Robert Rivera Trial Transcripts

Commonwealth of Pennsylvania

vs.

Robert Rivera

Media, PA, January 14, 2002 – January 23, 2002
Courtroom Number 3 (Jan. 14)
Courtroom Number 4 (Jan. 15 – Jan. 23)

Transcript Of Proceedings

Before: The Honorable Charles C. Keeler
John F.X. Reilly, Esquire For The Commonwealth
G. Guy Smith, Esquire, For The Defendant
Steve Leach, Esquire, For The Defendant

[1][2][3]

Proceedings - January 14, 2002

Mr. Reilly:
Your Honor, John Reilly for the Commonwealth.  This is the Commonwealth versus Robert Norman Rivera.  Number 411-00.  The Defendant is present today.  His attorney is Guy Smith.  Steven Leach is his attorney as well.  Both attorneys are present.  Your Honor, today is the date that the court has scheduled for hearing on the Defendant's motion for change of appointed counsel, and I will defer to Mr. Smith at this time.

Mr. Smith:
Good afternoon, Your Honor.  For the record, Guy Smith, ID# 08775.  As you heard I represent Robert Rivera.  Robert is seated to my left at counsel table.  Also present at counsel table is Steven Leach, co-counsel.  Your Honor, I received the petition that Mr. Rivera filed, as did the court.  Your Honor graciously sent me a copy.  I filed a formal response to the petition only because I have no information with regard to what stands behind the petition.  I thought it best simply [4] to put my answer on the record as a matter of law.  I have advised Robert that I do not recommend, and in fact I recommend against him making any statements in public in this courtroom in pursuit of whatever he thinks is part of his petition that would either incriminate him or cause him harm, or in any way impact on the trial that is about to begin in this case tomorrow.  I have said that to him as many times as I could say it in the last hour.  There is nothing that I want to present to this court in support of that petition.  I know of no underlying facts or basis for it.  I don't support it.  I haven't pursued it.  I don't want him to support it or pursue, and that's where things stand, Your Honor.

The Court:  Mr. Leach, do you have anything you want to add?

Mr. Leach:  No, Your Honor.

The Court:  Mr. Rivera, anything you want to add?

Mr. Rivera:
[5] The same answers I gave last time.  The reasons why I wanted him, you know what I mean.  You know, I got witnesses he doesn't get in touch with.  You know what I mean, either that or I want to be either turned over to state where she's at, or turn me over the FBI.  Because, you know me, I have two questions for him that are yes or no questions.  This is my life.  This is my life.  Not yours.

The Court:
In your petition, Mr. Rivera, you indicated that you and counsel have met with each other on (inaudible) in the case.  In his response Mr. Smith indicates that his records reflect 26.  Is that that correct, Mr. Smith?

Mr. Smith:
Yes, Your Honor.  Your Honor, each time I go to the Delaware County Prison I am required by prison procedures to sign in the logbook, and I keep a corresponding log of those dates and times of entry and times of exit.  And I have confirmed all of those and that there are 26 times that I went there and met with Robert.  There are some additional times that I went [6] there and did not meet with Robert because he wouldn't come out on several occasions.  He just wouldn't see for whatever reasons.  But those are the 26 times that I did meet with him.

The Court:
Mr. Rivera, you know we have selected the jury.  You are going to begin trial tomorrow morning.  It would certainly be in your best interest to cooperate with counsel.

Mr. Rivera:
He's not cooperating with me.  He's doing what he wants to do.  I tell him what I want and he don't do it.

The Court:
As I've indicated previously he's a competent counsel, and I see nothing in your opinion, or in your petition rather, that would incline me in anyway to grant you motion for change of appointed counsel.  (Inaudible).  It's in your best interest to cooperate with competent counsel.  Do you understand that?

Mr. Rivera:
I understand that.  And the statements I made today, will the jury know what I said.  Or do [7] I have to repeat it tomorrow again, because I'm not satisfied with him, because you know he is not doing anything what I want him to do.  He wants to do what he wants to do.

The Court:
So far as tomorrow is concerned you are not going to be saying anything.  The Commonwealth presents his case first.  That's where we're (inaudible).

Mr. Rivera:
Well like I said I want to be turned over to the state where she's at, or either the FBI.  Simple as that.  Because he won't contact the State.  I'm not allowed to make phone calls ...

The Court:  All right, Mr. Rivera, but you're not following his advice right now.

Mr. Rivera:  This is my life.  You're not doing what I want ...

Unidentified Speaker:
Agent (inaudible) from the FBI is present today and is willing to speak with the Defendant if the Defendant would like to speak to her.  [8]

Mr. Rivera:
Long as I get turned over to them.  I'm not dealing with Delaware County.  And I'm not going to admit to something I did not do.  Uhhuh.  You're not doing -- If you want to be present you can be present.  I don't ...

The Court:  Do you want to discuss this a little further?

Mr. Rivera:
Yeah.  Long as I get turned over to her now, because you're not doing what I want you to do.

The Court:  Take Mr. Rivera back ...

Mr. Smith:
Your Honor, Mr. Rivera says he's finished with this proceeding.  If you'll take him back to the holding cell I'd like to talk to him before -- if he will remain.  I'll talk to him before he has any conversation with her.

The Court:  Let me talk to counsel a minute.  [9]

Mr. Reilly:  Yes, sir. [10]

-------------------------------

[1][2][3]

Proceedings - January 15, 2002

[Court called to order]

Everyone:  Good morning, Your Honor.

Mr. Reilly:
Your Honor, John Reilly for the Commonwealth.  This is Commonwealth vs. Robert Norman Rivera.  It's #411 of 2000.  The Defendant's present in Court today along with his attorneys Guy Smith and Steve Leach.  We are prepared to proceed to trial today, Your Honor.

The Court:  Mr. Smith?

Mr. Smith:
Good morning, Your Honor.  Guy Smith, ID #08775.  I represent Robert Rivera along with Mr. Leach as you've heard.  Your Honor, there have been some discussions this morning with Mr. Rivera concerning his desire to remain in the or not remain in the courtroom.  I think in light of the fact that there have been situations this morning in which he has said he chooses not to be in the courtroom, and then other times he said he does choose to be [4] in the courtroom, I'm not sure whether Robert intends to remain in the courtroom at this point or not remain in the courtroom at this point.

The Court:  All right.

Mr. Smith:  And that leads me to a second issue, which I'll address when we get done this one.

The Court:  Mr. Rivera, what is your position so far as remaining in the courtroom during trial?

The Defendant:  I'd like to be in the courtroom.

The Court:  You'd like to be in the courtroom?

The Defendant:  Oh, yes, for the whole procedure.

The Court:
Okay, now, you understand that if you are present in the courtroom you'll have to conduct yourself properly and allow the case to proceed in an orderly fashion.  You understand that?

The Defendant:  [5] Yes, I do, Your Honor.

The Court:  And it's in your best interest to do so, you understand that?

The Defendant:  Yes, it is.  Yes, Your Honor.

The Court:  Now, I note that you are in -- you're sure of this now.

The Defendant:  Yes, Your Honor.

The Court:  I notice that you're in prison garb.  Why didn't you put on civilian clothes today?

The Defendant:
They told me they would put a leg brace on my leg and it would not fit underneath my pants.  My pants were too tight.  Wouldn't fit underneath my pants.

The Court:  Okay.

The Defendant:  I prefer to wear my street clothes.

The Court:
Okay, we've made a call to the prison.  Asked [6] if they can have your clothing brought here as quickly as possible.  Do you understand that?

The Defendant:  Yes, sir.

The Court:
We'll do so.  Also, for the record, as I noted to counsel, with respect to the jury I did receive a letter, together with a doctor's confirmation with respect to who would be juror seat #9.  Based upon that doctor's letter I agreed that that juror could be excused from jury duty.  Satisfactory, counsel?

Mr. Smith:  Satisfactory, Your Honor.

Mr. Reilly:  Yes, Your Honor.

Mr. Smith:  We have sufficient alternates.

The Court:  Yes, we do.

Mr. Reilly:  Your Honor, may I be heard, please?

The Court:  Yes.  [7]

Mr. Reilly:
Your Honor, may I express my concern for the record with the Defendant's behavior this morning?  The Defendant appears in Court this morning as a -- as a lamb, as a misunderstood man, when in fact he's tied us in knots all morning.

The Court:  We'll take that course as it comes.

Mr. Reilly:  Yes, sir.

The Court:
I expect that his response to my question as to whether he realizes it is in his best interest to participate, to not be obstructionist, that you will do so, is that correct?

The Defendant:  Yes, Your Honor.

The Court:
And that you will pay attention and you'll cooperate with counsel with respect to any questions or any witnesses ...

The Defendant:  Yes, Your Honor.  [8]

The Court:  ... that you think may be appropriate.

Mr. Smith:
Your Honor, there's one other issue that Mr. Rivera raised with me this morning.  That is he takes certain medications out at the prison and he was denied the opportunity to take that medication this morning and he says that that medication is necessary for him, that he has colitis and some other conditions that he needs that medication for to keep him from becoming nauseous and becoming ill.

The Court:  Check with the prison on that would you please?  We'll check with the prison on that.

Mr. Smith:  Okay, thank you.

The Court:  Anything else at this time?

Mr. Smith:  No, sir, that's all I have.

The Court:  We'll just have to take a brief recess until we get the clothing here.

Mr. Smith:  [9]

[Page 9 of January 15 Transcript Missing] [10]

Now, ladies and gentlemen, there has, of course, been a period between the actual selection of yourselves as jurors and now the beginning of trial.  You'll recall that after you were selected as a juror, I requested that you not read anything, listen to anything, discuss anything, pertaining to this case.  During that period of time has any member of the jury read anything, discussed anything, listened to anything pertaining to the case?  If so, please raise your hand.  Yes, ma'am.

The Juror:  I saw a headline yesterday.

The Court:
Okay, did that in any way affect your ability or was there anything about that that would prevent you from being a fair and impartial juror?

The Juror:  No.

The Court:  Anyone else?  Counsel, satisfactory?

Mr. Smith:  Satisfactory, Your Honor.

Mr. Reilly:  [11]

[Page 11 of January 15 Transcript Missing]  [12]

trial.  That's his choice.

Second, the District Attorney will present evidence.  He may call witnesses to testify, he may offer exhibits such as documents or physical objects.  Defendant has a right to cross-examine witnesses called by the Commonwealth in order to test the truthfulness and accuracy of their testimony.

At the close of the Commonwealth's case, Defense Counsel may, if he wishes, present evidence for the Defendant.  If the Defendant testifies or calls witnesses to testify, the District Attorney may, of course, cross-examine the Defendant and any witnesses the Defendant calls to testify if there are any.

Defendant, however, has no obligation to offer evidence or present or testify himself.  Under the law every Defendant is presumed innocent.  The mere fact the Defendant was arrested and accused of a crime is not any evidence against him.  The burden is upon the Commonwealth to prove the Defendant's guilty beyond a reasonable doubt.  You may not find the Defendant guilty based upon a mere suspicion of guilt.  On the other hand, the Commonwealth [13]

[Page 13 of January 15 Transcript Missing] [14]

are the sole judges of the facts.  It will be your responsibility to weigh the evidence, to find the facts, and apply the law, which I give to you to the facts as you find them to decide whether the Defendant has been proven guilty beyond a reasonable doubt.  You'll determine the facts of the case by paying close attention to the testimony and by assessing the credibility of the witnesses.

You're not permitted to take notes on the testimony or anything said by me or by the attorneys.  Therefore, when you deliberate on your verdict you'll have to rely on your own memories of what was said here in the courtroom.  If you fail to hear a question or answer while a witness is testifying, raise your hand immediately.  We'll see that it's repeated for you.

Now, with respect to the individuals who you have seen during jury selection today, there are Court Officers who are here not only to assist the Court and counsel but also to assist you so if you have a need during the course of the trial, raise your hand, we'll see it's attended to immediately.  Also [15] present as in every case are representatives of the Sheriff's Department to make sure there's order in the courtroom, to assist the Court in whatever other ways possible.  Our Clerk, Kelly, is here not only to swear in the jury, but also to monitor the recording system which says everything -- which records everything that is said during the course of the trial, and also to accept documents or objects, exhibits, from respective counsel.  Ultimately, she will receive the verdict from you the jury.

You're not permitted to discuss anything with any of these people who I've just addressed.  They're not permitted to discuss anything pertaining to the case with you.

You're the judges of the credibility and weight of all evidence including the testimony of witnesses.  By "credibility" I mean not only the truthfulness but the accuracy of that testimony.  In determining the truthfulness and accuracy of the witness' testimony, the weight you will give to such testimony, you should consider among other things: The manner in which the witness testified [16] including the way the witness looked, conducted himself or herself, and spoke while on the witness stand.  Consider the level of intelligence of the witness as well as the opportunity the witness had to observe and be familiar with that to which the witness is testifying; and his or her ability to remember the events about which the witness is testifying.  Consider the extent to which the witness' testimony is supported by or contradicted by other evidence in the case, which you believe.  Consider whether the witness was positive or hesitant about the things to which the witness testified.  Whether the witness was fair and frank in his or her testimony or whether favoritism or bias was shown in any way.  And whether the witness has anything to gain or lose from the outcome of the case.

In addition, use your own good common sense and human experience in determining the credibility of a witness' testimony and the weight you will give to such testimony.  Each of you must keep an open mind throughout the trial.  In the oath you just took you [17] swore to do so. So, avoid forming opinions about the guilt or innocence of the Defendant or about any other disputed question until you begin your deliberations. Don't talk with each other about the evidence or any other matter relating to whether the Defendant has been proven guilty until I send you to the jury room to deliberate upon your verdict.  Only then will you know enough about the evidence and the law to discuss the case intelligently and fairly.

Essentially, you must keep an open mind and not discuss the case with each other until you begin to deliberate because it's then and only then you'll have all of the facts and all of the law that will permit you to render a fair and knowledgeable verdict.

In addition too not discussing the case among yourselves until you begin to deliberate upon your verdict, you must not talk with anyone else about the case including members of your own family.  You may if you wish discuss the case only after your verdict is rendered and recorded.  Even then you don't have to discuss the case with anyone if you do not wish to do [18] so.

The reason for this rule is that your family, friends, or anyone else, have not heard the testimony, not seen the witnesses, not been advised about the law, not been sworn in as jurors.  Consequently, they are in no position to make any comment whatsoever to you about the case.  Any comment, even though innocently made could very well influence your decision and thus cause you to violate your oath as a juror.  Therefore, if anyone asks you about the case, tell them straight out you're not permitted to discuss the case with them.  There are some persons with whom you must avoid even casual conversations having nothing to do with the case.  These persons include the Defendant, the attorneys for both sides, and the witnesses.

Of course, as I indicated to you before, don't read newspapers or other stories, or listen to anything on the media pertaining to the case. Your only information about this case should and must come to you from the witness stand while you're all present together acting as a jury in the presence of the Court, the attorneys, [19] and the Defendant.

As I mentioned to you earlier, although you must follow my instructions regarding rules of law, you are the sole and exclusive judges of the facts.  It's your recollection of the facts and evidence, not mine or the attorneys, upon which you must rely during your deliberations.  If my recollections of the facts, or the attorneys' recollection of the facts is different than yours, then your recollection of the fact is controlling.

You're not bound by any opinion you might think the attorneys or I have expressed concerning guilt or innocence, credibility of witnesses, weight of evidence, facts proven by the evidence, or inferences to be drawn from facts.
Now, even though statements and arguments of counsel are not binding upon you or are not evidence, you should consider them carefully.  It's proper for you to be guided by the if the statements and arguments are supported by the evidence and the facts as you recollect them to be, and the statements and arguments of attorneys appeal to your reason and judgment.  [20]

Questions, which the attorneys put to witnesses, are not themselves evidence.  It's the answers of the witness, which provide the evidence.  Don't speculate that a fact may or may not be true merely because one of the attorneys asked questions, which assume or suggest that a fact is true.

The admission of evidence at trial is governed by rule of law.  It's my duty to rule on objections to the evidence made by the attorneys.  If I overrule an objection, that means you are entitled to consider the evidence.  If I sustain an objection, then you will not be entitled to consider it. Don't concern yourselves with objections or the reasons for my rulings, and you must disregard evidence or any other matter to which I sustain an objection or which I order stricken from the record.  The fact that I sustain and objection or overrule an objection, of course, casts no aspersion on either counsel.

The attorneys and I are required to take up certain matters outside of your hearing.  Don't concern yourselves with any such matters. [21]

When you deliberate upon your verdict you verdict must be unanimous.  That is all of you must agree in order for your verdict to be valid. In the jury room when you deliberate you'll discuss the case among yourselves, but ultimately, each of you must make up his or her own mind. You must, and I'm confident that you will, do your best throughout the trial and in your deliberations to fulfill your responsibility as a juror and thereby faithfully discharge your oath.  Counsel ready to proceed?

Mr. Reilly:  Yes, sir.

Mr. Reilly:
Good afternoon, ladies and gentlemen.  On August 10, 1999, the Defendant kidnapped and killed his own daughter.  This is 20-month-old Katelyn Rivera, the Defendant's daughter.  The Defendant killed her on August 10, 1999, as an act of revenge against Katelyn's mother.  I will prove to you that the Defendant had abused Jennifer Helton, Katelyn's mother, throughout their relationship, and that when Jennifer Helton had enough of the abuse she [22] left the Defendant and took Katelyn with her.  And it was for that reason that the Defendant kidnapped and killed her, killed his own daughter on August 10, 1999.

This is the appearance, the Defendant, Katelyn, and Jennifer, Katelyn's mom, who wanted desperately to have a normal, happy family life.  This, however, is the reality.  Jennifer beaten and battered and abused.  On July 30 of 1999, just days before the Defendant would kidnap and kill his daughter, the Defendant once again beat Jennifer and Jennifer vowed that it would be the last time.  If only that was true.

On that day, July the 30th, the Defendant choked Jennifer.  He punched her.  He forced her to undress.  He tore the hair from her head. He cut her hair.  He put this box cutter to her throat.  Jennifer ran from the apartment that day fearing for her life.  She vowed then that she would not return to the Defendant.  She took Katelyn with her.  When she took Katelyn with her, that made the Defendant angry, but what Jennifer would do next would send the Defendant into a rage.  [23] Jennifer went to the law.  She tried to shield herself in the cloak of the law.  She called the police and she asked the police to arrest the Defendant for having assaulted her.  Then she went and got a temporary Protection from Abuse Order.  That Order required the Defendant to stay away from Jennifer.  It also gave custody of Katelyn to Jennifer, Defendant lost custody when the Judge signed that temporary Protection from Abuse Order.  The Defendant was reduced to visitation one day a week.  Visitations that would be supervised by a third party.

Jennifer then took the next step.  She made that temporary Protection from Abuse Order permanent, and a Judge of this Court told the Defendant for 1 year, no contact with Jennifer.  No custody of Katelyn.  Visitation supervised, once a week.  Jennifer thought that she had the protection of the law.  Unfortunately, protection of the law was insufficient to stop the Defendant.

The Defendant was arrested.  The Defendant was charged with having assaulted Jennifer on July the 30th, and a hearing was scheduled on those [24] charges.  That hearing was scheduled for August 10, 1999.  On that day, Jennifer dressed Katelyn for the last time in this sock and this sneaker.  When Katelyn was fully dressed she took her to the baby-sitter's.  It was not far from where Jennifer lived, at that point, with her parents; not far too, from the Court where she would go that morning for the hearing in the criminal case.  She kissed Katelyn goodbye for the last time that morning when she dropped her off at the baby-sitters.

Jennifer went to the hearing.  The Defendant was there, and after the hearing was over, Jennifer left with her aunt and they went to the local Wawa store that was just minutes away from the Court.  They went into the Wawa and they were surprised when the Defendant found them there and followed them in.  The Defendant, as you know, had been ordered by a Judge here in Media, no contact with Jennifer, but that didn't stop him.  The Defendant started off with conversation and told Jennifer about the things that he wanted for himself, the things that he was going to do.

Jennifer broke off that contact with him, went [25] outside and got in the car.  The Defendant changed just like that.  Ignoring the Order the Defendant went up to Jennifer, grabbed her around the neck and dragged her out of the car.  Dragged her through the parking lot, choked her, pulled the hair from her head.  She cut her knees.  She cut her arms.  Her aunt tried desperately to stop the Defendant.  Her aunt jumped on top of Jennifer to try to get the Defendant to stop.  Finally, he did.  Finally he let her go.  He jumped the car that he borrowed and sped off.  Where did he go?

Where did he go?  He went to the baby-sitter's.  Right around the corner to the baby-sitter's.  Ignoring that Order by the Judge, ignoring the Order that he didn't have custody, that he only had visitation, he went to the door of the baby-sitter's and he took his foot and he kicked that door down, kicked it right down.  Splintered the wood on the jamb.  He rushed into the house and he snatched up Katelyn and he rushed outside and he struck Katelyn's head on the doorjamb as he left.  No bottle, no diaper bag, no diapers, nothing.  He put her in the car and he sped off. By the time [26] Jennifer and the police got to the baby-sitter's, it was too late.

The Defendant spent the rest of that day in a cat and mouse game with police and with Jennifer.  He called on the phone, called Jennifer, he talked to the police, he tried to negotiate terms for Katelyn's return.  He wanted Jennifer to meet him alone, no police, meet me alone.  He told Jennifer on the phone, Katelyn's going to heaven and I'm going to hell.  He returned to Jennifer's parents' where Jennifer was waiting.  He tried to lure Jennifer into the car with him.  By 7:15 that night, the Defendant was at a gas station on Route 1 and Route 100 here in Chadds Ford, Delaware County.  The Defendant scrounged around inside the car he was driving for some money to buy gas.  He came up with $2 and gave it to the young man who would pump his gas.  When that young man pumped the gas, the young man saw Katelyn inside the car.  That boy pumping gas would be the last person to see Katelyn alive.

The Defendant was in a hurry.  The Defendant took off.  Two hours later the Defendant, in [27] turn, at the same gas station, right back to the same gas station and he sees the same young man who pumped his gas before, but Katelyn's gone.  Katelyn's no longer in the car.  The Defendant gets out of the car and goes into the bathroom of the gas station and washes up.  Takes a watch off his wrist and trades it with the young man for $10 worth of gas and he gets out in a hurry.

You'll hear that the Defendant spent that night down in Maryland.  He went down and he stayed over at the home of an acquaintance of his in Maryland.  The following day he returns to the area.  He again engages in the same phone calls and the same cat and mouse game.  Tells Jennifer that Katelyn's no longer with him.  Eventually, he's arrested that afternoon, placed under arrest by the police.

Now, since then, since that day that the Defendant's been placed under arrest, he's told us lots of stories.  Lots and lots of stories.  The stories are a maze.  They're just a fog of contradictions.  He's told us that he gave Katelyn to a woman who had lost a child.  He told the FBI that he went to [28] Longwood Gardens just down Route 1 from the gas station at Chadds Ford and he found a couple, complete strangers, and he walked up to them and he gave Katelyn away to these strangers.  He told the FBI that when he gave Katelyn away, Katelyn looked at him and said, no, daddy.  And then these strangers went off in a car that had a license plate with a bird on it.  And then that story got changed to a car that had a Florida license plate, and then later he told us that the Longwood Garden story wasn't true at all.

He said that, he's told Jennifer, I'm sorry, he's said that only he and God know where Katelyn is.  He's told Jennifer that she should consider Katelyn dead.  His words have been utterly inconsistent with those of a caring father.  He told a fellow inmate at Delaware County Prison, first that Katelyn was alive and he tried to concoct a scheme whereby he would have Katelyn returned from the people she was with so that award money could be paid and he could be released.  Two days later he tells that same inmate that Katelyn's dead.  That he smothered her. That the Defendant [29] smothered his own daughter.

We have spent over 5,000 man-hours searching for Katelyn with no success.  You know from the question that I asked you during jury selection that my evidence, the evidence that Katelyn's dead and the Defendant killed her is circumstantial.  It's based on all of the circumstances. We've never found Katelyn's body.  Mr. Smith will open a few minutes from now and he will tell you that it is my burden, it's my responsibility to prove my case beyond a reasonable doubt, and that is correct.

He'll tell you that I have to prove all of the charges beyond a reasonable doubt and that's correct.  He'll tell you that one of the charges I have to prove or one of the elements of the charge that I have to prove is that Katelyn's dead.  He's right and I will.

The Defendant's rage, the Defendant's actions, and the Defendant's statements that you hear in this courtroom will prove to you beyond a reasonable doubt that Katelyn is dead and that her own father took her life.

You will hear testimony tomorrow from a man who owns this shovel.  His name's Tom [30] Whittaker.  I told you that the night after, the night of August the 10th, when the Defendant left the gas station he spent that night in Maryland.  He stayed with Tom Whittaker who owns this shovel.  Tom Whittaker used this shovel that very day to dig up roots in his yard.  When the Defendant left Tom Whittaker's house on August the 11th, the shovel was gone.  How did we find it?  We found it because the Defendant's own words led us to it.  I told you about that inmate just a few minutes ago, that the Defendant confided in.

