Appendix — Wambaugh v. Smith

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96 642 OCI 23 19%.

No, OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JOSEPH A. WAMBAUGH,

Petitioner,

Vv.

JAY C. SMITH,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

APPENDIX

Mark R. Hornak

Counsel of Record

Corbett L. Anderson

BUCHANAN INGERSOLL

PROFESSIONAL CORPORATION

One Oxford Centre

301 Grant Street, 20th Floor

Pittsburgh, PA 15219-1410

(412) 562-8859

Counsel for Petitioner

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

APPENDIX H

APPENDIX I

APPENDIX J

APPENDIX K

APPENDIX L

APPENDIX M

APPENDIX N

APPENDIX O

APPENDIX P

INDEX TO APPENDICES

Smith v. Holtz, 87 F.3d 108 (3d Cir. 1996).

Smith v. Wambaugh, 887 F. Supp. 752 (M.D. Pa. 1995).

Smith v. Holtz, 879 F. Supp. 435 (M.D. Pa. 1995).

Order Certifying Wambaugh Decision for Interlocutory

Appeal.

Order Accepting Appeal of Wambaugh Case.

Order Granting Motion to Consolidate Appeals of

Wambaugh and Holtz Cases.

Denial of Petition for Rehearing in Holtz Case.

Denial of Petition for Rehearing in Wambaugh Case.

Commonwealth v. Smith, 568 A.2d 600 (Pa. 1989).

Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992).

Alvarez-Machain v. United States, _ F.3d ___, 1996

WL 537212 (9th Cir. Sept. 24, 1996).

Day v. Zubel, __ P.2d__, 1996 WL 467167 (Nev.

Aug. 16, 1996).

White v. Eldridge, 70 F.3d 123, 1995 WL 668009 (10th

Cir. Nov. 9, 1995).

Miller v. Jones, No. 96-6077, 1996 WL 421933 (10th

Cir. July 29, 1996).

Murphy v. Simpson, No. 94 CV 5610, 1995 WL 362447

(E.D.N.Y. June 1, 1995).

Daniel v. Ruph, No. C-94-3327 EFL, 1994 WL 589352

(N.D. Cal. Oct. 12, 1994).

A-1

Filed June 26, 1996

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 95-7533, 95-7534

JAY C. SMITH

v.

JOHN J. HOLTZ, Bureau of Technical Services,

Pennsylvania; RONALD F. COLYER, Bureau of Technical

Services, Pennsylvania State Police; VICTOR DOVE;

JOHN J. PURCELL, Special Agent In Charge, Central

Regional Office, Bureau of Criminal Investigations, Office

of the Attorney General; WILLIAM J. LANDER, Bureau of

Criminal Investigations, Office of the Attorney General;

PAUL YATRON,

Appellants in No. 95-7533

JAY C. SMITH

v.

JOSEPH P. WAMBAUGH,

Appellant in No. 95-7534

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil Action Nos. 93-cv-01428 and 94-cv-01470)

Argued May 3, 1996

BEFORE: STAPLETON, COWEN and SEITZ, Circuit Judges

(Opinion Filed June 26, 1996)

A-2

Gerald J. Williams (Argued)

Williams & Cuker

1617 JFK Boulevard

One Penn Center at

Suburban Station

Suite 800

Philadelphia, PA 19103

Attorney for Appellee

in No. 95-7533

Thomas W. Corbett, Jr.

Attorney General

Gregory R. Neuhauser (Argued)

Senior Deputy Attorney General

Calvin R. Koons

Senior Deputy Attorney General

John G. Knorr, II

Chief Deputy Attorney General

Office of Attorney General of PA

15th Floor, Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellants

in No. 95-7533

George A. Bochetto

Stephen E. Skovron (Argued)

Bochetto & Lentz

1524 Locust Street

Philadelphia, PA

Attorneys for Appellee

in No. 95-7534

Mark R. Hornak (Argued)

George H. Crompton

Buchanan Ingersoll Professional

Corp.

One Oxford Centre

301 Grant Street, 20th Floor

Pittsburgh, PA 15219

Attorneys for Appellant

in No. 95-7534

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OPINION OF THE COURT

STAPLETON, Circuit Judge:

In Heck v. Humphrey, 114 S. Ct. 2364 (1994), the Supreme Court

held that 42 U.S.C. § 1983 does not provide a cause of action to recover

monetary compensation for an allegedly unconstitutional conviction or

imprisonment where recovery would necessarily imply the invalidity of an

outstanding criminal conviction of a state court. In these consolidated

civil rights actions, Jay Smith seeks monetary compensation for his

allegedly unconstitutional conviction and imprisonment on murder

charges. On direct appeal from Smith's murder conviction, the Supreme

Court of Pennsylvania reversed that conviction due to a state-law

evidentiary error and remanded for a new trial. Before the retrial,

however, that court ordered the dismissal of all charges against Smith

based on newly discovered evidence of prosecutorial misconduct. In these

ensuing civil rights cases, the defendants unsuccessfully sought dismissal

of Smith's claims on statute of limitations grounds, arguing that they

accrued when his conviction was reversed, even though he was still the

subject of an ongoing prosecution at that time. Since Smith's claims were

filed more than two years after that reversal but within two years of the

dismissal of all charges against him, we must decide whether, under the

teachings of Heck, a claim is cognizable under § 1983 where its success

would necessarily imply the invalidity of a future conviction that might be

entered on a pending criminal charge. We hold that such a claim is not

cognizable under § 1983. It necessarily follows that claims like those of

Smith do not accrue so long as the potential for a judgment in the pending

criminal prosecution continues to exist. Since this potential existed in

Smith's case until the Pennsylvania Supreme Court ordered the charges

dismissed on September 18, 1992, Smith's claims did not accrue before

that date. Accordingly, Smith's claims were timely filed and we will

affirm.

5;

In April 1986, a jury convicted Smith of the murders of Susan

Reinert and her children. Smith immediately appealed. While the appeal

was ongoing in July 1988, the government disclosed that police

investigators had withheld potentially exculpatory evidence.’ On

' The evidence in question is five rubber "lifters." These lifters are tools that were used to

remove physical evidence from Reinert's body. Smith defended the charges against him on

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December 22, 1989, on direct appeal the Supreme Court of Pennsylvania

reversed Smith's convictions on the unrelated ground that the Court of

Common Pleas had improperly admitted hearsay evidence.

Commonwealth v. Smith, 568 A.2d 600 (Pa. 1989). The Pennsylvania

Supreme Court remanded for a new trial.

Smith remained in prison pending a second trial. He promptly

moved to dismiss the ongoing prosecution on double jeopardy grounds,

arguing that the withholding of exculpatory evidence at the first trial

amounted to prosecutorial misconduct. Smith had not previously raised

this issue because he had not learned of the misconduct until after his trial

and because the supporting evidence was not part of the record on direct

appeal. On September 18, 1992, the Pennsylvania Supreme Court ordered

all charges dismissed based on the double jeopardy clause of the

Pennsylvania Constitution. Commonwealth v. Smith, 615 A.2d 321 (Pa.

1992). The court held that Pennsylvania's double jeopardy clause

prevented retrial because the withholding of evidence was "intentionally

undertaken to prejudice the defendant to the point of the denial of a fair

trial." Jd. at 325. Smith was immediately released.

On September 15, 1993, Smith filed a § 1983 claim against John

Holtz, Ronald Colyer, Victor Dove, John Purcell, William Lander, and

Paul Yatron (the "Holtz case"). Holtz, Colyer, Dove, Purcell, and Lander

were government officials involved in the investigation. Yatron was an

attorney with the Pennsylvania Attorney General's office. Smith alleged

that the misconduct in connection with the concealing of the exculpatory

evidence violated his Fifth, Sixth, and Fourteenth Amendment rights. On

September 14, 1994, Smith filed a separate § 1983 suit against Joseph

Wambaugh (the "Wambaugh case"). He claimed that Wambaugh, an

author, had conspired with police investigators to conceal exculpatory

evidence and to fabricate evidence linking Smith to the murders, in order

to make money from a book and a television mini-series. He alleged

violations of his Fourth, Sixth, and Fourteenth Amendment rights. In both

cases he sought to recover the damages resulting from his unlawful

conviction and confinement.

The defendants in both cases argued that Smith's claims were

time-barred by the applicable two-year Pennsylvania statute of limitations

because they accrued when his conviction was reversed in 1989.” Based

the theory that William Bradfield had cornmitted the murders at the New Jersey shore. On

cross examination, a former police officer who was present at the autopsy explained that he

had removed sand from between Reinert's toes with rubber lifters. The prosecution did not

produce or disclose the existence of these lifters at trial.

In § 1983 cases, federal courts apply the state personal injury statute of limitations,

Wilson v. Garcia, 471 U.S. 261, 276-80 (1985), which in this case is two years, Smith v.

A-5

on Heck v. Humphrey, 114 S. Ct. 2364 (1994), the district court concluded

that Smith's § 1983 claims were timely filed because they did not accrue

until the Pennsylvania Supreme Court ordered all charges dismissed in

1992. We consolidated the interlocutory appeals filed by all defendants

under 28 U.S.C. § 1292(b).’

Il.

The outcome of this appeal turns on Heck v. Humphrey, 114 S. Ct.

2364 (1994). Heck was convicted of voluntary manslaughter in a state

court. While his direct appeal was pending, he filed a § 1983 suit against

two prosecutors and a government investigator. He sought monetary

damages resulting from his allegedly unlawful conviction. The district

court dismissed the case and the Seventh Circuit Court of Appeals

affirmed. Before the case reached the Supreme Court, the state supreme

court denied relief in Heck's direct appeal of his criminal conviction, the

district court denied Heck's habeas petition, and the Seventh Circuit

affirmed that denial. /d. at 2368.

The Supreme Court granted certiorari to decide whether under

§ 1983 a state prisoner could pursue money damages premised on an

allegedly unlawful outstanding conviction. The Court began its analysis

by noting that since § 1983 creates a species of tort liability, the common

law of torts "provide[s] the appropriate starting point for the inquiry." Jd.

at 2370. The Court observed that the common law tort of malicious

prosecution was analogous to Smith's claim because a malicious

prosecution claim allows a plaintiff to recover for unlawful imprisonment

pursuant to legal process. A necessary element of a malicious prosecution

claim is the termination of the criminal proceedings in favor of the

accused:

City of Pittsburgh, 764 F.2d 188, 194 (3d Cir.), cert. denied, 474 U.S. 950 (1985); 42 Pa.

Cons. Stat. Ann. § 5524.

* In the Holtz case, the district court first granted the defendants summary judgment three

days after the Supreme Court announced its decision in Heck. Smith filed a timely appeal.

After it learned of Heck, the district court granted a Federal Rule of Civil Procedure 60(b)

motion filed by Smith, reconsidered its order, and denied summary judgment based on

Heck. The Holtz defendants argue that Heck should not apply to this case because the

district court abused its discretion in reconsidering its original grant of summary judgment

in their favor. Because the Supreme Court decides ‘Zeck while the Holtz case was still

pending, Heck applies to the Holtz case regardless of whether the district court abused its

discretion in granting Smith's Rule 60(b) motion. C & K Coal Co. v. United Mine Workers

of America, 704 F.2d 690, 698 (3d Cir. 1983) ([A]ppellate courts are obliged to apply the

law as they find it at the time of their judgment.") Since we do not understand the Holtz

defendants to argue that Rule 60(b) relief was improper even if Heck applies to this case,

we express no opinion on that issue.

A-6

This requirement "avoids parallel litigation over the issue

of probable cause and guilt . . . and it precludes the

possibility of the claimant [sic] succeeding in the tort

action after having been convicted in the underlying

criminal prosecution, in contravention of a strong judicial

policy against the creation of two conflicting resolutions

arising out of the same or identical transaction."

Furthermore, "to permit a convicted criminal defendant to

proceed with a malicious prosecution claim would permit

a collateral attack on the conviction through the vehicle of

a civil suit."

Id, at 2371 (alterations in original) (citations omitted).

For these reasons the Court held that "the hoary principle that civil

tort actions are not appropriate vehicles for challenging the validity of

outstanding criminal judgments applies to § 1983 damage actions that

necessarily require the plaintiff to prove the unlawfulness of his conviction

or confinement." Jd. at 2372. Accordingly, "in order to recover damages

for allegedly unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court's issuance of a writ of habeas

corpus." Jd. A claim seeking such damages is not cognizable under

§ 1983 even though such claim is within the literal terms of § 1983. Jd

Accordingly, a "district court must consider whether a judgment in

favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence." /d. If not, the action should be allowed to

proceed:

For example, a suit for damages attributable to an

allegedly unreasonable search may lie even if the

challenged search produced evidence that was introduced

in a state criminal trial resulting in the § 1983 plaintiff's

still-outstanding conviction. Because of doctrines like

independent source and inevitable discovery, and

especially harmless error, such a § 1983 action, even if

successful would not necessarily imply that the plaintiff's

conviction was unlawful. In order to recover

compensatory damages, however, the § 1983 plaintiff

must prove not only that the search was unlawful, but that

it caused him actual, compensable injury, which, we hold

A-7

today, does not encompass the "injury" of being convicted

and imprisoned (until his conviction has been overturned).

Id. at 2372-73 n.7 (citations omitted).

Since Heck's claims challenged the legality of his conviction and

his conviction remained in effect, the Court dismissed Heck's claims as not

cognizable under § 1983. Jd. at 2374.

Smith asserts in his complaints that the defendants suppressed

exculpatory evidence and contrived inculpatory evidence. His claims seek

damages resulting from his unlawful conviction and confinement. If he

had brought these claims before September 18, 1992, when the

Pennsylvania Supreme Court ordered the charges against him dismissed,

success on these claims would have necessarily implied the invalidity of

any future conviction on the still pending criminal charges.

Heck did not directly address claims that, if successful, would

necessarily imply the invalidity of a potential conviction on a pending

criminal charge. In certain portions of the opinion, the Court spoke in

terms of claims that, if successful, imply the invalidity of "outstanding"

convictions. Other portions of the opinion, however, refer to claims that,

if successful, imply the invalidity of convictions without specifying

whether this includes claims that, if successful, would imply the invalidity

of potential convictions that may result from pending charges.

The Supreme Court did not address this issue because it was not

presented by the facts in Heck. The Court had before it the § 1983 claim

of a plaintiff who was serving a sentence on an outstanding conviction.

The Court thus had no occasion to determine the scope of permissible

§ 1983 claims by a defendant in an ongoing criminal prosecution.

Accordingly, we must look to the reasoning behind the Heck rule to

determine whether a claim that, if sucvessful, would necessarily imply the

invalidity of a conviction on pending criminal charges is cognizable under

§ 1983.

The Supreme Court observed that the problem presented by Heck's

case is that it lay "at the intersection" of the Civil Rights Act of 1871 and

the federal habeas corpus statute. Heck, 114 S. Ct. at 2369. Some

accommodation was required because the federal habeas statute has an

express exhaustion requirement that precludes the filing of a federal

habeas petition holding the potential for interference with determinations

made in state criminal proceedings, while § 1983 requires no exhaustion of

state remedies. Jd. The Court accommodated these two statutes by

holding that § 1983 actions are subject to the "hoary principle" that civil

tort actions-are not the appropriate vehicle for challenging the validity of

convictions and sentences. The express objectives of this holding were to

A-8

preserve consistency and finality, and to prevent "a collateral attack on [a]

conviction through the vehicle of a civil suit." Jd. at 2371.

We find that these concerns apply equally to claims that, if

successful, would necessarily imply the invalidity of a future conviction

on a pending criminal charge. A claim by a defendant in an ongoing

criminal prosecution which necessarily challenges the legality of a future

conviction on a pending criminal charge lies at the intersection of the

federal habeas corpus statute and the Civil Rights Act of 1871. If such a

claim could proceed while criminal proceedings are ongoing, there would

be a potential for inconsistent determinations in the civil and criminal

cases and the criminal defendant would be able to collaterally attack the

prosecution in a civil suit. In terms of the conflicts which Heck sought to

avoid, there is no difference between a conviction which is outstanding at

the time the civil rights action is instituted and a potential conviction on a

pending charge that may be entered at some point thereafter.

Because of these concerns, we hold that a claim that, if successful,

would necessarily imply the invalidity of a conviction on a pending

criminal charge is not cognizable under § 1983. See Hamilton v. Lyons, 74

F.3d 99 (Sth Cir. 1996) (interpreting Heck to prevent accrual of § 1983

claims that would necessarily imply the invalidity of convictions on

pending criminal charges). It necessarily follows that so long as success

on such a claim would necessarily imply the invalidity of a conviction in

the pending criminal prosecution, such a claim does not accrue so long as

the potential for a judgment in the pending criminal prosecution continues

to exist.* This did not occur in Smith's case until the Pennsylvania

Supreme Court ordered the charges dismissed on September 18, 1992.

Smith's claims thus did not accrue before that date and, since he filed those

claims within two years thereafter, they are not time barred.

Ill.

