC B. HENSON

Deputy District Attorney

Law Division

1300 Chestnut Street

Philadelphia, Pa. 19107

Sworn to and subscribed

before me this 20th day

of January, 1983, A.D.

8 mee fi (9 “4

~ “SOYCE i. NICHOLAS

Notary Public, Phila., Phila. Co.

‘“y Commission Expires Sept. 19, 1°°'

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA : JANUARY TERM, 1979

v.

ANDRE LOVETTE, : NO. 497

Appellant

ANSWER TO PETITION TO ABATE APPEAL

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE

SUPRIME COURT:

Andre Lovette, by his attorneys, Leonard Sosnov, Assis-

tant Defender, Elaine DeMasse, Assistant Defender, Deputy

Chief, Appeals Division, John W. Packel, Assistant Defender,

Chief, Appeals Division, and Benjamin Lerner, Defender,

respectfully answers the petition to abate filed in the

captioned matter and represents:

1. This answer is in response to, and opposing the

Commonwealth's petition to abate the appeal in this case

because of the death of the defendant, a fact of which the

Commonwealth and defense counsel recently became aware. The

Commonwealth's petition was served on defense counsel on

July 27, 1982.

2. The Commonwealth's petition to abate this appeal

because of the death of the defendant should be denied since

this Court, in an opinion by Justice Roberts, held in Conm-

RECEIVED

AUG 1 2 1992

APPEALS UNIT

Jf?

monwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972), that

the death of a defendant in a criminal case while the case

is on appeal does not abate the appeal, as the Commonwealth's

motions to abate the appeal and dismiss the appeal in Walker

were denied, and this Court proceeded to decide the pending

appeal in that case on the merits.* The holding in Walker,

was subsequently explained by Justice Nix in Stauch Estate,

451 Pa. 288, 293-94, 301 A.2d 615, 618 (1973).

In Walker, we rejected a claim that

the defendant's death should inter-

rupt the direct appeal procedure.

We did so because the completion of

the criminal adjudicatory process

is of concern to society as a whole.

Punishment of the defendant is only

one aspect of that concern and there

are other aspects which transcend

the death of the defendant. An ap-

pellate review as to the propriety

of the conviction below is necessi-

tated because there are consequences

which flow from conviction which ex-

_ beyond the death of the defen-

nt.

3. In this particular case, there are important con-

sequences which flow well beyond Andre Lovette or his family.

The search and seizure questions involved in the Lovette

* Among other reasons given for this Court's decision in

Walker, was the interest of the estate of the deceased in a

ecision on the merits. The Commonwealth contends that this

interest is now completely protected by 18 Pa.C.S.A. §9122

(b)(2). However, the Commonwealth misinterprets this pro-

vision, as it does not provide for automatic expungement

after the deceased has been dead for three years, as appli-

cation may then be made, and expungement "may" then be

granted, as a court has a power to deny such an

application. This provision should be compared with 18

Pa.C.S.A. §9122(a), which provides under other circumstances

that the record "shall be expunged".

2 af

case are of vital importance not only to other defendants

accused of crimes, but to the general public. In this case,

an intermediate appellate court has issued an opinion which

is binding precedent on the lower courts of this Common-

wealth, and which contains a new doctrine which has become

known as the Lovette “intermediate response rule". See

Commonwealth v. Lumb, Pa. Super., 430 A.2d 1188, 1189 (1981).

