Appendix — Reinert v. Pennsylvania

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| Supreme Court, U.S

FILED

a JUN 32 1997,

jb | OFFICE OF THE

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No. 96-1809

In The

Supreme Court of the United States

October Term. 1996

SCOT A. REINERT.

Petitioner

COMMONWEALTH OF PENNSYLVANIA

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Douglas G. Reichley

(Counsel of Record

Deputy District Attorney

P.O. Box 1548

Allentown, Pa. 18105

(610)820-3 100

Attorney for Respondent

TABLE OF CONTENTS

PETITIONER'S BRIEF IN THE PENNSYLVANIA

SRR NE EINE bso cove sdikincncsecdendsceicdscesvarecse A-]

DEFENDANT'S POST-VERDICT MOTIONS IN

ARREST OF JUDGMENT AND FOR A NEW

PETITIONER’S BRIEF IN THE PENNSYLVANIA

SUPERIOR COURT

C. THE APPELLANT’S TRIAL COUNSEL WAS

INEFFECTIVE IN FAILING TO CALL,

DURING THE SUPPRESSION HEARING: (1)

OFFICER MERTZ, THE FIRST POLICE

OFFICER ON THE SCENE, TO GAIN A

COMPLETE PICTURE OF POLICE

ACTIVITIES ON SUNDAY, MARCH 10, 1991;

(2) REINERT HIMSELF; (3) ONE OF

APPELLANT’S TRIAL COUNSEL; AND (4)

A MEDICAL EXPERT TO TESTIFY TO THE

APPELLANT'S PHYSICAL AND MENTAL

CONDITION; AND FURTHERMORE WAS

INEFFECTIVE IN FAILING TO CALL AT

TRIAL, (3) AND (4) ABOVE.

The Suppression Hearings of August 20 and 21, 1991

focused on the admissibility of Appellant's alleged statements to

the police and of the items seized by the police's warrantless

search on Sunday, March 10, 1991. Clearly, the mental and

physical condition of Appellant, given his suicide attempts.

wounds and subsequent medical attention, was of great importin

aiding the court in deciding whether the Appellant could

knowingly and voluntarily waive his Miranda rights. Of equa

import to the court’s decision, vis-a-vis the seized items, was

whether, as the Commonwealth claims, the secondary search

made by Detectives Stauffer and Granitz and Sgt. Moyer was

indeed necessary to secure the crime scene and protect the

police and the evidence. Remarkably, however, trial counsel

failed to call, or insure the appearance of, either Officer Mertz.

the first officer on the scene, an expert medical witness, Reinet

himself, or one of appellant's trial counsel, who saw Reinert o1

the evening of Sunday, March 10, 1991, and could have

testified, just as the Commonwealth witnesses did, as to his

mental and physical condition.

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1. FAILURE TO CALL OFFICER MERTZ OR RENEW

MOTION TO SUPPRESS

To establish ineffective assistance of counsel, a

defendant must demonstrate that: 1) The underlying claim is of

arguable merit; 2) the counsel’s performance was unreasonable,

and, 3) the counsel’s ineffectiveness prejudiced the defendant.

Commonwealth v. Williams, _Pa._, 640 A.2d 125]

(1994), citing Commonwealth v. Clemmons, 505 Pa. 356, 479

A.2d 955 (1984). With regard to the meritorious nature of

Appellant's claim that the Allentown police conducted an illegal

and unconstitutional search and seizure, he respectfully refers

~ this Honorable court to Section A of this argument. Supra, |.

Officer Mertz was the first person to respond to the scene,

Appellant’s home, on Sunday, March 10, 1991. His testimony

at trial included a very specific description of his entrance to the

Reinert home and his subsequent search for “figures” on all

floors as he headed to the third floor to check reports of a body.

His testimony also included his subsequent order to Officer

Stauffer to secure the residence and report to the dispatcher. It

is submitted that this testimony. in conjunction with Officers

Zimmerman, Lembach and Brader’s testimony of their securing

both entrances to the home, performing a protective walk-

through of the first floor, and maintaining control of the Mr.

Reinert and his parents in the front living room, completes the

picture of a secure crime scene, which obviated the purported

need for Detectives Stauffer’s and Granitz’s later secondary

warrantless search and seizure. Trial counsel failed to secure

Officer Mertz’s presence on the stand, his testimony was never

heard by the judge at the suppression hearing, and was never

included in the suppression court’s deliberations. Alternatively,

trial counsel should have renewed the Motion to Suppress at

trial, upon the receipt of additional, supporting information,

including the testimony of Officer Mertz.