Wambaugh argues, in the alternative, that if Smith's claims did not

accrue before the 1992 dismissals, they have yet to accrue. The contention

is that a judicial finding of actual innocence is a prerequisite for a common

law malicious prosecution claim and, accordingly, is a prerequisite here.

Since the double jeopardy ruling of the Pennsylvania Supreme Court was

not premised on a finding of Smith's actual innocence, the argument goes,

he has not satisfied that prerequisite. We are unpersuaded.

* Our holding is consistent with the common law of malicious prosecution to which the

Supreme Court looked in Heck. According to the common law of malicious prosecution, a

defendant in an ongoing criminal prosecution cannot bring a malicious prosecution claim.

See Restatement of the Law of Torts §§ 658, 659 (1938).

iti

A-9

First, Wambaugh misstates the common law of malicious

prosecution. Actual innocence is not required for a common law favorable

termination, see Restatement of the Law of Torts §§ 659, 660 (1938), and a

dismissal of charges on double jeopardy grounds is a common law

favorable termination. E.g., Haefner v. Burkey, 626 A.2d 519, 521 (Pa.

1993).

But, more importantly, Wambaugh misreads Heck. While the

Heck court looked to the common law for guidance, it did so solely for the

purpose of accommodating the congressional intent reflected in the civil

rights and habeas corpus statutes. As a result, Heck should not be read to

incorporate all of the common law of malicious prosecution into the

federal law governing civil rights cases of this kind. Heck represents a

limitation on the availability of relief for constitutional torts that extends

no further than the congressional concerns which justify it. As we have

explained, those concerns dictate that a district court decline to entertain a

civil rights claim asking monetary compensation for an allegedly unlawful

conviction or imprisonment where success on that claim would necessarily

imply the invalidity of an outstanding conviction or a potential conviction

| in a pending criminal proceeding. When that outstanding conviction or

that pending criminal proceeding ceases to exist, however, the justification

for barring access to the federal courts likewise ceases. This means,

among other things, that the rationale of Heck will not support a

requirement that a civil rights plaintiff like Smith must have judicially

established his innocence before invoking § 1983.

IV.

For the foregoing reasons, we will affirm.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

eK ee ee ee

Filed May 15, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAY C. SMITH, :

Plaintiff : NO. 1:CV-94-1470

v. : JUDGE McCLURE

JOSEPH P. WAMBAUGH,

Defendant

MEMORANDUM

May 15, 1995

BACKGROUND

Plaintiff Jay C. Smith filed this section 1983 action’ alleging the

violation of his civil rights by defendant Joseph Wambaugh in connection

with Smith's April, 1986 murder conviction. Plaintiff was convicted of

murdering Philadelphia school teacher Susan Reinert and her two minor

children, Michael and Karen Reinert, and was sentenced to death for those

crimes. Commonwealth v. Pennsylvania v. Jay C. Smith, Crim. Nos. 1677,

1677(A) and 1677(B) (Dauphin Co.). Reinert's body was discovered in the

trunk of her car parked in a hotel parking lot near Harrisburg,

Pennsylvania on June 25, 1979. The bodies of her children were never

found.

Smith's conviction was reversed on direct appeal to the

Pennsylvania Supreme Court, Commonwealth v. Smith, 568 A.2d 600 (Pa.

1987), on evidentiary grounds unrelated to the alleged concealment of the

rubber lifters” and his case remanded to the Dauphin County Court of

Common Pleas for a new trial.”

' 42 U.S.C. § 1983.

s During Smith's trial, his counsel cross-examined a prosecution witness on the existence

of physical evidence found during the autopsy of Reinert's body which supported his theory

that the murders had taken place at the New Jersey shore. During cross-examination,

prosecution witness John C. Balshy, a former state policeman who had been present during

the autopsy, testified that he had observed a grainy substance--which appeared to be sand--

between Reinert's toes. Balshy further testified that he had preserved this evidence by

pressing it into rubber “lifters.” (Plaintiff's complaint, {J 20-21). The "lifters" were not

produced at trial, and their actual existence was never confirmed by the prosecution during,

or at any time prior to, Smith's 1986 trial.

Smith defended the charges against him by contending that Reinert and her children had

been murdered at the New Jersey shore by William Bradfield and/or associates of his and

that those individuals had then conspired to make it appear that Smith was responsible for

the murders. Bradfield had been previously convicted of murdering the three victims.

B-2

The case was never retried. In 1988, Smith learned that the lifters

about which Balshy testified did in fact exist and that their existence had

been concealed from him by the prosecution. He moved, on that basis, for

dismissal of all charges against him.

Smith's motion for dismissal, filed February 1, 1990, was denied

by the Dauphin County Court of Common Pleas. The Pennsylvania

Superior Court affirmed the denial on appeal, Commonwealth v. Smith,

591 A.2d 730 (Pa. Super Ct. 1991). The Pennsylvania Supreme Court

reversed on September 18, 1992, Commonwealth v. Smith, 615 A.2d 321

(Pa. 1992), and, based on its finding that the Commonwealth had

deliberately suppressed the existence of two adhesive lifters, which

supported plaintiff's claim of innocence, ordered plaintiff's discharge from

custody. The Pennsylvania Supreme Court held that, due to the

prosecutorial misconduct which led to plaintiff's conviction, no further

charges could be pursued against Smith for the Reinert murders and that a

For a more complete history of the underlying state criminal action, see the court's

memorandum filed on March 24, 1995 in the companion civil rights action filed by Smith

against the state investigators responsible for investigating the Reinert murders, Smith v.

Holtz, Civ. No. 93-1428 (M.D.Pa.).

> On appeal to the Pennsylvania Supreme Court, Smith raised nineteen grounds for reversal

of his conviction, including an assertion that the evidence adduced at trial was insufficient

as a matter of law to establish his guilt of all elements of the crimes charged. That assertion

was rejected by the Pennsylvania Supreme Court. Smith, supra, 568 A.2d at 602.

The Supreme Court considered on the merits only one of the nineteen grounds for reversal

alleged by Smith--his contention that out-of-court statements allegedly made by co-

conspirator Bradfield to his colleagues and others implicating Smith in the Reinert murders

constituted inadmissible hearsay. The Supreme Court agreed that admission of the

Statements constituted reversible error and remanded the case for a new trial on that ground.

Id. at 607-610.

Although the defense learned of the prosecution's alleged concealment of the lifters prior

to disposition of Smith's appeal by the Pennsylvania Supreme Court and brought the matter

to the court's attention, the court did not consider that issue on the merits, preferring instead

to have the matter considered in the first instance by the trial court:

On January 19, 1989, this Court ordered the Court of Common Pleas of Dauphin County

to conduct an evidentiary hearing regarding certain evidence in the Commonwealth's

possession, which may have been exculpatory in nature, but which was never disclosed to

the defense. The evidence in question was a ‘rubber lifter,’ an evidence collection device,

which allegedly contained grains of sand found on Mrs. Reinert's feet during the autopsy.

Appellant argued that this evidence was significant to his defense in that it would have

supported his theory that Mrs. Reinart was killed at the seashore by Bradfield and his

associates.

In view of our disposition, we need not consider this issue in determining whether a new

trial should be granted. This evidence will now be available at a subsequent trial, and the

jury will be given the opportunity to assess its import within the totality of the evidence

presented.

Smith, supra, 568 A.2d at 610 n. 8.

Sones ee ee

B-3

retrial would violate his right against double jeopardy under the

Pennsylvania Constitution.

Plaintiff filed this action on September 14, 1994 against author

Joseph P. Wambaugh. Smith alleges that Wambaugh conspired with the

Pennsylvania State Police Troopers’ assigned to investigate the Reinert

murders to conceal exculpatory evidence, namely the lifters, and to

fabricate evidence linking Smith to the murders. Plaintiff names as

Wambaugh's alleged co-conspirators: Pennsylvania State Police Trooper

Victor Dove; Pennsylvania State Police Trooper Joseph Van Nort;

Pennsylvania State Police Trooper John (Jack) J. Holtz and Pennsylvania

Deputy Attorney General Richard L. Guida, Esq. None of these

individuals is named as defendant in this action. Wambaugh is the sole

defendant.

Smith alleges that initially Holtz and Van Nort were the primary

investigators assigned to investigate the Reinert murder. The murder

occurred in July, 1979. Smith alleges that in correspondence dated

January 29, 1981, Wambaugh promised to pay Van Nort "an additional

$45,000.00. This [case] is current and hot which is why I'm offering you

this kind of money." (Plaintiff's complaint, J 50). In the sentences just

prior to these statements, Wambaugh refers to an alleged agreement

between the two to provide information on the Reinert case, stating:

"During this period of time you would reveal to me everything you know

about the case and supply me with any documents which might help me.”

(Plaintiff's complaint, { 50).

In correspondence dated June 19, 1981, Van Nort allegedly tells

Wambaugh: "Things are going well, here, but slow. I will keep in touch

with you." (Plaintiff's complaint, 4 51).

Eventually, Smith alleges, other investigators and a prosecutor

assigned to the case were brought into the circle and participated in the

conspiracy to deprive Smith of his constitutional right to exculpatory

evidence and to fabricate evidence implicating him in the murders. (See:

plaintiff's complaint, {J 68-69)

* In a companion action filed before this court, Smith v. Holtz, Civ. No. 93-1428 (M.D.Pa.)

on September 15, 1993, Smith asserts section 1983 claims against the state investigators

responsible for reviewing and preserving the evidence against him: John J. Holtz and

Ronald F. Colyer, both of the Bureau of Technical Services of the Pennsylvania State

Police; Victor Dove, John J. Purcell and William J. Lander of the Central Regional Office

of the Bureau of Criminal Investigation of the Office of the Pennsylvania Attorney General;

and Paul Yatron, Executive Director of the Attorney General's office in Harrisburg,

Pennsylvania.

That case, filed a yeur prior to the filing of this case, is not time-barred.

B-4

Smith alleges that during his 1986 trial for the Reinert murders,

Trooper Dove found the rubber lifters with the sand taken from Susan

Reinert's feet, which supported the defense theory that Reinert and her

children were murdered at the New Jersey Shore by other individuals.

Smith alleges that four business days before the trial ended, Trooper Dove

came upon the lifters in a police evidence locker but made no attempt to

reveal their existence to the defense and, moreover, took steps to ensure

that they would not come to light. These alleged efforts were apparently

effective, Smith alleges, since the existence of the lifters did not come to

light until years later, while his criminal conviction for the murders was on

direct appeal to the Pennsylvania Supreme Court. Discovery of the lifters

and of the prosecution's apparent involvement in concealing their

existence from defendant and his counsel led ultimately to the dismissal of

all charges against Smith under a Pennsylvania Supreme Court order of

discharge barring his retrial on the ground that it would violate the

Pennsylvania Constitution's prohibition against double jeopardy. The

Supreme Court's ruling of discharge was based on the prosecutorial

misconduct in concealing the existence of the lifters.

Smith alleges that the police investigators and a deputy attorney

general assigned to the investigation conspired to conceal the lifters and

falsify evidence linking him to the murders because they had a mutual

pecuniary interest in the success of Wambaugh's book on the murders and

in a possible television mini-series based on the book. This led them,

Smith alleges, to take steps to increase the likelihood that he would be

convicted of the Reinert murders.

Smith asserts three claims against Wambaugh: 1) a section 1983

claim, 42 U.S.C. § 1983, based on Smith's alleged participation in a

conspiracy to violate his Fourth, Sixth and Fourteenth Amendment rights

(Count I); 2) a state tort claim for civil conspiracy and abuse of process

based on alleged acts of evidence tampering for the purpose of altering the

course and outcome of plaintiff's criminal trial for the "pecuniary" and

"self-aggrandizing interests" of the alleged co-conspirators (Count II); and

3) a state tort claim for abuse of process based on defendant's alleged

suborning of evidence tampering (Count III).

Defendant has filed a Rule 12(b)(6) motion to dismiss all claims

as time-barred and for failure to state a cause of action on the ground that

plaintiff cannot establish termination of the underlying criminal action in

his favor, an element essential to his section 1983 claim. For the reasons

which follow, defendant's motion will be granted in part. Plaintiff's state

tort claims will be dismissed with prejudice as time-barred. Plaintiff's

section 1983 claim survives.

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DISCUSSION

Rule 12(b)(6) motion

In deciding defendants’ motion, we are "required to accept as true

all allegations in the complaint and all reasonable inferences that can be

drawn from them after construing them in the light most favorable to the

non-movant." Jordan v, Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). "In determining whether a claim should be

dismissed under Rule 12(b)(6)," we look “only to the facts alleged in the

complaint and its attachments without reference to other parts of the

record.” Jd. Dismissal is not appropriate unless "it clearly appears that no

relief can be granted under any set of facts that could be proved

consistently with the plaintiff's allegations." Jd.

Timeliness of section 1983 claim

Defendant moves to dismiss all claims as time-barred. Federal

courts apply the state personal injury statute of limitations in section 1983

actions, Wilson v. Garcia, 471 U.S. 261, 276-80, (1985). Under the

Pennsylvania statute of limitations applicable here, the time limit for filing

a section 1983 claim is two years. Smith v. City of Pittsburgh, 764 F.2d

188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950 (1985) and 42 Pa.

Cons. Stat. Ann. § 5524.

When the cause of action accrues on a section 1983 claim is a

question of federal law. Albright v. Oliver, 127 L.Ed.2d 114, 128 n. 6

(1994) (Ginsburg, J. concurring). In general, a section 1983 claim accrues

when the facts which support the claim are, or should be, apparent to a

person with a reasonably prudent regard for his rights and when the

identity of the person or persons responsible for the alleged violation is

known or reasonably should have been known to the plaintiff. McMillian

v. Johnson, Civ. No. 93-A-669-N, slip op. 15 (M.D.Alabama Jan. 17,

1995) (1995 WESTLAW 21963), citing Mullinax v. McElhenney, 817

F.2d 711, 716 (11th Cir. 1987).

Under the facts alleged here, that occurred on September 18, 1992,

the date of plaintiff's discharge from state custody. This action was filed

on September 14, 1994, within two years after Smith's discharge by the

Pennsylvania Supreme Court pursuant to its order dated September 18,

1992. Under this court's interpretation of the United States Supreme

Court's ruling in Heck v. Humphrey, 129 L.Ed.2d 383 (1994),° plaintiff's

section 1983 cause of action accrued on the date of discharge.

* See the memorandum filed by this court on March 24, 1995 in the companion case, Smith

v. Holtz, for a more thorough analysis of the Heck decision and its impact on plaintiff's

section 1983 claims.

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The Court's analysis in that case led this court to conclude that the

cause of action for the deprivation of a fair trial recognized in Heck, supra,

does not ripen until the underlying conviction is reversed, expunged,

vacated, or otherwise rendered a nullity. Jd. at 394. See generally:

Snyder v. City of Alexandria, 870 F Supp. 672 (E.D.Va.1994); Hudson v.

Chicago Police Department, 860 F.Supp. 521, 523 (N.D.IL. 1994); and

McMillian v. Johnson, Civ. No. 93-A-699-N, slip op. at 15 (M.D.Ala.

Jan. 17, 1995) (1995 WESTLAW 21963).

Although plaintiff's claim is not asserted against a state actor, it is

plainly governed by the Court's ruling in Heck. Plaintiff alleges that the

Pennsylvania State Police Troopers assigned to investigate the murders

‘conspired with Wambaugh to conceal the rubber lifters which would have

supported plaintiff's claim of innocence and also conspired to fabricate

inculpatory evidence by encouraging a prosecution witness to change his

story. (Plaintiff's complaint, § 46) He can establish his claim that

Wambaugh conspired with state actors to deprive him of his federal

constitutional right to a fair trial only by attacking the validity of his

underlying conviction and the state process used to obtain that conviction.

Heck therefore plainly applies to the civil rights conspiracy claim

alleged here. Its application renders plaintiff's filing timely.

Asserted inability to prove favorable termination of

underlying action

Defendant also seeks dismissal of plaintiff's civil rights claim on

the ground that plaintiff cannot establish termination of the underlying

criminal action in his favor as is required by federal law. For the reasons

stated in the memorandum filed by this court on March 24, 1995 in the

companion action, Smith v. Holtz, we reject defendant's argument on this

issue.

State tort claims

Plaintiff alleges a state tort claim for civil conspiracy and for

abuse of process based on alleged acts of evidence tampering and a state

tort claim for abuse of process based on defendant's alleged suborning of

evidence tampering.” (Plaintiff's complaint, Counts II and III, respectively)

Plaintiff alleges that Wambaugh and his alleged co-conspirators

"perversely, coercively and/or improperly used the criminal process for a

purpose not intended by law; namely to fulfill their pecuniary and/or

otherwise self-aggrandizing interests by the evidence tampering means

aforesaid." (Plaintiffs complaint, § 84)

° Supplemental jurisdiction exists pursuant to 28 U.S.C. § 1367.

B-7

To determine when plaintiff's cause of action accrued on the state

claims asserted here, it is helpful first to review the underpinnings and

elements of plaintiff's state law claims.

Abuse of process is defined by the Restatement (Second) of Torts,

§ 682 as follows:

One who uses a legal process, whether criminal or

civil, against another primarily to accomplish a purpose

for which it is not designed, is subject to liability to the

other for harm caused by the abuse of process.