That inmate will testify in this case and he'll tell you what the Defendant said.  The inmate will testify that in his conversations with the Defendant, the Defendant told him about this shovel.  He told the inmate where he'd find the shovel.  The inmate called us and said, look at the construction sites near Tom Whittaker's house, so we did and we found it.  And Tom Whittaker will tell you, this is it.

This is Katelyn's sock.  This is Katelyn's sneaker.  As I mentioned to you earlier, Jennifer put the sock and the sneaker on [31] Katelyn's little size 4 foot on the morning of August the 10th.  We found these because the Defendant's words led us to them.

That same inmate who told us about this shovel, also talked to the Defendant about these.  He said that the Defendant told him that after he had killed Katelyn, he undressed her so her body would decompose faster.  And he took the clothing with him and as he left the gas station, he went down south on Route 202 on his way to Maryland, to Tom Whittaker's.  And he told the inmate that he threw the clothing out the window as he drove along.  So, we sent out detectives down to Route 202 southbound just where the inmate told us, and this is what we found.

Katelyn's mother, Jennifer, has identified these as belonging to Katelyn.  You'll hear her testify to that.  You'll also hear Katelyn's grandmother and Katelyn's aunt who bought these, who bought the sneaker, testify that they're Katelyn's.

But you don't have to take their word for it.  You can consider the words of the Defendant too, because we questioned the Defendant about [32] that sneaker and about that sock.  First, the Defendant says, that's not Katelyn's sneaker, that's not her sock, and Lieutenant Peifer [ph] says, Mr. Rivera, they are.  They've been identified as Katelyn's by 3 people, they are hers.  And the Defendant does a 180, does a complete flip and he says, I remember now.  Before I gave Katelyn away I undressed her and I put her in other clothes that I got.  This is a man who traded his watch for $10 worth of gas, I placed her in other clothes before I gave her away to strangers.  And then I took Katelyn's clothing, the clothing she had been wearing that morning, and I put that clothing in a bag and I tied it on the outside door handle of the car before I drove south on 202 to go to Maryland.

Ladies and gentlemen, that shovel, this sock, this sweet little sneaker, are inanimate objects.  However, they speak powerfully, more powerfully than words ever could, of Katelyn's fate.  The shovel, the sock, the sneaker, the Defendant's rage, the Defendant's actions, the Defendant's own words, will prove to you beyond a reasonable doubt that Katelyn Rivera [33] is dead.  That her own father kidnapped her and killed her.  I will use this circumstantial evidence and I will prove all the charges to you beyond a reasonable doubt.  Thank you.

Mr. Smith:  May I have just a moment?

The Court:  Yes, you may.

[Off record]

[On record]

Mr. Smith:  The Court's permission?

The Court:  Mr. Smith.

Mr. Smith:
Your Honor, Judge Keeler, Mr. Reilly, good afternoon, ladies and gentlemen.  You've just heard Mr. Reilly's opening statement, and you've heard a very graphic, very detailed statement, and if we were to stop the proceedings right now having heard Mr. Reilly's deeply moving words and you were to go back into the jury room and be asked to vote on the guilt or innocence of Robert [34] Rivera, I question whether any of you would consider voting anything but guilty in light of what you heard Mr. Reilly say.  But here's what the law says about that.  If you even began to vote on anything that resembled guilty at this stage you would be wrong, and you would be wrong because, number one, what you heard from Mr. Reilly is not evidence.

Evidence will come to you from that witness stand, things that are admitted into the Court at that stage of the trial, and stipulations that are given by counsel and directed by the Judge to be accepted as evidence.  So, Mr. Reilly's statement to you is not evidence and the sweet sneaker, as he called it at this stage, does not entitle you to vote that Robert Rivera is guilty of anything at this stage, because Robert Rivera is cloaked in the mantel of innocence that the law grants to him.  He's presumed to be innocent the same as you, me and everybody else in this courtroom, until you, ladies and gentlemen of the jury, after hearing the evidence, would find that the Commonwealth has met the burden that Mr. Reilly has referred to, that he said I would [35] refer to, which is that burden of proof beyond a reasonable doubt.  So, right now, if we stop the proceedings, if we simply say go back into that courtroom and deliberate, you have nothing to deliberate, in spite of everything that Mr. Reilly wants you to think in terms of what he said.  You have nothing to deliberate.

Now, the questions that are going to come to you are going to come to you on the basis of legal documents, filed by the Commonwealth on April the 28th of the year 2000.  They're called criminal Informations, and they're just pieces of paper.  Everybody has a designation here. These are Informations.  They are not evidence.  They are -- they are the touchstones, they are the index to what the Commonwealth has to prove.  You'll notice in the layout of the courtroom, the Commonwealth's desk is closest to the jury.  That desk remains closest to the jury throughout this trial because the person with the burden of proof sits closest to the jury.

It's one of those little, little known procedural rules.  Keep your eye on that desk because it's not going to move.  That means [36] that burden of proof is never going to shift.

That burden of proof is the most severe burden of proof established in law.  It's called proof beyond a reasonable doubt, and he's going to have to meet that burden, and he's going to have to meet that burden according to what it says on these pieces of paper.  So, when you hear the evidence, the Judge is going to give you the law at the end of the case.

The Defendant's charged with Murder in the First Degree Murder in the First Degree, the Judge will tell you under the law, as it says in this Information, requires the Commonwealth to establish that Robert Rivera did unlawfully, intentionally, and knowingly, kill Katelyn Rivera, unlawfully, knowingly, and intentionally, and that he's going to have to tell you about what that means, the Judge is going to give you all the rules about what it means to have premeditated murder, to have malice, and all, you're going to hear that when you get to the law part.  But when you listen to the facts, when you hear all the stuff you have to keep asking yourself questions.  [37]

Mr. Reilly raised some points that he said we've spent 5,000 man-hours searching for Katelyn.  The conclusion that the Commonwealth is going to ask you to reach from the evidence, and that is if we spent 5,000 man-hours looking for her and couldn't find it, we want you to conclude that she's dead.  So, you have to keep asking yourself a question, you have to keep saying, does that mean she's dead?  Does that search, that 5,000 hours, make Katelyn dead and does it make Robert Rivera a murderer?  Because that's the question that's going to keep circulating through this trial.

The fact that you've heard things that are going to make you think Robert Rivera's not a popular person, Robert Rivera's not a very popular person.  Robert Rivera's been in a prison in Delaware County since he was arrested on August the 11th, as you're going to hear, August the 11th of 1999.  You're going to note that these charges weren't brought until April the 22nd of the year 2000.  And you're going to hear in the process, when you heard from Mr. Reilly when he says you're going to [38] hear it from Robert Rivera's own mouth that he gave this incriminating information he said he suffocated her and so on, you're going to hear from 3 people that the Commonwealth is going to present to you.  They are John Flemming, William Lively and Vincent Carr [ph].  They are the 3 people that the Commonwealth is going to present to you that those people are going to tell you that the words came from Robert Rivera's mouth saying, I suffocated Katelyn.  I killed her.  I did it.  Those kind of things.  We're going to have an opportunity to take a real good look at all three of those people, and I'm going to suggest to you that when you're done looking at those 3 people, the Commonwealth's position is that those 3 people are critical to their case, because those 3 people are the ones that give you the information that says Robert Rivera did these things and did them with this malicious intent and so on.

In fact, what you're going to hear from those people when you hear the evidence is that those are 3 people that have an agenda of their own that is stunning.  You're going to [39] hear that Vincent Carr, the person on whom the Commonwealth relies to tell you that Robert Rivera made statements to him confessing to Vincent Carr, you're going to hear that Vincent Carr was a paid snitch in the Delaware County Prison. You're going to hear that the Commonwealth of Pennsylvania placed Vincent Carr in the Delaware County Prison.  You're going to hear that Vincent Carr has a criminal record, that he was serving a sentence of 4 1/2 to 9 years.  You're going to hear that Vincent Carr was also serving an additional sentence of what's called back time.  Back time is when you're on parole and you violate parole they give you additional time for the violation.

You're going to hear that Vincent Carr was serving all of those and you're going to hear that people who serve 4 1/2 to 9 years and people who serve 3 years, they don't serve it in County prisons.  Delaware County Prison's a holding prison.  You're either serving less than 2 years or you're awaiting trial like Robert Rivera.  And you're going to hear that the Commonwealth put Vincent Carr in that prison.  That they arranged for him to stay [40] there.  How?  Because you're going to hear from Trooper Derrick Bush.

Trooper Derrick Bush is going to testify in this case and Trooper Derrick Bush is going to tell you that he reached out to the prison officials, and he violated the rules of the prison system by getting Vinnie Carr kept in that prison so that he could give information to the Commonwealth.  And then you're going to hear that Trooper Bush not only reached out to the prison system to get Vinnie Carr put in the prison, but Trooper Bush put taxpayer money in Vinnie Carr's commissary account so he could pay to get clothes and stuff.  $300 or so.  And then you're going to hear that that wasn't enough.

Then you're going to hear that Trooper Bush, when contacted by Vinnie Carr, reached out again to the prison authorities and he got Vinnie Carr the job of jobs, he got him the law library job.  Let's see, anybody that's in the prison awaiting trial that wants to go to law library, how do they get there?  They go through the law library clerk.  And so, Vinnie Carr's going to tell you -- Vinnie Carr's [41] going to tell you that he was a paid snitch; that he contacted Trooper Derrick Bush anywhere from 10 to 15 times a month.  That's every other day, for months, that he met with him five, six, seven times.  That he met with the CID detectives, that Vinnie Carr was the law library clerk, and that Vinnie Carr's going to tell you that, you know, Robert Rivera, he trusted me, man.  He came up to me and said, he checked me out and I was good folk so he trusted me, and then Vinnie Carr's going to tell you that Robert asked to go in the back where he broke down and said that, you know, I did it.  I did it. And you're going to hear how fortunate it is that out of the 1500 people in the prison, Robert Rivera just happened to pick the paid snitch, informant, who doesn't belong there in the first place, who got the job from the Commonwealth in the second place, and then after they get all that stuff from him, then they say, well, I guess we can bring charges against him for murder because we have him confessing to Vinnie Carr.

John Flemming, another name.  John Flemming [42] also serving time at the Delaware County Prison.  John Flemming gets himself really a nice job at the Delaware County Prison, too.  John Flemming gets himself the job as block runner.  John Flemming's another guy that says that he's working for the Commonwealth but somehow the Commonwealth, that Robert Rivera decides out of the 1500 prisoners there that he's going to trust John Flemming with information.

John Flemming also will tell you that he -- he wants the reward.  He wants the reward for turning in Robert Rivera and information on Robert Rivera.  Anything he can get, he's interested in his own self-help system.

Oh, I may have left out that you're going to hear from Trooper Derrick Bush and from Vinnie Carr that Trooper Bush, as part of this deal with Vinnie Carr says, and when Carr comes up for parole on his offenses, he, Derrick Bush is going to go to the parole agency and is going to testify for Vinnie Carr.  So, when you hear that you have to ask yourself, is Vinnie Carr the guy I'm supposed to trust here?  Is Vinnie Carr the guy whose evidence [43] I'm supposed to believe because the Commonwealth says to you, Vinnie Carr is one of the three wise men here.

Carr, Flemming and Lively, have to believe those guys, because they're the guys that get them over the hump.  So, when hear that Flemming wants the reward, and you hear William Lively, and you hear that William Lively, William Lively not only wants the money, William Lively wants the book rights, whatever those are, and he gets some kind of papers prepared supposedly from his attorney which is a fraud, and that he gets those papers prepared that Rivera's supposed to sign some kind of papers signing over the book rights to Robert Lively's attorney so that he's got his own interest here and that what he wants is, oh, he wants the Commonwealth to help him, too.  He wants to make a deal and but guess what happens?

Well, William Lively's in jail on 5 or 6 cases and he gets the sweetheart deal of sweetheart deals.  [44] So, you have to ask yourself, and you'll hear about the deal.  You'll hear all the terms and conditions of it because we'll get into it in the evidence.

So, you have to say to yourself, wow, these are the 3 wise men.  These are the people the Commonwealth says that Robert Rivera has blurted out the truth to these 3 guys, because you're going to have to decide if those are the truthful people.  You heard the instructions from the Judge, you have to decide, are these people honestly trying to tell me the truth?

Are these people -- are these the people that I'm supposed to believe here?  Here's why, see, there's no coconspirator person.  There's nobody -- there's no -- there's nobody that says, we saw Katelyn dead.  There's nobody that says, they say 5,000 hours of searching, they spent more than 5,000 man-hours searching for Osama bin Ladin, is he dead or alive?  You're going to have to figure that out, too?  No.  You've got to figure this one out.  And you've got to listen to the evidence, and you've got to decide on this one, if the evidence gets them over that hurdle.  The hurdle is not that Robert Rivera's not a nice person or not a popular person or was mean to Jennifer.  Indescribably mean to Jennifer.  Sadly mean to Jennifer.  [45] Awful to Jennifer.  The question isn't that.

The question is, is Katelyn Rivera dead?  How did she die?  Was she killed?  Who killed her?  When did they kill her?  Where did they kill her?  And what they want you to do is they want you to say, you can hear from the evidence, they want you to say, well, you know, these 3 wise men that I just told you about, Carr, Flemming and Lively, they're going to tell us stuff and you're going to be imbued with confidence in them and you're going to say these -- these are the kind of truthful people that I want to believe.

That's what the Judge wants you to consider when you weigh the evidence and you weigh the testimony as to whether those are the right kind of people.

And you're going to hear how, at the prison for all that time that Robert Rivera has been there, that the prison has allowed these people to have access to Robert Rivera, allowed them to have access to him, and they have access to the same newspapers articles that the Judge is telling you not to read.
They have access to those same TV news shows [46] that the Judge is telling you not to watch, and this case has generated its share of publicity to it's -- and those headlines aren't evidence, but they are something to consider when you consider what these people are running around telling the police.

Now, you also heard from Mr.  Reilly that Mr. Rivera gave them a maze of information.  You're going to hear even from Vinnie Carr, Vinnie Carr's going to testify that Robert Rivera was being pressured by inmates all the time to talk, to give information.  That the inmates wanted to help themselves, the self-help system here, and that that pressure was so severe that he was distraught so he gave out lots of versions of lots of things to lots of people, Mr. Reilly admits that.  And in giving those lots of versions or lots of things to lots of people, what the Commonwealth now is going to say to you is we're going to pick through that and we're going to make a kind of a trail that we hope you will believe proves that A, she's dead; and B, he killed her; and C, it was premeditated and malicious First Degree [47] Murder.  But to do that you have to discount that he was distraught, that he was pressured, that there were lots of people asking him lots of questions and he was giving lots of stories.  You're going to have to say, well, we're going to pick this one but we're not going to pick, you're going to have to make all those decisions, because that's what this case is going to be about.

Mr. Reilly said on the 10th of August Robert Rivera kidnapped his daughter.  You're going to have to hear the law of kidnapping as its defined in the statue when the Judge gives it to you, and then you're going to have to decide if what Robert Rivera did equates with kidnapping in light of the fact that some of the subsections in that refer to things like the Defendant, with one or more of the following intentions, one is to hold for ransom or reward as a shield or a hostage.  Two is to facilitate the commission of any felony or flight thereafter.  Three is to inflict bodily injury under terrorizing.  Four is to interfere with the performance of public officials.  You're going to have to figure out [48] if any of these fit.  You can't just say, well, you know, he took her and he hasn't given her back, therefore, that's kidnapping, because you have to apply this law to the facts when you get them, not Mr. Reilly's conclusion that that's kidnapping.  This law to those facts.  His Honor, Judge Keeler will give you that law at the appropriate time.

You heard Mr. Reilly tell you that Robert Rivera took his daughter with the intent to hurt her mother, and that as he took her out of the house he banged her head on the doorjamb and then played cat and mouse.  You're going to hear from a young man, I think his name's McCabe, who was the attendant at the gas station that night who first saw Robert come in there with Katelyn.  He's going to say when he saw Katelyn she was happy.  She was playing in the car.  She was -- said she was playing with stuff.  She was in no apparent distress and he saw no injuries on her.  That was after this so-called banging her head on the doorjamb.

You're going to hear from people who are going to tell you that on at least 4 occasions that [49] afternoon Robert Rivera attempted to give the child back to the mother, to simply return the child, and leave.  And that on all of those occasions, he couldn't complete the task.  He had -- he couldn't do it because the police tried to grab him.  On one occasion she, the mother wouldn't come out of the house to just take the baby and she was hiding in the house with the police in the house, that they were saying one thing and doing another and in his fear of what they were doing he -- he ran away, but you'll hear that on 4 occasions he tried to give that child back that very day, give her back to her.

When you heard from John Flemming, keep in mind that John Flemming will tell you that his primary purpose in pressuring Robert Rivera was to help himself with his own sentencing.  And John Flemming will tell you that he needed help from the police at his sentencing so he was going to do everything he could to help him, you'll hear what's important about that, because even though that's his motive here, even John Flemming can't tell you that Robert Rivera confessed to him that he killed his [50] daughter.  Instead, he will tell you that he had a conversation with Robert that went something like this: He says to Robert, so, you suffocated her.  Robert said, what?  Why do you say that?  Flemming said, well, that's the way to deal with these cases isn't it?  And then Robert grimaced and from that, the first person who ever said to Robert Rivera anything about suffocation is John Flemming telling him that, and then later you hear other people saying that Robert Rivera said things to them that included suffocation.

Another one of those many stories in the maze that have been told about she's alive, she's there, she's someplace else.  She's suffocated.

You're also going to hear that the Commonwealth checked for blood, checked around Whittaker's house, checked that shovel for blood. Checked all those things, checked all that stuff out.  And you're going to hear how much evidence they don't have in response to all those things they checked, what they didn't find, what they don't have.  And you're going to hear about the number of times and [51] the numbers of ways that the Commonwealth continued to put pressure on Robert Rivera to say things, so Robert Rivera said things.  And what the Commonwealth is now going to tell you is discount all the things that we don't like, and count only things that we do like, so that way we can say it's First Degree Murder and you can get him.  That's what you have to decide.  Make no mistake about it.

Is it going to be difficult?  Yes, it's going to be difficult.  It's going to be difficult to maintain a balance here and listen to the facts and not get caught up in the emotions.

It's going to be difficult because these are serious charges.  It's going to be difficult because we're talking about a little girl being taken away from her family and not being given back.  And the question is did Robert Rivera take her away and refuse to give her back for whatever reasons, that he's angry with the mother, or you know, frustrated with her family or not happy with the relationship, and does that mean that because he's done those things which you say well, gee, I wouldn't do that personally, or I don't like a [52] person who does that, does that mean he killed her?  That's the hard question.  Because the Commonwealth says we're going to try to equate those two.  If he took her away and didn't give her back, he must have killed her.  But you have to hear the facts and the evidence.

You have to hear from the three wise men.  You have to decide if they're telling the truth about what they're saying or whether or not this is, is sort of a broad based kind of a persecution rather than a prosecution, because there's a lot of pressure, lot of pressure on the inmates to help themselves, lot of pressure on the Commonwealth to solve this case.  Lot of pressure.  And the pressure on Robert Rivera continued with the Commonwealth putting people in there, giving those people positions that forced their relationship with Robert Rivera, that allowed Robert Rivera access to those people even if he didn't want access, he had to go through those people.  Allowed them access to him.

You're going to hear evidence at another level.  You're going to hear evidence of other events on other days that the Commonwealth is [53] going to say to you, look, Robert Rivera did some things that were terrible to the mother.  Therefore, you can conclude from that, that he would kill his own daughter.  I suggest to you that that's -- that's more than leap of faith here.  That's a requirement that the Commonwealth is going to ask you to jump an invisible bridge on facts that don't exist, and to simply decide this case because the easy thing to do is to say, well, they've got some bad evidence about Robert Rivera.

They've got some bad history on Robert Rivera.  Let's use that bad evidence and that bad history to make that, that leap over that invisible bridge because it's easy to find him guilty and say well, gee, I'd have brought that baby back if I was him, so that doesn't take the place of evidence.  That kind of thinking doesn't take the place of the evidence they have to present.  You need to keep, keep your eyes on that witness stand.  You need to keep focused on that evidence.

You need to keep hearing from those people and make those decisions on the basis of facts.  You need to keep your eyes on the three wise [54] men when they testify and decide if those are the kind of people who are telling you the truth or are they just out to tell you whatever it takes to help themselves in whatever fashion and if they can do it over Robert Rivera's back, that's okay with them.

I suggest to you when you get done hearing the evidence in this case, you're going to hear a lot of other things that you're going to hear from people who are going to tell you about people who believe they sighted Katelyn here or there, that they heard things, you know, you're going to hear that kind of stuff.

You're going to hear from -- you're going to hear from one prisoner who's going to come forward and say, I was in the prison at that time and I never saw Robert Rivera going to the back and crying, carrying on like Vinnie Carr says happened.  You're going to hear from people who are going to tell you that that's not so, that's not the way it operated.  So, you have to keep your eyes open, you have to keep your ears open. You have to keep your minds open.  You have to hear the facts and the evidence.  [55]

All I can ask you is to be the kind of juror that you would want to be a juror if you were a Defendant in a case.  If you're that kind of a juror, you hear the facts and you hear the evidence, I think you'll be able to come back with a verdict of not guilty.  Thank you very much.

The Court:  Mr. Reilly?

Mr. Reilly:  Your Honor, Officer Gregory Kennard.

Gregory A. Kennard, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:

Mr. Smith:
Your Honor, before this witness testifies could I ask for sequestration of the witnesses, please?

The Court:  [56] Absolutely, sure.  Somebody help the ...

By Mr. Reilly:
Q. Officer Kennard, you were employed as an Upper Chichester Township policemen on July the 30th of 1999, is that correct?
A. Yes, sir.
Q. You're no longer an Upper Chichester Township policeman, is that right?
A. That's correct.
Q. You're retired since July 30 of '99?
A. October 1 of this year.
Q. You're -- you went out with a disability, is that correct?
A. That's correct.
Q. I want to direct your attention to about 8:30 a.m. on that day, July the 30th of 1999; do you recall receiving a radio transmission at that time?
A. Yes, sir.
Q. Tell us what that was.
A. The radio call directed me to 1316 Meetinghouse Road, which is Emilio's Restaurant for a report of a woman screaming.
Q. Did you go there?
A. Yes, sir.  [57]
Q. What happened when you arrived there?
A. I met Jennifer Helton outside of the establishment and spoke to her then.
Q. Did you see Jennifer Helton in the courtroom just a few minutes ago?
A. Yes, sir.
Q. Please describe for the jury Jennifer Helton's condition when you observed her.
A. She was hysterical, crying, screaming.  She said that she thought he was going to kill me and I didn't know what she was talking about, and I said, “Wait, slow down, let's start from the beginning.”  I had to actually give her some time to compose herself to start getting information from her.
Q. Was she crying?
A. Yes.
Q. Describe her appearance, describe her physical appearance and her clothing.
A. Her clothing was disheveled.  It was -- she was out of breath.  I finally, after I talked to her I got her address and she stated that she ran from that address to where she was then.
Q. What did you do at that point?
A. Called for another car to come.  I was a canine unit at that time.  We went back to Chichester [58] Avenue, McKay Avenue, at the corner and gave her some time to calm down.  I had her fill out a domestic violence case form, and write a statement.
Q. Why were you waiting for another police car?
A. Basically, I was under the impression we were going to arrest him at the time for the domestic assault.
Q. Did the other police car arrive?
A. Yes.
Q. How much time passed between 8:38, the time you received the call, and the time the other police car came along?
A. That wasn't long.  Less than 10 minutes or so.
Q. What happened when the other police car arrived on the scene with you?
A. Like I stated, we went to Chichester Avenue and McKay Avenue.
Q. Did Jennifer go with you?
A. She went with the other officer, yes.
Q. What happened when you got to Chichester Avenue?
A. We interviewed her some more.  I took a written statement from her.  I called for an ambulance [59] for her injuries and the assault.  She stated she was -- that she was being choked.  She was being punched about the body and the head.  She said she was punched ...

Mr. Smith:  I'm going to object to the statement of what she said.

Mr. Reilly:  Witness will be testifying next, Your Honor.

The Court:  Okay.  I'll overrule the objection.

The Witness:
I then asked if I could see these areas.  Her body was red around the stomach, rib area, and on her back, and ...

By Mr. Reilly:
Q. Did you notice anything unusual about her hair?
A. Her hair, I was just going to state, her hair was missing a chunk of hair in the back of her head, and she stated that that was cut.
Q. Now, at that point did you decide to go into her apartment?
A. Yes, she gave us permission to enter the [60] apartment.
Q. Did you go into the apartment?
A. Yes, we did.

Mr. Reilly:  Approach please, Your Honor?

The Court:  Yes.

