# Appendix — Wambaugh v. Smith

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1677%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1041

## Text

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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

A-3

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

A-4

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.

B-6

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.

C-3

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.

C-5

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 val

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1677%3A2. Public record. Not legal advice.