Cited in ATX Telecommunications Services v. U.S. Wats, Civ. A. No. 92-

3328, (E.D.Pa. Feb. 5, 1993) (1993 WL 30076), (applying Pennsylvania

law). In the comment to section 682, the Restatement explains further:

a. The gravemen of the misconduct for which the

liability stated in this Section is imposed is not the

wrongful procurement of legal process or the wrongful

initiation of criminal or civil proceedings; it is the misuse

of process, no matter how properly obtained, for any

purpose other than that which it was designed to

accomplish . . . The subsequent misuse of the process,

though properly obtained, constitutes misconduct for

which the liability is imposed under the rule stated in this

Section.

.... [Illustrations omitted.]

b. "Primarily." The significance of this word is

that there is no action for abuse of process when the

process is used for the purpose for which it is intended,

but there is an incidental motive of spite or an ulterior

purpose of benefit to the defendant. Thus the entirely

justified prosecution of another on a criminal charge, does

not become abuse of process merely because the instigator

dislikes the accused and enjoys doing him harm; nor does

the instigation of justified bankruptcy proceedings become

abuse of process merely because the instigator hopes to

derive benefit from the closing down of the business of a

competitor.

For abuse of process to occur there must be use of

the process for an immediate purpose other than that for

which it was designed and intended. The usual case of

abuse of process is one of some form of extortion, using

the process to put pressure upon the other to compel him

to pay a different debt or to take some other action or

refrain from it.

B-8

An action for abuse of process differs from an action for malicious

prosecution in several key respects.

The gist of an action for abuse of process is the

improper use of process after it has been issued, that is, a

perversion of it ...'An abuse is where the party employs

it for some unlawful object, not the purpose which it is

intended by the law to effect; in other words, a perversion

of it... On the other hand, legal process, civil or criminal,

may be maliciously used so as to give rise to a cause of

action where no object is contemplated . . . other than its

proper effect and execution.’

Malicious use of civil process has to do with the

wrongful initiation of such process, while abuse of civil

process is concerned with a perversion of a process after it

is issued.

An action for malicious prosecution is statutorily

based, see 42 Pa.C.S.A. § 8351, while malicious abuse of

process is a common law action.

Rosen v. Tesoro Petroleum Corporation, 582 A.2d 27, 32 (Pa. Super. Ct.

1990) (Internal citations omitted.)

It is "the use of the legal process as a tactical weapon to coerce a

desired result that is not the legitimate object of the process." McGee v.

Feege, 535 A.2d 1020, 1026 (Pa. 1987). Once a process is issued, the

focus is then on the purpose for which it is used. Jennings v. Shuman, 567

F.2d 1213, 1218 (3d Cir.1977) (discussing state law in determining

parameters of section 1983 action for abuse of process). This purpose can

be either legitimate or illegitimate, and if it is found to be illegitimate, an

abuse of process occurs. Jd. at 1219. The presence or absence of probable

cause is irrelevant to a claim for abuse of process. /d. at 1217.

Further, unlike malicious prosecution, a claim for abuse of process

does not require the plaintiff to prove that the underlying action terminated

in his favor. Brown v. Johnston, 675 F.Supp. 287, 290-91 (W.D.Pa. 1987).

Nor does it require the plaintiff to demonstrate lack of probable cause for

initiating the underlying proceedings. Junod v. Bader, 458 A.2d 251, 253

(Pa. Super. Ct. 1983) See also: Davis v. Cheltenham Township Police

Department, 767 F.Supp. 104, 106 (E.D.Pa. 1991).

Both state law claims asserted by Smith are governed by

Pennsylvania's two-year statute of limitations. Harvey v. Pincus, 549

F.Supp. 332, 342 (E.D.Pa. 1982), citing Jennings v. Shuman . . .| 567 F.2d

1213, 1217-18 (3d Cir. 1977) and 42 Pa. Cons. Stat. Ann. § 5524. The

cause of action for these claims "accrues when the process is used for an

improper purpose." Harvey, 549 F.Supp. at 342.

Precisely when that occurred in this case would be impossible for

this court to determine at this stage of the case. While it is obvious that

the initial issuance of process against Smith occurred well outside the two-

year limitations period, his claim against Wambaugh stems not from that

act, but from some act thereafter at the point when Wambaugh allegedly

began conspiring with the state investigators to conceal or fabricate

evidence to assure a conviction--it was at that point that the "process" was

allegedly diverted from its legitimate purpose to, at least in part, the

illegitimate one of obtaining Smith's conviction for financial gain

regardless of guilt or innocence. Precisely when that occurred cannot be

determined at this stage of the case. What is clear, however, from the facts

alleged, is that this alleged diversion of the process occurred well beyond

the two-year limitations period. Smith was tried in 1986. Any alleged

fabrication of evidence had to take place prior to the conclusion of the

trial. There would be no point in conspiring to fabricate evidence after he

was convicted.

The alleged fabrication of evidence is, however, only one aspect

of Smith's claims. He also claims here, as he did in the companion action

filed against the state police assigned to investigate the Reinert murders,

that exculpatory evidence discovered during his trial was concealed from

him and his attorney. The existence of the exculpatory evidence did,

however, come to light in 1988, again well before the two-year limitations

period governing the filing of this action.

Thus, by 1988, only one element remained to give Smith the basis

for the asserted state claims against Wambaugh: some basis for suspecting

that Wambaugh was involved in an alleged plot to conceal exculpatory

evidence or to pervert the criminal prosecution to a purpose other than

effecting justice and convicting the individual or individuals responsible

for the deaths of Susan Reinert and her children.

That proof came, according to Wambaugh's complaint, in March,

1992 when an individual identified in the complaint only as the "junkman"

allegedly discovered in the basement and attic of Trooper Holtz’ residence

a box of items containing evidence from the Smith trial and notes

incriminating the alleged co-conspirators in an alleged plot to convict

Smith for their own financial gain and turned those items over to

"plaintiff's by-then-former counsel" (an individual not identified by name

in the complaint) and someone, whether plaintiff's counsel or some other

individual is not indicated, caused an article to be published in the Sunday

edition of the "Patriot-News,” a Harrisburg, Pennsylvania newspaper. The

items allegedly discovered at the Holtz residence included “unspecified

correspondence between defendant [Wambaugh] and Trooper Holtz."

(Plaintiff's complaint, § 46) Although the correspondence is referred to in

B-10

paragraph 46 of plaintiff's complaint as unspecified, the introduction to

that paragraph states that such correspondence was "[a]mong the items

located in. . . [the] box that were turned over to plaintiff's former counsel,”

leaving no doubt that correspondence allegedly linking Wambaugh to the

alleged concealment and fabrication of evidence was in the hands of

plaintiff's counsel no later than March 17, 1992. |

With the publication of that article, all of the elements which

plaintiff needed to assert a cause of action against Wambaugh for abuse of

process or conspiracy to commit abuse of process existed. He had before

him at that point facts suggesting Wambaugh's involvement in a

conspiracy to subvert his criminal prosecution for an improper purpose.

Although he had not yet been released from state custody or had

his conviction invalidated, neither was a prerequisite for maintaining a

claim for abuse of process. See e.g., Brown, 675 F.Supp. at 290-91. Cf.

Heck (By analogy to the state tort claim for malicious prosecution, the

Supreme Court held that establishing invalidation of the underlying

conviction is a prerequisite for maintaining a section 1983 claim

challenging the constitutionality of that conviction).

Plaintiff's state tort claims asserted in Counts II and III of the

complaint are, therefore, time-barred, and defendants’ motion to dismiss

those counts will be granted on that basis.

s/ James F. McClure, Jr.

United States District Judge

Filed March 24, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAY C. SMITH, ;

Plaintiff ‘ NO. 4: CV - 93-1428

v. : (McClure)

JOHN J.» HOLTZ, et al.,

Defendants

MEMORANDUM

March 24, 1995

BACKGROUND

Plaintiff Jay C. Smith filed this section 1983 action’ alleging the

violation of his civil rights by defendants in connection with his April,

1986 murder conviction. Plaintiff was convicted of murdering

Philadelphia school teacher Susan Reinert and her two children, Michael

and Karen Reinert, and was sentenced to death for those crimes.

Commonwealth v. Pennsylvania v. Jay C. Smith, Crim. Nos. 1677,

1677(A) and 1677(B) (Dauphin Co.). Reinert's body was discovered in

Dauphin County on June 25, 1979. The bodies of her children were never

found.

Smith defended the charges against him by contending that

Reinert and her children had been murdered at the New Jersey shore by

William Bradfield and/or his associates of his and that those individuals

had then conspired to make it appear that Smith was responsible for the

murders. Bradfield had been previously convicted of murdering the three

victims.

During Smith's trial, his counsel cross-examined a prosecution

witness on the existence of physical evidence found during the autopsy of

Reinert's body which supported his theory that the murders had taken

place at the New Jersey shore. During cross-examination, prosecution

witness John C. Balshy, a former state policeman who had been present

during the autopsy, testified that he had observed a grainy substance--

which appeared to be sand--between Reinert's toes. Balshy further

testified that he had preserved this evidence by pressing it onto rubber

"lifters." (Plaintiff's complaint, ¥J 20-21). The "lifters" were not

produced at trial, and their actual existence was never confirmed by the

prosecution during, or at any time prior to, Smith's 1986 trial.

' 42U.S.C. § 1983.

C-2

Smith's conviction was reversed on direct appeal to the

Pennsylvania Supreme Court, Commonwealth v. Smith, 568 A.2d 600 (Pa.

1987), on evidentiary grounds unrelated to the alleged concealment of the

lifters and his case remanded to the Dauphin County Court of Common

Pleas for a new trial.”

The case was never retried. In 1988, Smith learned that the lifters

about which Balshy testified did in fact exist and that their existence had

been concealed from him by the prosecution. He moved, on that basis for

dismissal of all charges against him.

Smith's motion for dismissal, filed February 1, 1990, was denied

by the Dauphin County Court of Common Pleas. The Pennsylvania

Superior Court affirmed the denial on appeal, Commonwealth v. Smith,

591 A.2d 730 (Pa. Super. Ct. 1991). The Pennsylvania Supreme Court

reversed on September 18, 1992, Commonwealth v. Smith, 615 A.2d 321

(Pa. 1992), and, based on its finding that the Commonwealth had

deliberately suppressed the existence of the two adhesive lifters, ordered

plaintiff's discharge from custody. The Pennsylvania Supreme Court held

that, due to the prosecutorial misconduct which led to plaintiff's

conviction, no further charges could be pursued against Smith for the

? On appeal to the Pennsylvania Supreme Court, Smith raised nineteen grounds for reversal

of his conviction, including an assertion that the evidence adduced at trial was insufficient

as a matter of law to establish the guilt of all elements of the crimes charged. That assertion

was rejected by the Pennsylvania Supreme Court. Smith, supra, 568 A.2d at 602.

The Supreme Court considered on the merits only one of the nineteen grounds for reversal

alleged by Smith--his contention that out-of-court statements allegedly made by co-

conspirator Bradfield to his colleagues and others implicating Smith in the Reinert murders

constituted inadmissible hearsay. The Supreme Court agreed that admission of the

Statements constituted reversible error and remanded the case for a new trial on that ground.

Id. 607-610.

Although the defense learned of the prosecution's alleged concealment of the lifters prior

to disposition of Smith's appeal by the Pennsylvania Supreme Court and brought the matter

to the court's attention, the court did not consider that issue on the merits, preferring instead

to have the matter considered in the first instance by the trial court:

On January 19, 1989, this Court ordered the Court of Common Pleas of Dauphin County

to conduct an evidentiary hearing regarding certain evidence in the Commonwealth's

possession, which may have been exculpatory in nature, but which was never disclosed to

the defense. The evidence in question was a ‘rubber lifter,’ an evidence collection device,

which allegedly contained grains of sand found on Mrs. Reinert's feet during the autopsy.

Appellant argued that this evidence was significant to his defense in that it would have

supported his theory that Mrs. Reinert was killed at the seashore by Bradfield and his

associates.

In view of our disposition, we need not consider this issue in determining whether a new

trial should be granted. This evidence will now be available at a subsequent trial, and the

jury will be given the opportunity to assess its import within the totality of the evidence

presented.

Smith, supra, 568 A.2d at 610 n. 8.

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Reinert murders and that a retrial would violate his right against double

jeopardy under the Pennsylvania Constitution.

Plaintiff filed this action on September 15, 1993 against the state

investigators responsible for reviewing and preserving the evidence

against him: John J. Holtz and Ronald F. Colyer, both of the Bureau of

Technical Services of the Pennsylvania State Police; Victor Dove, John J.

Purcell and William J. Lander of the Central Regional Office of the

Bureau of Criminal Investigation of the Office of the Pennsylvania

Attorney General; and Paul Yatron, Executive Director of the Attorney

General's office in Harrisburg, Pennsylvania. (Plaintiff's complaint, ¥¥ 10-

16). |

Smith alleges that defendants knowingly and deliberately

concealed from him and from his attorney, William Costopoulos, Esq.,

exculpatory evidence which would have bolstered his claims of innocence

in violation of kis right to receive from the prosecution exculpatory

evidence under Brady v. Maryland, 373 U.S. 83 (1962).’ Plaintiff also

asserts the non-disclosure to be a violation of the Rules of Professional

Conduct for Attorneys, Rule 3.8. (Plaintiff's complaint, ¥ 38). Smith

alleges that the defendants knowingly and intentionally concealed

evidence critical to his defense with the intention and effect of denying

him a fair trial. (Plaintiff's complaint, {§ 23-29 and 34-35).

Plaintiff alleges that the defendants acted out of a desire to:

1) "avoid public embarrassment of the state police and the office of the

attorney general because of the conduct of their investigation;" 2) "avoid

confirmation of plaintiff's allegations of prosecutorial misconduct in his

post-conviction petitions; and to 'cover up' a persistent, consistent pattern

of misconduct and incompetence throughout the investigation of the

Reinert murders;" and 3) on the part of defendant Holtz, to receive

compensation for his story on the investigation. (Plaintiff's complaint,

{ 36).

On the basis of the foregoing, plaintiff alleges a cause of action

under section 1983 based on the violation of his Fifth, Sixth and

Fourteenth Amendment rights. He alleges that he has been deprived of the

right to: a) freedom from the deprivation of life, liberty or property

without due process of law; b) a fair trial in a criminal prosecution, and the

right to be free of malicious prosecution; and c) the right to equal

> The failure to disclose exculpatory evidence is a violation of a criminal defendant's

constitutional rights. Snyder v. City of Alexandria, 870 F.Supp. 672, 689 (E.D.Va. 1994),

citing Goodwin v. Metts, 885 F.2d 157, 163 (4th Cir. 1989) ("Being subjected to a

prosecution because an officer withheld exculpatory evidence from the prosecutor while

urging that the prosecution should go forward can work a constitutional deprivation."), cert.

denied, 494 U.S. 1081 (1990).

C-4

protection of the laws. (Plaintiff's complaint, J 40). As redress for these

alleged violations, plaintiff seeks compensatory and punitive damages and

attorney's fees pursuant to section 1988.

Defendants moved for partial summary judgment* on plaintiff's

due process and equal protection claims on the ground that there are no

material facts in dispute on those claims and that defendants are entitled to

judgment on them as a matter of law.

In an order and memorandum dated June 27, 1994, this court

granted defendants’ motion and entered judgment in defendants’ favor on

all claims asserted. The basis for the court's ruling was twofold. The

court found that plaintiff's malicious prosecution claim was barred under

the United States Supreme Court decision in Albright v. Oliver, 127

L.Ed.2d 114 (1994) (Rehnquist, C.J., plurality opin.), which abrogated the

right to proceed on a malicious prosecution claim under the Due Process

Clause of the Fourteenth Amendment. The court further found that all

section 1983 claims asserted under the Fifth, Sixth and Fourteenth

Amendments were barred by the statute of limitations, since plaintiff

initiated this action more than two years after learning of the prosecution's

alleged concealment of the lifters. Plaintiff appealed that ruling to the

United States Court of Appeals for the Third Circuit.

Three days prior to this court's grant of defendants' motion, the

United States Supreme Court ruled in Heck v. Humphrey, 129 L.Ed.2d 383

(1994), that a civil rights plaintiff cannot maintain a cause of action arising

out of a state criminal charge, unless and until he can demonstrate that the

conviction or sentence has been "reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make

such determination, or called into question by a federal court's issuance of

a writ of habeas corpus." Jd. at 394. The Supreme Court's ruling in Heck,

supra, plainly undercuts the rationale for this court's ruling that plaintiff's

section 1983 claims are time-barred.

On the basis of Heck, supra, this court certified to the Third

Circuit that: "if a Rule 60(b) motion were filed by the plaintiff, the motion

would be granted" and the court would "grant reconsideration on the

statute of limitations question, grant counsel an opportunity to brief the

applicability of Heck, supra, to the issue presented here, and unless

arguments of the defendants persuade us otherwise, reverse the grant of

summary judgment entered in favor of the defendants on plaintiff's section

1983 claim for the denial of a fair trial."