By Mr. Reilly:
Q. Let me show you first of all, Officer Kennard, two pictures, Commonwealth's Exhibit C27 and C28, do you recognize those photographs?
A. Yes, I do.
Q. Tell me first what's C27?
A. Those -- that's a large trash bag that was found in the apartment that had a lot of the victim's clothing, Jennifer's clothing that was cut, ripped up.  Her shoes were in there.  She's a hairdresser, a lot of her tools that she uses for hairdressing were thrown out into this trash bag, and the hair from the -- from her head is in that trash bag also.

Mr. Reilly:
[61] Your Honor, approach please?  I would ask that this be marked Commonwealth's Exhibit C27A.  These are the items that are depicted inC27.

By Mr. Reilly:
Q. Officer Kennard, I'm handing you a trash bag, if we put it up on top here.  Take a look inside there and tell us what this is.
A. This is the bag that was found in the middle of the -- her apartment floor with her clothing which you see is ripped, cut, straps on her shoes were cut, there's some makeup.  Her top was cut in half, and I believe also in here are the shoes that were cut.  Also in there are her tools for her hairdressing job.
Q. This is the bag -- you're holding up a -- it's a set of electric -- electric clippers and there's a cord attached to that clipper.
A. Yes.
Q. Can you tell me the condition of the cord?
A. The cord's been cut.
Q. Now, there's a plastic bag inside there.  Can you tell me what that plastic bag is that's inside of C27A?  [62]
A. This is Jennifer's hair.
Q. Where did you find that hair?
A. It was in the trash bag.
Q. And did you put it inside that bag before you -- when you collected this evidence?
A. I collected it all as one.  It was packaged later.
Q. Okay, you packaged it later ...
A. It was packaged later.
Q. You packaged later safe inside this bag.  But this hair was inside C27A when you found it.
A. Yes, it was.
Q. Now, Officer Kennard, how about C28, can you tell us what C28 is?
A. C28 is a picture that was taken of the utility knife.  It's a -- Roberts utility knife.

Mr. Smith:
Objection.  Your Honor, I object to the conclusion as to who's the owner of the knife.  There's been no foundation laid for that.

The Witness:  It's a brand name.

The Court:  It's a brand name.  I assume that's a brand [63] name.

Mr. Reilly:  It's a brand name.

Mr. Smith:  You mean Roberts is the name of it as opposed to Robert Rivera's?

The Court:  That's what I ...

The Witness: Yes.

By Mr. Reilly:
Q. This will be marked as Commonwealth's Exhibit C28A, would you tell us what that is, please?
A. It's a Roberts utility knife.
Q. Now, where did you find that C28A, this utility knife?
A. That was found on a microwave table.  It looked like it was a microwave table.  It was found towards the kitchen area.
Q. Okay, C28 is a picture of the utility knife where you found it inside the apartment?
A. That's correct.

Mr. Reilly:  [64] Those are all the questions I have, Your Honor.

The Court:  You may cross.

[Off record]

[On record]

CROSS-EXAMINATION
By Mr. Smith:
Q. ... all the stuff that's in the bag now is all the stuff that was in the bag when you found it?
A. Yes, sir.
Q. Nothing's been added, nothing's been subtracted?
A. I took the bag as a whole.
Q. So, for example, there's a lot of, also torn up papers and old mail and junk, I mean there's a lot of general trash in here, too, would you say that?
A. I guess it would be, yes.
Q. Well, you -- you tell me what you saw.  I'll bring it over if you want to take a look at it.
A. Okay.
Q. It's fairly heavy with a lot of this stuff.  Do you agree that that's what it is?  Just sort of, looks like ripped up mail, can you see it?  [65]
A. I would have to see it closer.

Mr. Reilly:
Miss Helton will be testifying next, Your Honor.  I'm sure she can testify regarding the contents.

Mr. Smith:  Okay.

By Mr. Smith:
Q. I sort of scooped up a bunch of it here.
A. I don't know what a lot of this stuff is.
Q. Well, my question is, is it fair to say that this is basically, looks like old mail that got ripped up, you know, kind of stuff when you get all that junk mail you tear it up and throw it in the trash bag.
A. Well, some of it, yeah.
Q. Well, is there any -- any that's not?  There's an old yellow tablet that's been torn up.  That kind of stuff, right?
A. That's true.
Q. Right?
A. Yes.
Q. Would you state it's a fair amount of that stuff in here?  If I keep digging through I keep [66] taking out a lot more.  It's fairly heavy, this bag, there's a lot of that stuff that I just brought to you, that's a lot of stuff that's in there, right?
A. Yes, there's a lot of that stuff in there.

Mr. Smith:  That's all the questions I have.

Mr. Reilly:  Nothing further.

The Court:  We'll take a brief recess, ladies and gentlemen, don't discuss the case.

[Recess]

The Court:
... Commonwealth vs. Robert Rivera, #411 of 2000.  Mr. Reilly, ready to proceed.

Mr. Reilly:  Yes, sir.  Your Honor, the Commonwealth would call Jennifer Helton.  Jennifer Helton.

JENNIFER JANE HELTON, having been first duly sworn, was called as a witness herein and was examined and testified as follows:  [67]

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good afternoon, Jennifer.
A. Good afternoon.
Q. Jennifer, where do you live?
A. 2623 Sharpless Avenue in Boothwyn, Pennsylvania.
Q. With whom do you live?
A. I live with my parents, Olga and Frank Helton and my brother, David Helton.
Q. Jennifer, tell the jury, please about your background, your educational background.
A. I'm part-time, I've been a hairdresser for about 10 years.  I am a part-time nail technician and hairdresser, and I just recently completely my Associates Degree in paralegal and I will continue with my Bachelor's Degree in Criminal Justice and I am seeking employment in paralegal in family law.
Q. Where did you get your Associates Degree?
A. At the PJA School in Upper Darby.
Q. That's a paralegal school, correct?
A. Yes, it is.
Q. You know the Defendant, Robert Rivera, don't you?
A. Yes, I do.
Q. When did you first meet him?  [68]
A. I first met him at Barnaby's; it was a sports bar.
Q. Where?  Where is Barnaby's or where was Barnaby's?
A. On Route 202 in Concordville, Pennsylvania.
Q. And when was that that you first met him?
A. It was about September of 1996.
Q. Describe how your relationship with the Defendant developed beginning in September of 1996.
A. It began, it -- we started dating very soon.  As soon as we met we both were attracted to each other.  We started dating and things were really good in the beginning.  He treated me really well and I started to fall in love with him.  And that didn't last very long.
Q. For -- did you eventually; did the Defendant eventually move in with you?
A. Yes, he did.
Q. When was that?
A. Close to about a month later.
Q. So ...
A. Maybe a month.
Q. ... about a month, about a month after you met you moved in together?  [69]
A. Correct.
Q. Where was that?
A. Brandywine Apartments.  At the time I had a roommate and he had moved in with me and my roommate at Brandywine Apartments in Wilmington.
Q. Did you become engaged to the Defendant?
A. Yes, I did, in, I believe, October.
Q. Did he give you a ring?
A. He did give me a ring.
Q. Describe your relationship in the months following then, that would be after October of 1996.
A. It was still fairly good in the beginning and then there started to be a lot of problems between my family and Robert which in then turned caused problems between me and him and it was pretty much a rocky relationship from that point on.
Q. Did you ever discuss marriage with the Defendant?
A. We did discuss marriage and then after the problems with my family started to develop, that kind of just got pushed aside.
Q. How did you find life with the Defendant, living with the Defendant?
A. Very, very rocky.  As I said, things started out to be really good and shortly after he [70] started to verbally abuse me.  Once I was in the relationship and I really was in love with him, then he started to verbally abuse me, which later turned to physical violence and then I became very afraid of him.
Q. Did you and the Defendant talk about having a baby?
A. Yes, we both wanted to have -- have a child, and very soon after I did become pregnant and which I had a miscarriage, I believe that was in January.
Q. January of?
A. Of 1 96.
Q. Of -- well, you met in ...
A. I'm sorry ...
Q. ... September of '96.
A. ... January of '97, right, correct.
Q. January of '97 you had a miscarriage?
A. Yes.
Q. Did you want again to become pregnant and have a baby?
A. Yes, I did.  I did, with the advice of my mother, want to wait a little bit longer, you know, so that things would -- I wouldn't have any more complications, but I ended up getting pregnant in March with Katelyn.  [71]
Q. And when was your daughter, Katelyn, born?
A. December 12 of 1997.
Q. Describe for the jury your feelings when Katelyn was born?
A. It was the happiest day of my life.  I really, I didn't think that something so beautiful could come of -- of this.  And she, while I was having, in my relationship with Rob, when it was in such a rocky position and I wasn't always very happy, she brought very much happiness to my life.
Q. Describe your relationship with the Defendant in the months, in the early months after Katelyn was born?
A. I started to begin to get more and more afraid of him.  It was very unpredictable.  I really never knew what to expect because his temper started to really evolve more and more as I progressed in my pregnancy, and he would hit me a lot more in my back and my head and pinch me and -- and most of the times I really never knew what I did wrong.
Q. Were you afraid of him?
A. Very.
Q. What did the Defendant do to help you in raising Katelyn?  [72]
A. Not very much.  At times, very rarely he would offer to help make a bottle at the night, at some times.  I know that he never -- he never bathed her.  I always was the one to bathe her.  I was mostly the one to take care of Katelyn.
Q. Were you working also?
A. Yes, I was.
Q. Where were you working?
A. I was working; at the time it was called Med Staff.  This was, Katelyn was about 9 months.  I had stayed home with Katelyn for a good 9 months after I was pregnant to -- to devote all of my time with her.
Q. And then you went back to work.
A. And then I went back to work after 9 months.  I was in a very good position at this job.  I was very happy to have this job and needless to say, due to my relationship, did not -- lost, excuse me, did not last very long.
Q. Now, Jennifer, let me direct your attention to Easter weekend of 1998; that would be in the year after Katelyn was born.  Katelyn had been born in December of 1997.
A. Yes.
Q. Would you describe for the jury what happened on that weekend?  [73]
A. We were invited by Tom and Sissy Whittaker, who at the time were our neighbors, to go to their family's for Easter dinner that afternoon, and earlier in the day Robert decided he wanted to clean all of the house and he was vacuuming and I was keeping an eye on Katelyn and at the time we had a small pan of water on top of the radiator heater and Katelyn was playing and I was with her playing, watching her, and she somehow got hold of the tin and knocked it over full of the water all over the floor.  So, I was on the floor trying to clean up the water before Robert did come in the room to see and while I was on the floor he came in and realized or asked me what happened and I told him Katelyn, you know, spilled the water, and he got really angry and he started beating me.  While I was on the ground he started beating me in my back.
Q. Tell the jury what he was doing to you, Jen.
A. He was continually punching me in my back and Katelyn was there screaming and crying.  And once Katelyn started to cry, Robert said to me, look what you did, you made her cry, so he punched me more and more and I felt almost that I couldn't get up.  I was afraid that I wouldn't have been able to get up but I did.
Q. You had to go to the party, this Easter [74] party at the Whittaker's, isn't that right?
A. Yes.
Q. Did you want to go?
A. No.
Q. What did you do?
A. I went to please Rob and he acted as if nothing happened and wanted to be nice and -- to me all day and I just -- I just didn't want to have much to do with him after that.
Q. Did you give any thought to leaving the Defendant?
A. Yes, I did.  At that point I really did want to leave but I also was afraid.  I wanted to have the -- for me and my daughter to both have the perfect way out and to keep her safe in the process, and that was my whole objective.
Q. Did the Defendant -- did the Defendant beat you again during 1998?
A. Yes, many times.
Q. Specifically, Jennifer, in the summer of 1998, do you remember an incident that occurred?
A. Speaking of June?
Q. Yes.
A. Is it the ...
Q. The date's -- the date's not really [75] important.  I'm more interested in what the Defendant did.
A. Okay, there was a time, Katelyn was actually younger and we were arguing in the apartment, and Katelyn had woken.  She started crying so I went to get her up and Rob had -- Rob had started to come towards me while I had Katelyn in my arms and my first instinct was to run to the door and at that point he began to get really furious with me because -- and said to me, I can't believe you were going to run out the door with my -- with our daughter, can't believe and he started to get really mad, so I decided at that point to take Katelyn back to sleep and I put her back to sleep and I came back out and he started yelling to me again and he put me in a headlock and he started punching me in my head.  I got free from him, he let me go and that was ...
Q. Jennifer, you said that you stayed at home after Katelyn was born, for how long did you stay home with her?
A. Without working at all?
Q. Um-hum.
A. It was roughly 9 months.
Q. So, you went back to work around August of 1998?  [76]
A. Actually ...
Q. If you remember.
A. ... it was September, it was around September I went back.
Q. Okay, in October of 1998 ...
A. Okay.
Q. ... you -- you were working then, correct?
A. Correct.
Q. Where were you working?
A. At Med Staff.
Q. What's Med Staff?
A. I worked in accounts payable department and they do time slips for nurses in the medical field, and I assisted in doing that.
Q. Was that a good job for you?
A. Yes, it was a very good job.
Q. How would you describe that job compared to other jobs you've had prior to it?
A. Financially, it was much better than any of the jobs that I ever had.  Working in the hair business, it's very unstable, you know, it's mostly commission and it's hard to base a living on sometimes.  I had steady pay at this job and it was very, very helpful.
Q. Was the Defendant working then?  [77]
A. No, he wasn't.  He had stayed home to watch Katelyn at the time.
Q. So, you left him at home with Katelyn when you would go to work at Med Staff?
A. Yes.
Q. Now, would you describe please for the jury a time that you went to work and left the Defendant home to watch Katelyn.
A. I had left Katelyn home with Rob and I had been working that day.  I had gotten a call, excuse me, from my mother to tell me that ...

Mr. Smith:  Objection.

The Court:  Sustained.

Mr. Reilly:  Your Honor, Mrs. Helton will be a -- will be a witness at the trial and she can be ...

The Court:  It's sustained.

Mr. Reilly:
Your Honor, I would ask that the testimony be admitted not for the truth of the matter but for the fact that it was said to Jennifer and [78] acted upon.  Jennifer's response is ...

The Court:  I will allow it for that purpose.

By Mr. Reilly:
Q. You got a call from your mother, correct?
A. Yes.
Q. What did your mother tell you?
A. She told me that Rob had came to her work which was a few minutes away from our apartment at the time, had left my daughter in the apartment alone to go to her work and tell -- told my mother that somebody needs to come get this baby, I can't take her anymore.
Q. What was your -- what was your reaction when your mother told you that?
A. I was very upset to know that he left my daughter there unattended at such a young -- a young age.
Q. Did you make a plan with your mother about what you would do?
A. Yes, I decided -- actually, I had gone back to the apartment to talk to Rob and then at that time he told me that I had to make a choice between him or Katelyn and I said that there is absolutely no choice, and I packed my bags and went to live with my [79] parents at the time.
Q. What happened to Katelyn while she was alone?  How -- how was Katelyn taken care of?
A. She wasn't ...

Mr. Smith:
I object, Your Honor, she wasn't there, now we're back to the issue of the truth of the matter asserted again rather than being acted upon which was the limiting instruction here.

The Court:  Sustained.

By Mr. Reilly:
Q. Now, Jennifer, you left the Defendant at that time.  You moved out of the apartment?
A. Yes.
Q. Where were you living?
A. I was living with my parents in Boothwyn.
Q. And you took Katelyn with you?
A. Yes, I did.
Q. For how long did you move out on the Defendant?
A. It may have been close to 2 weeks, a week and a half to 2 weeks.  [80]
Q. You decided to go back to him?
A. Yes.
Q. Why?
A. He said that, you know, he was going to get a job and he was going to work things out.  He was going to try harder and same old thing as -- and I believed him thinking that things would get better so I did go back.
Q. Now, Katelyn's first birthday would have been in December of 1998, is that correct?
A. Correct.
Q. And that began Katelyn's -- Katelyn was 1 year old, that began her second year.
A. Yes.
Q. Were you working at that time?
A. Yes, I was.
Q. And how about the Defendant, was he working after Katelyn's first birthday?
A. He -- he may have been.  I know he -- he worked different jobs on and off.  Normally, they didn't last very long.  Some went for a few weeks, maybe a month, I'm not really positive because there were so many jobs in between, I really couldn't keep track.
Q. Were you the person who was earning the money for your family?  [81]
A. Most of the time, yes.
Q. Describe for the jury your relationship with the Defendant between December of 1998 and July of 1999.
A. Very rocky, a lot of abuse, many times he would stay out all hours of the night.  Sometimes he wouldn't come home till the morning.  I would be left alone with Katelyn, verbal abuse, physical abuse was more constant.
Q. Were -- were you thinking of leaving him ...
A. Yes ...
Q. ... in July of 1999?
A. Yes, more and more I wanted to leave and I was considering it.
Q. Now, Jennifer, I want to direct your attention to July the 26th of 1999.  That was a -- that was a Monday.  You had made arrangements, you were making arrangements with your mother regarding a doctor's appointment.
A. Um-hum.
Q. Would you explain to the jury what happened?
A. Rob had got mad at me, I don't remember for what, and he had made some remarks that I take my [82] mother everywhere and I'm not -- to call her up and tell her I can't take her this time.  I'm not going to take her to her doctor's appointment come Monday, and ...
Q. And what was your reaction?
A. I was very upset because my mother doesn't drive and she really has no other means, especially during the day when my father and my brother are working, I really didn't want to tell her I couldn't take her.
Q. What happened?
A. I -- Robert actually had gone out at Sunday night and he didn't come home until ten o'clock the next morning in which he slept the whole entire day until probably nine o'clock that night, so I really did get the chance to take my mother to the doctors and take Katelyn to my mother's to see.
Q. Now, the following day is July the 27th of 1999 and that's Tuesday.
A. Um-hum.
Q. You were scheduled to work that day?
A. Yes, I was.
Q. Where were you working?
A. I was working at Your Hair in Aston, Pennsylvania.  I worked part-time as a hairdresser.
Q. Was there a time you were scheduled to be [83] at work?
A. Yes, I was scheduled to be at work Tuesday morning at 9.
Q. And what happened when you woke up on Tuesday morning?
A. Robert had got -- got up that morning, frantic and wanting to do laundry and clean everything in the home and at the time we had many bags of laundry because we had recently just moved to this apartment.  He decided he wanted to do all the laundry and he wanted me to stay home and help him.  So, I had called out that day to help him.
Q. And what did you do?
A. We went and did all the laundry.  Everything was going pretty well.  By the midafternoon we had come home.  All the laundry was done.  We started to put stuff away and he also wanted -- he washed the car seat fabric that goes around the car seat so we were putting that together.
Q. You were putting -- putting what together?
A. Putting the car -- the fabric back onto the car seat.
Q. Okay, describe what happened?
A. I was helping him, trying to help him.  [84] He was having trouble, we were both having trouble getting it back on as it was.  He was getting mad at me because I couldn't find the directions of how to put this back on and he starts going -- threatening me with the screwdriver that I don't ever listen to him and keep the records ...
Q. Tell the jury what his words were.
A. You never listen to me.  You never listen to me, I told you over and over to keep these in a file and you don't do that.  What, do you like getting hit?  Hit?  You must like it and ...
Q. What did you say?
A. I said, I don't, I really don't.
Q. What did he do then?
A. He continued to put it back together and he told me to pull this strap and I pulled the strap and I guess I pulled the wrong strap and it pulled the fabric off of the car seat.  It was still intact, it just ripped the fabric off.  He got really furious and mad that I destroyed Katelyn's car seat so he took the car seat and took -- and destroyed it, I believe he went and got a hammer and destroyed it to where it was no useable ever again.
Q. What exactly did he do to it?
A. Just ripped, tried to rip it and [85] dismantle as much as he could.
Q. What was -- what was he doing with the hammer?
A. Banging it and trying to twist it and the car seat ...
Q. And what did he tell you?
A. He said he was leaving and that if anything ever happened to his daughter, that he would kill me and bury me and lie.
Q. Now, Jennifer, the following day was July the 28th, and that's a Wednesday.  I want to direct your attention to the next day, that's Thursday, July the 29th.
A. Um-hum.
Q. Of 1999.
A. Okay.
Q. Tell the jury what happened that day.
A. We -- I took Katelyn to daycare that morning.  I did have off that day.  We had some errands to run so we did those during the day ...
Q. Were you working that day?
A. I wasn't working that day.  I did have off.
Q. How about the Defendant, was he working that day?  [86]
A. No.
Q. He was not?
A. No, he wasn't.  Later on that afternoon we had come home from finishing our errands and he wanted to go to his friend's house, he had his watch.  He said he was going to return it to him, and I asked him when he would be home and he wasn't sure.  I told him, could he be back by 5, I really need to go to the store to get Katelyn some things.  He left.  While he was gone I decided I wanted to walk to the store to get Katelyn's things just to get it out of the way in case he didn't come home in time.  So, I noticed when I grabbed my keys to leave and I noticed his keys were still hanging up so I went next door to the neighbors and I told the neighbor that if Rob comes while I'm gone, please tell him I went to the Eckerd's to get some things for Katelyn.
Q. What were you going to buy?
A. I needed some handy wipes; I think I needed diapers, things of that sort.  I'm not positive.
Q. Where was the Defendant going?
A. He was going to Sean's, his friend Sean's house.
Q. He was going to his friend's house.
A. Yes.  [87]
Q. So, did you leave the house and you went to Eckerd's?
A. I left the house ...
Q. You took Katelyn with you?
A. No, Katelyn was at the daycare still at the time.
Q. Okay.
A. I was going to pick her up after the fact, that's another reason why I wanted him to come home so that I could get her.
Q. Okay, so you didn't have -- you didn't have the car.
A. No.
Q. You had to walk to Eckerd's?
A. Right.
Q. And did you go there?
A. I went to Eckerd's.
Q. You bought what you had to buy?
A. I did, I walked back, and when I came back I noticed Rob was talking to Sissy Whittaker and while he was talking to her he was trying to put the door back together.  It was off the hinges and he was putting it back, trying to put it back intact.
Q. Jennifer, how long were you gone from the time that you left the house until the time you [88] returned?
A. It may have been close to a half an hour, at the most maybe 45 minutes.
Q. You were walking.
A. Yeah, I was walking and there was, you know, it was a line in the store so I had to wait a little while.
Q. What did you see was the condition of the door?
A. It -- it was, looked like it had been broken off.  It was kind of dangling and he was trying to fix it so that it would stay together and close.
Q. You had left and you had locked the door, the door was intact when you left, right?
A. I did have locked it and I also noticed that the lock, around the doorknob, it was broken.  The wood was broken.
Q. What happened then?
A. I came back.  He was still talking to Sissy.  Sissy had left and I proceeded to come in and he started to holler at me and tell me that he had a pile of my clothing and a pair of my shoes behind the door, that he had ripped with a utility knife and he told me that every time that I would make him mad, that he was going to take a handful of my clothes and my things and [89] destroy them, and I started to get really furious at that point. He started to continue to go on and on about how he had been with this woman or that woman and I never even knew and at some point in between our -- his -- the argument, he had punched me in my back and I then had called the police.
Q. What did you decide then?
A. I decided that I was leaving him.
Q. So, what did you do?
A. I called the police.  They came to the house.  They had told me that because both of our names were on the Lease, that they couldn't ask either one of us to leave, so later on that evening, I decided to go home to my parents.
Q. You got some of the things from your apartment?
A. I got what I could in the time that I was given to pack a bag and go to my parents.
Q. Where was Katelyn when this happened?
A. Katelyn, at the time then was at my parents' house.  I had called her to ask her to pick Katelyn up from daycare for me, please.
Q. And Katelyn stayed with you at your mom's.
A. Yes.  [90]
Q. And that's July the 29th of 1999.
A. Correct.
Q. Now, the following day, Jennifer, is July 30, 1999, that's a Friday.
A. Um-hum.
Q. Did you return to the apartment that day?
A. Yes, I did.
Q. Why?
A. I realized the night before I was given by the police a number for the Protection from Abuse, a number to call to execute that, and I realized I left it in the apartment along with my license so I ...
Q. What license?
A. My driver's license, I'm sorry.  So, that morning I decided I was going to walk over to the apartment to get these things.
Q. Do you remember what time you went over there?
A. Between 10 and 11, I think.  I'm not positive.
Q. I had gone over.  I had come in the house and Rob, I approached Rob and he told me that he -- he destroyed everything of mine.  He left me this small bag of some of my things.  So, I went through, started to go -- I went back to the bedroom and I started going [91] through the drawers and I found some of my jewelry and a few other things and I proceeded to come back out into the kitchen and to put those in the bag, and I proceeded toward ...
Q. In which bag?
A. In the bag that he had given me, the few things he saved for me.  And I proceeded towards him and asked him why he was doing this to me?  I don't understand, you know, all I did was love him and then he started coming towards me and I started going for the door and he got me around my neck and held me and was punching me in my stomach and he put his hand over my mouth and I was screaming and he said to me, you swear you'll shut up?  You swear you'll shut up?  And I said, yes, so he let my hands go -- his hands go free from my mouth and then I started to leave, I tried to go out the door and he said, no, you're not going anywhere, I'm not done with you yet.  He made me go back into the kitchen and he had a utility knife and he grabbed my hair and he chopped it off in the back with a utility knife, and then he made me go ...
Q. Jennifer, how long was your hair at that point?
A. To the middle of my back, it was pretty long.  [92]
Q. How much of your hair did he chop off?
A. A good, I'd say 6-7 inches.
Q. Let me show you what's been marked as Commonwealth's Exhibit C28, and then C28A.  First, take a look at the photograph, C28, would you tell me what that is?
A. This here's the utility knife.
Q. And what is the utility knife on top of?
A. It's on top of our microwave table.
Q. Now, next to it on the table in front of you, C28A, would you tell us what that is, please?
A. It's the same utility knife that is on the microwave table.
Q. And what did the Defendant do with the utility knife?
A. He took it and he grabbed my hair and just chopped it, may hair in the back, one -- one chop and he had it -- had my hair in his hand and then he told me to look in the mirror after he had done that, and he told me that if I wasn't going to look good for him, that I wasn't going to look good for any man.  Then, okay ...
Q. Jennifer, let me show you next, why don't you step down.  This is Commonwealth's Exhibit C27A.  Would you take a look in here and tell me what you see?  [93]
A. This is my ...
Q. Take it out.
A. ... this is my apron from ...
Q. Take it out and show the jury.
A. That I used to cut hair, put around them to keep the hair from going around the person.  These are a pair of my shoes.  These were another pair of shoes.  This is part of a bathing suit I had.  More shoes.  Part of the clothing that I was wearing that day that he made me take off.
Q. Tell the jury what he did.
A. He told me to take my clothing off ...
Q. Is that what you were wearing?
A. This, I was wearing this shirt.
Q. When you went over to the apartment.
A. When I went over to the apartment.  He made me take it off, all of my clothes, and he ripped them up like this, and then he told me he had another short set in the drawers he thought that I could put on.
Q. Did you do that?
A. Yes, I did.
Q. Jennifer, what's that?
A. That's my hair that he cut.
Q. After he cut your hair what did he do?
A. He then told me to look in the mirror.  [94]
Q. Okay, what did he do with the hair after -- after he cut your hair?
A. He threw it in the trash with the bag, I believe.
Q. Now, Jennifer, would you take a look in here at the bottom.
A. Yeah.
Q. Could you pull those things out?
A. These?
Q. Um-hum.  What are they?
A. These, oh, these aren't mine.  This was a curling iron that I had.  My implements to use in my work.  This is the cord to my clippers or my curling iron.
Q. Jennifer, looking into this bag would you say that this bag is full of paper?
A. I'm sorry, full of paper?
Q. Would you say that this bag is full of paper?
A. No.
Q. What's it full of?
A. It's full of my clothing, my shoes, my work implements, of my belongings destroyed ...
Q. Your hair.
A. ... my hair.  [95]
Q. You can take your seat.  Jennifer, for how long did this incident go on?
A. I'm not positive.  I believe it was at least an hour, maybe an hour and a half to 2.  It seemed like forever but I really couldn't give you a definite, estimated time.
Q. How did you feel when the Defendant was doing this to you?
A. I was afraid for my life.  I really didn't think I was going to make it out of there alive.
Q. How did you get out?
A. At one point after I had tried to leave numerous times and he wouldn't allow me to put my shoes on to leave, I was standing close to the door, around the corner from the backdoor and he was still at the time cutting up most of the stuff in the bag, and I sat and thought for a minute, if I had time to get away and I tried.  I ran out the door and just ran until I went to the restaurant where I -- I went for help.
Q. You had no shoes on your feet?
A. I had no shoes on my feet.
Q. What were you wearing?
A. I was wearing a pair of shorts and a long T-shirt and no shoes.  That was it.
Q. You called the police at that point?  [96]
A. Yes, I went to, it was at the time E and M's Restaurant and I asked them to call the police and they actually called the police for me.
Q. Officer Greg Kennard responded, is that right?
A. Yes.
Q. And did you ask Officer Kennard to file charges against the Defendant?
A. Yes, I did.
Q. What did you -- what did you do then?
A. Officer Kennard told me that he had to wait to get backup to go into the house to obtain -- to get Rob and he made -- he told me to write down on paper what had happened in the apartment and he asked me if I wanted an ambulance and I told him that I wanted to make sure that they had gotten Rob first and the ambulance had come before that happened anyway.
Q. Where did you spend that night?
A. I spent that night at my parents'.
Q. Did you see the Defendant again that day?
A. Yes ...
Q. Where.
A. ... at the hospital.
Q. Tell the jury what happened.
A. I was riding in the ambulance after that [97] incident, to the hospital, and just as I -- they came up to the emergency doors and I went out of the ambulance and I heard my name and I looked over and it was Rob and he was in my parents' van and he was telling me to get in the van and I was pretty hysterical at that point and very afraid and I ran in and told the guards that he had taken my parents' van and that the police did not get him yet.
Q. Now, you stayed at your parents that night?
A. Yes.
Q. Had you made a decision by that point, Jennifer?
A. I made a decision to leave him before I had gone to the apartment.
Q. Had you decided that it was over between you and him?
A. Yes, I did.
Q. Now, after you left the hospital that day, Jennifer, July 30th, where did you go?
A. I went to the Media Courthouse and to Domestic Abuse to file Protection from Abuse Order.