It is a constitutional question of great public importance

whether police may not only stop citizens, but place them in

police cars and transport them to another location when

there is concededly no probable cause to arrest. The Supe-

rior Court ruled that such police conduct is consistent with

the constitution, the first time an appellate court in this

Commonwealth made such a ruling. Counsel for appellant

contended in his petition for allowence of eppeal that the

Superior Court's decision was contrary to applicable and

controlling precedent of both this Court and the United

States Supreme Court, and if permitted to stand would legally

sanction dragnet and wholesale intrusions into the rights of

our citizens. This Court recognizea that there were special

and important reasons for reviewing this determination and

others in this case when it then granted the petition for

allowance of appeal. See Rule 1114, Pa.R.App.P. Postpone-

ment of the decision of the important issues presented by

this case is in nobody's interest since this case is ripe

-3- Sf

for decision, having been fully briefed and argued before

this Court. See Bursey v. United States, 466 F.2d 1059,

1089 (9th 1972). Thus, a separate and independent ground

for not granting the Commonwealth's petition to abate this

appeal is the well recognized exception to the mootness

doctrines for questions of great public importance. Janet

D. v. Carros, 240 Pa. Super. 291, 311, 362 A.2d 1060, 1070

(1976). See In Re Gross, 476 Pa. 203, __, 382 A.2¢ 116,

122-23 (1976); Meyer v. Strouse, 422 Pa. 136, 138, 221 A.2d

191 __s (1966).

4. Another independent ground for rejecting the Com-

monwealth's petition to abate is Rule 502, Pa.R.App.P.,

which provides for the substitution of a party who becomes

deceased on appeal. The personal representative of the

deceased may be substituted on appeal, upon application.

See City of Newark v. Pulverman, 12 N.J. 105, __. 95 A.2d

859, 894 (1953). Attached is the application for substitu-

tion as a party by Simona Lovette, defendant's mother and

personal representative.

arn 4A

For each and every of the foregoing reasons, the Common-

wealth's petition to abate appeal should be denied, and this

Court should proceed to decide this case on the merits.

Respectfully submitted,

Ubon y

sistan en r

ELAINE DeMASSE, Assistant Defender

Deputy Chief, Appeals Division

JOHN W. PACKEL, Assistant Defender

Chief, Appeals Division

BENJANI LER: , Defender

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF PHILADELPHIA

AFFIDAVIT

ELAINE DeMASSE , being duly sworn according to law,

deposes and says that the facts set forth in the foregoing

petition are true and correct to the best of his/her knowledge,

or information and belief.

Ch, Ds ewe

ELATNE DéenaAsse

Sworn to and subscribed before

me this aay of August .

1982.

6A

DEFENDER ASSOCIATION OF PHILADELPHIA

BY: Benjamin Lerner, Detender, and

LEONARD SOSNOV, Assistant Defender

identification No. 00001

121 North Broad Street

{

Philadelphia, Pa. 19107 Attorney for ANDRE LOVETTE

(215) 568-3190

COMMONWEALTH OF PENNSYLVANIA IN THE SUPREME COURT OF PENNSYL.

VANIA - EASTER DISTRICT

vs. JANUARY TERM, 1979

ANDRE LOVETTE, NO. 497

Appellant

APPLICATION FOR SUBSTITUTION AS A PARTY

Simona Lovette, and counsel for her deceased son, John W. Packel,

Assistant Defender, Chief, Appeals Division, Leonard Sosnov, Assistant

Defender, Defender Association of Philadelphia, represent as follows:

1. Petitioner, Simona Lovette, is the mother of Andre Lovette,

the appellant in the above captioned appeal pending before the Penn-

sylvania Supreme Court.

2. Andre Lovette, was single, had never married, and died without

a will on June 6, 1980. Petitioner is the personal representative of

Andre Lovette.

Jf?

3. Petitioner desires that the appeal of Andre

Lovette from his judgment of conviction and sentence be

decided by the Pennsylvania Supreme Court. Therefore,

petitioner requests that she be substituted for her deceased

son as a party before this Court for purpose of this appeal.

Respectfully submitted,

ee

. 4 . eee

Tp,

&A

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF PHILADELPHIA

ee BPS Me a

SIMONA LOVETTE , being duly sworn according to law,

deposes and says that the facts set forth in the foregoing

petition are true and correct to the best of his/her knowledge,

or information and belief.

\- RS SSE

‘SIMONA LOVETTE’ /

Sworn to and subscribed before

me nis 7% day of Fagnet ;

1982.