Opposition Brief — Kerr v. Pennsylvania

%- Supreme Court, U.S.

RIE ED

\

NO. 37-207 Sep 3S Bei

‘ yoser' HF. SPANICt —-

IN THE —.

SUPREME COURT OF THE 'JNITED STAT7S

October Term, 19837

JOHN M, KERR

Petitioner,

Ve

COMMONWEALTH OF PENNSYLVANTA

Resvondent

ON PETITION FOR A WRIT OF CERTIOARI TO

THE SUPREME COURT OF PENNSYUVANTA

RESPONDENT'S BRIEF IN OPPOSITION

~ ZIMMERMAN

Y GENERAL

Paul M. Yatron

First Deonouty Attorney General

Director, Criminal Law Division

Robert A. Graci

Chief Deputy Attorney General

Apveals and Legal Services Section

7

Richard W. Svnonseller

Deouty Attorney General

Apveals and Leaal Services Section

(Counsel of Record)

Strawderrv Square

ohana pa 17120

TABLE OF CONTENTS

Table of Authori1 tiGO..o«soesese

Statement of the Case..ccccceee

Reasons for Denying the Writ...

Cee SO 6s ke hee eee eee esas

(2)

ve Tike 36 he f 5

TABLE OF AUTHORITIES

CAS ES PAGE(S)

Commonwealth v. Basile

312 Pa.Super. 206, 458 A.2d 587

Gk © 3) PP ee rr ee ke 5

Commonwealth v. Dreibelbis

493 Pa. 466, 426 A.2d 1111

Oh SS rr ere ae eho 4

Commonwealth v. Kersten

333 Pa.Super. 343, 482 A.,2d 600

et Pere ee eee#eee#ee#e#ee#e# 4

Commonwealth v. Meholic

341 Pa.Super. 342, 491 A.2da 848

CRORES i cia eee eeeee#e e*eeeee#e#se#e# >

Commonwealth v. Pinkins

343 Pa.Super. 44, 493 A.2da 1365

OL.) Pee ee e*eeeeee#«# Pre ee

California v. Ramos

Sas Ucls Sea teeesliance nc eeee cae 21

Dutton v. Evans

400 Wes 714 (1970)... eoeveees eeee#eees he

>. i?

Strickland v. Washington

See Us Ss OOO UL eels unceckeereuae 16,

17, 18

United States v. Inadi

106 . Fn Liga CL9O6) «cca eoeeeeees 6,

19, 20

(ii)

TABLE OF AUTHORITIES

PAGE(S)

STATUTES

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Miscellaneous

Stern, Gressman and Shapiro,

Supreme Court Practice (6th

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(iii)

STATEMENT OF THE CASE

Petitioner, John M. Kerr (herein-

after "Kerr"), was arrested on multiple

charges of Bribery in Official and

Political Matters, 18 Pa.cC.S. § 4701,

Conflict of Interest, 65 P.S. § 403(a)

and (b), Criminal Attempt, 18 Pa.c.s. §

901, Macing, 25 P.S. §§ 2374 and 2375,

Obstructing the Administration of Law or

Other Governmental Function, 18 Pa.C.s.

§ 5101, Demanding Property to Secure

Employment, 13 Pa.C.S. § 7322, Criminal

Solicitation, 18 Pa.C.S. § 902, and

Criminal Conspiracy, 18 Pa.C.S. § 903.

(R. 61a-89a)!

Kerr stood trial before a judge and

jury On a 216 count Criminal Informa-

tion. After an eleven day trial, he was

lAll references to the Record

es 2 ") are to the reproduced record

filed in the courts below.

found guilty of 139 counts as follows:

thirty-five (35) counts of Bribery in

Official and Political Matters, thirty-

five (35) counts of Demanding Property

to Secure Employment, thirty-two (32)

counts of Conflict of Interest, thirty-

four (34) counts of Obstructing the

Administration of Law or Other Govern-

mental Function, one (1) count of

Criminal Attempt, and two (2) counts of

Criminal Conspiracy. (R. 2a)