* Record document no. 7.

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Plaintiff then filed a Rule 60(b) motion? asking for relief from the

court's entry of judgment against him. Plaintiff also moved for a remand

from the Third Circuit. The latter motion was granted, and the matter

remanded from the Third Circuit to this court.

Plaintiff's Rule 60 motion has been fully briefed. For the reasons

stated herein, the court will grant the motion and vacate the judgment

entered June 27, 1994 on plaintiff's Sixth and Fourteenth Amendment

claims. However, no basis exists to vacate entry of judgment on plaintiff's

Fifth Amendment or Fourteenth Amendment malicious prosecution claim,

and the court's ruling on those claims stands. No further discussion is

needed on this ruling.

DISCUSSION

Standard of review

Plaintiff moves for reconsideration under Fed. R. Civ. P. 60(b).

Rule 60(b) confers authority on a district court to relieve a party from a

final judgment "[o]n motion and upon such terms as are just" on the basis

of any "reason justifying relief from the operation of the judgment."

Fed.R.Civ.P. 60(b)(6).

Although the "law is well established that Rule 60(b)(6) affords

relief from a final judgment only under extraordinary circumstances,"

High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990), cert. denied, 489 U.S.

954 (1991), it is equally "well settled that the matter is within the sound

discretion of the district court." Jd. Scott v. Singletary, Civ. No. 83-8293,

slip op. at 2 (S.D.Fla. Nov. 17, 1994) (1994 WL 669882).

A supervening clarification of controlling law by a higher court

can afford a sufficient basis for granting a Rule 60(b) motion. See:

Adams v. Merrill, Lynch, Pierce, Fenner & Bowen, 888 F.2d 696 (10th

Cir. 1989) and Cox v. Wyrick, 873 F.2d 200 (8th Cir. 1989); Ritter v.

Smith, 811 F.2d 1398, 1401 (11th Cir.), cert. denied, 483 U.S. 1010

(1987); and Scott, supra. The following factors are relevant in

determining whether grant of a Rule 60(b) motion is appropriate based on

change in controlling law: 1) whether the change in the law is final and

definitive; 2) whether the judgment has been executed; 3) whether the

Rule 60(b)(6) motion was filed soon after the judgment was rendered; 4)

whether the intervening decision is closely related to the instant case; and

5) considerations of comity (the "Rule 60(b)(6) factors"). Scott, supra,

slip op. at 2, citing High, supra, 916 F.2d at 1509 and Ritter, supra, 811

F.2d at 1401-03.

One justification for allowing a Rule 60(b) request for relief is to

afford the district court an opportunity to correct plain errors and avoid the

* Record document no. 24.

C-6

needless delay and expense incurred by all concerned if the movant's sole

remedy was appeal to a higher court. See: Scoft, supra.

Rule 60(b)(6) considerations

The Supreme Court's decision, issued three days prior to our grant

of defendants’ motion, plainly justifies granting relief from the judgment

under the relevant Rule 60(b)(6) considerations. Heck, supra, represents a

"final and definitive" clarification of federal constitutional law issued by

the nation's highest court. Plaintiff filed a timely appeal to the United

States Court of Appeals for the Third Circuit and an equally timely

Rule 60(b)(6) motion upon learning of the holding in Heck, supra. The

Court's holding in Heck, supra is directly on point and is not

distinguishable on any basis from the facts and issues presented here.

Finally, grant of plaintiff's motion is consistent, not inconsistent, with

considerations of comity--it affords him an opportunity to pursue a civil

action for monetary damages for prosecutorial misconduct acknowledged

by the Pennsylvania Supreme Court. See: Scott, supra, slip op. at 2.

Heck v. Humphrey

The United States Supreme Court's ruling in Heck, supra, changes

this court's prior analysis of the timeliness of plaintiff's claims. In Heck,

supra, the Supreme Court ruled that the cause of action on a civil rights

claim arising out of a state criminal charge does not arise until the

plaintiff's conviction or sentence has been "reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

- authorized to make such determination, or called into question by a federal

court's issuance of a writ of habeas corpus.” Jd. at 394.

Federal courts apply the state personal injury statute of limitations

in section 1983 actions, Wilson v. Garcia, 471 U.S. 261, 276-80 (1985).

Under the Pennsylvania statute of limitations applicable here, the time

limit for filing a section 1983 claim is two years. Smith v. City of

Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950

(1985) and 42 Pa. Cons. Stat. Ann. § 5524.

Accrual date

When the cause of action accrues on a section 1983 claim is a

question of federal law. Albright v. Oliver, 127 L.Ed.2d 114, 128 n. 6

(1994) (Ginsburg, J. concurring). In general, a section 1983 claim accrues

when the facts which support the claim are, or should be, apparent to a

person with a reasonably prudent regard for his rights and when the

identity of the person or persons responsible for the alleged violation is

known or reasonably should have been known to the plaintiff. McMillian

v. Johnson, Civ No. 93-A-699-N, slip op. (M.D.Alabama Jan. 17, 1995)

(1995 WESTLAW 21963), citing Mullinax v. McElhenney, 817 F.2d 711,

716 (11th Cir. 1987).

C-7

Heck, supra, did not expressly indicate when the cause of action

accrues on a claim for the denial of a fair trial. The Court's inclusion of

the requirement that the underlying conviction be expunged, overturned,

or otherwise invalidated makes it impossible for the claim to accrue prior

to that act. It is only upon the moment of invalidation’ that this element

necessary to establish the claim comes into existence.

That impression is reinforced by the cases decided subsequent to

Heck, supra. \n all such cases, the federal courts have held the accrual

date to be no earlier than the date of invalidation.

That was the ruling of the United States District Court for the

Middle District of Alabama in McMillian v. Johnson, Civ. No.

93-A-699-N, slip op. at 15 (M.D.Alabama Jan. 17, 1995) (1995

WESTLAW 21963). Walter McMillian was prosecuted and convicted of

the murder of Ronda Morrison on November 1, 1986 before the Court of

Common Pleas of Monroe County, Alabama. McMillian was arrested on

charges of first degree murder on June 7, 1987 and convicted by a jury in

September, 1988.

Subsequent developments indicated that state and county officials

conspired to fabricate inculpatory evidence against McMillian and to

conceal from him evidence supporting his claims of innocence.

McMillian's conviction was reversed in February, 1993 by the Alabama

Court of Criminal Appeals, based on its finding that the prosecution had

failed to disclose exculpatory evidence. In March, 1993, the State of

Alabama dismissed all charges against McMillian. McMillian was

released from custody after serving six years on death row.

Following his release, McMillian filed a section 1983 action in

federal court against the Monroe County officials and Alabama state

officials allegedly responsible for manufacturing evidence against him and

concealing evidence supporting his claims of innocence.

Defendants argued, on a motion for summary judgment, that

McMillian's section 1983 claims were time-barred, since McMillian had

knowledge of defendants’ alleged complicity in depriving him of a fair

trial more than two years prior to commencement of the federal action.

The district court rejected defendants’ argument. It found that under Heck,

supra, McMillian's section 1983 claim for his "allegedly unconstitutional

conviction and imprisonment . . . did not become cognizable until his

conviction and sentence were invalidated by the Alabama Court of

Criminal Appeals in February 1993." Jd. at 30. See also: McMéillian,

supra, slip op. at 52.

° We use the term "invalidation" in a generic sense to cover all of the possible means of

negating the underlying conviction recognized by the Court in Heck, supra.

C-8

The United States District Court for the Eastern District of

Virginia reached the same conclusion in Snyder v. City of Alexandria, 870

F.Supp. 672 (E.D.Va.1994). Walter T. Snyder was convicted of rape and

other related charges by a Virginia jury on June 25, 1986 and sentenced to

forty-five years in prison. His conviction and sentence were upheld on

direct appeal. After serving nearly seven years of his sentence, Snyder

was pardoned by the Governor of Virginia on April 23, 1993, on the basis

of newly performed DNA tests which provided conclusive proof that

Snyder had not committed the rape.

Snyder filed a section 1983 action in federal court against the

prosecuting officers in April, 1994, within one year after the date of his

pardon. The defendants argued that his claims were time-barred because

the alleged constitutional violations were committed more than two years |

prior to his commencement of the federal action. That argument was

rejected out-of-hand by the district court. Jd. at 678 and 685. Citing Heck,

supra, the district court held that the cause of action for section 1983

claims challenging the manner in which a state reversal was obtained does

not accrue until the conviction is invalidated by state or federal authorities.

Snyder, supra, 270 F.Supp. at 685. On that basis, the district court held

that the statute of limitations on Snyder's section 1983 claims for the

defendants' alleged role in withholding exculpatory evidence, in

improperly swaying the victim's identification of Snyder as her assailant,

and in knowingly misrepresenting statements made by Snyder to the police

as a confession, did not begin to run until his conviction was invalidated

by the governor's pardon. /d. at 685.

The district court distinguished between section 1983 claims

arising out of alleged Fourth Amendment violations relating to improper

search and seizure operations, and those arising out of alleged

prosecutorial misconduct in concealing, manufacturing or altering

evidence, stating that the cause of action for the latter does not arise under

Heck, supra, until the conviction has been invalidated. Jd. at 687-88.

Requiring a section 1983 plaintiff to commence a federal action

seeking damages for the denial of his federal constitutional right to a fair

trial prior to the final resolution of all state criminal charges against him

would run contrary to well established principles of comity and

federalism. If such an action were commenced, the federal district court

would, in most cases, be compelled to abstain from ruling and stay the

action pending final disposition in state court. Any other result would

create the possibility of a ruling in conflict with the outcome in state court.

See generally: Snyder, supra, 870 F.Supp. at 681 n. 17 (The "favorable

termination" requirement exists for the purpose of "avoiding conflict with

C-9

an ongoing criminal prosecution and ensuring that challenges to

convictions are determined in an appropriate forum.")

That was the decision reached by the United States District Court

for the Northern District of Illinois in Hudson v. Chicago Police

Department, 860 F.Supp. 521, 523 (N.D.III.1994). Gregory W. Hudson

filed a section 1983 action against the Chicago Police Department while

awaiting trial in state court on double homicide charges. Hudson sought

monetary damages for the alleged violation of his civil rights by the

Chicago Police Department and the Chicago district attorney staff by

conspiring to conceal from him exculpatory evidence. Although Hudson

did not seek release from custody, the issues which he raised challenged

his custody status, leading the court to consider his complaint as, in part,

an application for habeas corpus relief.’ That finding led the district court

to conclude: "If this court allowed this complaint to proceed, a judgment

in favor of Hudson would imply that the defendants withheld exculpatory

evidence from Hudson and tampered with the evidence in all the myriad

ways he recounts in his complaint, thus undermining any conviction that

may be had in Hudson's trial." /d. at 523. On that basis, the court held

that it was required to abstain from hearing the case and dismissed the

complaint, holding open the possibility of relief at a later date under the

Supreme Court's holding in Heck, supra, upon a showing of acquittal,

reversal or expungement. Jd. "Abstention is appropriate when a plaintiff

invokes federal jurisdiction for the purpose of restraining state criminal

proceedings." /d. at 524, citing Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976) and Younger v. Harris, 401

U.S. 37 (1971). See also: Snyder, supra, 870 F.Supp. at 679 n. 10 ("The

concern here is 'a matter of ripeness, a belief that the malicious

prosecution action should not be tried at a time when it might tend to chill

testimony in the criminal action, when issues may still be narrowed by the

criminal process, and when the civil dispute might still be resolved by

compromise or other non-judicial measures if the criminal trial can but

proceed to an end.'"), quoting Prosser & Keeton, Prosser and Keeton on

the Law of Torts, § 119, at 874 (Sth ed. 1984).

For all of the reasons expressed above, we conclude that the cause

of action for the concealment of or tampering with evidence recognized in

Heck, supra, does not ripen until the underlying conviction is reversed,

expunged, vacated, or otherwise rendered a nullity.* Id. at 394. Any

; 28 U.S.C. § 2241.

* Compare: MeMillian, supra, slip op. at 16 (plaintiff's claims challenging the

constitutionality of his pre-trial detention on death row did not go to the lawfulness of his

State criminal conviction and were, therefore, not governed by Heck, supra).

C-10

other result would contravene the Supreme Court's requirement that the

plaintiff be required to demonstrate invalidation of the underlying

conviction before proceeding with a federal constitutional claim based on

the conduct of the prosecuting officers.

One aspect of this case renders it different from the prior cases

cited. Smith obtained a reversal of his conviction from the Pennsylvania

Supreme Court in 1989. However, the conviction was obtained, not on the

grounds which form the basis of his section 1983 claim, i.e. the alleged

concealment of evidence, but on the basis of the trial court's admission of

inadmissible hearsay.” The case was remanded to the trial court for a new

trial, although that never came to pass for other reasons.

The 1989 reversal obtained by Smith was not a final disposition of

the underlying charges in Smith's favor. He remained incarcerated

awaiting retrial for the Reinert murders. It was only with the issuance of

the Pennsylvania Supreme Court's order of discharge that all threat of

further prosecution ended and the state proceedings against him

irrevocably came to an end. Therefore, although Smith had obtained a

reversal of the underlying conviction more than two years prior to the

filing of this complaint, the reversal was not a termination of the

underlying matter in the sense intended by the Supreme Court's holding in

Heck, supra. Finality was obtained only with the issuance of the

Pennsylvania Supreme Court's order discharging him from state custody

and barring his retrial.'° Only upon the issuance of that order did Smith

have the ability to establish all of the prerequisites necessary for filing this

action. It was, therefore, on that date that his cause of action accrued.

The District Court for the District of Arizona reached the same

conclusion without analysis in Girdler v. Dale, 859 F.Supp. 1279

(D.Ariz.1994). In that case plaintiff Ray Girdler filed a section 1983

action alleging that the deputy state fire marshals in charge of

investigating the arson case against him "knowingly withheld exculpatory

evidence .. . from the prosecutor, judge, and jury." Jd. at 1280. Girdler

was convicted of arson and two counts of murder in the spring of 1992 and

sentenced to a term of incarceration of 21 years on the arson conviction

and two 25-year terms for the murder convictions, all sentences to run

consecutively. Girdler filed a petition for post-conviction relief in

February, 1988, seeking a new trial on the basis of evidence not presented

® See the discussion at note 2 infra.

© See, e.g., Snyder, supra, 870 F.Supp. at 681 (In resolving in plaintiff's favor the question

of whether issuance of a pardon from the Virginia Governor satisfied the favorable

termination requirement, the district court noted that: "Snyder's pardon substantially

impugns and discredits his conviction, and therefore qualifies as a favorable termination of

the prosecution against him.")

7

. -

C-11

at his trial suggesting that the fires which gave rise to the charges against

him were caused by a phenomenon known as flashover, and that this

evidence was not presented at his original trial. His conviction was

vacated on November 21, 1990. On December 18, 1991, all charges

against him were dismissed.

On September 16, 1993 Girdler filed a section 1983 action in

federal court against the deputy fire marshals alleging their violation of his

constitutional rights under the Fifth and Fourteenth Amendments.

Defendants moved for summary judgment on the ground that plaintiff's

section 1983 claim was barred by the two-year Arizona statute of

limitations applicable to such actions. The district court disagreed,

holding that Girdler's claims accrued on December 18, 1991, the date

when all charges against him were dismissed.

Smith's complaint was filed with this court on September 15,

1993, within two years of the Pennsylvania Supreme Court's ruling

ordering his discharge from custody and barring any further prosecution

against him for the Reinert murders. Plaintiff's Rule 60(b) motion will be

granted on that basis.

We hold, therefore, that when an accused has been tried and

convicted, his section 1983 action for deprivation of a fair trial due to the

withholding of exculpatory evidence does not accrue before there has been

both an invalidation of that conviction, Heck, supra, and a final

termination of the criminal proceedings in favor of the accused.

In Heck, Justice Scalia stated at the conclusion of the opinion of

the Court:

Just as a cause of action for malicious prosecution

does not accrue until the criminal proceedings have

terminated in the plaintiff's favor . . . so also a § 1983

cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue

until the conviction or sentence has been invalidated.

Id., 129 L.Ed.2d at 396. In Heck, the court deemed the invalidation of a

conviction or sentence to be the operative equivalent of a termination in

the plaintiff's favor. However, the invalidation of a conviction does not

always equate to a termination of the criminal proceedings in favor of an

accused - it often results only in a remand for a new trial, as in the instant

case. If the accused were then retried and convicted, there would,

presumably, be no viable § 1983 cause of action, just as there would be no

state malicious prosecution cause of action. So as not to interfere with the

state process, consistent with habeas exhaustion principles as elaborated

upon in Heck, there must be finality - a termination of the criminal

proceedings. Furthermore, the termination must be "in favor of" the

C-12

accused, at least in the sense that the charges have been dismissed and the

defendant discharged.’ We therefore hold that there can be no civil action

under § 1983 for denial of due process during trial for withholding

exculpatory evidence unless and until the charges have been dismissed and

the defendant discharged.