Mr. Reilly:
Court's indulgence for a minute, please, Your [98] Honor.

[Off record]

[On record]

Mr. Reilly:
I'd ask that this folder be marked as Commonwealth's Exhibit C33 for identification.

By Mr. Reilly:
Q. Jennifer, I'm going to show you a document that's within this folder, Commonwealth's Exhibit C33.  There are multiple pages to this document. I'd ask you to flip through that and tell me if you recognize that document.
A. This is ...
Q. Tell us what it is.
A. This is the emergency, the Order for PFA, the application.
Q. Okay, it's an Order for Protection from Abuse, is that right?
A. Correct.
Q. Where did you get this?
A. I got this from Media Courthouse.
Q. You came here to the Media Courthouse?
A. Yes.  [99]
Q. What did you do?
A. I believe, actually, I went to Domestic Abuse first and then I went to Media Courthouse and I had to fill one of these out.
Q. Okay, and what -- tell us what is Domestic Abuse.  You said you went to Domestic Abuse before you went to the Courthouse.
A. Domestic Abuse project, they handle all abuse cases for victims and they help you to obtain these to stay safe from the abuser.
Q. And what kind of information did you have to put in this application for temporary Protection from Abuse Order?
A. I had to state why I was afraid and what Robert had done to me on the twenty-ninth ...
Q. And did you do that?
A. ... and the thirtieth.
Q. Did you put that information in there?
A. Yes, I did.
Q. And after you had filled that document out, what happened?
A. I was given a date, August 5, for a -- to make it a permanent Order.
Q. Okay, and was this signed by a Judge?
A. Yes, yes, it was.  [100]
Q. That's on the fourth page?
A. Um-hum.
Q. It's signed by who?
A. Ann Osborne.
Q. And what is it?  What's the date on there?
A. July 30, 1999.
Q. And is that stamped by Delaware County?
A. Yes, it is.
Q. And what was the Defendant required to do?
A. "Defendant shall not abuse, harass, stalk or threaten any of the above persons in any place where they might be found.  Defendant is evicted and excluded from the residence at 2804 Chichester Avenue."
Q. Was the Defendant told not to have contact with you?  Or does this Order include the requirement that the Defendant have no contact with you?
A. Me and Katelyn.
Q. Okay, he's required, as well, not to have contact with Katelyn, is that correct?
A. Right, yes.
Q. And there was also a hearing that was scheduled for August the 5th of 1999, at 8:30.
A. Yes.  [101]
Q. Is that right?
A. Right.
Q. Now, you went and you lived with your parents between then and August the 5th, is that right?
A. That's correct.  No, actually, I actually lived with my aunt and my uncle and then I, on August 5, on that day, the night before that I had gone back to my parents.
Q. Okay, what did you do on August 5?
A. I -- we went to Court, me and my family, had gone to Court to finalize ...
Q. Where did you go to Court?
A. Family Court here in Media.  Here, I believe it's at the Courthouse also.
Q. Um-hum, and please describe what happened.
A. I went before a Judge to -- and the Judge issued me the permanent order and gave me custody of Katelyn and I agreed to supervised visits, that Robert would have supervised visits with Katelyn.
Q. Was the Defendant present at that hearing on August the 5th?
A. Yes, he was.
Q. Did you speak to him that day?
A. Yes, he insisted on speaking with me, [102] trying to speak with me, and my lawyer, attorney, at the time agreed to let him have 5 to 10 minutes to speak with me.  In that time he was pleading with me to drop the charges or to not to show up to Court for that -- for the following abuse because if I didn't show up to Court that they would drop the charges and he was going on about how many, the things that he had done wrong and he was sorry and was pleading with me to -- to also allow him to live in the apartment.
Q. And was there a formal hearing in front of the Judge regarding this permanent Protection from Abuse Order?
A. Yes, there was.
Q. And did the Judge tell the Defendant he was to have no contact with you?
A. Yes, he did, or she did, I'm sorry.  She told him ...
Q. And the Judge also told the Defendant that you had custody of Katelyn, correct?
A. Correct.
Q. Now, that Protection from Abuse Order allowed the Defendant to have supervised visits, is that right?
A. Yes.
Q. And did the Defendant have a supervised [103] visit with Katelyn that day?
A. Yes, he did.  It was his birthday that day so he had asked the Judge if he could see her, and the Judge agreed so they had set it up, my mother actually had met with him at a park that afternoon.
Q. So your mother ...
A. With Katelyn.
Q. ... your mother supervised the Defendant's visit with Katelyn.
A. Yes.
Q. Now, Jennifer, I want to direct your attention next to August the 10th of 1999.  That's the day on which you would next go to Court.
A. Um-hum.
Q. Why did you go to Court that day?
A. Went to Court that morning for the -- the abuse hearing from the July 30 incident.
Q. Was the, the Defendant had been charged with a crime, correct, as a result of your complaint?
A. Yes, he was.
Q. And were those the charges that were to be heard that day?
A. Yes.
Q. Now, where did you have to go for that hearing?  [104]
A. I went to Linwood District Court.
Q. And where is the Linwood District Court?
A. I can't think of the -- at Ninth Street or ...
Q. Okay ...
A. Ridge Road, I believe it is.
Q. Okay, it's not far from your home, right?
A. No.
Q. How far is it from ...
A. Maybe 5 minutes.
Q. Okay, when you arrived at that hearing did you see the Defendant?
A. Yes, I did.
Q. Where was the Defendant?
A. He was, I believe, on the left side seated at the Defendant's table.
Q. And did you -- did you have to do anything at that hearing?
A. No, I believe they -- there was a few -- there were quite a few charges that they had dropped in his favor and there were still a few that were outstanding, I believe.
Q. So, there were some charges that were drop.
A. Correct.  [105]
Q. Some charges that were held?
A. Yes.
Q. Is that correct?
A. Um-hum.
Q. And his case was going to be sent to Media, is that right?
A. Yes.
Q. It was going to be sent out here for trial.
A. Yes.
Q. Now, did you speak to the Defendant at all on the morning of the hearing?
A. No, he was trying to talk to me but I tried to keep my distance and not -- not talk to him.
Q. Now, where was Katelyn when you went to the hearing?
A. That morning I had taken her to daycare.
Q. Where was her daycare?
A. On Second Avenue, it was at the house of Sheila Clendening which, who was her provider.
Q. And is that also nearby your house?
A. Yes.
Q. Or near your apartment I should say.
A. It's much closer to my apartment and my -- also just as close to my parents.  It was merely 3 [106] minutes down the road.
Q. How did you dress Katelyn that day?
A. I dressed her in a yellow shirt with white flowers around the neck with yellow shorts to match, yellow socks, little Bobo sneakers with little flowers and rhinestones on the front and the side.
Q. Do you remember what time you dropped Katelyn off?
A. I believe it was fairly early, close to seven o'clock on the morning, around between 7 and 8.
Q. Have you seen Katelyn since then?
A. No.
Q. That was the last time you ever saw her?
A. Yes.
Q. Once the hearing was over, what did you do?
A. I left with my aunt and we decided to stop at the Wawa to get something to eat for breakfast first.  I proceeded to the Wawa.  Went in, I was standing there waiting for my bagel and I noticed Rob walk in the door and I -- my heart sunk to my feet and I was really afraid and wondering why he was there.  He started to talk to me.  At one point he was ...
Q. What did the Defendant say to you?
A. He said that he was going to go to Puerto [107] Rico and he was going to go live with his father and I said to him, that's great, you know.  He asked me if things were over between us.  I said, yeah, actually, I said that I wasn't sure.  That he really needed -- had problems that he needed to deal with and maybe after he deal with those that we could talk.  I didn't want to leave things open or closed, and he kissed me on the cheek at one point and then my aunt intervened and told me that I needed to go to the car, he shouldn't be talking to me, I shouldn't be talking to him.  So, I proceeded to the car where a few seconds later he opened the door and he grabbed me by my throat and he carried me to the parking lot.
Q. Jennifer, describe exactly what he did.  What did he do -- how did he place his hands on you as you were sitting in the car?
A. He had both his hands literally, he just grabbed my neck and literally carried me by my neck to ...
Q. He had both his hands on your neck.
A. Yes.
Q. And that's how he got you out of the car?
A. That's how he got me out of the car.  [108]
Q. How did you respond physically?  How did you feel when he did that?
A. It felt, it hurt and I felt very -- it was starting to feel like I almost couldn't breathe at one point.  I was afraid for my life.  I thought then that he was going to kill me.  And then I was trying to get free from him.  I was kicking and ...
Q. How far did he take you from -- from the seat in your car ...
A. Probably close to the distance between me and you.

Mr. Reilly:  Indicating for the record, Your Honor, approximately 20 feet, 25 feet.

The Court:  Satisfactory.

The Witness:
He got me down somehow and he got a good hold of my hair and he was dragging me around the parking lot by my hair for a -- for a good while.

By Mr. Reilly:
Q. Were you on your feet?
A. No ...
Q. How ...  [109]
A. ... my feet were dragging on the parking lot.  I was trying to get up and trying to get away from him.
Q. Were you face down or on your back or side?
A. I believe ...
Q. If you can remember.
A. ... I was mostly on my bottom while he was dragging me.  I -- I remember trying to look up but it was very hard since he had my hair.  I really didn't have very much control.
Q. What was he saying to you?
A. Oh, this wouldn't happen if you would have just talked to me.  All I want to do is talk to you.  And basically that's, I believe that's all I remember him really saying.
Q. Where was your aunt?
A. My aunt was not very far from me.  She was very upset to see this happening and after he was dragging me around for some time she had gotten on top of me thinking that she could get me free with more weight, and he actually drug both of us around for -- for a short period of time.
Q. What happened next?
A. I think some other pedestrian, I'm not [110] sure, someone had, I don't know, threw something at him or somehow they had gotten him away from me and he fled in his car which at the time I didn't know, I thought he had stolen a car, and then he drove away in the car.  I was on the ground and I thought that he was going to run me over.  He said that, no, I'm not going to run you over, he said, and then he sped off.
Q. The Defendant's speeds off and where are you when he takes off?
A. I'm at the Wawa still, waiting for the police to arrive with my aunt.
Q. What were you thinking about at that point?
A. Well, I knew in my heart that he was going to get Katelyn and I had my aunt to tell my parents to hurry and get over there as fast as possible and it was too late when they arrived anyway.
Q. Jennifer, I want to show you a series of photographs, C19 through C26.  Will you take a look at those and tell me if you recognize them.
A. Yes, I do.
Q. What are those pictures?
A. Those are the pictures, all the bruises and scrapes and the hole in my scalp from where he pulled my hair out of my head, I guess the size of a [111] golf ball.
Q. Jennifer, first let me ask you about C19, would you tell me, what's that picture?
A. It's a picture of me looking quite terrified and I know my mouth looks swollen, I don't know why.
Q. Picture C20, tell me what that picture is?
A. I guess impressions from his hands around my neck.
Q. C2l.
A. More prominent impressions around my neck in the front.
Q. Jennifer, what's picture C22?
A. That's a picture of a good size hole in my scalp where the hair had come out.  It was bald, a bald spot.
Q. C23 is a picture of your left arm and what's that right at your elbow?
A. It's a brush burn, scrape.
Q. C24 is a picture of your back?
A. Um-hum, and it's also scraped.
Q. C25, what's that a picture of?
A. A pretty good scrape on my knee with my -- and my nylons were with a huge hole and destroyed.  [112]
Q. And then C26, what's that a picture of?
A. The same, my shoe with the sandal on and a big hole with a scrape.
Q. Jennifer, would you describe for us the injuries that you received as a result of the Defendant's assault in the Wawa parking lot?
A. Loss of my hair, which took a few, close to a year to grow back.  Scrapes and bruises, and that's physical.
Q. Okay.

Mr. Reilly:
Your Honor, I would ask that C19 through C26 be admitted and asked that they be published to the jury.

The Court:  Any objection?

Mr. Smith:  Objection.

The Court:  Publish them to the jury.  They are admitted.

[Off record]

[On record]

[Side-Bar Discussion] [113]

The Court:
Is this the appropriate time where you'd like me to give that instruction with respect to other offenses, other conduct?

Mr. Smith:  I think this would be fine.

The Court:  I think this would probably be the end of that, pretty much.

Mr. Smith:  After they see the pictures would be the perfect time to tell them.

The Court: Yeah.

[End Side-Bar Discussion]

By Mr. Reilly:
Q. Now ...

The Court:  Before you do that ...

Mr. Reilly:  Yes, sir.

The Court:  [114]
... ladies and gentlemen, you've heard evidence, if you accept that evidence, tending to prove the Defendant was guilty of improper conduct for which he is not on trial, that is the testimony with respect to this witness, if you accept that testimony that on numerous occasions he punched her, pulled her hair, did acts such as that.  This evidence is before you for a limited purpose that is for the purpose of tending to show motive.  This evidence must not be considered by you in any way other than for the purpose I just stated.  You must not regard this evidence as showing that the Defendant is a person of bad character with criminal tendencies from which you might be inclined to infer guilt.  If you find the Defendant guilty, it must be because you're convinced by the evidence that he committed the crime charged, not because you believe he has committed some other improper conduct.  Satisfactory?

Mr. Smith:  Yes, Your Honor.  Thank you.