Trial counsel timely filed post-

trial motions for a new trial challieng-

ing, inter alia, the admission of

certain out-of-court statements of

co-conspirators. By opinion and order

dated March 7, 19385, the post-trial

motions were denied. The trial judge

specifically relied on this Court's

pronouncements in Dutton v. vans, 400

U.S. 74 (1970), in rejecting Kerr's

a» 2 -

Confrontation Clause argument. (Appendix

to Petition, 13a)

Kerr was sentenced on Avril 11,

1985, He received concurrent. prison

sentences totalling not less than two

nor more than five years and fines

totalling $6950,

Kerr, witnh new counsel, appealed

nis convictions to the Superior Court,

Pennsylvania's intermediate avpellate

court. Appellate counsel abandoned the

issues raised by Kerr in his post-trial

motions. Instead, appellate counsel

claimed, for the first time, ineffective

assistance of trial counsel for his

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failure "to adequately object to

the admission of hearsay evidence at

trial and in failing to oroperly voreserve

the hearsay issue and the related con-

frontation clause issue for subsequent

review." In the Superior Court,

Kerr challenged the same statements as

set forth in his petition to this Court.

By Per Curiam Order and Memorandum

Opinion, both dated September 8, 1986, a

panel of the Superior Court affirmed

Kerr's judgment of sentence. In addres-

sing this hearsay contention, the

majority of the Superior Court held:

It is next. claimed that

[trial] counsel's representa-

tion was inadequate in that he

failed to object often enough

to the admission of hearsay.

In responding to the cognate

assignment of error raised in

post trial motions, that is,

that such hearsay evidence

deprived avpellant [Kerr] of a

fair trial, the court below

found that, although there was

hearsay, it was properly admis-

sible under the "co-conspirator

exception" to the hearsay rule,

Commonwealth v. Dreibelbis, 493

Pa. 466, 426 A.2d 1111 (1981);

Commonwealth §v. Pinkins, 343

Pa.Super,. 44, 493 A.2d 1365

(1985); that a vroper founda-

tion has een laid for its

introduction, Commonwealth §v.

Kersten, 333 Pa.Super. 343, 482

A.2a 600 (1984); Commonwealth

Vv. Basile, 312 Pa.Super. 206,

A. 2d 587 (1983); that

appellant's conviction was not

based solely on secona hand

testimony; and finally, that

appellant's Sixth Amendment

[Confrontation Clause] rights

had not been violated. Dutton

Vv. "vans, 400 U.S, 74 (1970);

Commonwealth vy, Meholic, 341

Pa.Super. 342, 491 Al2q 848

(1985), Our review of the

record has provided us with no

basis on which to disagree with

the trial court's assessment.

Even though counsel failed to

enter any objections to the

material complained of, appvel-

lant would not now be found to

have been poorly represented.

4. In his thoughtful dissent,

Judge McEwen expresses the very

real concern that the Common-

wealth is "“able to present to

the jury uncorroborated, unver-

ifiable testimony that stripped

the appellant of the cloak of

innocence - without confronta-

tion by appellant of his

accuser, without cross-

examination of the primary

source of the evidence, and

what is fundamentally important

for this appeal, without chal-

lenge by trial counsel" (Dis-

senting Opinion at 2).

However, these are problems

endemic to every hearsay excep-

tion, and are theoretically at

least, overcome or vitiated by

the reliability of the context

in which they occur, The co-

conspirator exception, which

has been observed to be "the

most frequently used exception

to the hearsay rule," United

States Vv. Inadi, 106 _ ee

1121, 1128, (1986), is no dif-

ferent in this regard.

Kerr timely sought reargument in

the Superior Court. That application

was denied on October 23, 1986.

Kerr petitioned the Supreme Court

of Pennsylvania for allowance of appeal.

In that petition he made the same inef-

fectiveness of counsel claim vis-a-vis

the failure to object to the intro-

duction of these co-conspirator state-

ments and the failure to preserve the

Confrontation Clause issue. On May 5,

2This passage was apparently inad-

vertently misquoted by petitioner when

the Superior Court majority opinion was

reproduced for inclusion in the Avnpvendix

to the Petition. (Anpendix to Petition,

3a-4a).