We hold further, that in the context of this case, "termination in

favor of the accused" does not require a showing of innocence of the

underlying crime.

Here, Smith's allegations go to the alleged denial of a fair trial. He

is not challenging the initial filing of criminal charges against him for the

Reinert murders. Rather, his claims go to the manner in which those

charges were prosecuted, i.e. the alleged concealment of exculpatory

evidence. He is not, therefore, required to allege or prove as an element of

his prima facie case, that the dismissal of the state charges was based on a

determination that he did not commit the Reinert murders. Compare:

Snyder, supra; McMillian, supra, and Hudson, supra.

Certainly, no indication of innocence can be gleaned from the

opinion of the Pennsylvania Supreme Court discharging Smith. The

prosecutorial misconduct was held to be so egregious - intended to

prejudice the defendant and thereby deny him a fair trial - that a second

trial would violate his double jeopardy rights as guaranteed by the

Pennsylvania Constitution. Commonwealth v. Smith, supra, 615 A.2d at

324-325. Where the Pennsylvania Supreme Court has expressly held that

the prosecutorial misconduct "violates all principles of justice and fairness

embodied in the Pennsylvania Constitution's double jeopardy clause," Jd.

at 324, it would equally violate all principles of justice and fairness to

require a showing of innocence as an element of a § 1983 cause of action

pertaining to such misconduct.

In rejecting an "indication of innocence" as a necessary element of

a § 1983 cause of action, we may not be fully consistent with the common

law regarding the tort of malicious prosecution. Section 660 of the

Restatement (Second) of Torts (1976) lists four examples of situations in

which "a termination of criminal proceedings in favor of the accused other

than by acquittal is not a sufficient termination to meet the requirements of

a cause of action for malicious prosecution." Comment a to Section 660,

headed "Termination inconsistent with guilt," then states

'' Accord: Olsen v. Correiro, Civ. No. 92-10961-PBS, slip op. at 3-5, (D.Mass. Sept. 26,

1994) (1994 WESTLAW 548111) plea of nolo contendere pursuant to which plaintiff

received a sentence of time served (In his case, five years) plus probation did not constitute

a termination of underlying proceedings which would allow plaintiff to bring a section

1983 action under Heck, supra, for the alleged concealment of exculpatory evidence.

C-13

Proceedings are ‘terminated in favor of the accused,' as

that phrase is used in § 653 and throughout this Topic,

only when their final disposition is such as to indicate the

innocence of the accused. ...

It is apparent that this is a situation in which the analogy to the

common law tort of malicious prosecution is not fully apt. That should be

no surprise, as we are here formulating a body of federal substantive law -

determining the elements of a federally-enacted cause of action, regarding

the alleged deprivation of a fair trial. In reaching our conclusions, we

have attempted to follow the holding in Heck, logically extend the Court's

reasoning and also satisfy the concerns of Justice Souter and three of his

colleagues as expressed in his concurring opinion.

We believe Justice Souter has correctly read the Court's opinion in

Heck as providing the "appropriate starting point for the inquiry under

§1983,” but as not transposing "onto §1983 elements of the malicious-

prosecution tort that are incompatible with the policies of § 1983 and the

habeas statute as relevant to claims by state prisoners." /d. at 402.

Smith's cause of action is not time-barred. It accrued only upon

his final discharge, when all habeas exhaustion constraints were removed.

The fact that the discharge order and opinion contained no indication of

his innocence does not affect the establishment of a cause of action, but

may well impact the issue of damages and their causation.

An order will be entered consistent with this memorandum.

s/ James F. McClure, Jr.

United States District Judge

C-14

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAY C. SMITH, :

Plaintiff : NO. 4: CV - 93-1428

v. : (McClure)

JOHN J. HOLTZ, et al., :

Defendants

ORDER #1

March 24, 1995

For the reasons stated in the accompanying memorandum, IT IS

ORDERED THAT:

1. Plaintiff's Rule 60(b) motion (record document no. 24) is granted.

2. The judgment entered June 27, 1994 on plaintiff's section 1983

claims grounded in the Sixth and Fourteenth Amendments is

vacated.

3. Plaintiff's claims asserted on the grounds set forth in paragraph 2

above are reinstated, and the Clerk of Court is directed to reopen

this case.

4. The case will proceed to trial on the above claims only.

5. The court will issue a separate order scheduling a case

management conference.

s/ James F. McClure, Jr.

United States District Judge

C-15

ORDER # (2)

IT IS ORDERED THAT:

l. A case management conference will be held on Friday,

April 28, 1995, 1995, at 9:00 a.m., in Chambers, Fourth Floor, Federal

Building, 240 West Third Street, Williamsport, Pennsylvania.

y & At least one attorney for each party shall attend the

conference, be fully familiar with the case, be fully authorized to make

decisions in the case, have full authority to effectuate a complete

settlement, and otherwise comply with Local Rule 16.2.

3. Because of the highly unusual nature of this case, counsel

must attend the conference in person; it will not be held by telephone

conference call.

4. No documents need be filed with the court in anticipation

of this conference. However, it is expected that counsel will wish to

confer on some of the areas to be covered in order to increase the

effectiveness of the conference. A Joint Case Management Plan need not

be filed.

a Topics to be discussed at the conference will include the

following:

5.1 Settlement of the entire case;

5.2 Alternate dispute resolution;

5.3 Fixing an initial scheduling order;

5.4 Identifying, defining and clarifying issues of fact

and of law genuinely in dispute;

5.5 Reviewing the discovery needs of the parties;

considering cost effective discovery through voluntary

exchange of information and the use of cooperative discovery

devices; scheduling the time and length of all discovery

events, including the possible phasing of discovery;

5.6 Appropriateness of bifurcation;

SF Potential evidentiary problems;

5.8 Such other matters as may be conducive to the

just, speedy and inexpensive resolution of the case.

Filed June 2, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAY C. SMITH, :

Plaintiff ; NO. 1:CV-94-1470

v. : JUDGE McCLURE

JOSEPH P. WAMBAUGH,

Defendant

ORDER

June 2, 1995

BACKGROUND:

For the reasons which follow, this court certifies its order #1 dated

May 15, 1995 as appropriate for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). In that order for the reasons set forth in the accompanying

memorandum, this court held that plaintiff's section 1983 claim (plaintiff's

complaint, Count I) is not time-barred under the United States Supreme

Court's ruling in Heck v. Humphrey, 129 L.Ed.2d 383 (1994). Plaintiff

was granted twenty days to amend Count I to remedy the pleading

deficiencies. The amended complaint has not yet been filed.

Section 1292 authorizes the district court to facilitate the filing of

an interlocutory appeal by certifying, when justified, that a civil order

which "not otherwise appealable . . . involves a controlling question of law

as to which there is substantial ground for difference of opinion and that

an immediate appeal from the order may materially advance the ultimate

termination of the litigation." 28 U.S.C. § 1292.

In this case, this court's interpretation of Heck and its holding that

Heck operates to render plaintiff's claims timely filed is a controlling

question of law. If this court's interpretation does not stand up on appeal,

the defendants may have an absolute defense to all remaining claims

asserted entitling them to judgment as a matter of law. If it does stand up

on appeal, plaintiff's claims will be resolved on the merits. Heck was

decided by the United States Supreme Court less than one year ago, and

represented in some senses a departure from previously established law.

There are few district court decisions and fewer still appellate decisions

interpreting the implications of the Court's reliance on the invalidation of

the underlying conviction as the triggering mechanism for the accrual of a

section 1983 cause of action for an unconstitutionally-obtained conviction.

Although this court believes its analysis of that issue in the May 15, 1995

memorandum to be correct, there are, admittedly, substantial grounds for a

D-2

difference of opinion on that issue. We, therefore, think it appropriate that

the issue be placed before the United States Court of Appeals for the Third

Circuit for its consideration at this time.

NOW, THEREFORE, IT IS ORDERED THAT:

1. This court's certifies that the question of whether the United States

Supreme Court ruling in Heck renders plaintiff's action timely is

appropriate for appellate interlocutory review pursuant to 28 U.S.C.

§ 1292(b), as it involves a controlling question of law as to which there is

substantial ground for difference of opinion and an immediate appeal from

the order may materially advance the ultimate termination of the litigation.

2. This certification has no immediate effect on the parties’

obligations to go forward with this case at the district court level.

s/ James F. McClure, Jr.

United States District Judge

E-]

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

June 29, 1995

#B-119

No. 95-8043

JAY C. SMITH, Plaintiff

v.

JOSEPH WAMBAUGH, Defendant

Present: STAPELTON, SCIRICA and ROTH, Circuit Judges.

Petition for Permission to Appeal pursuant to 28 U.S.C. Section 1292 (b),

s/ Rita Golden 597-3080

Deputy Clerk

ORDER

The foregoing petition for permission to appeal is granted.

By the Court:

s/ Walter Stapleton

Circuit Judge

Dated: Sep. 15 1995

F-]

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-7228 and 95-7533

JAY C. SMITH

V.

JOHN J. HOLTZ, et al.,

Appellants

No. 95-7534

JAY C. SMITH

V.

JOSEPH WAMBAUGH,

Appellant

Present: NYGAARD, ALITO and SAROKIN, Circuit Judges .

ORDER

The order granting the motion by appellants, John J. Holtz, et al, to

consolidate appeals at Nos. 95-7228 and 95-7533 is vacated;

Appeal No. 95-7228 is dismissed; see National Passenger R.R. Corp.

v. Maylie, 910 F.2d 1181 (3d Cir. 1990);

Appeal No. 95-7533 is consolidated with appeal No. 95-7534; and

Appeals Nos. 95-7533 and 95-7534 will be returned to the court clerk

for assignment to a later panel, which will allow sufficient time for full

briefing by the parties.

By the Court,

s/

Circuit Judge

G-|

Filed August 20, 1996

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-7533

JAY C. SMITH

v.

JOHN J. HOLTZ, Bureau of Technical Services, Pennsylvania, RONALD

F, COLYER, Bureau of Technical Services, Pennsylvania State Police;

VICTOR DOVE; JOHN J. PURCELL, Special Agent In Charge, Central

Regional Office, Bureau of Criminal Investigations, Office of the Attorney

General; WILLIAM J. LANDER, Bureau of Criminal Investigations,

Office of the Attorney General; PAUL YATRON,

Appellants

SUR PETITION FOR REHEARING

BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN,

NYGAARD, ALITO, ROTH, LEWIS, McKEE, and

SEITZ, Circuit Judges

The petition for rehearing filed by appellants in the above-entitled

case having been submitted to the judges who participated in the decision

of this Court and to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the court in banc,

the petition for rehearing is denied.

By the Court,

s/ Walter Stapleton

Circuit Judge

* Judge Seitz’s vote is limited to panel rehearing only.

H-1

Filed August 20, 1996

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-7534

JAY C. SMITH

v.

JOSEPH P. WAMBAUGH,

Appellant

SUR PETITION FOR REHEARING

BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN,

NYGAARD, ALITO, ROTH, LEWIS, McKEE, and

SEITZ, Circuit Judges

The petition for rehearing filed by appellant in the above-entitled

case having been submitted to the judges who participated in the decision

of this Court and to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the court in banc,

the petition for rehearing is denied.

By the Court,

s/ Walter Stapleton

Circuit Judge

* Judge Seitz’s vote is limited to panel rehearing only.

a

Filed December 22, 1989

COMMONWEALTH of Pennsylvania, Appellee,

v.

Jay C. SMITH, Appellant.

Supreme Court of Pennsylvania.

Argued May 12, 1988.

Decided Dec. 22, 1989.

William C. Costopoulos, Lemoyne, for appellant.

Robert A. Graci, Chief Deputy Atty. Gen., for appeliee.

Before NiX, C.J., and LARSEN, FLAHERTY, McDERMOTT,

ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

In this appeal this Court must review the three sentences of death

imposed upon appellant, Jay C. Smith, by the Court of Common Pleas of

Dauphin County for the first degree murder convictions of Susan Reinert

and her two children, Michael and Karen Reinert. Appellant raises

nineteen assignments of trial error for our review, including a challenge

that the evidence is insufficient as a matter of law to sustain the

convictions of three counts of murder in the first degree.

In accordance with our responsibility in cases in which the death

penalty has been imposed by the finder of fact, this Court has the

independent statutory obligation to review the sufficiency of the evidence

supporting the conviction. 42 Pa.C.S. § 9711(h). Commonwealth v.

Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970,

103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The test to be applied is

whether, viewing all of the evidence in the light most favorable to the

Commonwealth as verdict winner, and drawing all reasonable inferences

favorable to the Commonwealth, there is sufficient evidence to enable the

trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987);

Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987);

Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978);

Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

The Commonwealth need not prove the homicide by direct

evidence; indeed in many instances, no witnesses are available to describe

the incident which resulted in the death of the victim. Rather the

Commonwealth may prove the homicide by circumstantial evidence. See,

1-2

e.g., Commonwealth v. Romano, 392 Pa. 632, 141 A.2d 597 (1958);

Commonwealth y. Lettrich, 346 Pa. 497, 31 A.2d 155 (1943). The

Commonwealth may establish the fact of a homicide by proving the death

of the victim and establishing that the death resulted from criminal means.

Commonwealth v. Williams, 455 Pa. 539, 316 A.2d 888 (1974);

Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968);

Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369 (1963);

Commonwealth v. Deyell, 399 Pa. 563, 160 A.2d 448 (1960);

Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953).

In assessing the sufficiency of the evidence to establish that a

homicide was committed and that the person or persons charged were

those responsible, we are called upon to consider all of the testimony that

was presented to the jury during the trial, without consideration as to the

admissibility of that evidence. The question of sufficiency is not assessed

upon a diminished record. Commonwealth v. Rawles, 501 Pa. 514, 462

A.2d 619 (1983); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975

(1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025

(1983); Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert.

denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980);

Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979);

Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979);

Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978);

Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976). Where

improperly admitted evidence has been allowed to be considered by the

jury, its subsequent deletion does not justify a finding of insufficient

evidence. The remedy in such a case is the grant of a new trial.

Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975);

Commonwealth v. Poteet, 434 Pa. 230, 253 A.2d 246 (1969);

Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969); Commonwealth

v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967).

In this case the jury returned verdicts of guilt premised upon three

acts of murder: the death of Ms. Susan Reinert, and the deaths of her two

minor children. We will first assess the evidence in support of a finding

that Ms. Reinert was murdered and that appellant participated in that act.

The Commonwealth presented evidence to establish that the nude

body of Susan Reinert was found in the hatchback trunk compartment of a

vehicle that was later discovered to have been owned by the victim. This

vehicle was found in the parking lot of a Host Inn situated in Swatara

Township, Dauphin County. The macabre discovery was made by a

township police officer at approximately 5:20 a.m. on Monday, June 25,

1979. Earlier, at approximately 2:00 a.m., the same officer had observed

the vehicle and noticed the hatch was up. At that point he intended to

1-3

investigate further but was distracted by a radio dispatch requiring him to

attend another matter. He subsequently returned to the area in response to

an anonymous telephone call made to the Dauphin County police

department. Later investigation revealed that the vehicle with the trunk

open and an object protruding had been observed on June 24, 1979, at

approximately 7:00 p.m.

The clothes of the victim could not be found, nor was there any

evidence of the identity of the deceased. The victim was later identified as

Susan Reinert, a teacher at the Upper Merion High School, located in

Upper Merion Township where appeliant herein was formerly the

principal. A forensic pathologist determined that Ms. Reinert had

sustained massive hemorrhaging in the eye area and abrasions over her

body. He also opined that certain prominent bruises on the back of the

body of the victim were consistent with the imprint of a chain. The cause

of death was determined to be asphyxiation resulting from an overdose of

morphine, which was consistent with having been caused by criminal

agency. It was the pathologist's opinion that death probably occurred

during the morning hours of Sunday, June 24, 1979.

The last persons to see Ms. Reinert alive were a next door

neighbor, Ms. Mary Grove and her granddaughter, Beth Ann Brook.

These witnesses testified they saw Ms. Reinert and Michael and Karen on

Friday, June 22, 1979, at approximately 9:20 p.m. on the porch of the

Reinert's home, and shortly thereafter heard the group drive away from the

home in Ms. Reinert's automobile. The granddaughter testified Karen

Reinert was wearing a little green pin with a white "P". At the time in

question Karen was age eleven and Michael was age ten. The children of

Ms. Reinert have not been seen or heard from since. There is no question

that Ms. Reinert's death resulted from a criminal agency and the defense

does not dispute that point. Thus, the sufficiency of the evidence as to the

death by criminal agency of Ms. Reinert was clearly established.

The Commonwealth introduced evidence that, from approximately

1973 until the time of her death, Reinert had been romantically involved

with William S. Bradfield, a fellow English teacher at Upper Merion High

School.' Reinert, believing Bradfield and she were to be married, began

arranging her finances in favor of him, such as making him the primary

beneficiary of her will and the sole beneficiary of $730,000.00 in life

insurance benefits. The victim also had arranged to make Bradfield the

guardian of her children in the event of her death. The arrangements were

' Bradfield had been convicted on three counts of murder in the first degree for the deaths

of Ms. Reinert and her two children prior to the trial in this matter. He was not called as a

witness in the trial against Smith.