By Mr. Reilly:  [115]
Q. Jennifer, before we move on I want to show you 2 -- 2 exhibits.
A. Okay.
Q. First, I want to show you Commonwealth's Exhibit C12, for identification.  Can you see that?
A. Just ...
Q. Did you want to step down?
A. Yeah.
Q. Why don't you step down?  Would you take a look at that for a minute?
A. Um-hum.
Q. Do you recognize that?
A. Yes.
Q. Would you tell me, tell me first of all, what does this map depict? What is the area that it depicts?
A. The area in which I live, the Wawa store where this all happened, and ...
Q. Okay, this is a map of Upper Chichester, the area where you lived at the time and where you live right now, is that correct?
A. Um-hum.
Q. There are four different tags on here that identify particular places, let's start down at the bottom right-hand corner on C12.  Would you tell the [116] jury first of all, what's -- what does that depict?
A. The District Court.
Q. That's the District Court ...
A. ... in the morning.
Q. ... where you went to a hearing on August the 10th?
A. Yes.
Q. Now, up here right on Chichester Avenue, what's there?
A. That's the Wawa store where I was attacked.
Q. Now, Katelyn's baby-sitter, what's Katelyn's baby-sitter's name?
A. Sheila Clendening.
Q. And would you show us on the map where she lives?
A. Up here.
Q. Is that Second Avenue?
A. Yes, it is.
Q. And at the time you were living with your parents, is that right?
A. Yes.
Q. And where is that residence?
A. Right here, 2623 Sharpless Avenue.
Q. And that's tagged, "Helton residence", is [117] that correct?
A. Yes.
Q. Okay, why don't you just stay right there for just a minute?
A. Okay.
Q. Okay, I want to show you a second exhibit, that's Commonwealth Exhibit C1, for identification.  I want you to take a look at, just photograph "1A".
A. Okay.
Q. Okay?  Do you recognize the vehicle that's depicted in photograph "1A"?
A. Yes.
Q. What is that?
A. That's the car that Rob had gotten into after -- after I got away from him.
Q. At the Wawa.
A. Yes.
Q. Thank you.  You can take your place.  Jennifer, after the Defendant sped off, what happened?  The police came to the Wawa?
A. Yeah, they eventually came to the Wawa and they had taken me and my aunt to the police station to write a report and to take my picture, a picture of my abrasions and injuries.  [118]
Q. When did you learn that the Defendant took Katelyn from the baby-sitters?
A. When I arrived at the police station I was told that Rob had gone to the daycare and taken Katelyn and shortly after that I -- I had to go to the hospital for my injuries.
Q. Okay, so you went to the hospital?
A. Yes.
Q. For how long did you stay at the hospital?
A. I think, believe it was a couple hours I was there waiting for a little while.
Q. So, you were down there for a considerable period of time?
A. Yes.
Q. What happened when you left the hospital?
A. When I left ...
Q. Where did you go?
A. I went home and ...
Q. Describe your state of mind at this point.
A. Was very, very upset.  You know, my daughter, he had taken my daughter and I -- I didn't know what to think and I was just worried for my daughter's safety.  [119]
Q. Had you heard ...
A. And upset.
Q. ... did you have any update? Did you know what was going on at that point when you got home from the hospital?
A. When I got home from the hospital my cousin and her, now husband, had come over to the apartment and they had told me that Rob had been trying to reach me all day.  I believe he had called the social worker and he was trying to reach me and shortly after they were in the house he had actually called my home.
Q. Would that have been about quarter after 4?
A. Yes, that's about right, I believe.
Q. Did you answer the phone?
A. Yes, both I answered it and also Brian, we both picked it up at the same time.
Q. Tell me what the Defendant said to you.
A. He asked me where -- where I've been, where I've been all this time, and I said I was at the hospital.  And he said, why, I didn't punch you, and I said, no, you just drug me around the parking lot, I guess that's all right.  And then he told me that ...
Q. What were his words, Jennifer?
A. He said, me and Katelyn are going to go [120] with Bill.  Katelyn is going to go to heaven and I'm going to go to hell.  Do you want to say goodbye to her for the last time? And ...
Q. Jennifer, the Defendant made reference to Bill.
A. Yes.
Q. What did he say about Bill?
A. He said that him and Katelyn were going to go with Bill.
Q. And had you and the Defendant previously discussed a man named Bill?
A. Yes.
Q. Tell the jury who Bill was?
A. Bill was a man I was involved with prior to Rob in Florida and he was a Merchant Marine and he was in -- in terrible accident and the barge capsized and sunk and he had died.
Q. Had you talked about Bill to the Defendant before?
A. Yes, I had.
Q. What was your reaction when the Defendant said those things to you?
A. I was very upset and I was pleading with him, no, please, please don't do that.  I don't remember my exact words but I was pleading with him to please not [121] to harm Katelyn.
Q. How did that phone call end?
A. He abruptly said he had to go.  He'd call me back.  He was afraid I was tracing the call and he called back a few minutes later.
Q. Do you remember how much later he called?  How much time passed?
A. It wasn't very long, a few minutes, I think.
Q. How long did that conversation last?  Do you remember?
A. The first conversation?
Q. If you remember, yeah, the first conversation with the Defendant on the telephone.
A. Maybe 10-15 minutes.  Not very long.  It might not even have been that long.
Q. Defendant calls back, this would be his second call.
A. Yes.
Q. What did he say?
A. He said that he was going to give me a chance to get Katelyn.  That he wanted me to meet him at the Tri State Mall, at Kmart and no police, do I swear to him, no police, and I agreed to meet with him and the phone call ended.  [122]
Q. What was your agreement?  What was the agreement you made with him?
A. The agreement was that I would meet him at the Kmart.
Q. Did you set a time to meet?
A. Within the next few minutes, it was supposed to have been right after that.
Q. How far did you live from the Tri State Mall and Kmart?
A. Ten minutes, 5 to 10 minutes.  It's roughly about a mile from my house.
Q. What did you do after you hung up?
A. I called the police.  I told them and they informed me or told me not to get in the car with him alone.  They, I believe they had gone to the Kmart and I got another call from Rob shortly after and he was pretty irate that I told -- he told me not to tell the police and I see all these unmarked cars here.  You lied to me ...
Q. Now, Jennifer, did you actually go down to the Tri State Mall?
A. No, I didn't.
Q. You called the police.
A. Yes.
Q. And the police told you not to go?  [123]
A. The police told me not to go.  They told me to stay there and not to get in the car with him.
Q. So, the Defendant called you back.
A. Yes.
Q. And tell the jury what the Defendant said.  What were his words?
A. He said that, I told you not to call the police.  I told you to meet me with no police.  You said that you were going to come meet me alone. And that's about all I think I remember, and then it was another call.
Q. Okay.
A. They were very short.
Q. And he hung up at that point.
A. He, yeah, he said that he seen unmarked cars there.
Q. Now, did you see the Defendant shortly thereafter?
A. Yes.
Q. Describe to the jury what you saw?
A. He called me again and said that he would -- he wanted to give me another chance and that he wanted Michele Lupi, the person who's car he had was getting upset and she wanted to have her car back so he wanted me to get my parents' van and him and Katelyn would go and we [124] would all get into my parents' van and we would drive off and I ...
Q. Now, Jennifer, hold on for a minute.  Who's Michele Lupi?
A. He was -- she was a friend or girlfriend at the time of Rob's ...
Q. Of the Defendant?
A. Yes.
Q. And whose car was the Defendant driving?
A. Michele Lupi's car.
Q. Did he tell you that?
A. Yes, he did.
Q. What did he tell you about Michele Lupi's car?
A. He told me he borrowed, he borrowed the car in the morning and she wanted her -- she was getting mad, she wanted her car back that evening.  She kept on hassling him about it and he wanted to switch.
Q. So, he wanted to return the car to Michele Lupi.
A. Yeah, he said he wanted ...
Q. And what did he want you to do?
A. He wanted me to take my parents' van and to -- for him -- him and Katelyn would get in the van and we would go wherever he wanted.  [125]
Q. Did he say where you were going to go?
A. No.
Q. What did you say to him?
A. I -- I said, okay, I agreed.  I actually proceeded to go outside.  I seen he was outside in the car with Katelyn and Michele Lupi was in the back seat.
Q. So, he's -- he was in that red car that the jury saw in the picture?
A. Yes, he was in that red car.
Q. And where -- were you at your parents' house?
A. Yes, I was.
Q. Where did the car pull up?
A. It pulled up, at one point it was pretty close to the house and actually, I went out, I got into the van and I started to -- I -- because he -- I was trying to play along as he was saying he was going to get in the van, and I got in the van, I started to proceed and he -- he started to go, as I started to get a little closer to the car he started to go further and further away from the house, so I backed the van back up and got out.
Q. And where did he go?
A. He turned the corner and went, I couldn't see him so I -- I don't know.  [126]
Q. How close did you come to that red car?
A. I came a few feet away.  I wasn't very far from it.
Q. Were you able to see into the car?
A. Yes.
Q. What did you see?
A. I seen my daughter sitting in front ...
Q. Where was she sitting?
A. She was sitting in the passenger, at the right side, passenger seat in the front.
Q. She was in the front seat?
A. Yes.
Q. Did she -- was she in a car seat?
A. No, she was sitting on the seat.
Q. Did she have a seatbelt on?
A. I couldn't really tell if she had a seatbelt on.  If, I didn't see one going across this way so I, I don't know.
Q. And you said Michele Lupi was ...
A. She was sitting in the back, the middle of the back seat.
Q. The Defendant drives away.
A. Yes.
Q. What happened next, Jennifer?
A. He called me again.  I believe he, at [127] that point he wanted me to meet him down the street near the Brandywine Apartments we used to live in at a laundromat there.  He was going to give me another chance to, and he said he was going to give Katelyn to me if I would meet him ...
Q. Jennifer, Brandywine Apartments, where are they?
A. They're right over the Delaware/Pennsylvania line, Carpenter Plaza, near Carpenter Plaza.
Q. What's Carpenter Plaza?
A. It's a shopping center, and that's where I met -- he wanted me to meet him.
Q. How far is that from your parents' house?
A. Again, about a mile.
Q. About what time was this?  Do you recall?
A. I think it was close to 6 or 7.
Q. And what exactly did the Defendant want you to do?
A. He wanted me to meet with him.  He said he wanted to talk to me and that he would, you know, give me Katelyn.
Q. Did he give you any other instructions about coming down there?
A. No police, come by myself, no police.  He [128] was always very stern about that.
Q. So, what did you do? What did you say to him?
A. I said I would be there, and I called the police right afterwards.  My cousin's husband and I decided to drive there together.  He -- he was a police officer.  He was not on duty that day, and ...
Q. What's his name?
A. Brian Logue; and they worked it out with the police to -- for him to go with me and he was going to duck down and I was driving so it would look as though I was meeting -- going to meet Rob alone, but ...
Q. So, you -- what car were you driving?
A. My parents' van at the time.
Q. And Brian Logue, who's the husband of your cousin?
A. Yes.
Q. He's an off-duty police officer?
A. Um-hum.
Q. He went with you.
A. Yes.
Q. How about the police?  Do you know what the police were doing?
A. The police were aware of -- of our venture and actually, I passed a police officer on a [129] side street right before I had gotten to the shopping center.
Q. So, you drive to the shopping center.
A. Um-hum, yeah ...
Q. What happened then?
A. ... we drove to the shopping center.  At the time Brian was still sitting up.  We pulled into the driveway or into the parking lot and we didn't see Rob so Brian still didn't duck at this point, but he was parked, Robert was parked right as you would come into the driveway, he was parked right on this side so he actually had seen, he had seen us probably before we had seen him, until we realized ...
Q. Did you ...
A. ... and then I parked ...
Q. Okay.
A. ... on the opposite side.
Q. Was there a point at which you saw the red car?
A. Yes.
Q. When did you see the red car?
A. Just after we had pulled into the parking lot there was a row of cars and in between the row of cars, I seen the red car in between.
Q. Did you see the Defendant?  [130]
A. Yes.
Q. Were you able to see Katelyn at that point?
A. No, I -- I drove past and then I parked on the other side and I -- he kept hollering to me, get in the car, get in the car ...
Q. Okay, hold on for just a minute, Jennifer.
A. Okay.
Q. As you drive past the red car where the Defendant's seated, what's Brian Logue doing?
A. He was still sitting ...
Q. He was still sitting up.
A. ... beside me, yes.
Q. So, you drive past, you go and park.
A. Right.
Q. Then what happens?
A. Then Rob is hollering to me to get in the car, so I got out of the van and I started walking -- running towards the car ...
Q. Towards the red car.
A. ... towards the red car and ...
Q. Where was Brian?
A. Brian was nearly right behind me.  He was starting to come out, I guess, out of the car after me, [131] and every time I would get closer to the car, Rob would inch away further and further until he drove right out of the parking lot, and then Brian went running after the car.  I went back into the van and I drove off to go get Brian.  I noticed that at that time Rob had made a right and Brian had thought he was in the left lane because he had seen another red car in the left lane, and he had gone to that car, and I told Brian that he went right and he got in the car and we drove down and met police down on the way.
Q. Okay, now you, did you ever see Katelyn in the car at any time while you were at Carpenter Plaza?
A. No, I couldn't -- I couldn't honestly see her because he kept inching away as I got closer and closer to the car so I couldn't, I couldn't see her at that point.
Q. And the Defendant, when the Defendant drove off he turned one way?
A. Yes, he turned right.
Q. And ...
A. Well, he turned left and then he turned right onto another road.
Q. And what did Brian do?
A. Brian ran on foot after the car.  [132]
Q. Okay.
A. And I got back into my father's van and drove out of the parking lot.
Q. But the Defendant was gone.
A. Yeah, I seen his car go to the right.
Q. What did you do then, Jennifer?
A. I told Brian to -- Brian got back in the car and we proceeded to go up Route 202 to try and find Rob, try and follow him but I didn't see him and then halfway down the road we had met police that were waiting there and I ...
Q. Did you go back -- did you go back to your house, your parents' house?
A. Yes, yes.
Q. What happened when you got back there?
A. I had another call from Rob.
Q. Do you remember what time it was?
A. It was, I believe it was getting fairly late at this point.  I -- I want to say like 8, I'm not positive, but ...
Q. The Defendant calls after you return from Carpenter Plaza.
A. Right.
Q. What did he say?
A. He said, I told you, you know, he was [133] furious again that I ...
Q. Tell the jury what he said.  What were his words?
A. I told you not to, you know, to come alone.  I don't know who that person was and he said he would give me another chance.  Will I swear on my daughter's life, I said, yes ...
Q. What did he want you to do?
A. I believe actually the call before that he had me swear that I wouldn't bring the police, that I swear on my daughter's life that I wouldn't bring the police to him.  That was actually before, before I had gone with Brian.
Q. Before you went to Carpenter Plaza.
A. Right, and then when he called back after the fact, that's when he was furious that I had someone else in the car.  I swore on my daughter's life.  And he was -- he was mad.  He said that was the last time I would talk to him.
Q. What did he say he was going to do?
A. I don't -- I don't remember that he said.
Q. Did he tell you -- did he give you any instructions or tell you anything more?
A. No, actually, he had spoke to Detective Reardon [ph], I believe, or at one point he had talked [134] to -- and they were making arrangements.  He was going to drop Katelyn off that -- that night.  I think it was close to nine o'clock, around nine o'clock when I -- we last -- I last talked to him, and then Detective Reardon spoke with him to make arrangements for him to come, he was -- and we waited until 2 in the morning for him to bring Katelyn like he said he was.
Q. So, so, the last time you heard from the Defendant was around nine o'clock.
A. Yes.
Q. And you were, after that you were waiting and hoping he returned?
A. Yes.
Q. And you and Detective Reardon waited until when?
A. Two o'clock in the morning.
Q. And the Defendant didn't return.
A. No.
Q. Jennifer, I show you what's been marked as Commonwealth's Exhibit C34, would you step down?
A. Yeah.
Q. Would you just take a look at that?  Do you recognize this?
A. Yes.
Q. What is this?  [135]
A. This is Katelyn's diaper bag that I packed every day before I took her to daycare.
Q. Okay, tell the jury what's inside.
A. These are medicines, just like regular cough medicine, Motrin, Tylenol ...
Q. What else?  What else is inside?
A. Diapers, a change of clothing, her allergy medicine, Trigestin, sunscreen ...
Q. Did Katelyn have allergies?
A. Yes, she did.
Q. What were her allergies?
A. She had watery eyes, red -- coughing, sneezing ...
Q. When did you pack this diaper bag?
A. The morning ...
Q. Of August the 10th?
A. Yes.
Q. When you dropped Katelyn off at the baby-sitter ...
A. Yes.
Q. ... what did you do with this bag?
A. I gave, I left it with Sheila.
Q. And when -- did you find out afterwards, after the Defendant had taken Katelyn, where this bag was?  [136]
A. I found out that it was still at Sheila's ...
Q. Were these things that -- were these things that Katelyn needed during the day?
A. Yes.
Q. Katelyn was obviously in diapers?  You can take your seat.
A. Yes, she was.
Q. Describe for us, please, Jennifer, Katelyn's daily routine.  What kind of attention did she need, physical things did she need during the day?
A. She needed a diaper change ...
Q. How often did she need her diaper changed?
A. Oh, goodness, well, I'd say by the afternoon, a good 6 times or so, I mean ...
Q. Jennifer, let's say ...
A. ... maybe less. I ...
Q. Let's say between the time that the Defendant leaves the Wawa at eleven o'clock in the morning, and the time that you last speak to him ...
A. Um-hum.
Q. ... how often would Katelyn need her diaper changed?
A. I would say close to five or six times at [137] least.
Q. How about feeding Katelyn, how often did Katelyn need to be fed during the day?
A. Katelyn loved to eat so, Katelyn, she definitely had 3 meals a day and then some.
Q. Would she drink from a bottle?
A. She, actually, I used to fill the bottles just so they wouldn't spill and then she would drink from the cup.  The only time she would drink from the bottle still was at night.  She -- it was hard to break her of that.
Q. What was Katelyn's reaction if she wasn't fed on time?
A. She'd get very irritable.
Q. Did Katelyn sleep during the day?
A. She took a nap, yes.
Q. When would she take her nap?
A. Most of the time between 2 and 3.
Q. Between 2 and 3 in the afternoon?
A. Yeah.
Q. She would sleep for an hour?
A. Yeah, usually about that, sometimes longer.
Q. What would her -- what would her reaction be if she didn't have a nap?  [138]
A. Again, she would be very fussy, very irritable and ...
Q. What time did she go to bed?  What was her regular bedtime?
A. She -- sometimes, she went to bed close to around, 9, between 9 and sometimes she did, it was a little later, sometimes 10.
Q. When you would pick her up from Sheila's and, from the baby-sitters, and bring her home, what would you do?  She'd take her nap?
A. No, she would have already taken her nap at Sheila's.  We would come home and I would fix her dinner.
Q. And then after dinner what would she do?
A. Play, play ...
Q. Until it was bedtime.
A. Yes, go outside or something.
Q. Now, Jennifer, you -- did you go to bed about 2 a.m.?
A. Yeah, I was ...
Q. You said you waited until 2 a.m.
A. Waited until 2 in the morning and Detective Reardon had to me at that point to get some sleep, so I ...
Q. And were you able to sleep that night?  [139]
A. Not very much.  It took me a long time to fall asleep, then I did eventually, but ...
Q. Now, that was 2 a.m.  That actually would have been August the 11th, would have been into the following day.
A. Yes.
Q. By that point.
A. Um-hum.
Q. What happened after you got up?  Did you have any further contact with the Defendant once you got up on the eleventh?
A. He called, again, about 10 or 11 in the morning ...
Q. What did he tell you?  Tell the jury, please, what his words were.
A. He said that he had given Katelyn -- he had given Katelyn to a lady who -- who had lost a baby and she was really happy to have Katelyn. She -- he said, she's fine.  She's in a better place.  I don't have to worry about her anymore.  She's -- she's okay.  And that was the first ...
Q. Did the Defendant tell you anything about your ability to see Katelyn?
A. He said to me that I swore against -- I swore on her life last night, but he was going to give [140] me another chance if I would meet him again today, I believe at that time he wanted me to meet him at the Chichester High School, and he would give me another chance and he would take me where Katelyn is.
Q. Did you follow-up?  Did you have a further conversation with him about that?
A. Yeah, I told him that I would go, I would meet him there and again, I called the police and they informed me not to -- not to go.  He called back after that, furious because I'd been taking too long, and then he showed up on the street again.
Q. Do you remember what time it was that he showed up on the street?
A. No, actually, before that he -- he ...
Q. Go ahead.
A. ... he called, I'm sorry, I just remembered.
Q. Go ahead.
A. He had made another call for me to -- he wanted me to run outside my apartment, run down the street and he would pick me up on the -- on Meetinghouse Road and he would give me a chance, then he would take me to Katelyn.  Then I -- actually, at that time my brother and my father had seen him on the street and we were still waiting for the police to look them him so [141] they proceeded on their way to try and get him and I was very upset to be in the house with just me and my mother and I then proceeded to go across the street to the neighbor's house and call the police and told them I wasn't going back into the house until they had the detective back there again.  And then shortly after, Detective Reardon came to the residence to surveillance.
Q. Did your father and your brother get involved in this at one point?
A. Yes.
Q. Explain to the jury what happened.
A. My father and brother went after him to try and get him.  I don't know, obviously, they didn't.  I really honestly don't know that many details as far as that because I had gone over to the neighbor's.
Q. Okay, did -- you had received a call from the Defendant, is that right?
A. Yes, after I had gone back to the house after Detective Reardon ...
Q. And what did the Defendant say he was going to do?
A. Then he said he was going to give me another chance.  He wanted me to come out -- meet him again at the school, and I didn't go out fast enough and then I heard a car beep, and I went outside on the foyer [142] and he was down in front of the house.
Q. What did you see?
A. I seen Rob in the red car and he was yelling to me to get in the car now, get in the car.
Q. What did he say?
A. To get in the car now, just get in the car.
Q. Where was Katelyn?
A. She was not in the car.  I don't know where she was.
Q. But he wanted you to get in the car.
A. Yes.
Q. What did you do?
A. At the time Detective Reardon was inside the house and he wanted me to keep him there as best I could while he had gotten back outside, so I just stood on the porch trying to stall him and after a few minutes he got tired of waiting and started to go speed away and then the police did blockade the road.
Q. And he was arrested?
A. Yes.
Q. That was just down the street from you?
A. Yes, it was.
Q. Okay, Jennifer, I want to hand you what's been marked as Commonwealth's Exhibit C35.  [143]
A. Okay.
Q. Would you just, there are multiple pages to that document, would you just flip through there and tell me if you recognize that?
A. Yes, I do.
Q. Would you tell the jury what that is?
A. This was my interview with Donna Cabby [ph] from the FBI from my starting of the relationship when I first met Robert, all the way through most of the incidents I can remember, and all the way until the ...
Q. Okay, so, what's in here is the FBI's summary of the interview -- of their interview with you.
A. Yes.
Q. Is that right?
A. Correct.
Q. Now, Jennifer, I want to direct your attention to the last page of this document, page 12, and I want you to read the first full paragraph there at the time and then I want to ask you, does that refresh your recollection about the first call on the morning of August the 11th?
A. "The following ..."
Q. Okay, no, just ...
A. Okay.
Q. ... read it to yourself.  [144]
A. I'm sorry.  Yeah, yes, I do remember.
Q. Okay, do you remember now the Defendant's first call on ...
A. Yes.
Q. ... on August the 11th?
A. Yes.
Q. And that call occurred at about 10:30 a.m.
A. Yes.
Q. Is that right?
A. Yes.
Q. Tell the jury what the Defendant told you on that first call.
A. He told me that Katelyn was fine.  That she was in a safe place.  That I would never find her and that he would take her whereabouts to the grave, to his grave.
Q. Jennifer, the words in C35 on page 12, they said, "He told Helton it is most likely she would never see Katelyn again, and that he would take her whereabouts to the grave."  Was it that you would never see Katelyn again or that you wouldn't find her?  Do you remember what his words were?
A. I'm pretty sure that it was that I wouldn't see her again.  [145]
Q. You wouldn't see Katelyn again.
A. Yeah, I mean when I did that my memory was much more -- I remembered much more clearer than probably now.
Q. This interview occurred on August the 12 of 1999, is that right?
A. Yes, yes.
Q. That was the day following ...
A. Correct.
Q. ... him speaking those words to you.
A. Yes.

Mr. Reilly:  That's all, Your Honor.

The Court:  Mr. Smith?

Mr. Smith:  Thank you, Your Honor.

CROSS-EXAMINATION

By Mr. Smith:
Q. Ms. Helton, when you were pregnant with Katelyn did you take Lamaze classes?
A. Yes.
Q. Did Robert go to all the classes?  [146]
A. Yes, most, yes.
Q. Okay, but he went with you to all the classes, right?
A. Yes.
Q. And, in fact, weren't there extra classes that -- for prospective parents to take?
A. Yes, like parenting type ...
Q. And didn't you both take the extra classes?
A. Um-hum.
Q. And wasn't that because one of the reasons was that Robert suggested he wanted to take those extra classes?  He wanted to do more?
A. Yes.
Q. All right, and ...

Mr. Reilly:
If I could just interrupt you for a minute.  Your Honor, I have no further questions of Miss Helton at this time.  I've indicated to Mr. Smith I would be recalling Miss Helton at the end of our case and that's with his agreement.  I just wanted that to be clear to the Court.

Mr. Smith:  [147]
I understand that they're reserving their right to call her for additional testimony about other matters later.

The Court:  Okay.

Mr. Smith:  No objection to that.

Mr. Reilly:  Thank you.

Mr. Smith:  And I'll reserve my cross-examination only to the subjects agreed.

By Mr. Smith:
Q. I'm sorry, Miss Helton, I don't know if we were in the middle of a question or an answer to let me just go back to that.  I -- I was just touching on the Lamaze classes.  You took the extra classes and one of the reasons that I asked you the question, Rob was one of the people -- Rob suggested, let's take these extra classes.
A. I honestly don't know that he was the one who suggested it.  I wanted to take them as well.  I think it was something we both agreed on together.
Q. So, you both wanted to take the extra [148] classes.
A. Yes.
Q. And you took those classes.
A. Yes.
Q. And when Katelyn was born, who cut the umbilical cord?
A. Robert.
Q. All right, and he took a lot of pictures there didn't he?
A. Yes, he did.
Q. And he was pretty excited about having a baby girl wasn't he?
A. Um-hum.
Q. And, in fact, it was sort of -- he was taking too many pictures.  He was kind of getting in the way wasn't he?
A. Um-hum.
Q. They asked him ...
A. Yes.
Q. ... to stop jumping around taking all these pictures and just kind of back off a bit, right?
A. Yes, I think so.
Q. But then he got to cut the umbilical cord didn't he?
A. Yes.  [149]
Q. And who dressed her?  Who was the first person to dress her after she was -- wasn't it Rob?
A. I think so.  I wasn't in very good condition right after that.
Q. And when -- when Katelyn came home she was -- well, during your pregnancy, let's go back to the pregnancy, you went to the doctor during all the pregnancy, all the usual prenatal visits, all that sort of stuff.
A. Yes.
Q. Rob went with you on those visits didn't he?
A. To most of them, yes.
Q. Most of them or all of them?
A. I don't know all of them.
Q. Do you remember ...
A. The majority.
Q. ... any specifically that he missed?
A. No, not really.
Q. So, if it -- if it wasn't all of them it was darn close to it though, right?
A. Yes.
Q. And he was enthusiastic about it, is that a good way to describe it?  He was excited about having a baby, right?  [150]
A. Yes.
Q. He wanted to have this baby didn't he?
A. Um-hum.
Q. He was excited about being her dad, right?
A. Yes, I guess so.
Q. And after Katelyn was born you took her a lot of places together, right?  You remember going to
Salenville [ph] Orchards with her when she was little?
A. Yeah, but we took her there mostly when she was a little older than early on.  We didn't go right ...
Q. Okay, but when she was a little older you took her there, right?
A. Yes.
Q. Rob went on all those visits.
A. Yes.
Q. And when she was sick when she went to the doctor did Rob go on the visits to the doctor?
A. He didn't go to all the visits but he went to a good bit, yes.
Q. So, if I said he went to most of them, more than half of them, that a fair statement?
A. Probably so.
Q. I'm sorry?  [151]
A. Probably so, yes.
Q. And he went -- he went willingly.  I said before, he was enthusiastic ...
A. Um-hum.
Q. ... I don't know if you can be enthusiastic about going to the doctor but he -- he wanted to go, is that a fair statement to make?
A. Right.
Q. He wanted to be part of what was going on with Katelyn, didn't he?
A. Yeah.
Q. Okay, now, did Rob ever feed her, take care of her?  Clothe here?
A. Well, when I would leave Katelyn alone with Rob, I would literally set everything out for Katelyn and I -- I honestly don't know what she would eat because when I would come home quite a few times, the food would still be in the refrigerator and he would say that she wasn't hungry and I honestly don't know because I wasn't there.
Q. But you continued to leave her with him and he, during the time he had Katelyn he had to change her diapers, you know, those sort of things, right?
A. Right.
Q. Now, you mentioned earlier, for example, [152] there were things in the house like handy wipes and diapers and stuff, wasn't Rob sort of fastidious about always having handy wipes around in the house?
A. Yes.
Q. That was one of the things that he was, like a personal quirk of his, having the handy wipes around to take care of the baby, keep her clean, you know ...
A. He had a very big fetish with cleaning, yes.
Q. But he wanted ...
A. And, I'm sorry, germ -- germ-type, you know, anything like that, yes.
Q. Right, and he used those -- those handy wipe things for cleaning the baby and things, too, keep her hands clean, keep her face clean, all ...
A. Right, yes.
Q. Did he participate in buying clothes and, you know, going shopping for her?  Doing that sort of stuff?
A. When he had these jobs that he had, when he had the money, yes, but he wasn't working on an ongoing basis so ...
Q. Did Rob ever go and buy diapers and things for her?  [153]
A. Yes, we both went together.
Q. So, he on the day that he took out of the daycare, for example, he knew -- he knew what kind of diapers she wore didn't he?  He'd put diapers on her before.
A. I imagine.
Q. So, he could go and buy more of them couldn't he?
A. I don't know.
Q. You don't know that he could go buy more diapers?
A. Well, I don't know that he did.  I don't know what ...
Q. You don't know that he did but you know that he could.
A. Um-hum.
Q. And he knew enough about her to know what kind of diapers to buy, say, if he would buy diapers to put on her, right?
A. Right.
Q. He could do that, because he bought them before.
A. Um-hum.
Q. Bought the handy wipes before.
A. Right.  [154]
Q. Went to, like that little bag that was there at the daycare place, those cough syrups and things that you kept in there, that was stuff that you kept in there fairly regularly, wasn't it?
A. Yes.
Q. And Rob knew that stuff was in there didn't he?
A. He knew it was in there but it's not something he would go in and look at to know where and what to buy.  I was the one that took care of the medicine.
Q. He knew -- he knew what the medicines were that were in there.  He knew there was cough syrup in there didn't he?
A. I guess so.  I -- I don't honestly know that he knew all of, as far as the medicines.
Q. Who was it that took -- who was it that took Katelyn to daycare, did Rob participate in taking Katelyn to daycare?
A. When I was working the part-time job, a few times he would take her in the morning because it was easier with me working and he would take her since he wasn't working.
Q. How many times would you say he took her to daycare?  [155]
A. Maybe ten.
Q. Total?
A. Yeah.
Q. Wasn't it more like half the time ...
A. No.
Q. ... that she went there Rob took her?
A. I don't -- I don't think that it was more like half, no.
Q. So, you don't think it was more than half?
A. No, I don't believe so.
Q. Do you think it was about half?
A. Not quite, maybe.
Q. Not quite, maybe.
A. Yeah.
Q. So, that's more than 10 times though isn't it?
A. I don't have an exact number.  I really don't.
Q. She went to daycare more than 20 times, right?
A. Right.
Q. How often did she go to daycare?
A. She went just about, most -- most of the time when I was at work, she went during the week.  We [156] had to keep her there regularly during the week.
Q. Now, you said back in the beginning when you first met Rob that he seemed okay at first and then some family issues arose between your family and Rob, right?
A. Yes.
Q. Your family didn't like Rob did they?
A. Rob was very disrespectful to my family and that's why they did not care for him.
Q. Did they like his ethnic background?
A. I don't ...