Thus, the trial court’s conclusion that the search

conducted by Officer Stauffer was legal, due to the necessity

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to secure the crime scene, and its reliance on this “legal

presence” to support its conclusion that the seizure of items

without a warrant fell under the plain view exception to

warrantless searches, was erroneous, but in any event, was based

on incomplete information. Supra p.4. The lower court’s order -

denying defendant, Reinert’s, request for suppression allowed

the Commonwealth to offer into evidence, among other items

seized at the time, the, it is submitted, illegally seized butcher

knife, photographs and videotape itself, as well as notes which

the Commonwealth used to support their “jilted lover” motive

for the alleged homicide. Given the ease of obtaining Officer

Mertz’s presence, and the existence of a process by which a

defendant can effect a compulsory confrontation of witnesses,

the trial counsel's failure to elicit and secure Officer Mertz’s

presence and testimony at the suppression hearing was

unreasonable. Further, there is no apparent strategic or tactical

reason for not eliciting Officer Mertz’s testimony, especially in

light of the fact that prior counsel called all the other officers to

the stand at the hearing, and there was no possible negative

impact from the officer’s testimony. Further, trial counsel was

ineffective in not renewing, at trial, the motion to suppress, once

Officer Mertz’s testimony was revealed.

2. FAILURE TO INFORM REINERT OF HIS RIGHT TO

TESTIFY

Reinert further submits that his trial counsel was

ineffective in not informing him of his right to testify at the

Supression Hearing, not discussing with him the possibility of

his so testifying, and not calling him to discuss his physical and

mental state on Sunday, March 10, 1991. See, Appendix “D,”

Affidavit of Scot A. Reinert, all of which would have made clear

the strength of his suppression motion. Further, as Reinert’s

statements were the critical lynchpin in the Commonwealth's

case, it was clearly ineffective and unreasonable to fail to call

Reinert to the stand.

3. FAILURE TO CALL AN EXPERT MEDICAL AND

PSYCHIATRIC WITNESS FOR THE SUPPRESSION

HEARING AND/OR FOR TRIAL

Appellant further submits that trial counsel's failure to

obtain an expert witness to testify, both at the suppression

hearing, and at trial if any statements survived the suppression

hearing, about Mr. Reinert’s medical and mental condition at the

time he made the statements, and his ability to knowingly and

intelligently waive his constitutional rights, and voluntariness,

was ineffective assistance of counsel. When a claim of

ineffective assistance of counsel focuses on counsel's failure to

retain expert witnesses, “the defendant must articulate what

evidence was available and identify the witness who was willing

to offer the evidence. “ Williams, 640 A.2d at 1265, citing

Commonwealth v. Halloway, 524 Pa. 342, 572 A.2d 687

(1990).

Among the pivotal issues presented and decided at the

suppression hearing were Appellant's ability to waive his

Miranda rights both in the ambulance and in the hospital given

his mental and physical. [sic] The Commonwealth presented

the observations of police officers, paramedics, and Appellant's

surgical doctor to support its contention that Appellant's

condition did not inhibit his judgment vis-a-vis his waiver of

Miranda rights. In response, trial counsel called Mr. Reinert’s

parents, neither of whom have any medical training. However,

again inexplicably, trial counsel failed to call an expert witness

to the stand to testify, after review of Appellant's medical

records, about Appellant's physical injuries and subsequent

severe blood loss, and his mental state, including his attempts at

suicide, on his cognitive ability and decision-making process.

The ineffectiveness in this case is especially egregious as

Reinert’s prior counsel had informed him early on that such a

witness would be obtained, and they had several discussions

about the matter prior to the Suppression Hearing, and again

prior to trial. See, Appendix “D,” Affidavit of Scot Reinert. It is

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submitted that medical testimony, in conjunction with

Appellant's injuries, the circumstances surrounding the police

interrogation, and prevailing case law, See. supra 13, would

have presented a meritorious case for the suppression of

Reinert’s statements.

Attached hereto are the reports and curriculum vitae of

tvo expert witnesses. The first is Dr. Robert L. Sadoff, perhaps

tie leading psychiatrist in this geographic area, and the second is

Pr. Lynn Allison Bornfriend. Doctor Sadoff’s report is quite

dear that, based on the totality of the circumstances at the time,

including his physical and mental condition, Reinert was

ncapable cf waiving his rights at the time he made the statement

t Detectives Stauffer and Granitz in the hospital on the evening

cf Sunday, March 10, 1991. Affidavit of Dr. Robert L. Sadoff.

Dr. Bornfriend’s report is also quite clear that at the time Reinert

nade his statement to Officer Zimmerman in the ambulance,

ind at the time he made another statement to the detectives in

he hospital, he was incapable of knowingly and intelligently

vaiving his Miranda rights. Appendix “B,” Affidavit of Dr.

-ynn A. Bornfriend.