1-4

kept secret by Bradfield wi:. told his friends, and his lover, Susan Myers,

that Reinert was enamoured of him but that he was not interested in her,

all the while promising Reinert he would marry her in the summer of

1979.

Appellant was the principal of the high school where the victim

taught. There was no evidence of any relationship other than a

professional one between Smith and the victim. The theory of the

Commonwealth was that a conspiracy was formed between Smith and

Bradfield to share in the monetary reward that would be available to

Bradfield upon the untimely demise of Ms. Reinert. An additional reason

offered was that Ms. Reinert was killed to assure that she would not

disclose that Bradfield had offered perjured testimony on Smith's behalf in

an earlier, unrelated theft trial.

The earlier theft occurred in a Sears store in the St. David's Mall,

Montgomery County’, in August 1977. It was further established that

Bradfield appeared as a witness at the theft trial and offered alibi

testimony on Smith's behalf. Between the date of the theft and the trial of

that matter in May of 1979, Bradfield and Smith established what the

Commonwealth contended was a conspiratorial relationship. The

Commonwealth in the instant trial called the witnesses from the theft trial

to establish that Smith was indeed in the Sears store at the time of the

theft. This evidence was offered to establish that Bradfield's testimony in

the former trial was untrue. An agent of the Federal Bureau of

Investigation testified that an unsigned, typed letter dated October 1978

(N.T. 4/21/86, Vol. 16, Exhibit 26) discussed a telephone code system as

well as proposed alibi testimony for the theft trial. A fingerprint of Smith

was found on an envelope which purportedly contained the letter.’ This

evidence was offered to support the Commonwealth's theory that a

criminal conspiracy emerged from the effort of Smith to avoid conviction

at the theft trial and continued over to the instant murders.

Items of physical evidence were produced by the prosecution in

support of its theory of the case. A green pin with a white "P", similar to

the one being worn by Karen Reinert when she was last seen alive by the

neighbors, was recovered from under the front seat of Jay Smith's car. A

hair similar to Susan Reinert's was found inside the home of Smith. Fibers

found on Reinert's body during the autopsy similar to those from the

carpet in the basement of Smith's home. A comb was discovered under the

' Although the theft occurred in Montgomery County, the trial in that case was held before

the Court of Common Pleas in Dauphin County as a result of the grant of a motion for a

change of venue (N.T. 4/17/86, Vol. 14 at 2223).

> It is unclear from the testimony whether the letter was contained at any time in the

envelope. Fingerprint analysis performed on the letter revealed no latent prints.

x ol STR. “fiat hence Melty

a —————————

1-5

lifeless body of Ms. Reinert in the rear portion of her vehicle. The comb

was imprinted with the numbers and letters "79 USARCOM." Smith was

formerly a member of the 79 USARCOM., a USS. military unit. A bag of

identical combs was subsequently retrieved from Smith's home. The

Commonwealth produced a letter from Smith to his wife requesting that

she dispose of the carpet in their home and that she clean the interior of his

automobile.‘

The Commonwealth also presented the testimony of two fellow

immates of appellant during his confinement for the theft charges. This

evidence showed that Smith requested one of these fellow prisoners kill

the state police detectives investigating this case. Another former fellow

prisoner testified that Smith had confessed his complicity in the murders,

stating his motives were money and fear that Susan Reinert would reveal

the perjured alibi testimony. The former prisoners also testified to escape

plans formulated by Smith.

Viewing this evidence in a light most favorable to the prosecution

and drawing all reasonable inferences favorable to that side, there was

sufficient evidence presented to the jury in this case to establish each of

the elements of the charge relating to the death of Ms. Reinert beyond a

reasonable doubt.

In assessing the evidence of the death of the two children of Ms.

Susan Reinert, we are confronted with the further problem resulting from

the fact that their bodies have never been found. In a homicide

prosecution, the Commonwealth need not produce the body of the victim,

if the corpus delicti is established circumstantially. Commonwealth vy,

Burns, 409 Pa. 619, 187 A.2d 552 (1963); Commonwealth v. Agoston, 364

Pa. 464, 72 A.2d 575, cert. denied, 340 U.S. 844, 71 S.Ct. 9, 95 L.Ed. 619.

A presumption of death arises where a person who has been absent from

his home for a period of seven years has been neither seen nor heard from

during that period. Groner v. Knights of Maccabees, 265 Pa. 129, 108 A.

437 (1919); Maley v. Pennsylvania Railroad Co., 258 Pa. 73, 101 A. 911

(1917).°

As previously stated, the children were last seen on the evening of

June 22, 1979, in the company of their mother. Upon the discovery of the

death of the mother, the police conducted a diligent search to ascertain the

* This letter was written by Smith from prison where he had been incarcerated since June

26, 1979, as a result of the theft charges.

: Although the cases cited in support of a presumption of death arose in the context of civil

litigation, the factors giving rise to the presumption are equally valid in criminal matters.

Whereas in the civil law, these factors would Support a presumption, in the criminal law

they support a permissible inference. See e. g., Commonwealth v. DiFrancesco, 458 Pa.

188, 329 A.2d 204 (1974).

1-6

whereabouts of the children to no avail. The children had a close

relationship with both their father and their paternal grandmother.

Additionally, it was established that the children knew how to reach both

their father and paternal grandmother by telephone and also were aware of

where they lived. According to the testimony of both father and the

grandmother, neither heard from the children after June 22, 1979. The

Commonwealth produced evidence that a nationwide search was initiated

by the FBI, which assigned eighteen agents full-time for five months in the

investigation to ascertain the whereabouts of these children. These agents

were further assisted in the search by each of the fifty-nine FBI field

offices throughout the nation. Every lead received during this period was

thoroughly investigated. The length of the absence, its unexplained

character, the failure of the children to communicate with all known

relatives and associates, the nature of the relationship of the children with

their family and their dependency upon their family because of their

minority all lead to the inevitable conclusion that they shared their

mother’s fate and are no longer alive. Under these circumstances, the

applicability of an inference of their death as a result of criminal agency is

appropriate, and the jury could properly infer that those who caused the

death of their mother also were responsible for a similar fate of the

children. l

Again, appellant herein raises numerous assignments of trial error

in addition to the challenge of the sufficiency of the evidence. After our

review of this matter, we are constrained to conclude that appellant's

challenge to the admission of the contents of statements allegedly made by

Bradfield to various individuals is valid and the admission of the

testimony constituted reversible error. Because of our resolution of the

matter, we need not consider the remaining assignments of error.”

® The other claims of appellant not considered herein are as follows:

(a) Whether the trial court erred in allowing the prosecutor to retry appellant's theft trial

during this case;

(b) Whether the trial court erred in admitting testimony that appellant wanted the

investigating officers and Bradfield killed where the probative value of the evidence was

outweighed by its undue prejudice;

(c) Whether the court improperly admitting plans to escape as evidence of consciousness of

guilt;

(d) Whether the court erred in refusing to allow transcripts and video conversations to go

out with the jury where those items were misquoted out of context by the prosecutor in his

closing;

(e) Whether the court erred in admitting copies of letters seized from appellant mailed to his

attorney where such letters were confidential communications;

(f) Whether the trial court erred in denying a motion for a change in venue;

(g) Whether after-discovered evidence and prosecutorial misconduct requires a new trial

where the prosecutor had an agreement with one of appellant's former jailmates, in

[-7

The evidence in question was provided by several individuals who

were Close friends or paramours of Bradfield. The testimony related to

statements made to them on various occasions by Bradfield concerning the

activities of Smith in connection with the murders of Ms. Reinert and her

children. The Commonwealth conceded that the contents of the

statements were fabrications designed to portray Smith as a vicious,

depraved killer in an effort to cast blame upon Smith for these murders.

(N.T. 4/10/86, Vol. 9 at 1390-92.)

The first of the witnesses was Vincent Valaitis, a fellow English

teacher at Upper Merion High School. This witness was allowed to testify

that Bradfield told him in the fall of 1978 that he, Bradfield, volunteered to

serve as an alibi witness for Smith during the theft trial. It was

subsequently made clear that the testimony that Bradfield was intended to

offer on Smith's behalf was untrue. He was permitted to relate a number

of conversations on various occasions where Bradfield had described

Smith as a dangerous individual who intended to harm a number of

individuals, including Reinert. He testified that on one occasion Bradfield

told him that Smith "was a screened hitman for the Mafia and wanted to

kill a number of people, including Susan Reinert." (N.T. 4/10/86, Vol. 9 at

1401.) He also stated that Smith had given him instructions on how to

make a gun silencer. Further, additional statements in this vein attributed

exchange for his testimony, which was not revealed to appellant in violation of the Brady

rule;

(h) Whether the prosecutor's closing remarks were inflammatory and highly prejudicial

where he used evidence of the theft trial as evidence of appellant's guilt;

(i) Whether the prosecutor's closing remarks, accusing a retired state police officer of

committing perjury, were so inflammatory and prejudicial as to require a new trial;

(j) Whether a new trial is warranted where the prosecutor introduced evidence which

flagrantly violated an on-the-record pre-trial agreement;

(k) Whether the evidence is insufficient as a matter of law to support the finding of any

aggravating circumstances;

(1) Whether his death sentence should be vacated because it is disproportionate to that

received by the co-conspirator who was convicted on the same evidence:

(m) Whether the sentence of death must be vacated where the court refused to instruct the

jury that they had an absolute right to arrive at a non-unanimous verdict:

(n) Whether the death sentence must be vacated where the court erred in denying a directed

verdict for life imprisonment based on the prosecutor's improper argument that torture

could be found as an aggravating circumstance where he asserted Reinert had witnessed the

murder of her children, an allegation completely unsupported by evidence;

(0) Whether the court erred in charging the jury during the penalty phase not to consider

sympathy in its deliberations;

(p) Whether the death sentences must be vacated where the prosecutor's cross-examination

of appellant during the penalty phase denied appellant his right to allocution;

(q) Whether the death penalty is cruel and unusual punishment in violation of the U.S. and

Pennsylvania Constitution.

1-8

to Smith by Bradfield were: he, Smith, "knew how to take an ordinary

household item and kill anyone with it"; (N.T. 4/10/86, Vol. 9 at 1407 and

4/15/86, Vol. 12 at 1792) that Smith was able to tape up and immobilize a

person very quickly; and that Smith stated that, "the best time to commit

murders would be during holidays." (N.T. 4/10/86, Vol. 9 at 1409 and

4/11/86, Vol. 10 at 1593.) Valaitis was also permitted to testify that

Bradfield had urged him, on the weekend of the killings, to join Bradfield

on a trip to the New Jersey shore. Susan Myers and Chris Pappas also

accompanied Bradfield on this trip. Bradfield told the group that Smith

was going to kill Ms. Reinert during that weekend and their presence with

him (Bradfield) would serve to provide an alibi. On that occasion, the

witnesses quoted Bradfield as saying, "I'm afraid this is it. I'm afraid this

is the night that Jay C. Smith is going to kill Susan Reinert. I followed

him. He circled her house 14 times, and I lost him in a hailstorm.... "(N.T.

4/10/86, Vol. 9 at 1416.) Upon their return from their trip, Bradfield went

to his apartment, made a telephone call, returned and stated to the witness,

"Jay C. Smith's in jail. Smith's in jail. Thank God Smith's in jail. I saved

that f-----g woman's life,...." (N.T. 4/10/86, Vol. 9 at 1416.)

Previously Bradfield had called upon this witness to travel out of

the area with him to establish an alibi for that time period. This occurred

during the Christmas holidays in 1978. At that time Bradfield told this

witness that it was his (Bradfield's) belief that Smith intended to kill Susan

Reinert. On that occasion, the witness, Bradfield, and Susan Myers had

travelled to Florida for the express purpose of providing an alibi for

Bradfield in the event that Smith did carry out his alleged threat to kill

Reinert at that time. (N.T. 4/10/86, Vol. 9 at 1408-9.)

The testimony of the other witnesses was similar in content and

character. In each instance the information was supplied to the individuals

by Bradfield, and in each case it related to the purported actions of Smith.

For instance, Mr. Olsen, who is alleged to have met Bradfield in New

Mexico on June 26, 1979, the day after the discovery of Ms. Reinert's

body, was permitted to discuss the conversation that occurred between him

and Bradfield on that occasion. On that occasion, in response to the

prosecutor's inquiry as to what Bradfield had said to him, the witness was

permitted to state: "... I'll quote him [Bradfield], he said, Smith killed that

g-- d--- woman" (N.T. 4/14/86, Vol. 11 at 1742). Susan Myers, an

admitted lover of Bradfield, was permitted to testify that Bradfield told her

that Smith had committed thefts and had committed other murders, that

"Dr. Smith intended to kill Susan Reinert" and that Dr. Smith "tended to

kill on holidays" (N.T. 4/11/86, Vol. 12 at 1593). Wendy Zeigler, who

was characterized as enamored of Bradfield, testified that Bradfield told

her that Smith was "mentally unstable", that he intended to kill Susan

OLN CELL DLT AT a etn t

1-9

Reinert, and that he had a list of people to dispatch (N.T. 4/14/86, Vol. 11

at 1690). Chris Pappas was permitted to testify that Bradfield told him

that Smith was under investigation for several crimes and that he “wanted

to kill the judge, the people leading the investigation and people who were

remotely associated with the investigation" (N.T. 4/15/86, Vol. 12 at

1785). Finally, Pappas testified that, after Bradfield received a call

advising him of the murder of Susan Reinert, he stated, "... apparently Jay

Smith had gone through with his threats and had killed her" (N.T. 4/15/86,

Vol. 12 at 1833).

In the trial of this case Bradfield was not called upon to testify, nor

did the appellant testify on his own behalf. It is well settled in our law that

hearsay evidence is inadmissible unless it qualifies under one of the

recognized exceptions to that rule. 5 Wigmore, Evidence § 1420 et seq.

(Chadbourn Rev.1974); McCormick, Evidence, § 249 (2d ed. 1972). The

above described statements, wherein third parties were permitted to relate

to the jury declarations of Bradfield purporting to represent statements

made by Smith and his observations of Smith's state of mind, if offered for

the truth of their content, are clearly hearsay. United States v. Durant, 730

F.2d 1180 (8th Cir.) cert. denied, 469 U.S. 843, 105 S.Ct. 149, 83 L.Ed.2d

87 (1984); United States v. Reynolds, 715 F.2d 99 (3d Cir.1983); United

States v. Fox, 613 F.2d 99 (5th Cir.1980); United States v. Williams, 616

F.2d 759 (Sth Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d

72 (1980); Pauling v. News Syndicate Co.,.335 F.2d 659 (2d Cir.1964)

cert. denied, 379 U.S. 968, 85 S.Ct. 662, 13 L.Ed.2d 561 (1965);

Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), cert. denied,

480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Commonwealth v.

Sampson, 454 Pa. 215, 311 A.2d 624 (1973); Commonwealth v. Glover,

446 Pa. 492, 286 A.2d 349 (1972); Commonwealth v. Jacobs, 445 Pa. 364,

284 A.2d 717 (1971) cert. denied, 409 U.S. 856, 93 S.Ct. 135, 34 L.Ed.2d

100 (1972); see also, Petition of Earle, 355 Mich. 596, 95 N.W.2d 833

(1959); Mash v. Missouri Pacific Railroad Co., 341 S.W.2d 822

(Mo.1960); Ellsworth v. Watkins, 101 N.H. 51, 132 A.2d 136 (1957);

Wilson v. Hartford Accident & Indemnity Co., 272 N.C. 183, 158 S.E.2d 1

(1967); Auseth v. Farmers Mutual Automobile Insurance Co., 8 Wis.2d

627, 99 N.W.2d 700 (1959). The admission of hearsay evidence would

constitute error, United States v. Reynolds, supra; United States v. Blair,

456 F.2d 514 (3d Cir.1972); Commonwealth v. Peterkin, 511 Pa. 299, 513

A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d

1010 (1987); Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981);

Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981);

Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981), unless it is

established that the error was harmless. Commonwealth y. F, loyd, 506 Pa.

I-10

85, 484 A.2d 365 (1984); Commonwealth v. Turner, 499 Pa. 579, 454 A.2d

537 (1982); Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978);

Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967). If the error

is not harmless beyond a reasonable doubt, we are required to reverse the

judgment and to award a new trial. See Turner, supra; Commonwealth v.

Baez, supra; Story, supra; Commonwealth v. Linde, 448 Pa. 230, 293 A.2d

62, cert. dismissed, 409 U.S. 1031, 93 S.Ct. 523, 34 L.Ed.2d 482 (1972).

The predicate supporting the rejection of hearsay evidence is its

assumed unreliability because the declarant from which the statement

originates is not before the trier of fact and therefore cannot be challenged

as to the accuracy of the information sought to be conveyed. Dutton v.

Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Stidum v.

Trickey, 881 F.2d 582 (8th Cir.1989); Martinez v. Sullivan, 881 F.2d 921

(10th Cir.1989); United States v. Koskerides, 877 F.2d 1129 (2d Cir.1989);

United States v. Bentley, 875 F.2d 1114 (Sth Cir.1989); Commonwealth v.