19387, the Pennsylvania Supreme Court

entered its Order denying Kerr's

petition for allowance of appeal without

opinion. Kerr now seeks of writ of

certiorari to the Supreme Court of

Pennsylvania.

Kerr was charged as the orches-

trator of a massive job selling scheme

in the Office of Auditor General, the

fiscal watchdog of the state government

in the Commonwealth of Pennsylvania.

From 1977 through early 1983, Kerr was

the appointed Executive Deputy Auditor

3Since the Supreme Court of

Pennsylvania, in merely denying a request

by Kerr to entertain his apneal, did not

rule on the merits of this case, it

would be inapprovriate to direct a writ

of certiorari to that court. Stern,

Gressman and Shapiro, Supreme Court

Practice, § 6.21, page 350 (6th Ed.

1986). The petition, for judicial

economy, should be treated as a petition

for a writ of certiorari to the Superior

Court of Pennsylvania. The petition so

treated should be denied.

General. He was second in command in

the office, answerable only to the

elected Auditor General. Testimony from

employees of the Office of Auditor

General disclosed that Kerr made vir-

tually all hiring decisions for the

office. (R. 1069a, 1195a, 1287a, 1302a

and 1320a-1321a)

The charges against Kerr involved

his dealings with several individuals in

the sale of jobs and/or. promotions

within the Office of Auditor General.

Some of the charges involved Kerr's

direct dealings with job seekers. For

instance, Sanford Aderson testified that

he suggested a political contribution to

Kerr in exchange for a job in the Auditor

General's Office. Kerr accepted the

offer, He directed Aderson to-~ send

$2,000.00 in four checks of $500.00 each

to his attention at the Democratic State

Committee headquarters. The checks were

sent and the job was awarded. (R. 865a)

Aderson's testimony was corroborated by

the father of the job seeker who testi-

fied that he gave the $2,000.00 to

Aderson. (R. 915a-915a)

In most instances the testimony at

trial showed that Kerr sold state jobs

through operatives. He was charged with

having conspired with senarate groups of

individuals to effectuate this job sel-

ling scheme. The conspiracies, though

having “the same goal, were geograph-

ically separate. Jobs were sold by Kerr

to seekers in central Pennsylvania

through Dennis Sabo, a former county

campaign co-coordinator for the Auditor

General. Kerr also conspired with

Michael Hanna, Sr. (hereinafter

"Senior"), a former county Democratic

Party chairman, Nick Saittis, an

employee of the Office of Auditor

General, and David S. Peters to sell

jobs in the western part of the Common-

wealth. With the exception of Senior

(who was charged for his part in this

scheme but who died before Kerr's

trial), these admitted co-conspirators

and accomplices of Kerr testified at his

trial.

Saittis testified that he obtained

a job in the Auditor General's Office by

paying Senior. (R. 353a) Senior later

told Saittis that this money was. for-

warded to Kerr. Saittis described the

job selling scheme and the participants,

including Senior, Peters and Kerr. (R.

385a-386a) He described meetings which

he attended with Senior when Senior

would make telephone calls to Kerr and

discuss jobs. (R. 410a-4lla) He testi-

fied that Senior gave cash, aiong with

applications for employment, to Kerr.

Senior told Saittis this. Saittis also

described how on several occasions ‘he

personally delivered money and applica-

tions for job seekers to Kerr in Kerr's

state office or at another location in

Dauphin County. Kerr's secretary corrob-

orated these meetings at his office. (R.

474a)

Saittis testified that he received

substantial amounts of cash from _ job

seekers which, after sometimes keeping a

portion for himself, he turned over to

Senior. (R. 365a) The persons from whom

he received this money subsequently

received jobs in the Auditor General's

Office where Kerr made virtually all of

the hiring decisions.

Peters testified that he collected

cash payments from job seekers and

delivered them to Senior. (R. 693a-694a)

He said that he saw Senior give two

envelopes said to contain this money to

Kets... {Rh 7O%a) Peters stated that he

was present at meetings between Senior

and Kerr during which job sales were

discussed. (R. 704a-705a)

Numerous persons who were identi-

fied by Saittis and Peters as having

paid cash for jobs and/or promotions in

the Office of Auditor General appeared

and testified as Commonwealth witnes-

ses. They admitted having paid various

sums for jobs and/or promotions, thereby

corroborating the testimony of Saittis

and Peters.