Appellant contends that, given the ready availability of

uch witnesses and the favorable conclusions reached in their

eports, it was plainly unreasonable for trial counsel to fail to

ecure and call such a witness. Similarly, given the fact that

»rior counsel was pursuing suppression based on Reinert’s

nability to make a knowing and intelligent waiver, there

ippears to be no reasonable tactical or strategic basis for not

oresenting such a witness to the court for consideration.

Without this testimony, the trial court again made its

Jetermination as to the admissibility of the statements on

incomplete evidence, and the incriminating statements, which

were significantly relied on by the Commonwealth, were

presented to the jury. Further, any delays in obtaining an

appropriate examination of his physical and mental condition

can only be recognized as extremely prejudicial.

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ere ne

an

Commonwealth v. Turiano, 601 A.2d 846 ( i992))\Court found

meritorious Appellant’s argument that counsel was ineffective

for failing to arrange a mental health examination in a timely

fashion, and this ineffectiveness prevented Appellant from

receiving an exam, crucial to his defense of insanity, at a point

in time when the exam would be relevant to the defense).

Therefore, Appellant respectfully requests this court to find trial

counsel ineffective in her representation, suppress, reverse the

conviction, and remand for a new trial.

4. TRIAL COUNSEL, ONE OR BOTH, SHOULD HAVE

TESTIFIED IN THE SUPPRESSION HEARING AND AT

TRIAL AND/OR WITHDRAWN IF NECESSARY.

Finally, Reinert contends that trial counsel was

ineffective for failing to testify at Appellant’s suppression

hearing/trial, especially as trial counsel, two from the same firm,

visited Reinert at the hospital the night of March 10, 1991, N.T.,

Vol. V, 160, and were in a position to testify as to his mental

and physical condition. See, Appendix “E” and Appendix “F,”

Affidavits of Charles and Janet Ketner. One of Reinert’s two

counsel should have testified at the suppression hearing about

Reinert’s ability to waive his Miranda rights, and let the other

remain counsel for the duration of that hearing. See, Rules of

Professional Conduct, Rule 3.7!, especially since the fact-finder

at the suppression hearing was a judge, and the jury would be

unaware that trial counsel ever acted as a witness. Or, barring

that, counsel should have withdrawn as counsel to act as a

witness in the proceedings. After the results of the suppression

hearing were known, counsel could then determine whether they

needed to testify at trial, and if necessary, they should have done

so under the aegis of Rule 3.7, or have withdrawn to do so.

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'“(b) A lawyer may act as advocate in a trial in which another lawyer

in the lawyer's firm is likely to be called as a witness, unless precluded

from doing so by Rule 1.7 or Rule 1.9 [Conflict of Interest

Provisions].”

It is submitted that, on this record, this Honorable court

can determine that trial counsel was ineffective. However, if

this Honorable Court determines that it cannot determine

whether trial counsel was reasonable in failing to call any of the

above witnesses, Appellant respectfully requests this Honorable

Court to vacate the judgment of sentence and remand for an

evidentiary hearing on this issue. n v. Miller.

430 Pa. Super. 297, 308, 634 A.2d 614, 619 (1993);

Commonwealth v. Free, 301 Pa. Super. 425, 430, 447 A.2d

1041 (1982); Commonwealth v. Fierst, 423 Pa. Super. 232,

248, 620 A.2d 1196, 1205 (1993). The affidavits are included in

order to comply and demonstrate the merits of Appellant's

position.

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IN THE COURT OF COMMON PLEAS OF LEHIGH

COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vi

SCOT A. REINERT

NO. 1128 OF 1991

DEFENDANT'S POST-VERDICT MOTIONS

IN NEW TRIA

TO THE HONORABLE, THE JUDGES OF THE SAID

COURT: —

COMES NOW the Defendant, Scot A. Reinert, and

states the following:

1. The court erred in denying the Defendant’s Motion to

Suppress all statements made by him for the reason that the

‘Commonwealth failed to establish that the statements were

made voluntarily and intelligently and that the contents of the

statements were reliable.

2. The court erred in refusing to suppress all evidence

seized from the home at 120 N. West Street, Allentown, PA, for

the reason that said evidence was obtained without a proper

search warrant, without exigent circumstances or any other legal

justification for the seizure on March 10, 1991.

3. The Court erred in precluding a major component of

the defense when it required that there could be no testimony

mentioning the prescription drug Prozac (which Sean Brady was

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taking for several months prior to his death,) either by name or

by reference to “medication” unless an expert was called to

testify to the effects of that drug. In accordance with a written

offer of proof filed with the court and the various oral offers of

proof, it was not the intent of the defense to prove what the

actual effects of this very controversial drug are, but to offer the

Defendant's observations of Brady’s conduct after he began

using the medication and of the arguments they had on the

subject.

4. The Court erred in permitting the Assistant District

Attorney to question prospective jurors in an attempt to “life-

qualify” them, but without advising them that the sentence for

first degree murder carries a mandatory sentence of life without

parole as requested by the defense.