Mr. Reilly:  Objection, Your Honor, to the ...

By Mr. Smith:
Q. Did they like his background?

The Court:  If they said something.

The Witness:  They did not say anything, so I ...

By Mr. Smith:
Q. They never said anything.  [157]
A. No, not, no.
Q. Not to you, not to Rob.
A. No.
Q. You're sure about that.
A. Yeah, I don't recall it, no.
Q. Well, there's a difference between not recalling it and it being positive it didn't happen, so I'm just trying to see if there's a difference in your mind.  Like, is it something you say it absolutely didn't happen?  Or are you saying it may have happened, I just don't remember it?
A. I don't remember it, no.
Q. On the day when -- the day when this trash bag full of stuff, you said that it lasted about an hour to an hour and a half, maybe 2 hours, I believe was your testimony on direct, right?  And during the time is that when Rob was cutting things up?  What was he doing in that hour, hour and a half to 2 hours?
A. Yeah, he was cutting stuff up.
Q. Okay, and is all the stuff he cut up in this bag?
A. Yes, well, I don't -- I mean I don't he was cutting things up but I recognize this stuff.  I don't know what you're saying so ...
Q. What I'm trying to get to is what was he [158] cutting up that's not in this bag?  What did he cut up that day?  You said he cut up shoes and you showed shoes and things in here.
A. Right.
Q. Several shoes that you said you can see where they're cut in a couple of places, right, and then you showed this big hair towel and a blue top, and you said he cut those things, right?
A. Um-hum.  Some -- some of the stuff in the bag he had cut prior to when I was there.  He had told me that all night, that's all he did was destroy all of my things and cut them up.
Q. Okay, so -- so, for this -- this time that you were there when you came into the house and he was angry at you ...
A. Right.
Q. ... he was cutting things up and putting them in this bag.
A. When I first arrived there, no, he didn't -- he wasn't -- he had given me the bag that he had left of the things that were still intact.
Q. And then he told you that he had cut some things up.
A. He told me he had cut all ...
Q. All ...  [159]
A. ... all of my belongings, all of my clothes, he destroyed all of that stuff.
Q. All night long.
A. Yes.
Q. And then he cut things later on during the time you were there.
A. Yes, yes.
Q. And all that stuff's in this bag.
A. Yes, my shirt, he made me take off my clothes, they're in there.
Q. Now, Rob was angry that day and you were having an argument, right?
A. Yeah, I was asking him why he was doing ...
Q. And you said, I believe, why are you doing this to me, because you said all I ever did was love him, right?
A. Right.
Q. Wasn't he angry because you were going to go out and do some things that he didn't want you to do?
A. No, I don't recall that.
Q. You weren't going to do any -- any modeling or posing or anything like that that was bothering him and had him upset?
A. No.  [160]
Q. You weren't doing any of that.
A. No.
Q. So, that ...
A. Not at that time, no.
Q. No.  Wasn't that one of the reasons that your relationship with Rob had a stormy part to it? That you were -- you were doing those things ...
A. No.
Q. ... that you, obviously, earning money, you know, but just doing those things but he was unhappy about it.
A. No, he wasn't.  He never ever voiced that to me.
Q. Okay, but does that mean you were doing them and he wasn't unhappy with it or you weren't doing them?
A. I -- I don't know, he ...
Q. You -- you were ...
A. I don't know what you mean.
Q. You were like an artist's model, I think at one point.
A. Yes.
Q. You got paid for that.
A. Right.
Q. And he never told you that he was unhappy [161] about that.
A. No, he didn't.
Q. Okay, and did he ever say to you that there were things that you were doing like that that made him unhappy?
A. No.
Q. And you said, for example, there was, I believe you said there was one occasion when he went out and stayed out all night or something.
A. Yes.
Q. Were you angry with him when he came home that time?  For being out all night?
A. I told him, please do not do that to me again because I sit home worry, wondering, not knowing where he is, what happened to him, if he's dead or alive.  You know, if something happened to Katelyn I have no way of reaching him.  I asked him not to do that to me, please.
Q. Did you ever ...
A. Yes, I was a little upset.
Q. Did you ever, when you were angry at him, did you ever hit him?
A. No, never.
Q. Never hit him.
A. I was afraid to ever lay a hand on him.  [162]
Q. So, you never hit him when you were angry at him.
A. No.
Q. Did you ever threaten him when you were angry at him that you were going to take Katelyn away from him and he'd never see her again?
A. No, I never did that.
Q. Never said that to him.
A. No, never.
Q. So, then the things that he was angry with you about that day, you're saying to him, why are you doing this to me because you have no idea why he's unhappy and he's never voiced any of these things to you that we've just -- that I've just asked you about.
A. No.
Q. Okay, now, when you said you met in, it was September of 1996?
A. Um-hum, correct.
Q. Would that have been September the 15th watching Monday night football at Barnaby's?  Is that when that was?
A. Yes, I believe so.
Q. And then you had, I believe you said you had a miscarriage shortly after you started living together, right?  [163]
A. Yes, correct.
Q. And was Robert upset about that?
A. Yes.
Q. What was he upset about?
A. He was upset that I had it, but then also because when we were at the hospital I recall that, with the problems he was having with my family, he was -- he told me he was going to leave and go back to New York and leave me.
Q. Did you buy -- did you buy Robert a wedding ring around that time?
A. Around that time?
Q. Like -- I'll make ...
A. No.
Q. ... it easier, did you buy him a wedding ring?
A. Yes, later.
Q. And you wanted him to wear the wedding ring, right?
A. Yes, sometimes.
Q. You wanted him to wear it even without going through the marriage ceremony part, right?
A. No, he had brought that up about wearing it and he would only wear it as if -- if it was a good night, if I was -- I don't know how to explain it but if [164] things were going good between us, in his eyes, that night.  Other times he would hide my engagement ring from me.
Q. Remember when, after Katelyn was born, do you remember how much Katelyn weighed when she was born?
A. I'm sorry?
Q. Do you remember how much Katelyn weighed when she was born?
A. When she was born?
Q. Do you remember ...
A. Six pounds, 7 ounces.
Q. And after that she was -- she was sick after she was born, right?
A. Yes.
Q. And one of the things that the doctor said was they wanted -- they wanted to make sure that she was eating properly, right?  You know, see what kind of food, she was drinking bottles and all that?
A. She was -- she had a problem with constipation, being colicky so we had to change different formulas a lot.
Q. And didn't Robert keep track of the times she drank her bottles and the times she had her food, and the amount she had?
A. I don't recall that, no.  [165]
Q. You don't remember?  Are you saying it didn't happen ...
A. No, I don't ...
Q. ... again, same question, it didn't happen or you don't remember if it did or ...
A. No, it didn't happen.
Q. It didn't happen.
A. No.
Q. So, he didn't keep track of the food or the amount or the time or anything like that.
A. No, I ...
Q. He didn't come up with that idea to ...
A. No, I was -- I fed her every 4 hours or when it was, you know, needed to ...
Q. And then on this Easter, when this episode occurred when he was angry with you and hitting you and things, that was the day you were supposed to go to Tom and Sissy Whittaker's, right?
A. Yes.
Q. And, in fact, you went to Tom and Sissy Whittaker's that day, right?
A. Yes, we did.
Q. And that was Easter Sunday.
A. Um-hum.
Q. Katelyn had an Easter basket and [166] things ...
A. Yes.
Q. Were there ever times that you would be out until 4 or 5 in the morning and Rob would be home with Katelyn?
A. No, I know of one time I actually worked as a coat girl, I worked at, I can't even think, until 3 in the morning, one night and he stayed home ...
Q. Was that the R & S Club?
A. Yes, the R & S Club.
Q. And Rob was home with Katelyn then, right?
A. Yes.
Q. And when you got home everything was fine with Katelyn wasn't it?
A. Sure, Katelyn was more than like -- most of the time, slept through the night.  I was home shortly around 3:30, at the latest four o'clock, and she was still sleeping.
Q. When -- when this Protection from Abuse Order was first entered you went to Court with Rob, going back to that time in 1999, could Rob read and write at that time?
A. He had a hard time reading and writing at the time, yes.  [167]
Q. So, this -- this PFA Order that was entered, he signed off on that Order didn't he?
A. He signed off on it.
Q. In other words, when you came to Court on that, you went and got a temporary Order, then it came to Court and when it came to Court in Media, I believe that day was the 5th of August, was that the day you came to Court?
A. Um-hum, yes, that's the day.
Q. He came to Court that day and he -- he -- you didn't have to put on testimony, he signed off on the Order, right?
A. No, the attorney explained to him what was, exactly what was going on and he signed it, yes.
Q. But before, without any testimony being presented ...
A. No, correct.
Q. ... he signed off on the order and you signed off on the Order.  He ...
A. Right.
Q. ... he agreed and signed off.  Did you ever tell Rob when you were angry at him that he -- that he would never see Katelyn again?
A. No, I never ever threatened him.
Q. After you got the Protection from Abuse [168] Order did you ever tell Rob he'd never see Katelyn again?
A. No, I didn't.  I actually, I made a point to give him supervised visits because I didn't want to keep Katelyn out of his life but I wanted to protect Katelyn.
Q. And then he had one visit with Katelyn after the Order was entered, right?
A. Yes.
Q. One supervised visit.
A. He, yes, he, yes.
Q. And you never told him after that, that that was the only visit he was going to get.
A. No, he was -- he was aware that that following Thursday, before the Wawa, right after the incident, that he was to meet with her that Thursday and she was taken before that ever happened.  He was aware of that.
Q. And then the day that he took her out of the daycare, now, how many -- how many children were at this daycare on a regular basis?
A. I think five or six.
Q. Do you know?
A. I'm not -- I mean I can probably sit here and count.  [169]
Q. Well, you said you dropped her off, sort of -- but most of the time you took her there, so ...
A. Right.
Q. ... how many kids were there?
A. There was usually between four and five but they weren't all -- all the kids weren't always there when I took Katelyn there.  Some of them may have come afterwards.
Q. Did you ever talk to Sheila Clendening, that's the lady that ran the daycare, right?
A. Yes.
Q. Did you ever talk to her about how many kids were there?
A. I did talk to her and I believe that her limit was six.
Q. When you say "her limit", what do you mean her limit?
A. I believe she was -- may have only been licensed to provide for 6 children at one time.
Q. So, that was the maximum number she could have was six.
A. Yes, I believe so, something like that.
Q. Isn't it a fact that she actually had a lot more than 6 kids?
A. I don't believe so.  I believe she ...  [170]

Mr. Reilly:  Objection to relevance, Your Honor.

Mr. Smith:  Your Honor, I'm going to get to that with the next question.

The Court:  All right.

By Mr. Smith:
Q. Isn't -- isn't it so that one of the areas of disagreement between you and Rob was taking Katelyn to Sheila Clendening's daycare because there were too many kids there and that she, in fact, was only supposed to have a small number of kids when she really had twice that number?
A. No, I don't recall that.
Q. You never had any disagreements about that.
A. No, we did not.
Q. He never raised that as an issue with you.
A. No.
Q. He never said, this is bothering me that, you know, we're spending so much time at this daycare [171] and there's too many kids there and they're not being cared for properly?
A. No.
Q. He never complained to you that Katelyn wasn't getting the kind of care that he thought she should get at Sheila Clendening's daycare?
A. No.
Q. That she was being neglected.
A. Um-um, not at all.
Q. Or that she sat around in a dirty diaper.
A. No, not at all.
Q. Never complained about any of that to you?
A. No.
Q. Didn't happen.
A. Did not happen.
Q. You're positive.
A. I'm absolutely positive.
Q. Did -- did Rob ever complain to you that Katelyn wasn't getting the kind of care she should get at the daycare because other -- other kids were, you know, being able to go up to Katelyn and, for example, on one occasion one little boy there actually bit her?  Do you remember that?
A. Yes, I remember when the little boy bit [172] her.
Q. Okay, and didn't Rob complain to you that when the little boy bit her that he was unhappy about Katelyn being in that daycare?
A. He was mad that the little boy bit Katelyn but I don't recall him saying, no, he was unhappy that she was there because of that, no.
Q. He took her to the doctor after she got bit there.
A. No.
Q. She didn't go to the doctor.
A. No.
Q. You never took her to the doctor after daycare -- Rob complained about either, you know, what was going on at the daycare or any of the things that were happening ...
A. The only thing that I recall Rob ever saying was about kids being sick at the daycare.
Q. So he did complain about kids being sick, right?
A. What, I'm sorry?
Q. He complained about kids being sick at the daycare.
A. Yes.
Q. And in addition to complaining ...  [173]
A. I'm sorry, he complained that Katelyn was sick a lot at the daycare and he blamed it on her being at the daycare.
Q. And how about the fact that didn't Rob complain to you that other kids, for example, would take things that they had or their food or their toys or whatever, and either put them in Katelyn's mouth or-hand them to her, you know, be able to do things that were unsupervised?
A. No.
Q. Never complained ...
A. No.
Q. ... to you about that?
A. No.
Q. You're sure.
A. I'm sure.
Q. Miss Helton?
A. Um-hum.
Q. Did Rob ever beat or strike Katelyn?
A. Yes.
Q. He did?
A. Rob spanked Katelyn's behind because she wouldn't go to sleep, and I -- I said something to Rob about that because I didn't think it was appropriate and he raised his hands to me and told me never to intervene [174] with him in disciplining Katelyn.
Q. When was that?
A. This was when, actually the summer before this had happened, she was still close to 18-19 months.
Q. I'm sorry?
A. She was around 18 to 19 months at the time.  It was along the summer, that summer ...
Q. So, it was the summer of '99.
A. .. yes.
Q. She was about 18 months.
A. Um-hum.
Q. And you say he spanked her on the behind?
A. Yes, he did.
Q. How many times?  Did he hit her one time?
A. Once to twice, I'm not -- no more than two, but ...
Q. Once or twice ...
A. Yes.
Q. ... he spanked -- how did he -- like was it an open-hand spank ...
A. Yes, yes.
Q. ... on the diaper?
A. Um-hum.
Q. Did you ever spank or hit Katelyn?
A. One time yes, I do remember.  She was [175] pulling the neighbor -- Sissy Whittaker's little girl, she was pulling her hair and she wouldn't let her go so I spanked her on the bottom.
Q. And that's the only time you ever did that.
A. Yes.
Q. You're positive.
A. Yes, because Rob used to -- he used to get on me because I don't discipline Katelyn enough.  He used to always come to me -- holler at me because of that.
Q. The one time that Rob spanked Katelyn once or twice ...
A. Yes.
Q. ... on the diaper, did she cry?
A. Yes, she was crying to begin with.  She didn't want to sleep.
Q. She was crying before he spanked her.
A. Yes, she wouldn't sleep.
Q. And how about the time you spanked her at Whittaker's?
A. She was playing with Victoria, her name was, little Victoria, and they were -- they had -- we were over at their house, the neighbor's house, and I was in the room with Katelyn and Victoria, and they were [176] playing on this little horse.  Katelyn had had her turn.  Victoria had got on -- wanted to get on the horse and Katelyn was pulling Victoria's hair because she didn't want her to -- so, I spanked her on the bottom because she ...
Q. Like same thing, once or twice?
A. Yes, only once.  Once.
Q. Spank on the diaper.
A. One, yes.
Q. Right, is that the only time you ever physically disciplined Katelyn?
A. Yes.
Q. And is that the only time Rob ever physically disciplined Katelyn?
A. Other than yelling, yes.
Q. Well, physically disciplining ...
A. Physically, yes.
Q. Yelling is yelling and physical discipline ...
A. Right.
Q. ... is, you know, hitting the kid, right?
A. Yes.
Q. So, one time and one time.
A. There may, I know the time -- only times were at night when she was crying.  I know of one [177] definite incident.  There may have been another -- at night because a few times we had problems with her sleeping and he would get very, very mad.
Q. Well, do you know about it or don't you?  Did he do it or didn't he?
A. I -- I know of one incident for sure ...
Q. And you told us about that.
A. ... because I told you, I got upset about it and I approached him.
Q. Okay, and that was when she was about 18 months old.
A. Yes.
Q. And was Rob there at the time that you disciplined Katelyn?
A. Rob was there but he was in the other room playing or with Tom Whittaker doing other things.
Q. So, he didn't see that.
A. No, I had the door closed.

Mr. Smith:  That's all the questions we have, Your Honor.  Thank you.

The Court:  Mr. Reilly, redirect?

Mr. Reilly:  [178] No, not until later in the trial, Your Honor.

The Court:  You're excused ...

The Witness:  Thank you.

The Court:
... you're still under oath.  Don't discuss the case with anyone, or your testimony.  All right, we're going to recess for the evening, ladies and gentlemen.  Don't discuss the case.  Don't let anyone discuss it with you.  Don't read anything about it.  Don't watch anything.  Don't listen to anything.  We'll see you back in that room tomorrow morning at 9:30. [179]

[1][2][3]

Proceedings - January 16, 2002

The Court:
This is the case of Commonwealth versus Robert Rivera, number 411 of 2000.  Counsel are you ready to proceed?

Mr. Reilly:  Yes, Your Honor.

Mr. Smith:  Ready, Your Honor.

Mr. Reilly:  The Commonwealth calls Donna Marie Davis.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please.

Ms. Davis:
My first name is Donna Marie and my last name is Davis, D-a-v-i-s.

[Witness sworn]

The Court Clerk:  Be seated, and please speak up.

Donna Marie Davis, [4] having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good morning.
A. Good morning.
Q. Ms. Davis, you are an attorney is that correct?
A. Yes I am.
Q. For how long have you been an attorney?
A. I passed the Bar in November of 2000.
Q. I want to direct your attention back to August of 1999, you weren't an attorney at that time, is that right?
A. I was a student attorney certified by the state of Pennsylvania.
Q. And for whom were you working?
A. The Delaware County Domestic Abuse Project.
Q. Tell the jury what is the Delaware County Domestic Abuse Project?
A. It is an organization that helps abused women in situations.  Usually the woman is unable economically to help herself and she comes there for [5] assistance in abuse cases.
Q. What did you do for the Domestic Abuse Project?
A. I represented abused women and sometimes their children in protection from abuse orders in court hearing and in negotiations for consent agreement.
Q. So even though you weren't a lawyer, you were allowed by the Pennsylvania Supreme Court to appear in Court is that correct?
A. Yes, I was under the supervision of two other attorneys at that time, and that is how I received my certification.
Q. Now do you know Jennifer Helton?
A. Yes I do.
Q. Do you see Jennifer in Court today?
A. I believe she is outside.
Q. How did you come to know Jennifer Helton?
A. Jennifer came to see me at the Domestic Abuse Project.  She had been abused and ...

Mr. Smith: Objection.

The Court: Sustained.  [6]

By Mr. Reilly:
Q. Jennifer came to you.  Where did she meet you, at your office?
A. Yes, at the Office of the Domestic Abuse Project.
Q. And did you attend a hearing with Jennifer?
A. Yes I did.
Q. Did you meet with Jennifer prior to the hearing?
A. Yes I did.
Q. The hearing was held on August 5, 1999?
A. Yes.
Q. Do you recall when you would have met with Jennifer beforehand?
A. I met with Jennifer about two or three days before the actual hearing.
Q. And where did you meet?
A. At the Domestic Abuse Project.
Q. What did you discuss with Jennifer at your office?
A. We discussed her situation, that she had with Mr. Rivera and the incident that had occurred that were abusive.
Q. Did she identify the person who she [7] accused of abusing her?
A. Yes.
Q. And who did she say that way?
A. She said that was Mr. Rivera.
Q. Now on August 5, did you actually see Mr. Rivera in Court?
A. Yes I did.
Q. And do you see him in Court today?
A. Yes I do.
Q. Okay where is he seated?
A. He is seated to my right at the table with the Defense attorney.
Q. When Jennifer came in and met you in your office, did you review the temporary protection from abuse order?
A. Yes.
Q. Ms. Davis this is a file folder, it is marked Commonwealth Exhibit C33 for identification.  I will ask you to take a look at that document which I have taken from inside that folder and see if you recognize it?
A. Yes.  This is the temporary protection from abuse order.
Q. Would you explain to the jury what is a temporary protection from abuse order?  [8]
A. When there is an emergency situation that has happened, and there is an incident of abuse, and the victim is in immediate danger, the Court will put into effect a temporary protection from abuse order, until the victim and the respondent can go to a hearing.  And that is what this is.  This is an order to protect the victim, which was Jennifer, from the perpetrator of the abuse.
Q. Now would you take a look at that temporary protection from abuse order and tell the jury when that was entered?
A. This was entered the 29th day of July 1999.
Q. It was applied for on the 29th day of July, if you would take a look at the time stamp, there is a time stamp, I believe it is on the last page.  Is the temporary protection from abuse order signed by a Judge?
A. Yes.
Q. Which Judge is it signed by?
A. Judge Anne Osborne.
Q. And is Judge Anne Osborne a Judge of the Delaware County Court of Common Pleas?
A. Yes, she is a family law judge.
Q. And is that dated?  [9]
A. Yes it is dated July 30, 1999.
Q. And is there also a time stamp on there indicating that it was filed on July 30?
A. Filed Office of Judicial Support, Delaware County Pennsylvania, July 30, 4:40 p.m. 1999.
Q. What are the conditions of that temporary protection from abuse order?
A. The conditions are that the respondent ...
Q. Who is the respondent?
A. Mr. Rivera in this case will not stalk, harass, abuse, or contact the victim in any way whatsoever and will stay completely away from that person.
Q. And for what term does the temporary protection from abuse order last?
A. It only last until the time of the hearing.
Q. Was there a disposition regarding custody of their minor child in the temporary PFA?
A. I believe that ...

Mr. Smith: Objection.

By Mr. Reilly:  [10]
Q. If you could just take a look at the temporary PFA.  What does the order say with regard to custody?
A. Pending the outcome of the final hearing in this matter, Plaintiff, Jennifer Helton is awarded temporary custody of the following minor child, which is Katelyn Helton Rivera.
Q. Now does that order include a date upon which the permanent protection from abuse order would be heard?
A. I believe it has to be heard ...

Mr. Smith: Objection.