Michael Hanna, 2 (hereinafter

“Junior") appeared on behalf of the

Commonwealth. He testified concerning

statements made »by his deceased father

linking Kerr to the job selling scheme.

He was present On two occasions when

Senior gave John Kerr applications and

cash. (R. 942a-946a) On one occasion,

he saw Kerr rifle through the money. On

the second occasion, Junior counted the

money for Senior just before it was

given to Kerr. (R. 957a) Junior testi-

fied that he was present when Senior and

Kerr discussed job sales and problems in

the scheme. (R. 948a) Junior corrob-

orated Saittis' testimony in that he

stated that he saw Saittis bring cash

from seekers to Senior on at least five

or six occasions. (R. 933a) He also

testified that Peters acted as a "bag

man" for his father in this job selling

scheme. (R. 934a)

Dennis Sabo testified for the

Commonwealth, describing job sales he

effected through Kerr. He said he gave

Kerr $2,000.00 for a job for one Mike

Larkin. (R. 610a) He stated he made

several requests for jobs through Kerr,

but only obtained jobs when money was

paid. (R. 60la) The payment for Larkins'

job was corroborated through the testi-

mony of Larkins' father. (R. 669a) Sabo

testified that he spoke to Kerr after he

was interviewed by investigators. He

said that Kerr told him to tell investi-

gators that he (Sabo) gave the Larkin

money to Kerr who in turn gave it to an

official in the Auditor General's Office.

A week later, in a subsequent convers-

ation about the investigation, Kerr told

Sabo to say that Kerr gave the money to

another official in Office of Auditor

General who had previously died. (R.

624a)

Saittis, Peters and Sabo admitted

their parts in these conspiracies.

Saittis and Peters entered pleas. of

guilty to charges arising out of this

job selling scheme and were given jail

terms. Peters, in addition, admitted

that he had ovrior theft convictions,

including one involving several hundreds

of thousands of dollars. He also admit-

ted that he had paid-off policemen in

the past. Sabo testified pursuant to a

grant of immunity. Junior admitted that

he had been charged with obstructing

this investigation by trying to buy

Saittis' testimony. Early in the inves-

tigation he sought to keep his father's

(Senior's) name from surfacing in any

inquiry into criminal wrongdoing. Having

no vrior record, Junior was admitted into

a pretrial diversion program for his

criminal activity witn the agreement of

the Commonwealth.

Notwithstanding his denials and the

testimony of reputation witnesses, Kerr

was convicted of 139 counts arising from

this job selling scheme.

~ 3 ow

REASONS FOR DENYING THE WRIT

In the Pennsylvania appellate

courts, Kerr raised the Confrontation

Clause issue in the context of ineffec-

tive assistance of counsel. The stan-

dard for review of such claims has been

announced by this Court in Strickland v.

Washington, 466 U.S. 668 (1984). An

issue raised in the context of the

ineffective assistance of counsel is

reviewed under a different standard than

a similar issue challenging the admis-

sion of certain evidence which is first

raised by proper objection at trial and

preserved on direct appeal. While mere

error may be sufficient to warrant a new

trial where the issue is properly raised

and preserved, the same is not true

where the issue is raised in the context

of ineffectiveness of counsel. In the

latter situation, relief is only appro-

priate when the defendant shows’ that

counsel made serious errors and that the

errors prejudiced the defense. "This

requires showing that counsel's errors

were so serious as to deprive the defen-

dant of a fair trial, a trial whose

result is unreliable. Unless a defen-

dant makes both showings, it cannot be

said that the conviction. . . resulted

from a br eak down in the adversary

process that renders the result unreli-

able." Strickland v. Washington, suopra.

at 687.

While his ovetition references a

claim of ineffective assistance of

counsel, Kerr presents his’ ovetition,

questions, and argument in the context

of properly preserved trial error. He

cannot now change his theory of appeal

in seeking discretionary review in this

Court. The "Statement of Questions

Presented for Review" as set forth in

the petition does not present the same

question as presented in the courts

below. There the question presented was:

Did trial counsel render inef-

fective assistance in failing

to adequately object to the

admission of hearsay evidence

at trial and in failing to

properly reserve the hearsay

issue and the related confron-

tation clause issue for subse-

quent review?