5. The Court erred in permitting the Commonwealth to

play a videotape taken at 120 N. West Street, Allentown, PA, on

March 10, 1991, for the reasons that said video was

inflammatory, particularly in light of the fact that it dwelled at

great length on the body of Sean Brady, taken from various

angles. Said video did not have any probative value and was not

useful for the jury’s understanding of the case. Said video did

not depict the scene at the time the police arrived at the home,

but was recorded after various changes had been made at the

scene, including the repositioning of the body. Said video was

cumulative in light of all of the other photographs which were

introduced at the scene and of the wounds.

6. The Court erred in granting the Commonwealth's

Motion to Strike for Cause prospective jurors fifteen, Roger

Hahn, and thirty-two, Michael Dalessandro, as those jurors

indicated that they could follow the instructions as set forth by

the Court.

7. The Court erred in denying Defendant’s Motion to

Strike for Cause prospective juror number forty-two, John

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Heiney, in that said juror did not indicate that he could set aside

the preconceived ideas he had and indicated that he would have

difficulty following the instructions of the court.

8. The Court erred in allowing the Commonwealth to

introduce Commonwealth exhibits 42, 43, 44 and 45, all being

photographs of the body of Sean Brady, said photographs being

inflammatory and their potential prejudice to the defense

outweighing any probative value they had. Moreover, these

photographs were cumulative and even if one or two were to

have been properly introduced, introducing all four was

cumulative and prejudicial to the defense.

9. The Court erred in allowing the Commonwealth to

introduce exhibit number 57, the blood soaked T-shirt worn by

Sean Brady, said T-shirt, which was repeatedly shown to the

jury, being extremely inflammatory and being probative of

absolutely nothing. Moreover, any probative value was far

outweighed by the inflammatory and prejudicial nature of this

exhibit.

10. The Court erred in allowing Thomas Gavigan, a

Registered Nurse, to testify as an expert and to render his

opinion that the all of the wounds sustained by Scot Reinert

were self-inflicted, said witness not being properly qualified to

render any such opinion and said opinion being a question of

ultimate fact to be determined by the jury.

11. The Court erred in denying the defense request for a

mistrial following Dr. Mihalakis’ reference to the fact that the

Defendant was incarcerated in Lehigh County Prison at the time

he was examined by Dr. Mihalakis following this incident.

12. The Court erred in requiring defense counsel to turn

over to the prosecution various notes prepared by the defense,

which notes were work product and which notes were not

substantially verbatim statements taken of any of the witnesses

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who testified and were not adopted by the witnesses as their

statements.

13. The Court erred in refusing the defense request to

play the tape recorded by the Allentown Communications

Center when Charles Ketner called to report the incident.

14. The Court erred in permitting the Commonwealth to

call on rebuttal Detective Stauffer, who testified to nothing new;

all of the matters covered on rebuttal having been previously

covered in the direct testimony and/or not being relevant to

anything other than collateral matters.

15. The Court erred in allowing the Commonwealth to

call on rebuttal Anne Marie Orr and then erred in prohibiting the

defense from properly cross-examining said witness on her

testimony, said witness offering the hearsay statements of Sean

Brady and said testimony not being proper rebuttal of any

subject relevant to the jury’s determination.

16. The Court erred in allowing the Commonwealth to

call on rebuttal Susan Nienkawicz, said testimony not being

proper rebuttal, not rebutting anything of relevance in the matter

and/or being rebuttal only on a collateral issue raised by the

Commonwealth.

17. The Assistant District Attorney committed

misconduct when he referred to his closing argument to the fact

that the victim could not come in and testify and that he could

not rebut the allegations made by the defense and the Court

erred in overruling the defense objection to this line of

argument.

18. The Court erred in denying Defendant's Points for

Charge |, 2, 3, 4, 12, 17, 20, 21, 22, and 23.

19._ The Court erred in instructing the jury that the

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Defendant, who was present in his own home, had the duty to

retreat in conjunction with the defense of self-defense.

20. The Court erred in sending Commonwealth exhibits

42, 43, 44, 45, 46, 48, 52, 53, 54, 67, 68, 102, 103, 107 and 115

out with the jury during their deliberations.

21. The Court erred in not sending out with the jury

Defense exhibits 8 and 24, and Commonwealth exhibit | 12.

22. The Court erred when, in response to a request from

the jury, it sent in a redacted version of the note contained in the

green notebook and in sending in only one of two notes offered

by the defense which the jury had requested to see.

23. The Court erred in replaying the video taken at the

scene at the request of the jury.

Respectfully submitted,

WORTH LAW OFFICES, P.C.

Dianne M. Dickson, Esquire

Attorney for Defendant

1.D. No. 30481