Galloway, 476 Pa. 332, 382 A.2d 1196 (1978); Commonwealth v. Porter,

449 Pa. 153, 295 A.2d 311 (1972); Commonwealth v. Ransom, 446 Pa.

457, 288 A.2d 762 (1972). It also offends an essential concept of this

nation that an accused has a fundamental right to confront his accuser.

Dutton v. Evans, supra; Commonwealth v. Galloway, supra, Ransom,

supra.

The dilemma that faces the Commonwealth is that, having

conceded the unreliability of the utterances, it has foreclosed the

possibility of justifying the admission of the utterances under an exception

to the hearsay rule. The exceptions to the hearsay rule are premised upon

circumstances surrounding the making of the utterances which would

assure the reliability of the contents. Thus, having conceded the

unreliability of the utterances, there can be no basis for an exception to the

general rule prohibiting hearsay evidence.’

The Commonwealth attempts to avoid the hearsay quality of its

evidence by asserting that the testimony was not being offered for the truth

of its content. The hearsay concern is not present where statements of an

out-of-court declarant are not being offered for the truth of the content of

those statements. For instance, a witness may testify to a statement made

to him when the purpose of its introduction is the fact that the statement

was, in fact, made, Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624

(1973); Commonwealth v. Jacobs, 445 Pa. 364, 284 A.2d 717 (1971), cert.

” The "rule" arises in the exclusion of evidence which is not "first hand" but possesses the

indicia of reliability that would justify its consideratio _It is to accommodate this

legitimate concern that we have created exceptions to the hearsay rule. Those exceptions

have been carefully defined and should not be expanded solely to justify a conviction.

I-11]

denied, 409 U.S. 856, 93 S.Ct. 135, 34 L.Ed.2d 100 (1972);

Commonwealth v. Ricci, 332 Pa. 540, 3 A.2d 404 (1939). Similarly, we

have recognized that out-of-court statements which are offered to prove

the declarant's state of mind are not within the interdiction of the hearsay

rule, Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987);

Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981);

Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974);

Commonwealth v. Santos, 275 Pa. 515, 119 A. 596 (1923).

In this instance the Commonwealth argues the testimonial value of

these statements was the effect they had upon the listeners. See

Commonwealth v. Dehart, 512 Pa. 235, 516 A.2d 656, cert. denied, 483

U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987); Commonwealth v.

Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Ricci, supra.

The key to the admission of evidence for this purpose is that no assertive

or testimonial use is sought to be made of the content of the utterances.

Commonwealth v. Dehart, at 254, 516 A.2d at 666; Commonwealth v.

Cruz, supra, Commonwealth v. Ricci, supra. The difficulty with this

theory in the instant appeal is relevancy. The test for relevancy is whether

the proffered evidence tends to make a material fact more or less probable.

Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983);

Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980);

Commonwealth v. Chism, 480 Pa. 233, 389 A.2d 1041 (1978); J.

McCormick, Evidence § 185 (2d ed. 1972). Fed.R.Evid. 401.

The motives for the actions of the associates Bradfield had no

bearing upon the guilt of Smith. These witnesses had no relationship with

Smith. As defense counsel repeatedly noted during trial, these witnesses

had no personal knowledge of any association between Smith and

Bradfield, and they certainly had no personal knowledge of a conspiracy

between the two to kill the Reinerts. Therefore, their motives for

responding to the various requests of Bradfield were totally unrelated to

the material issue for the motives shed no light upon any complicity of

Smith.

An equally serious flaw in the theory of the Commonwealth to

justify this evidence is its reliance upon speculation as to Bradfield's

motive in conveying false information. The Commonwealth contends that

these statements were made by Bradfield in furtherance of the

conspiratorial design between Bradfield and Smith to dispatch the

Reinerts. While proof of the deliberate duplicity of Bradfield would be

relevant in a trial against him, Commonwealth v. Boyle, 498 Pa. 486, 447

A.2d 250 (1982); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861

(1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961);

Commonwealth v. Sauders, 390 Pa. 379, 134 A.2d 890 (1957), it cannot,

I-12

standing alone, be used against Smith. There must be independent

evidence to establish that Bradfield's motive for making t.:zse false

statements was indeed for the purpose of furthering the aims of the alleged

conspiracy between Bradfield and Smith. United States v. Gibbs, 739 F.2d

838 (3d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d

774 (1985); United States v. Jannotti, 729 F.2d 213 (3d Cir.1984), cert.

denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984); United States

v. Ammar, 714 F.2d 238 (3d Cir.), cert. denied, sub nom., Stillman v. U.S.,

464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); United States v.

Frumento, 426 F.Supp. 797 (E.D.Pa.1976), affd, 552 F.2d 534, aff'd, 563

F.2d 1083 (3d Cir. 1977), cert. denied, sub nom., Millhouse v. United

States, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 and, cert. denied,

sub nom., Sills v. United States, 434 U.S. 1072, 98 S.Ct. 1258, 55 L.Ed.2d

776 (1978); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111

(1981); Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981);

Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978);

Commonwealth v. Holloway, 429 Pa. 344, 240 A.2d 532 (1968). Absent

such proof, this evidence cannot be employed to reflect upon the guilt of

the instant appellant. United States v. Gibbs, supra; United States v.

Jannotti, supra; United States v. Ammar, supra; Stillman v. United States,

supra; United States v. Continental Group, Inc., 603 F.2d 444 (3d

Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668

(1980); United States v. Schoenhut, 576 F.2d 1010 (3d Cir.), cert. denied,

439 U.S. 964, 99 S.Ct. 450, 58 L.Ed.2d 421 (1978); Commonwealth v.

Pinkins, 514 Pa. 418, 525 A.2d 1189, cert. denied, 484 U.S. 867, 108 S.Ct.

192, 98 L.Ed.2d 144 (1987); Dreibelbis, supra; Garcia, supra;

Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317 (1940).

Whether or not there is evidence that strongly suggests a finding

of guilt, it is the responsibility of the Commonwealth to prove that conduct

by legally sufficient evidence. Lest we, as a society, be accused of being

barbaric, we must objectively test compliance with our standards before

imposing such a penalty. Regardless of personal predelictions, the law

must strictly adhere to these fundamental precepts in the decision-making

process.

For the foregoing reasons, we are constrained to conclude that the

convictions must be reversed and the cause remanded for a new trial.®

* On January 19, 1989, this Court ordered the Court of Common Pleas of Dauphin County

to conduct an evidentiary hearing regarding certain evidence in the Commonwealth's

possession, which may have been exculpatory in nature, but which was never disclosed to

the defense. The evidence in question was a "rubber lifter", an evidence collection device,

which allegedly contained grains of sand found on Mrs. Reinert's feet during the autopsy.

Appellant argued that this evidence was significant to his defense in that it would have

I-13

supported his theory that Mrs. Reinert was killed at the seashore by Bradfield and his

associates. In view of our disposition, we need not consider this issue in determining

whether a new trial should be granted. This evidence will now be available at a subsequent

trial, and the jury will be given the opportunity to assess its import within the totality of the

evidence presented.

De nln aE a ahd i BO aR RE ot

J-1

Filed September 18, 1992

COMMONWEALTH of Pennsylvania, Appellee,

v.

Jay C. SMITH, Appellant.

Supreme Court of Pennsylvania.

Argued May 6, 1992.

Decided Sept. 18, 1992.

William C. Costopoulos, Lemoyne, for appellant.

Robert A. Graci, Chief Deputy Atty. Gen. and Anthony Sarcione,

Executive Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT,

ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

In this infamous murder case, we are compelled to order the

discharge of appellant Jay C. Smith. Despite our prior holding granting a

retrial, Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989), we

now hold that the prosecutorial misconduct during appellant's first trial

was not only impermissible, but had constitutional implications under the

double jeopardy clause which prohibit retrial.

At issue is whether the double jeopardy clause bars retrial

following intentional prosecutorial misconduct designed to secure a

conviction through the concealment of exculpatory evidence; previously,

we have held that "double jeopardy will attach only to those mistrials

which have been intentionally caused by prosecutorial misconduct."

Commonwealth v. Simons, 514 Pa. 10, 16, 522 A.2d 537, 540 (1987),

adopting the federal constitutional standard set forth in Oregon v.

Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The

Superior Court recognized that our prior remand did not foreclose this

question, and it considered the issue and the claim of double jeopardy to

be outside the scope of the direct appeal. Commonwealth v. Smith, 404

Pa.Super. 553, 557, 591 A.2d 730, 732 (1991). Superior Court's view is

supported by the fact that the after-discovered evidence of prosecutorial

misconduct during appellant's trial was unknown to appellant during his

direct appeal and was not presented to this court at that time. Both the

trial court and the Superior Court, Commonwealth v. Smith, supra at 559,

591 A.2d at 733, in proceedings following remand, found that intentional

prosecutorial misconduct had been proved by appellant but deferred the

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remedy, a question of first impression, to this court. We granted allocatur

to consider this question.

Inasmuch as a more detailed description of the crimes charged

against appellant is contained in our prior opinion, Smith, supra, 523 Pa.

577, 568 A.2d 600, we abridge our description of the case for purposes of

this appeal. Schoolteacher Susan Reinert and her two young children were

murdered in June, 1979. William Bradfield, who was her fiancé and

fellow schoolteacher, and appellant, who was the principal of their school,

allegedly had conspired to murder Mrs. Reinert in order to recover the

proceeds of insurance policies on her life which named her fiancé as

beneficiary. The Commonwealth presented physical evidence linking

appellant to the murders as well as various other testimonial evidence

which, together, this court regarded as sufficient to sustain appellant's

conviction. Jd. at 586, 568 A.2d at 605. Nevertheless, this court held that

appellant was entitled to a new trial due to the admission of impermissible

hearsay testimony by associates of alleged co-conspirator Bradfield. Jd. at

588-96, 568 A.2d at 605-09.

Before appellant could be retried, he filed a motion to preclude a

new trial based on double jeopardy because of after-discovered evidence

of prosecutorial misconduct. He alleged that the Commonwealth withheld

potentially exculpatory physical evidence during his first trial and that the

Commonwealth knowingly denied the existence of the agreement which

existed with its chief witness whereby the witness received favorable

sentencing treatment in exchange for his testimony against appellant.

These alleged Commonwealth tactics were clearly in violation of the rule

of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

and, if proved, would, at the very least, entitle appellant to a new trial

pursuant to Brady. Under the holding of Commonwealth v. Simons, supra,

however, appellant would not be entitled to discharge to avoid double

jeopardy, for the violation was not based on a "claim that the prosecutor

intended to provoke a mistrial." Id. 514 Pa. at 20, 522 A.2d at 542

(emphasis in original). Appellant presents the case hypothesized in

Simons, "where the Commonwealth conceals its efforts to subvert the

truth-determining process, ... [where there is] no intent to goad the

defendant into moving for a mistrial. Quite the opposite, the intent would

be that the defendant should never know how his wrongful conviction

came about." Simons, supra at 23, 522 A.2d at 544 (Flaherty, J.,

concurring).

After appellant's direct appeal from his first triai, he acquired

evidence that the Commonwealth had obtained his conviction by

overreaching in two respects. Specifically, he learned that the

prosecution's chief witness, Mr. Martray, who denied the existence of any

———

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bargain in exchange for his testimony against appellant, was in fact

awaiting sentencing for unrelated crimes and did in fact receive favorable

treatment by the Commonwealth at his sentencing. Appellant was thereby

precluded from impeaching Mr. Martray's veracity by exposing his

motivation to testify falsely against appellant in order to minimize his own

punishment. Secondly, appellant learned that the Commonwealth

knowingly withheld physical evidence by hiding the fact that grains of

sand were discovered between the toes of the murder victim at her

autopsy, failing to present this evidence at appellant's trial and failing to

apprise appellant of the evidence in compliance with Brady, supra. The

significance of the sand lay in the fact that the scene of Susan Reinert's

murder was unresolved; it was possible that the murder did not take place

where the body was discovered but somewhere else and that the body was

afterwards moved to the place of discovery. The prosecution theory was

that the murder took place in Pennsylvania, whereas the defense theory

was that the murder occurred in Cape May, New Jersey, where Bradfield

had been and appellant had not. Thus the existence of the sand was

potentially exculpatory to appellant, and the Commonwealth deliberately

concealed the evidence for more than two years after the trial.

Due to the fact that appellant learned of these incidents of

misconduct long after his trial, they were not part of the record at the time

of his direct appeal. Upon remand to the trial court, appellant moved for

discharge on the basis of the afterdiscovered evidence. Hearings were

held, and the trial court found as fact that both incidents of misconduct

were committed by the Commonwealth. The adhesive "lifters" used to

remove and retain the sand from between the victim's toes were discovered

by the Commonwealth during appellant's trial but were not disclosed to

appellant despite the prosecutor's awareness of their importance. This is

established by a mid-trial memorandum from the assistant attorney general

who prosecuted appellant to his superior, the executive deputy attorney

general, stating: "It is obvious from [defense counsel's] tactics thus far

that he will attempt to establish that Mrs. Reinert was killed at the shore in

Cape May, New Jersey by William Bradfield, Chris Pappas, and Susan

Myers. The sand, therefore, is extremely material to the defense case."

Similarly, the Commonwealth deliberately denied the existence of the

agreement pursuant to which its witness, Mr. Martray, received extremely

lenient treatment at his sentencing in return for his testimony against

appellant.

Such misconduct, standing alone, would suffice to implicate the

protection of the double jeopardy clause. But further examination of the

record establishes the bad faith of the prosecution beyond any possibility

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of doubt; indeed, it would be hard to imagine more egregious prosecutorial

tactics.

One of the Commonwealth's witnesses was Corporal John Balshy,

a former Pennsylvania state trooper who had investigated the Reinert

murders and been present during the victim's autopsy. He testified on

cross-examination that he had used adhesive lifters to remove granular

particles which looked like sand from between the victim's toes. The

Commonwealth excoriated Corporal Balshy, implying that he had

fabricated his testimony about the adhesive lifters. The Commonwealth

then presented the testimony of other state police officers who had

attended the autopsy and did not remember the sand or the adhesive lifters,

attempting to prove that Balshy's testimony was false. The prosecutor

even recommended to the deputy executive attorney general that he

investigate the feasibility of prosecuting Balshy for perjury. A few days

later, while appellant's trial was still in progress, the Pennsylvania state

police discovered the missing adhesive lifters in their evidence locker at

the state police barracks. Despite their significant relation to the facts at

issue in the trial, the Commonwealth suppressed the discovery. Then for

more than two years, while appellant's case was on direct appeal to this

court, the Commonwealth continued to suppress the fact that it had in its

possession the disputed exculpatory evidence, vigorously arguing all the

while that this court should affirm appellant's death sentence.

Meanwhile, Corporal Balshy was made the scapegoat for the

misconduct on the theory that he had fabricated and "planted" the evidence

after the autopsy. It was even argued by the Commonwealth at appellant's

trial that the defense had paid Balshy to concoct his testimony about the

sand and the lifters. Investigations conducted after trial by the state police

and by the attorney general's office concluded that there was no evidence

of perjury or falsification of evidence by Balshy. Finally, on July 12,

1988, the attorney general's office informed defense counsel that the

missing lifters had been discovered, though even then, there seemed to be

some hesitancy concerning the prosecutor's duty to disclose the evidence.

It is a gross understatement to conclude, as stated by the trial court

and Superior Court that "neither the Attorney General's Office nor the

Pennsylvania State Police can take any great pride in the manner in which

this case was handled during the trial and on appeal. " Commonwealth v.

Smith, 404 Pa.Super. at 560 n. 3, 591 A.2d at 733 n. 3. Deliberate failure

to disclose material exculpatory physical evidence during a capital trial,

intentional suppression of the evidence while arguing in favor of the death

sentence on direct appeal, and the investigation of Corporal Balshy's role

in the production of the evidence rather than its own role in the

suppression of evidence constitute prosecutorial misconduct such as

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violates all principles of justice and fairness embodied in the Pennsylvania

Constitution's double jeopardy clause.

Prior to the decision of the United States Supreme Court in

Oregon v. Kennedy, supra, the intentional misconduct of the prosecutor at

appellant's trial would unquestionably have resulted in the invocation of

the double jeopardy bar against subsequent prosecution. The standard in

effect prior to Oregon v. Kennedy was:

"The Double Jeopardy Clause does protect a defendant

against governmental actions intended to provoke mistrial

requests and thereby to subject defendants to the

substantial burdens imposed by multiple prosecutions.

"(The Double Jeopardy Clause] bars retrials where 'bad

faith conduct by judge or prosecutor,' threatens the

'[h]arassment of an accused by successive prosecutions or

declarations of a mistrial so as to afford the prosecution a

more favorable opportunity to convict' the defendant."

United States v. Dinitz, 424 U.S. [600], at 611, 47 L.Ed.2d

267, 96 S.Ct. 1075 [1081] (citations omitted).