Since the questions presently before

the Court were not properly ovreserved

below, the petition should be denied.

The court below properly decided

Kerr's allegation of ineffective assis-

tance of counsel as it relates to the

admission of certain hearsay state-

ments. See Strickland v. Washington,

466 U.S. 668 (1984). These statements

were properly admitted under the

co-conspirator exception to the hearsay

rule. In deciding this issue, the

- 19 -

court below properly relied upon and

followed precedential decisions of this

Court on the propriety of the admission

of such statements in the face of a

challenge under the Sixth Amendment Con-

frontation Clause, See United States v.

Inadi, 106 §.Ct. 1121 (1986), and Dutton

v. “vans, 400 U.S. 74 (1970). See also

Ohio v. Roberts, 448 U.S. 56 (1980).

Since any objection to this testi-

mony would have been fruitless, trial

counsel was not ineffective for failing

to make any such objection (or for not

objecting enough, as the case may be).

The questions presented by Kerr,

while important, have been settled by

this Court. The court below did not

answer the questions in conflict with

any decisions by this Court. Instead,

the decision below was fully consistent

with those decisions.

- 19 -

The opinions of the trial court and

of the Superior Court show that the

statements here challenged were properly

analyzed under the standards set forth

in Dutton v. Evans, 400 U.S. 74 (1970).

Assuming, arguendo, that an independent

showing of the reliability of such

statements need be made before they may

be admitted over a Confrontation Clause

challenge, such a showing was made in

the instant case. But, see, Ohio v.

Roberts, 448 U.S. 56, 66 (1980) ("reli-

ability can be inferred without more in

a case where the evidence falls within a

firmly rooted hearsay exception.")

4since "(t)he admission of co-

conspirators' declarations into evi-

dence. ° ° actually furthers the

‘Confrontation Clause's very mission’

which is to ‘advance "the accuracy of

the truth-determining process in

criminal trials," ‘ " United States v.

Inadi, 106 S.Ct. at 1127, it can hardly

be Seriously argued that such declara-

tions are unreliable.

» 20 =

There are no special or important reasons

why this Court should exercise its dis-

cretion and review this decision.

In his last argument, Kerr seems to

suggest that this Court should order the

Supreme Court of Pennsylvania to inter-

pret its state Constitution in a fashion

so as to grant state criminal defendants

greater protections than those secured

for them by the Constitution of the

United States. Though the states are

free to do so, California v. Ramos, 463

U.S. 992 (1983), they are not required

to do so. The failure to do so impli-

cates no federally protected right. It

does not present a question cognizable

in this Court on a writ of certiorari.

Kerr's argument only has appveal if

the true situation here presented is

ignored. The Commonwealth did not

secure Kerr's conviction by reliance

upon inadmissible hearsay as he suggests

in his petition. He was convicted on

the testimony of live witnesses, inclu-

ding his co-conspirators and = accom-

ovlices, who were extensively cross-

examined. They properly testified to

statements made by co-conspirators

during the course of and in furtherance

of their shared criminal design. This

testimony was properly received under a

"firmly rooted hearsay exception.” In

resolving this question, the court below

apolied the decisions of this Court (as

it was required to do when faced with a

federal constitutional question). Since

the law in this area is settled, and

since the settled law was7~ properly

applied below, and since this case

presents no reasons why the law, resta-

ted by this Court as recently as 1986,

should be reexamined, the writ should be

denied.

CONCLUSION

For the foregoing reasons, the

petition for writ of certiorari to the

Supreme Court of Pennsylvania should be

denied.

Respectfully submitted,

LeRoy S. Zimmerman

Attorney General

Paul M. Yatron

First Deputy Attorney General

Director, Criminal Law Division

Robert A. Graci

Chief Deputy Attorney General

Appeals and Legal Services Section

Richard W. Sponseller

Deputy Attorney General

Appeals and Legal Services Section

(Counsel of Record)

Attorneys for Respondent

Poe es

ii