By Mr. Reilly:
Q. If you would just take a look at the first page of the temporary PFA.
A. It will be heard according to this on August 5, 1999.
Q. So you met with Jennifer and you reviewed that document, is that right?
A. Yes.
Q. Did Jennifer express to you what she hopes to accomplish at the permanent PFA hearing?  [11]
A. Yes.
Q. What did she tell you?
A. She hoped to accomplish having no contact whatsoever with Mr. Rivera and also Katelyn also to have no contact with Mr. Rivera, and to obtain full physical and legal custody of Katelyn Rivera.
Q. Was Jennifer willing to allow the Defendant to have visitation?
A. She really wouldn't hear of that, but did discuss having supervised visitation.
Q. So was that your goal and her goal in planning for the hearing on August 5?
A. Yes.
Q. Now, describe for the jury what happens at the protection from abuse hearing on August 5.  Is it held in the morning?
A. Yes.
Q. Where was it held?
A. It was held at the Family Law Building, which is separate from this building.
Q. But it is here in the courthouse complex is that right?
A. Yes.
Q. Did you meet with Jennifer that morning?
A. Yes, we met at 8:30 that morning.
Q. Did you meet here at the courthouse building?  [12]
A. We met inside the courthouse building.
Q. And then you went to the courtroom where the hearing would be heard?
A. We went to the courtroom and then we waited outside until we would be called.  And also until we would see Mr. Rivera.
Q. Did you see Mr. Rivera that morning?
A. Yes.
Q. And did you speak to Mr. Rivera?
A. Yes, at length.
Q. For how long did you speak to Mr. Rivera?
A. I spoke -- Mr. Rivera was not represented, he was pro se.
Q. When you say he is not represented, what do you mean by that?
A. I mean when the person is not represented by another attorney, you are permitted to go speak to that other person.  So that permitted me to go and speak to Mr. Rivera, which turned out to be from 8:30 in the morning until 9:50 that morning.
Q. 8:30 until what?
A. 9:50.
Q. What was the reason that you needed to [13] speak to Mr. Rivera?
A. The hope is in this kind of situation is to have both parties enter into what is called a consent agreement.  Because with a consent agreement you can get a lot of the particulars situated.
Q. What is a consent agreement?
A. A consent agreement is an agreement that is entered into by both parties that has been negotiated by both parties, and both parties are satisfied with all the issues that are written down in the consent agreement, and both parties sign the consent agreement.  Then that goes before the Judge and is turned into a consent order.
Q. And is that what you were negotiating with the Defendant?
A. Yes.
Q. Describe for the jury the discussion that you had with the Defendant regarding the consent agreement?
A. I had a very long discussion with Mr. Rivera about the consent agreement.  About the incident that had ensued that brought us to that point. We spoke about his daughter and ...
Q. What did Mr. Rivera tell you, what were his concerns?  [14]
A. Mr. Rivera would many times go off on tangents and not want to discuss why we were really there.  And I would try to get him back on track, and get him to talk about why we were there and what we were trying to do in the consent agreement.  Why Jennifer was afraid, and why we needed to enter into this agreement and that it was best for all parties involved.  It was in everybody's best interest.
Q. Now you spoke to Mr. Rivera for over an hour.  At the end of that hour had you come to an agreement with him?
A. Yes, I did.
Q. I am going to refer not to the file folder, C33.  I am going to ask you to take a look at this document.  This is a four page document.  Would you take a look at that and tell me if you recognize it?
A. Yes.
Q. Take a look at the second page as well.  Tell me what is this document?
A. This is the order that was entered into, basically it is a consent order.
Q. Okay the top page on this document is an order that is signed by Judge Osborne is that correct?
A. Yes.
Q. What is on the second page?  [15]
A. This is the consent agreement.
Q. This is the agreement that you negotiated with the Defendant?
A. Yes.
Q. When you finished speaking to the Defendant, had you and he agreed on the terms of this consent agreement?
A. Yes.
Q. What were the terms that you and he agreed on?
A. The terms are basically that Mr. Rivera would refrain from abusing, harassing, striking, stalking or contacting Ms. Helton in any way, including through third parties.  He would call somebody else who would call her, he was not allowed to do that.  He was also not allowed to contact Katelyn Rivera except for through a third party, which would then set up the supervised visitation and would be there as he would visit her.
Q. You testified that this was an agreement that Mr. Rivera accepted?
A. Yes.
Q. Did he accept it grudgingly, was he satisfied when you finished speaking to him?
A. He seemed to be at peace with it and be [16] very calm, when I explained everything to him.  He told me that he had problems reading and that he only had about a second or third grade education in reading.  So I spent a lot of time explaining everything to him word for word, because I wanted him to understand what he was doing and how important this was, so that he wouldn't take this lightly, this was very serious.  And so when I was done ...
Q. So you read every word of that to him?
A. Yes, I made sure that he understood it and that he was calm and comfortable with it.
Q. And after you read it to him, did he sign it?
A. Yes.
Q. What happened next?
A. The next thing that happens is you go into the courtroom and you tell them that you have a consent agreement and then you go before the Judge.  We went before the Judge, both parties go before the Judge, and then in this situation it became rather spectacular because Mr. Rivera started to cry and say it was his birthday and he was upset, he didn't know when he was going to get to see his daughter, and so Judge Osborne had to calm him down.
Q. What did Judge Osborne say to the [17] Defendant?
A. She explained that he would see his daughter, but that the visitation would be supervised, but assured him that he would see her.  And that there was no reason for him to be crying.  She also wanted to make sure that he understood everything and I explained to the Judge that I went over everything thoroughly, and read everything word for word.  Then the Judge also did that and explained everything to Mr. Rivera.
Q. Did Judge Osborne read the protection from abuse order to the Defendant?
A. Yes.
Q. That order appears on the top of that four page document that you have there, is that correct?
A. Yes.
Q. Read for the jury what Judge Osborne read to the Defendant.
A. Everything?
Q. Please.
A. She wants him to understand ...
Q. What did she say, what words?
A. August 5th today as you stand before me, you have entered into a consent agreement, have you not.  Is this your signature that I see before me and he said yes it is.  And she said do you understand that you are [18] to stop and refrain from contacting Ms. Helton in any way.  You will not stalk, abuse, harass.
Q. Was she reading from the document?
A. She read from the document and then she would elaborate.  She did both.
Q. Okay would you read from the document for us and tell us what she read to the Defendant?
A. She said Mr. Rivera, I am going to read this to you.  Do you understand that you shall refrain from abusing, harassing, striking, stalking or menacing the Petitioner, Jennifer Helton, and the minor child Katelyn Rivera, or place them in fear of abuse anyplace that they will be found.  Then she would ask him, do you understand that, are you sure you understand that.
Q. What was his response?
A. He said yes, I understand.  But then he would get upset and then she would go on.
Q. Tell us how she went on?
A. She said this will last for a period of one year, do you understand that.  He said yes, I understand that.  She said you are prohibited from living or entering or attempting to visit the residence located at 2623 Sharpless Avenue in Boothwyn and 1700 Mill Road on Second Avenue, which was the place where Jennifer worked at the time.  Do you understand that, [19] and he understood.  She said you are not to be anywhere near these places, do you understand you are not to go near these places.
Q. And how did he respond?
A. Yes, I understand.  She said you are not to contact even though third parties, you are not to call Jennifer Helton.  She explained that Ms. Helton was going to be granted custody of Katelyn, and she wanted to make sure that he understood that.
Q. Would you read that from the document for us?
A. She said do you understand that Ms. Helton is granted custody of the minor child, Katelyn Rivera, and Respondent is granted such visitation or personal custody as may be mutually agreed.  Then she started to talk about what had been mutually agreed to, which was supervised visitation. She said you have agreed that you will have supervised visitation.  Do you understand that you are only allowed to see Katelyn when there is going to be a third party and then we talked about who that party was going to me.  And in this case it was going to be Katelyn's grandmother, Mrs. Helton.  She asked do you understand that.
Q. And what did the Defendant respond?
A. Yes, he understood.  [20]
Q. What did she say next?
A. The next thing is when he really started to get upset and to cry and he said he didn't understand when was he going to see Katelyn.  So the Judge actually wrote in her own handwriting, specifically how that situation was going to work.
Q. So that document there, page one that is a form, that is a standard form, but the Judge actually wrote in instructions about visitation is that correct?
A. Yes.
Q. What did the Judge write in, please read from it and tell us?
A. The Judge wrote, Mr. Rivera may speak by telephone one time per day with Katelyn Selena Rivera.  The child's grandparents are to facilitate this contact.  The first supervised visit is to occur no later than three o'clock p.m. on August 6, 1999.  The first telephone contact shall be this day.
Q. What did the Defendant say after the Judge read that to him?
A. He said that he understood and he calmed down and he seemed to be fine with everything once again.
Q. What did the Judge say next?
A. The Judge specifically said to Mr. [21] Rivera, do you understand everything that I have explained to you and read to you today.  I want to put it on the record that you understand.  And he said I do understand.
Q. Did the Judge then sign the order?
A. Yes she did.
Q. And was that the end of the proceeding?
A. It was the end of the proceeding but not the end of my encounter.
Q. Okay, was that the end of the proceeding?
A. Yes.
Q. And what did you do then?
A. Then the parties left the courtroom.
Q. Jennifer was present there in the courtroom with you and the Defendant and the Judge?
A. Yes.  I went outside the courtroom and sheriffs had come to take Mr. Rivera away, for what reason I don't know.
Q. Jennifer was there with you?
A. No.
Q. Jennifer had left the courtroom at that point?
A. Jennifer had left at that point.
Q. Where were you in relation to the Defendant?  [22]
A. I had left the courtroom and was standing right outside the courtroom door.
Q. Where was the Defendant in relation to you?
A. The Defendant was standing next to me outside the courtroom door.
Q. How far away from you was he?
A. My arms length.
Q. A foot and a half?
A. Yes.
Q. Did the Defendant speak to you?
A. Yes.
Q. What did he say?
A. The Defendant seemed upset and he grabbed my arm and he grabbed my hand.
Q. When you say he seemed upset, describe what led you to that conclusion?  What observations did you make of him?
A. He looked distraught, that is the best way I can describe it.
Q. He grabbed your hand?
A. He grabbed my hand, and he grabbed it as if he was in desperation.  And he looked at me and he said don't forget what you promised, don't forget what you promised.  I looked at him because at first I wasn't [23] sure what he was talking about.  He said don't forget to pray for my baby, you said you would pray for my baby.  I said I won't forget, I'll pray for Katelyn.  And he wouldn't let go of my hand, and then finally the sheriffs had to take him away and he let go.  It is something I'll never forget.

Mr. Reilly:  That's all, Your Honor, thank you.

The Court:  Cross.

CROSS-EXAMINATION

By Mr. Smith:
Q. Ms. Davis I take it from what you were just testifying to about the very end, when he said don't forget what you promised.  You said he looked distraught and in desperation he was holding on to you.  You are not suggesting that he was trying to hurt you or anything, that he was holding on to you ...
A. No, I am not trying to suggest he was trying to hurt me.
Q. He was holding on to you because he wanted your attention, right?
A. I think he was -- he seemed internally in [24] conflict with himself.
Q. You said at various times he cried that day?
A. Yes.
Q. Were there times that he was actually crying before he even went into the courtroom, when he was having discussions with you during that hour and 20 minutes from 8:30 to 9:50, outside the courtroom?
A. Outside the courtroom he once seemed like maybe he was going to cry, but he didn't really cry, but he did in the courtroom.
Q. If I were to characterize the times that he either cried or he looked like he was going to cry, but maybe he stopped himself before he actually started crying.  Would it be a fair characterization to say that those times that he was upset like that and on the verge of tears is because he was expressing at those moment his concern about his daughter Katelyn, right?
A. It seemed like fear.
Q. But it was about Katelyn.  In other words during the times when he was upset in Court you said the Judge was talking to him and he started to cry, he did not know when he would see his daughter, right?
A. In my opinion it seemed that he was crying because he was afraid he might not get to see [25] her.
Q. Right, and so those were the times that he was the most upset, that he wanted to see his daughter, because he was expressing his love for his daughter, and his desire to see his daughter.  Isn't that what he was saying?
A. At that particular time, but I wouldn't say that was the only time he was upset.
Q. And when you were talking to him before you went into court, you were told at that point that he couldn't read or write?
A. I was told by him that he had about a second or third grade reading capability.  And that is why I explained everything to him in detail, because he said he really couldn't read well.
Q. And so when he was telling you at that time don't forget what you promised, had you promised him that you would pray for his daughter?
A. When we were negotiating ...
Q. Had you promised him?
A. I said I would, yes.
Q. So this is before you went into the courtroom, you made him a promise that you would pray for his daughter, is that a yes or a no?
A. I didn't promise I just ...  [26]

Mr. Reilly:
Your Honor, the witness should be free to answer the question in the manner she sees fit.

Mr. Smith:  I'll repeat the question.

By Mr. Smith:
Q. Prior to the time you went into the courtroom did you promise him that you would pray for his daughter?
A. When it came up in the negotiation, when his daughter came up and we talked about it, I had said to him that I would pray for her, yes.
Q. So when he made reference to it later on after you left the courtroom, is that what he was referring to, your statement that you would pray for her?
A. He was referring to our discussion about her.
Q. What was that discussion, why was he saying to you that he wanted you to pray for his daughter, did he tell you?
A. I can't say what was in his mind exactly.  [27]
Q. I am asking what he told you?
A. He didn't tell me exactly why he wanted me to pray for her.
Q. Why did you say you would pray for his daughter?
A. Because it had come up in discussion outside when we were talking together.
Q. What was your intention when you said that?
A. He seemed upset outside and he had said that he had been praying and that he was concerned about ...
Q. Did he tell you what he had been praying about?

Mr. Reilly:  Your Honor, may the witness be permitted to finish her answer.

Mr. Smith:
I'm sorry, I thought you were done ma'am.  If you are not finished please keep talking.  Are you done?

Ms. Davis:  Would you repeat the question?  [28]

By Mr. Smith:
Q. The question is he said to you that he had been praying, this is during the discussion now before you went into court, right?
A. Yes.
Q. And he said to you that he had been praying, right?
A. Yes.
Q. And my question to you was did he tell you what he had been praying about?  Was he praying about his daughter, was he praying for his daughter, what was he praying about?
A. I don't know exactly what he was praying about.  I just know that is what came up in discussions.
Q. Well if you don't know what he was praying about, why did you promise to pray for his daughter?
A. I don't know what he was praying about exactly, but what came up in discussion was that he was upset about the situation with himself and Jennifer and his daughter, and that he had been praying.  And I said that I would pray for his daughter.
Q. But he never said pray about what?  He never said pray for my daughter for the following reasons, or because I want such and such or I want her [29] back, I want you to pray that things will go well between me and my daughter, he didn't say that stuff?
A. No, nothing specific like that.
Q. And when it came up in the conversation that you had with him, when he said he has been praying, you didn't know what he was praying about?
A. I don't know what he was praying about specifically, but generally ...
Q. Tell us generally then what was he praying about?
A. I only can go by what was talked about in the conversation.
Q. Tell us.
A. I did already though.  What was talked about was that he was upset about his situation with Jennifer and the situation with Katelyn, and he didn't seem to know where his life was going, where he was going to live.  He was worried about where he was going to have a place to live that day, and that is how praying came up, that he had prayed and I said to him that I would say a prayer also for his daughter.
Q. Wasn't there as part of the discussion, he was reluctant to sign this consent, wasn't he?
A. He didn't seem reluctant once he understood everything.  I think that any reluctance [30] would have been because this was something that had to be explained because he really couldn't read well.  Once he understood everything and that it was really the best thing for all parties, he was fine.
Q. Did Jennifer make any comments about Robert's, either religious background or his praying on any of this?
A. No.
Q. She didn't say anything?
A. No.
Q. You don't remember, or she didn't?
A. She never said anything about that.
Q. And when Robert was in court in front of the Judge, after he signed the consent, after he signed
it you went in front at the Judge and at that time Robert, even though you said he now knew everything because you had explained it to him.
A. Right.
Q. And he seemed fine with it once he knew everything.  He still broke down crying in front of the Judge, and told the Judge that he was afraid he wasn't going to see his daughter, right?
A. Yes.
Q. And that is after the time you said that you explained everything to him and that he was [31] comfortable with it?
A. Yes, he said he was crying because he said it was his birthday and he didn't know when he was going to get to see Katelyn.
Q. And he said that he wanted to see Katelyn, right?
A. Yes.
Q. And so the Judge even went so far as to write in there, in here own handwriting as you said, some provisions that would enable Robert to have daily contact with Katelyn, even if over the telephone, right?
A. Yes.
Q. And that both you and the Judge assured Robert that he would have a continued relationship with Katelyn, didn't you?
A. Yes, under supervision.
Q. But that is a continuing relationship?
A. Right.

Mr. Smith:  Can I have just a minute, Your Honor.  That's all, Your Honor.

The Court:  You may step down.

Mr. Reilly:  [32] The Commonwealth would call Jane Baxter, Your Honor.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please?

Ms. Baxter:  Jane Baxter, B-a-x-t-e-r.

[Witness sworn]

The Court Clerk:  Be seated and please speak up.

Jane Baxter, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good morning Ms. Baxter.
A. Good morning.
Q. Ms. Baxter, you are Jennifer Helton's aunt, is that correct?
A. Yes.  [33]
Q. Now I am going to direct your attention back to August 10, 1999.  Did you make arrangements with Jennifer to go to court with her that day?
A. Yes I did.
Q. And did you in fact go to court?
A. Yes I did.
Q. Where did you go to court?
A. Linwood preliminary court.
Q. Did you and Jennifer go together?
A. Yes we did.
Q. Who drove?
A. I drove.
Q. You drove your car?
A. I drove my vehicle, yes.
Q. Were you present at the regional court there at the time the preliminary hearing was scheduled?
A. Yes I was.
Q. Did you see the Defendant that morning?
A. Yes I did.
Q. Once the preliminary hearing was complete what did you do?
A. Let the court and stopped at the Wawa on Chichester Avenue.
Q. How far away from the court is the Wawa on Chichester Avenue?  How many minutes did it take you [34] to get there?
A. About two or three minutes.
Q. What happened when you got there?
A. When we got to the Wawa, Rob came in.  I was shopping at the time, Jen was at the deli.
Q. So you went into the Wawa and you and Jennifer separated?
A. Yes, I was on one side of the Wawa back by the milk and she was over at the deli.
Q. Then what happened?
A. When I came back from getting the milk that I was supposed to get, I saw Rob there by Jen.
Q. You saw who, the Defendant?
A. Robert, yes..
Q. You know the Defendant?
A. Yes.
Q. Go ahead, what did you see?
A. And he was speaking to Jen, and then we checked out and as we were leaving ...
Q. Were you nearby when he was speaking to Jennifer?
A. I wasn't that close.
Q. Were you able to hear what he said to Jennifer?
A. No, just that I know he said something [35] about he was going back to Puerto Rico, and he kissed Jennifer on the cheek and that was it.
Q. Now where did that happen?
A. Inside the store.
Q. Okay, so did you and Jennifer leave the store together?
A. Yes.
Q. Where was the Defendant as you and Jennifer left the store?
A. He was right there with us, right behind us.
Q. Ms. Baxter I want to show you Commonwealth Exhibit C2 for identification.  It probably would be best if you would step down so you can take a look at it.  I want you to take a look at photograph 2-B on that.  Do you recognize that photograph?
A. Yes.
Q. What is depicted in that photograph?
A. That is the Wawa.
Q. Now where did you park when you went into the Wawa?
A. Right here.
Q. You are indicating in photo 2-B that you were in the bottom right hand corner of the parking lot [36] as it is depicted in that photograph, is that right?
A. Yes.
Q. Now you left the front door of the Wawa and you walked towards your car is that right?
A. No.
Q. Where did you walk?
A. I left the front door of the Wawa, and I was standing by the door as he came out, and Rob asked if he could speak to me.
Q. Okay, go ahead.
A. Jen got in the vehicle and Rob spoke to me off to the side.  He asked me if I would do supervised visitation that the court said he needed to have supervised visitation.  I told him if I was off from work that I would do it, but I couldn't promise him.
Q. What did he say?
A. He said okay and he extended his hand to shake my hand and I told him there was no reason for that.
Q. What happened next?
A. The next thing I was walking back to my vehicle because Jen was already in the vehicle at the time that I was talking to Rob.  I was walking back to my vehicle and the last words that Rob said to me was [37] take care of Katelyn.  I proceeded to get into my car, which I never did get into my car.
Q. Where was the Defendant, you are standing right outside of your car just before you get into your car.  Where is the Defendant at that point?
A. He was standing out here.
Q. Okay, indicating for the record that he was still by the front door of the Wawa?
A. Right.
Q. Did you get into your car?
A. No, I never did get into my car.
Q. What happened next?
A. The next thing was Rob ran up behind me, opened the passenger door where Jennifer was sitting, grabbed Jen.  I saw Jen kicking him.
Q. Tell the jury exactly what the Defendant did, what did he do with his hands?
A. He took her by the throat, and I told him Rob don't do that.  And he didn't listen to me.  The next thing I knew by the time I went around to the passenger side ...
Q. How did you get around to the passenger side, you walked around?
A. I ran around, yeah.
Q. And what was the Defendant doing?  [38]
A. At that point he had Jen by the head of the hair like this here.
Q. Indicating for the record, you are taking your right hand and putting it on the crown of your head and pulling your hair?
A. Right.
Q. Is that what the Defendant was doing?
A. Yes.
Q. Was he saying anything?
A. I don't remember.
Q. What happened next?
A. He was driving up through the parking lot and I had asked him to stop and I think I punched him in the back and I said stop.  He didn't stop.
Q. Would you show us on 2-B, on photograph 2-B where the Defendant dragged Jennifer from and the place to which he dragged her?
A. 2-B.
Q. Yes.
A. Well I was parked here and he came around here on the passenger side, drug her out this way and he was dragging her this way.
Q. Okay, so you are indicating on 2-B that he was dragging Jennifer from the left to the right towards the driveway or towards the exit out at the [39] right hand side of 2-B?
A. Yes.
Q. How far would you say he dragged her?
A. He drug her to about the end of the parking lot here.  Because I remember after everything stopping I was standing here trying to catch my breath.
Q. Okay, you were standing at the end of the building at the end of the Wawa building?
A. Yes.
Q. Okay, and where was Jennifer?
A. Jennifer was there with me.
Q. How far would you say, would you estimate how far the Defendant dragged Jennifer from the car to the point when he finally let her go?
A. From the car to the end of the store.
Q. Can you estimate how far a distance that is?
A. No, not really I am not good at estimating distances.
Q. Okay, thank you, you can take your seat again.  For how long did this go on about?
A. I would say about five minutes.
Q. What were you doing as the Defendant dragged Jennifer?
A. Well I asked him to stop, but apparently [40] he didn't stop.  So Jennifer being as small as she was, I thought well if I don't do something for her, he is going to get the best of her.  So I tried jumping on her to put my weight on her.  So it would be harder for him to drag her around.  And he drug the both of us, and then a few of the people from the Wawa and helped us.
Q. Was he saying anything while he was doing this?
A. No.
Q. He wasn't saying anything at all?
A. Not that I remember.
Q. How did this come to an end?
A. The people from the Wawa came out and helped us, and they must have called 911 and I ran into the store to ask them if I could use the phone to call Jennifer's mother, my sister, Olga Helton.
Q. Why were you going to call Jennifer's mom?
A. Because I was thinking of Katelyn.
Q. What were you thinking?
A. Well after Rob took off, I kind of figured that he was going to go after Katelyn.  So I said to her, I said to my sister Olga Helton.  I said go to the baby-sitters and pick up Katelyn because Rob was just here and assaulted Jen and I.  [41]
Q. When the Defendant let go of Jennifer, what did he do, what did you see him do?
A. He got in the car, it was a green car but I am not sure what kind it was.
Q. What did he do?
A. He left.
Q. Was that before you went into the Wawa?
A. I really don't remember.
Q. Okay.  Ma'am, I am going to show you four pictures.  Would you take a look at those and tell me whether you recognize them?
A. My legs.
Q. What are those pictures?
A. Those are pictures of my legs, both knees scraped up.
Q. Tell the jury the injuries that you received during the course of this incident?
A. Well when he dragged Jen and I, I had shorts on because it was a summer day.  And as he dragged us around, my knees had been scraping the blacktop and my knees were all scraped up and bloody.
Q. Okay, so C29 is a photograph of the injuries to your knees, correct?
A. Yes.
Q. Let's look at C30, what is C30?  [42]
A. C30 is the side of my leg where it was scraped up.
Q. The side of your right leg?
A. Yes.
Q. How about C31?
A. That is my left knee that was scraped up.
Q. And how about C32?
A. I don't know what that is.
Q. C32 is a picture of your head and shoulders, is that correct?
A. Yes.
Q. Now, Ms. Baxter I want to show you what has been marked as Commonwealth Exhibit C42.  I will ask if you recognize that?
A. Yes.
Q. How do you recognize that?
A. That is Katie's sneaker.
Q. How do you know that is Katie's sneaker?
A. Because I bought Katie that sneaker and all three of us Mrs. Helton and Jennifer and Katie were shopping and I bought Katie those sneakers.
Q. Jennifer's mom is your sister is that right?
A. Yes.
Q. And that is the Mrs. Helton that you [43] referred to?
A. Yes.
Q. So you went shopping with your sister and with Jennifer?
A. And Katelyn.
Q. And you bought this sneaker for her?
A. Yes.
Q. How long did you buy that prior to August 10, do you remember?
A. I would say about two weeks.

Mr. Reilly:  That's all, Your Honor.

The Court:  You may cross-examine.

Mr. Smith:  No questions.

Mr. Reilly:  Officer Robert Gray, Your Honor.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please.

Officer Gray:  Robert Wayne Gray, G-r-a-y.  [44]

[Witness sworn]

The Court Clerk:  Be seated and please speak up.