Id., 456 U.S. at 674, 102 S.Ct. at 2088, 72 L.Ed.2d at 423-24. The same

standard was embodied in our caselaw:

The United States Supreme Court has enunciated

principally two types of prosecutorial overreaching. First

there is the prosecutorial misconduct which is designed to

provoke a mistrial in order to secure a second, perhaps

more favorable, opportunity to convict the defendant.

Second there is the prosecutorial misconduct undertaken

in bad faith to prejudice or harass the defendant. In

contrast to prosecutorial error, overreaching is not an

inevitable part of the trial process and cannot be

condoned. It signals the breakdown of the integrity of the

judicial proceeding, and represents the type of

prosecutorial tactic which the double jeopardy clause was

designed to protect against.

Commonwealth v. Starks, 490 Pa. 336, 341, 416 A.2d 498, 500 (1980)

(citations omitted). Oregon v. Kennedy, however, under the guise of

simplifying and clarifying the principle, restated the test as follows:

Because of the confusion which these varying statements

of the standard in question have occasioned in other

courts, we deem it best to acknowledge the confusion and

its justifiability in the light of these statements from

previous decisions. We do not by this opinion lay down a

flat rule that where a defendant in a criminal trial

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successfully moves for a mistrial, he may not thereafter

invoke the bar of double jeopardy against a second trial.

But we do hold that the circumstances under which such a

defendant may invoke the bar of double jeopardy in a

second effort to try him are limited to those cases in which

the conduct giving rise to the successful motion for a

mistrial was intended to provoke the defendant into

moving for a mistrial.

456 U.S. at 679, 102 S.Ct. at 2091, 72 L.Ed.2d at 426-27. This court,

recognizing that theretofore the standard under the double jeopardy clause

of the Pennsylvania Constitution had been coextensive with the federal

Constitution, restated the test in Commonwealth v. Simons, supra, in terms

of the federal standard enunciated in Oregon v. Kennedy.

In neither Oregon v. Kennedy nor Commonwealth v. Simons did

the reworded test produce a different result than would have been reached

under the prior test. In Oregon v. Kennedy, the prosecutor asked a

question in such form as to reflect adversely on the character of the

defendant, but the inadvertent reference was not calculated to provoke a

mistrial nor to prejudice the defendant; he would not have received double

jeopardy protection under the prior test or under the restated test. In

Simons, the defendant made a "doubtful" claim that the prosecutor failed

to make full disclosure of a plea agreement with a Commonwealth

witness, but the prosecutor's conduct clearly was not intended to provoke a

mistrial nor to prejudice the defendant. The Simons court specifically

stated that

we are describing anew only the present applicable

standard of review and the circumstances which will cause

double jeopardy to attach but not changing the right

itself... Double jeopardy, nevertheless, continues to mean

what it has always meant; no new rights were created by

Starks nor are they being subtracted by virtue of this

analysis.

Commonwealth v. Simons, 514 Pa. at 16, 522 A.2d at 541. Thus the

restatement of the double jeopardy standard did not appear as a diminution

of a defendant's constitutional rights, though it was predicted in Simons

that cases might arise in which the new standard would afford less

protection than the prior test. See /d. at 20-23, 522 A.2d at 542-44

(Flaherty, J., concurring).

Although it is arguable that the test enunciated by the United

States Supreme Court in Oregon v. Kennedy would bar appellant's retrial

on the theory that the prosecutor's conduct was intended to subvert the

protections afforded by the double jeopardy clause, see 456 U.S. at 675-

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76, 102 S.Ct. at 2088-89, 72 L.Ed.2d at 424, it is possible that some courts

would not view the prosecutorial misconduct in this case as rising to the

level of subversion of constitutional rights. Regardless of what may be

required under the federal standard, however, our view is that the

prosecutorial misconduct in this case implicates the double jeopardy

clause of the Pennsylvania Constitution.

We now hold that the double jeopardy clause of the Pennsylvania

Constitution prohibits retrial of a defendant not only when prosecutorial

misconduct is intended to provoke the defendant into moving for a

mistrial, but also when the conduct of the prosecutor is intentionally

undertaken to prejudice the defendant to the point of the denial of a fair

trial. Because the prosecutor's conduct in this case was intended to

prejudice the defendant and thereby deny him a fair trial, appellant must

be discharged on the grounds that his double jeopardy rights, as

guaranteed by the Pennsylvania Constitution, would be violated by

conducting a second trial.

Order reversed and appellant discharged.

LARSEN, J., did not participate in the consideration or disposition of this

case.

McDERMOTT, J., did not participate in the disposition of this case.

K-]

Humberto ALVAREZ-MACHAIN, Plaintiff-Appellee,

V.

UNITED STATES of America; Antonio Garate-Bustamante; Francisco

Sosa, Defendants,

and

Hector BERELLEZ; Bill Waters; Pete Gruden; Jack Lawn, Defendants-

Appellants.

Humberto ALVAREZ-MACHAIN, Plaintiff-Appellee,

Vv

UNITED STATES of America, et al., Defendant-Appellant.

Humberto ALVAREZ-MACHAIN, Plaintiff-

Appellant,

v.

UNITED STATES of America, Defendant,

and

Francisco Sosa; Antonio Garate-Bustamante, Defendants-Appellees.

Nos. 95-55464, CV93-04072-JGD, 95-55768, 95-5612].

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1996.

Decided Sept. 24, 1996.

Appeal from the United States District Court for the Central

District of California John G. Davies, District Judge, Presiding.

Paul Hoffman, ACLU Foundation of Southern California, Los

Angeles, California, for the plaintiff-appellee.

Robert M. Loeb, Appellate Staff, Civil Division, Department of

Justice, Washington, D.C., for the defendants.

Michael L. Martinez, Holland & Knight, Washington, D.C., for

the defendants-appellants.

Gary S. Lincenberg and Thomas V. Reichert, Bird, Marella,

Boxer, Wolpert & Matz, Los Angeles, California; Charles S. Leeper and

Karl N. Metzner, Spriggs & Hollingsworth, Washington, D.C., for the

defendants-appellees.

Before: GOODWIN and SCHROEDER, Circuit Judges, and KING,

District Judge.

" Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting

by designation.

ee:

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GOODWIN, Circuit Judge:

In April 1990 the United States Drug Enforcement Agency (DEA)

orchestrated the abduction and torture of Dr. Alvarez-Machain, a Mexican

doctor, and transported him to the United States for prosecution for the

murder of a DEA agent in Mexico. The criminal case ended when the

district court granted a judgment of acquittal.

Alvarez-Machain returned to Mexico and filed this civil action

against the United States and its agents under 42 U.S.C. § 1983 and other

federal statutes. His claims included the violation of constitutional rights

as well as ten torts, ranging from torture to false imprisonment.

Defendants moved to dismiss the complaint, and the district court granted

the motion in part and denied it in part.

The court dismissed the constitutional claims that were based

upon activities occurring in Mexico. The court also dismissed a claim

brought under the Torture Victim Protection Act (TVPA). The court

refused to dismiss the tort claims as barred by the statute of limitations,

and denied the motion based upon the defense of qualified immunity

asserted by defendants accused of wrongful conduct within the United

States. We affirm the district court in its judgment with respect to all

claims other than the TVPA claim. The district court held that it could not

apply the TVPA to defendant's actions because the TVPA was enacted

subsequent to the pertinent events. Because we hold that application of

the TVPA to past acts would not have a retroactive effect, we reverse the

district court on this ruling.

FACTS

On April 2, 1990, a team of men alleged to be hired by DEA

agents working in Mexico, abducted Dr. Alvarez-Machain from his office

in Guadalajara. They blindfolded him, transported him to an unknown

location, and proceeded to beat him and subject him to electrical shocks.

His kidnappers injected him with unknown chemical substances causing

nausea and dizziness, denied him food and water, and forced him to lie

face down on the floor for a long period of time. His life was repeatedly

threatened, as well as the safety of his family. After enduring this torment

for several hours, he was delivered into the hands of the DEA in El-Paso,

Texas.

Defendant Antonio Garate-Bustamante coordinated and led the

activities in Mexico, and defendant Francisco Sosa participated in the

events. Both were working as the paid agents of the DEA, who undertook

to bring Alvarez-Machain to the United States in order to prosecute him

for his alleged role in the murder of DEA agent Enrique Camarena.

Once in El Paso, defendant Garate-Bustamante and several DEA

agents interrogated AlvarezMachain. The DEA agents threatened

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AlvarezMachain during the interrogation, denied him food and adequate

medical attention, and at one point forced him to stand naked and be

photographed. In El Paso, the DEA processed Alvarez-Machain under an

assumed name or names, despite knowing his true identity, frustrating

efforts by his family members and the Mexican government to learn about

his whereabouts.

On April 10, 1990, Alvarez-Machain was transferred to Los

Angeles and arraigned on charges of murder before United States District

Judge Edward Rafeedie. Subsequently, Judge Rafeedie dismissed the

charges, concluding that the court lacked jurisdiction over Alvarez-

Machain because his abduction violated the extradition treaty between the

United States and Mexico. United States v. Caro-Quintero, 745 F.Supp.

599, 601 (C.D. Cal. 1990), aff'd sub nom United States yv. Alvarez-

Machain, 946 F.2d 1466 (9th Cir. 1991). The Supreme Court reversed the

decision, however, and Alvarez-Machain was forced to stand trial. United

States v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L.Ed.2d

441 (1992). As noted, the prosecution ended with a judgment of acquittal

on December 14, 1992. After the acquittal, Judge Rafeedie revealed that

the government had withheld potentially exculpatory evidence from the

defense, in addition to failing to take him promptly before a magistrate

after he reached United States territory under arrest.

In addition to the cases consolidated in this appeal, Alvarez-

Machain filed an administrative claim against the United States under the

Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b). He added the

United States as a defendant in January, 1994, after the six-month waiting

period required by statute had expired. Against all defendants he alleged

claims for kidnapping; torture; cruel and inhuman and degrading treatment

or punishment; prolonged arbitrary detention; assault and battery; false

imprisonment; intentional infliction of emotional distress; false arrest;

negligent employment of public employees and agents; negligent infliction

of emotional distress; and violations of the Fourth, Fifth and Eighth

Amendments to the United States Constitution. Against defendants

Garate-Bustamante and Sosa, Alvarez-Machain also alleged a claim under

the Torture Victim Protection Act (TVPA).'

In dismissing the constitutional claims arising out of conduct in

Mexico, the district court held that the United States Constitution does not

protect Mexican nationals in Mexico from wrongs committed against them

by United States government agents engaged in extraterritorial law

enforcement. The district court allowed the action to proceed on conduct

by DEA agents acting within the United States, however, holding that the

' Codified in the statutory notes to 28 U.S.C. § 1350.

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alleged conduct, if proved, clearly violated established constitutional

rights. Accordingly, as noted, the DEA agents who participated in the El

Paso activities were denied dismissal on qualified immunity grounds, and

they have appealed that ruling.

The court denied Defendants Garate-Bustamante's and Sosa's

motions for dismissal as to all but the TVPA claim, holding that more

discovery was necessary to determine the exact relationship between the

Mexican defendants and the United States before a determination could be

made as to whether the defense of qualified immunity was available, or

whether the United States could be substituted as the defendant on the tort

claims based on their conduct in the United States. As for the TVPA, the

district court declined to apply it to claims of torture occurring prior to the

enactment of the statute, and Alvarez-Machain appeals that ruling.

Finally, with regard to the United States, the district court denied

its motion to dismiss the tort claims as barred by the statute of limitations.

The court recognized that the statute of limitations raised a potential

problem for Alvarez-Machain, but believed more discovery might reveal a

basis for equitable tolling of the statute because of the lengthy duration of

the plaintiff's incarceration, including his being held incommunicado, and

otherwise prevented from timely protecting his civil rights while

defending the murder charges against him.

These rulings are the subject of the present interlocutory appeals.

DISCUSSION

I, Statute of Limitations-No. 95-55768

The government argues that Alvarez-Machain's FTCA claims are

barred by the statute of limitations because he failed to file an

administrative claim until July 1993-three years after his alleged abduction

and torture.

The FTCA provides:

A tort claim against the United States shall be forever

barred unless it is presented in writing to the appropriate

Federal agency within two years after such claim

accrues....

2

? in no. 95-55768, the United States appeals the order denying its motion to dismiss the

Federal Tort Claims Act causes of action. In no. 95-55464, the DEA defendants appeal the

order denying their motion to dismiss the constitutional claims for actions taken in the

United States. In no. 95-56121, Alvarez-Machain appeals the dismissal of his

constitutional claims for actions taken in Mexico, and the dismissal of his claims under the

TVPA. Garate-Bustamante and Sosa also appealed the orders pertaining to their motions

for dismissal based on qualified immunity and their motions for substitution of the United

States as defendant in the tort actions. These appeals were dismissed by this court pursuant

to Johnson v. Jones, --- U.S ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Nos. 9555467

and 95-55469.

ORER TS Ae

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28 U.S.C. § 2401(b). The key question here is the date of accrual for

Alvarez-Machain's claims.

Generally a claim accrues when the plaintiff knows, or in the

exercise of reasonable diligence should know, of both the injury and its

cause. Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir. 1984).

Here, Alvarez-Machain did not have a sufficient basis to bring his claims

of false imprisonment, negligent infliction of emotional distress, and false

arrest until after he had successfully challenged the criminal charges

facing him. Indeed, had he filed an administrative claim for these torts

prior to obtaining his acquittal, the claim should have been dismissed as

premature. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d

383 (1994) (holding that civil claims which necessarily implicate the

validity of criminal charges do not accrue until after one has succeeded in

the criminal realm).

Alvarez-Machain's other tort claims do not necessarily implicate

the validity of his criminal charges. Nonetheless, this is an appropriate

case for the application of the doctrine of equitable tolling of the statute of

limitations. In addition to the obvious reasons for its application to claims

that could not have been brought prior to his acquittal, reasons of judicial

economy counsel against splitting causes of action, and reasons of

common decency counsel against using governmental immunity as a

sword instead of a shield in this case.

Equitable tolling is available in suits against the United States

absent evidence that Congress intended the contrary. Jrwin v. Dept. of

Veteran Affairs, 498 U.S. 89, 95-95, II] S.Ct. 453, 112 L.Ed.2d 435 (1990).

Nothing in the FTCA indicates that Congress intended for equitable tolling

not to apply. Hence, equitable tolling is available for FTCA claims in the

appropriate circumstances; and the circumstances of this case are highly

appropriate for tolling.

Federal courts have applied the doctrine of equitable

tolling in two generally distinct kinds of situations. In the

first, the plaintiffs were prevented from asserting their

claims by some kind of wrongful conduct on the part of

the defendant. In the second, extraordinary circumstances

beyond plaintiffs’ control made it impossible to file the

claims on time.

Seattle Audubon Soc. v. Robertson, 931 F.2d 590, 595 (9th Cir. 1991), rev.

on other grounds, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992).

See also Capital Tracing, Inc. v. United States, 63 F.3d 859 (9th Cir.

1995) (tolling the statute due to a lack of clarity in the law).

Here, the circumstances of Alvarez-Machain's abduction and

subsequent trial warrant the equitable tolling of the statute of limitations.

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Alvarez-Machain was incarcerated for over two years, facing criminal

charges of the highest gravity in a foreign country whose language he did

not understand. His life was at stake, and his case involved numerous,

complex issues of first impression-several of which were ultimately

decided by the United States Supreme Court. See, e.g., United States v.

Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992);

United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108

L.Ed.2d 222 (1990). Moreover, as discussed, had he filed an

administrative claim prior to obtaining an acquittal, many of his claims

would have been dismissed because they necessarily implicated the

validity of his criminal charges. Heck v. Humphrey, 512 U.S. 477, 114

S.Ct. 2364, 129 L.Ed.2d 383. Looking at the totality of these

circumstances, we conclude that Alvarez-Machain's case constitutes that

rare situation where equitable tolling is demanded by sound legal

principles as well as the interests of justice. We affirm the denial of the

government's motion based on the statute of limitations.

II. DEA Agents Qualified Immunity

Pre-trial detainees possess a clearly established right to be free

from punishment. Bell v. Wolfish, 441 U.S. 520, 534-37, 99 S.Ct. 1861,

60 L.Ed.2d 447 (1979). This right is located in the due process clause of

the Fifth Amendment, but we borrow from Eighth Amendment principles

in determining the care to be afforded pre-trial detainees. Jones v.

Johnson, 781 F.2d 769, 771 (9th Cir. 1986). The Eighth Amendment

"proscribes ... sanctions that are 'so totally without penological

justification that it results in the gratuitous infliction of suffering.’ "

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (quoting Gregg v.

Georgia, 428 U.S., 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

Convicted prisoners and pre-trial detainees are also entitled to "adequate

food, clothing, shelter, sanitation, medical care, and personal safety." Jd.

The complaint here reveals that the DEA agent defendants

"threatened" Alvarez-Machain during an interrogation session in El Paso

on April 3, 1990; withheld food throughout the interrogation, incarcerated

him under a false name, making it impossible for the United States

government to respond to inquiries about his whereabouts from his family

or the Mexican government; and denied him adequate medical attention.

Each of these allegations, if proven, served to create an atmosphere of fear

and isolation, imposing "gratuitous sufferin

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