Officer Robert Wayne Gray, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Officer Gray, you worked for the Upper Chichester Township Police Department in 1999 is that correct?
A. Yes.
Q. You are retired now, is that right?
A. That's correct.
Q. When did you retire?
A. My retirement date was the 3rd of October of 2000.
Q. Now did you go to court on the morning of August 10, 1999?
A. Yes I did.
Q. Where is the court located?  [45]
A. 526 West Ridge Road in Linwood.  It is right at the intersection of Ridge Road and Blue Ball Avenue.
Q. Officer Gray I want to show you what has been marked as Commonwealth Exhibit C1 for identification.  The photograph at the bottom of C1, photograph 1C, do you recognize the area that photograph depicts?
A. Yes.
Q. Would you tell the jury what that photograph is?
A. It is a picture probably taken from a helicopter towards the Delaware River, facing back into Linwood.
Q. Do you see the Linwood District Court in that photograph?
A. Yes I do.
Q. Where was that?
A. Right here.
Q. Right at the intersection of this road, right?
A. Yes.
Q. What is the Street that you looking down in that photograph?
A. This street here is Blue Ball Avenue.  [46]
Q. Where does that road lead to?
A. It will lead to Chichester Avenue.
Q. Now you went to court that morning, correct?
A. Yes.
Q. When did you finish up in court?
A. Probably shortly before 11.
Q. Do you recall seeing the Defendant there in Court that morning?
A. Yes.
Q. And Jennifer Helton, did you see her there as well?
A. Yes.
Q. Now when you left the court where did you go?
A. When I left, we had gotten a call to go to the Wawa, just as I was leaving the court.
Q. As you were leaving the Linwood Court?
A. Yes.
Q. So you left that court and show us where you went?
A. We came out of court and went up Blue Ball Avenue.
Q. Now take a look for me, officer Gray at photograph 1B.  Would you describe for us what is that [47] photograph 1B?
A. 1B is this will be the intersection of Chichester and Blue Ball Avenue.  This would be Blue Ball, this would be Chichester.
Q. Okay, you took Blue Ball Avenue up to Chichester Avenue?
A. Took it to Malatesta [ph] Avenue.
Q. Okay and you made a right?
A. Made a right hand turn and went down to the Wawa.
Q. Would you show us on there where is the Wawa?
A. The Wawa sits right here.
Q. Okay, what happened when you got to the Wawa?
A. I came across Ms. Helton and her aunt, Ms. Baxter.  They were visibly upset, had obvious injuries to them.
Q. Would you describe first of all Ms. Helton.  Where did you see Ms. Helton where was she physically, do you recall?
A. I believe they were inside the store when I first arrived.
Q. What were the injuries that you observed on Ms. Helton?  [48]
A. Red marks and scratches around her throat.  She had red marks on her arms, her legs.  I believe her pantyhose were ripped and she had a large patch of hair that was missing from her head.
Q. How would you describe her emotional state?
A. Crying and very upset.
Q. Officer Gray I am going to show you these photographs that have been marked C19 through C26.  I will ask you to take a look at those. What are those photographs?
A. Pictures of Ms. Helton.
Q. Do they fairly and accurately depict the injuries that you saw on Jennifer Helton that day?
A. Yes.
Q. What did Ms. Helton tell you?
A. She told me that her and her aunt had just come outside the Wawa and she had just gotten into her aunt's vehicle when Mr. Rivera opened up the door, grabbed her by the throat and dragged her out of the car.
Q. Did you observe Ms. Baxter as well?
A. Yes.
Q. Was she injured?
A. Yes.  Her pantyhose were torn I believe [49] on both knees and her knees were scuffed up.
Q. What did you do after you received the report from Ms. Baxter and Ms. Helton?
A. Spoke to other officers that were working with me that day, and we began to look for Mr. Rivera.
Q. Did you receive word about what had occurred on Second Avenue?
A. Yes I did.
Q. How soon after you arrived at the Wawa, did you receive word about the occurrence on Second Avenue?
A. Five or ten minutes maybe.
Q. What did you hear, or what were you told?
A. Upper Chichester Police received a call to go to Second Avenue.  I don't remember what the call was for specifically, but it was for someone who had broke into the house and had taken a child.
Q. And you learned that was Katelyn Rivera is that correct?
A. That's correct.

Mr. Reilly:  Those are all the questions I have, Your Honor.  Thank you.

Mr. Smith:  [50] No questions.

The Court:  You may step down.

Mr. Reilly:  Sheila Clendening, Your Honor.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please?

Ms. Clendening:  Sheila Clendening, C-l-e-n-d-e-n-i-n-g.

[Witness sworn]

The Court Clerk:  Be seated, and please speak up.

Sheila Clendening, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good morning Ms. Clendening.
A. Good morning.  [51]
Q. Ms. Clendening, where do you live?
A. I live at 2429 Second Avenue in Boothwyn.
Q. And what do you do there at your home?
A. I have a home day care.
Q. You take care of children you baby-sit them during the day?
A. Yes.
Q. Ma'am, I am going to show you what has been marked as Commonwealth Exhibit C17 for identification.  Would you take a look at that?
A. Yes.
Q. Do you recognize that little girl?
A. Yes, that's Katelyn.
Q. Katelyn who?
A. Rivera.
Q. Did you take care of Katelyn in your home?
A. Yes I did.
Q. Were you taking care of Katelyn in your home on August 10, 1999?
A. Yes I was.
Q. Ma'am, where do you live in relation to the Wawa on Chichester Avenue?  How many blocks away are you?
A. About three blocks from the Wawa.  [52]
Q. Do you remember what time Katelyn arrived at your house that day?
A. Around 8:15 that morning.
Q. Who dropped Katelyn off?
A. Katelyn's grandmother, Olga Helton dropped her off.
Q. Was there a set time, is there an agreement as to when they would be coming to pick her up?
A. When the court hearing was over.  There was no set time because I was just watching her because of the court hearing.  They had nobody else to watch her.
Q. You knew they were going to court that day?
A. Yes.
Q. Do you know the Defendant, Robert Rivera?
A. Yes.
Q. And how do you know him?
A. From him dropping off and picking up Katelyn and coming with Jen sometimes.
Q. What was your relationship with the Defendant prior to August 10?
A. Just known as Katelyn's dad who would come in and pick her up, or he would come in with Jen [53] and drop her off.
Q. Now on August 10, shortly after 11 o'clock in the morning would you describe for the jury what happened?
A. On August 10 I was in the kitchen making lunch for the kids.  My daughter was in the living room.  Rob was by the front window motioning to be let into the house, to my daughter.  My daughter said ...

Mr. Smith:  Objection.

The Court:  Sustained.

By Mr. Reilly:
Q. Ms. Clendening do you see Photograph 2-C there?
A. Yes.
Q. Whose house is that in the center of 2-C?
A. That is my house.
Q. Now would you show us in that photograph.  You said that you were in your kitchen, is that right?
A. Yes.
Q. And is your kitchen in the front of the house, or the rear of the house or the side of the side?  [54]
A. The side, back here a little bit to the side.
Q. Now you are back in the kitchen that is at the side of the house-there in 2-C, correct?
A. Yes.
Q. And you said your daughter is where?
A. In the living room.
Q. Okay, does your daughter say anything to you?
A. Yes, she said Rob is at the window.
Q. Now show us in that picture, which room was she in, which window was she near?
A. This window.  The front door is next to the window.
Q. Okay, so you are indicating the window that is in the center of the house?
A. Right.
Q. So she says there is Rob?
A. Right.
Q. And what is your reaction?
A. I turned to go to the door and I threw on the chain, not that it did any good.  But I threw on the chain, I turned back around.
Q. Why were you concerned, why did you do that?  [55]
A. Because Rob had been there before and he didn't come in he had knocked after an incident with Jen.
Q. Did you know that Jennifer had custody of Katelyn?
A. Yes.
Q. And you knew that Rob didn't have custody?
A. Yes.
Q. So you knew that he wasn't supposed to pick her up?
A. Right.
Q. So you go to the kitchen door, is that right?
A. My kitchen door.
Q. And was the door locked at the handle?
A. Yes, it was locked with a hook and eye up top, but I also had a chain lock that was lower.
Q. And you put that chain on?
A. I put on the chain.
Q. Where was Katelyn in the house?
A. In the front room with my daughter.
Q. Show us on that picture.  Okay, in the room by the front door?
A. Right.  [56]
Q. Did you see the Defendant, tell me where the Defendant was when you first saw him?
A. In my house.
Q. You were in your kitchen?
A. I am in my kitchen with my back turned toward the back door.
Q. You put the chain on the door?
A. I put the chain on the door.
Q. Then what did you do?
A. I turned around, chained the door, turned around and I maybe walked three steps.
Q. What were you going to do?
A. Going to the living room.
Q. Why?
A. Because Katelyn was in the living room.
Q. What did you want to do?
A. I didn't even know at the time.  The last time he came we hid her in the bedroom.  But I didn't have time.
Q. You were going towards Katelyn?
A. I was going towards Katelyn.
Q. What happened next?
A. Rob burst through the door.
Q. Describe exactly what you saw.  Did you turn around?
A. I turned around.  [57]
Q. What did you see?
A. I seen him he was in the kitchen and he was crazy looking.
Q. What happened to your door?
A. He broke the wood around the trim, and all three locks, the chain lock was pulled off, the trim was pulled off, it was broke the door was cracked.
Q. Tell the jury about the look on his face?
A. He looked crazed, he didn't look normal, he looked crazed.
Q. Did he say anything to you?
A. He said he wanted his daughter and he was going to take her.
Q. You can take your seat.  What did you do?
A. I tried to go in the front room to get ahead of him but he was faster than me.  He got in and he picked her up.
Q. How many other kids were there?
A. Five.
Q. Where was your daughter, she was in the living room?
A. My daughter was in the living room with Katelyn.
Q. What exactly did the Defendant do?  [58]
A. He scooped Katelyn up, and I tried to grab her out of his arms and he headed for the door.
Q. Did he say anything to you?
A. No.
Q. What door did he head to?
A. The front door, because he was in the living room, that was the closest.
Q. What happened then?
A. As he went out the door, Katelyn was leaning, and she hit her head on the trim that goes around the door.
Q. How was he holding her?
A. In his arm, like this.  He was holding her in his arm and she was like leaning out.  Her body was leaning out a little bit as he was going through the door and I think that is how she bumped her head.
Q. So you saw her head hit the doorjamb?
A. I didn't see her head hit the doorjamb, I heard her head hit the doorjamb.  I turned around to go get the phone, because by then I couldn't do anything.  I was going to go for the phone to call 911.
Q. Were you saying anything to the Defendant?
A. No, I was telling him you can't take her, no.  [59]
Q. What happened next?
A. He went out the door and I went to go for the phone which I couldn't find the phone, because I didn't know my daughter had already went out the door to get the license plate to the car, she had the phone in her hand.  And then after that when she is coming in repeating the license plate over and over.  She finally came back in the house, and he took off down the street.
Q. So you saw the Defendant leave?
A. I didn't see him leave.
Q. But by the time you got outside?
A. Right.
Q. I will show you these three pictures, Ms. Clendening, C38, C39 and C40, would you take a look at those.  Do you recognize those photographs?
A. Yes.
Q. Let's take a look at C38 first.  What is that?
A. That is the trim around my back door, that is where my locks were the hook and eye and the chain lock.  And the wood was pulled off of the door.  They were just completely gone.
Q. How about C39, what is that?
A. That is a piece of the trim that was broke off from my door.  [60]
Q. And how about C40?
A. That is a picture of my whole door showing where the trim was broke, where the wood is broke.
Q. Now Ms. Clendening when Katelyn was dropped off that morning on August 10, did she have anything with her?
A. Yes, she had her diaper bag, her bottle, her medicine.
Q. What came in the diaper bag?
A. Her bottle, she had a cold, she had medicine, she had a bottle and she had her diapers and sometimes maybe a toy, but I hadn't gone through the bag.
Q. C34 would you take a look at that.  Do you recognize that?
A. Yes.
Q. What is it?
A. It is Katelyn's change of clothes, her medicine, her diapers, her wipes.
Q. When the Defendant left, did he take that bag with him?
A. No, it was on my couch.
Q. He didn't take this?
A. No, he didn't take anything but Katelyn.  [61]

Mr. Reilly:  Nothing further.

The Court:  You may cross.

Mr. Smith:  Thank you, Your Honor.

CROSS-EXAMINATION

By Mr. Smith:
Q. Ms. Clendening, did you see Katelyn's head hit the door?
A. No, I didn't see Katelyn's head hit the door.
Q. Did you see any body part of anybody hit the door?
A. No.
Q. So you are saying it was her head that hit the door because you head something and you concluded that it must have been her head, is that right?
A. Yes.
Q. But you didn't see anything?
A. No.
Q. So how do you know that it wasn't [62] Robert's arm that hit the door or Katelyn's foot that hit the door, or Robert's elbow that hit the door, or whatever it was that hit, how do you know it wasn't any of those things?
A. Because after I head the noise I heard Rob say oh her head as he was going out the door.
Q. You gave a statement to the police before, didn't you?
A. Yes.
Q. Do you remember when you gave that statement?
A. No.
Q. If I tell you it was August 10 at 1147 hours, that would be a couple minutes before noon.
A. Yes.
Q. Did you mention anything in that statement about oh her head?
A. I don't know, I don't remember if I did.

Mr. Smith:  May I approach, Your Honor?

The Court:  Yes.

By Mr. Smith:  [63]
Q. I have marked that document as D1 for identification purposes.  Could you please take a look at that.  Is that your statement?
A. Yes, that is my statement.
Q. Did you mention anything like that oh I heard Rob say oh her head or anything like that?
A. No.
Q. In fact you don't even say that he hit her head in there do you?
A. Yes I do.
Q. Where?
A. He went through the door hitting Katelyn's head, the side of her head on the door frame.
Q. So in your statement you say, read it verbatim to the jury please.
A. You want me to read the whole statement?
Q. No, I want you to read the part about hitting her head, exactly what you said in there about hitting her head?
A. I grabbed him, he went through the front door with Katelyn, hitting the side of her head on the door frame.
Q. Hitting the side of her head on the door frame?
A. Yes.  [64]
Q. How do you know it was the side of her head?
A. The way she was leaning, she was leaning out when he went out the door.  She was leaning away from him.  I was trying to grab her out from his arms and she was leaning this way.
Q. I'm sorry I thought you had said you had turned around?
A. Before he went out the door I was trying to grab her, she was leaning.  I let go, I couldn't get her.
Q. When you let go did you turn around or were you still looking?
A. When I let go I gave up and I ran for the phone.
Q. So when you let go did you turn around?
A. I had to turn a little bit to go for the phone, my phone is over this way the door is here.
Q. Ms. Clendening I didn't write down every word that you said in your direct examination but I wrote down what you said to the best of my ability and I tried to remember what you said as well.  If I am incorrect please tell me that I am incorrect.  But I thought you said in response to Mr. Reilly's questions to you that you turned around to look for the phone to [65] grab the phone?
A. I did.
Q. And you couldn't find the phone because it turns out later you found out your daughter had grabbed the phone and ran outside, am I right about that?
A. Yes.
Q. So when you turned around, you said I turned around to grab the phone is that what you said?
A. Yes.
Q. Is that accurate?
A. Yes.
Q. Then if you turned around to grab the phone were you looking at Katelyn when she went through the door or weren't you?
A. I didn't see her hit her head, I heard her hit her head.
Q. You said in your statement she hit the side of her head.  That is a conclusion that you reached, but you didn't see anything right?
A. Right.
Q. So when I said to you in the first question that I asked you was so did you see anybody hit anything you said no, is that correct?
A. Right, I didn't see anybody hit anything.  [66]
Q. And yet you concluded, if I hear you now, your entire conclusion that it was Katelyn's head that hit the doorjamb was based on Rob's statement after he left the house oh her head?
A. Yes, and the noise that her head made when it hit the door.
Q. The noise that whatever hit the door made, right?
A. Okay.
Q. Are those the two things?
A. Yes.
Q. So you are saying A, I heard a noise of something hitting something?
A. Yes.
Q. And B, Rob said ...
A. Oh her head.
Q. Oh her head?
A. Yes.
Q. Were those his exact words?
A. Yes.
Q. He didn't say Katelyn are you all right?
A. No.
Q. He didn't say oh Katelyn, you bumped your head?
A. No.  [67]
Q. He said oh her head?
A. Yes.
Q. And from that you concluded that it must have been some part of her head that hit the door frame?
A. Yes.
Q. Did you ever see a bump or a bruise or blood or anything?
A. No.
Q. Did you ever tell that to the police at any time, anywhere ever prior to now.  Did you ever say to anyone I heard Rob say oh her head?
A. When we were at District Court.
Q. When we were at what District Court?
A. At Linwood.
Q. You said it then?
A. Yes.
Q. You said Rob said oh her head?
A. Yes.
Q. You are positive?
A. Yes.
Q. And did you tell that to the police at any time.  You had been interviewed by the police, weren't you?
A. This is the interview that we did with the police.  This is what they told me to do.  [68]
Q. Were you ever interviewed again by the police?
A. I don't think so, they just told me to write down what happened.
Q. Did Mr. Reilly talk to you before you testified today?
A. Yes.
Q. Did you tell Mr. Reilly before you testified today did you tell Mr. Reilly that Rob said oh her head as he was going out the door?
A. Mr. Reilly didn't ask me if Rob said oh her head.
Q. I didn't ask you that.  I asked if you told Mr. Reilly before you testified today that Rob said going out the door, oh her head?
A. No.
Q. So you can correct me then, Ms. Clendening, you never told that to anybody else before today, except once you said it at the preliminary hearing in Linwood and you said it today here now?
A. Yes.
Q. And you are positive that you said it?
A. Yes.  [69]

Mr. Smith:  Nothing further.

Mr. Reilly:  No further questions.

The Court:  You are excused.  We will take a brief recess.

[Off the record]

[On the record]

The Court:
Returning to the matter of the Commonwealth versus Robert Rivera, number 411 of 2000.  Counsel are you ready to proceed?

Mr. Reilly:  Yes, Your Honor.  The Commonwealth calls Michele Lupi.

Mr. Smith:
Mr. Reilly and I have reached a stipulation that we would like to present to the Court to be presented to the jury.  The stipulation is that Mr. Reilly has the notes of testimony from the preliminary hearing and we have looked at those notes of testimony, and that there is no prior statement by Sheila [70] Clendening regarding Robert making a statement oh her head.

Mr. Reilly:  That is stipulated.

The Court:
Ordinarily, ladies and gentlemen we tell the jury that statements of counsel are not evidence.  There is an exception to that, and that is where counsel agree that certain matters can be agreed upon, and this is based upon the notes of testimony from the preliminary hearing, that stipulation that you just heard was agreed upon and therefore it comes in.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please.

Ms. Lupi:  Michelle Lupi, L-u-p-i.

[Witness sworn]

The Court Clerk:  [71]
MICHELLE LUPI, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good morning Ms. Lupi?
A. Good morning.
Q. You know the Defendant, Robert Rivera is that correct?
A. Yes I do.
Q. And you spent part of the day with him on August 10, 1999 is that right?
A. Yes I did.
Q. And you spent that part of the day in his car and his daughter was with you, is that right?
A. Yes she was.
Q. How long did you know the Defendant prior to August 10, 1999?
A. Approximately two weeks.
Q. Two weeks, how did you meet the Defendant?
A. In the parking lot of Copley's Tavern, the Frontier Tavern.  [72]
Q. Where is that?
A. On Chichester Avenue.
Q. Tell the jury what was your relationship?
A. I was just dating him at the time.
Q. You were dating him?
A. Yes.
Q. So two weeks prior to August 10?
A. Yes.
Q. Did you make arrangements to be with him on August 10?
A. He was supposed to pick me up after work
at lunch.
Q. What did the Defendant have to do on August 10, what did he tell you that he had to do?
A. A court hearing in Chichester.
Q. He had to go to a court hearing in Chichester?
A. Yes.
Q. And did he tell you what that was about?
A. A custody battle.
Q. What did he say?
A. A custody battle.
Q. A custody battle over his daughter?
A. Yes.
Q. Did you know of the problem that the [73] Defendant had, that the Defendant had been ordered to stay away from Jennifer and to stay out of the apartment, that he did not have custody of Katelyn?
A. No.
Q. When did you become aware of that?
A. When the cops told me, when the cops called my job.
Q. But he told you that there was a custody hearing, right?
A. Yes.
Q. What did he ask you to do?
A. He asked me to drive myself to work and let him borrow the car so he wouldn't have to wait in the parking lot.
Q. Was that the first plan that you had with him?
A. No, I was just going to drop him off.
Q. So he asked you for a ride to court?
A. Yes.
Q. How far does he live from the court?
A. Approximately two miles, five minutes.
Q. A five minute drive?
A. Well like a two minute drive, like a ten minute walk, not far.
Q. But he wanted you to drive him?  [74]
A. Yes.
Q. Did you agree that you were going to drive him?
A. Yes I did.
Q. And what arrangements did you make to give him a ride?
A. I picked him up in the morning, I told him the night before that I would be there around quarter of eight because I had to be at work at 8:30.
Q. So did you go to pick him up at quarter to eight?
A. Yes I did.
Q. Where did you pick him up?
A. The apartment on Chi Avenue.
Q. And what did you do when you got there?
A. Looked at pictures of Jen.
Q. Did you get out of the car?
A. Yes I did.
Q. And did you go into the apartment?
A. Yes I did.
Q. The Defendant was there?
A. Yes.
Q. What did the Defendant tell you?
A. He told me that he was going to try to prove Jen an unfit mother, and he showed me pictures.  [75]
Q. Did he tell you that he was going to do that, that morning at court?
A. Yes.
Q. What did you to then?
A. Nothing, we just left.
Q. You got in your car?
A. Yes.
Q. Were you driving him?
A. Yes.
Q. Where did you go?
A. We went into the parking lot of the Linwood District Court.
Q. And what happened when you got there?
A. He convinced me, he asked politely if he could borrow the car, he would have it there either as soon as court was over or at lunch time.
Q. Was that the first time that he had said that, that he wanted to keep the car?
A. Yes.
Q. Did that surprise you?
A. No, it didn't surprise me.
Q. It was a change of plans, a sudden change of plans wasn't it?
A. Yeah, but it didn't surprise me.
Q. Did you agree?  [76]
A. Yes.
Q. What happened next?
A. I drove myself to work with him in the car.  I got out at my job, at Keystone Mercy.
Q. Where were you working?
A. Keystone Mercy Health Plan.
Q. Where is that?
A. Borderline Essington, Philly.
Q. Near the airport?
A. Yes.
Q. Off 95?
A. Off of 291.
Q. Between 291 and 95?
A. Yes.
Q. The Delaware side of the airport?
A. Yes.
Q. What time did you get to work, do you remember?
A. About 25 after.
Q. The Defendant left in your car?
A. Yes.
Q. Did you give him any instructions before he left?
A. To be back with my car at lunch.
Q. And did he make that promise to you?  [77]
A. No he did not.
Q. What did he say?
A. No he promised that he would be there, but he didn't keep it.  Sorry.
Q. So he leaves at that point.  What is the next contact you have with him?
A. I don't have a contact with him until approximately 20 after five.  But I assume he tried to call because I had a page over the intercom that said it was somebody named Rob.
Q. What kind of car do you have?
A. It was a 1995 Ford Escort.
Q. This is Commonwealth Exhibit C1.  I want you to take a look at picture 1-A, do you recognize that?
A. Yes.
Q. What is that?
A. That is my old car.
Q. And that is the car that you lent to the Defendant?
A. Yes.
Q. Now did you make an arrangement as to where you would meet at lunch time?
A. No, he was supposed to come there and we were going to go out to lunch together and I would take [78] him back.
Q. What time was that to be?
A. Between 12 and 12:30 or if court was longer, then after that.
Q. So that time came and went?
A. Yes.
Q. How did you feel?
A. Well I was mad at course, I thought he had just taken the car and he wasn't even going to come back.
Q. When was the next time you heard from him?
A. 5:20.
Q. What time did you finish work?
A. Five.
Q. You finished at five?
A. Yes.
Q. So you didn't hear anything from him all afternoon?
A. No.
Q. You are finished with work, what did you do at five o'clock when work is over?
A. At five o'clock I am on the phone with my mom asking her if she heard anything from the police, anything else, because I had received a phone call from [79] the police.
Q. What time did you get a phone call from the police?
A. Around lunch time.
Q. And what did they tell you?
A. Well my mom called me first.  She said my old boyfriend has my car and he did something wrong, he committed a crime with my vehicle.  And she said Jim Racine.
Q. Who is Jim Racine?
A. He is somebody I was seeing.
Q. He was your boyfriend before the
Defendant?
A. Yes.
Q. And that confused you I guess.
A. I said it can't be him, I lent the car to Rob.  And she said the police are looking for you.
Q. And you talked to the police later?
A. Yes, she gave me a number to Officer, I think it might have been a Sergeant or a Captain actually in Upper Chichester that I contacted.
Q. Was it Officer Gray?
A. I don't remember who it was.
Q. Okay.
A. But he told me what happened.  He said [80] that he left, he went to Wawa, he dragged Jen out of the car.
Q. So you heard what transpired that morning?
A. Yes I did.
Q. So work is over at five o'clock, what do you do?
A. I start to worry and I just pace back and forth from my desk to the front balcony, because I can see everything from upstairs.
Q. And then comes 20 after five.
A. Finally he shows up.
Q. He pulls up in the parking lot?
A. Not in the parking lot, we have like a little circle that goes around the front of the building that you can pull up.
Q. Did you go downstairs?
A. Yes.
Q. The Defendant is driving your car?
A. Yes.
Q. Where is Katelyn?
A. Katelyn is in the front seat.
Q. She is in the front seat, did she have a seatbelt on?
A. Yes she did.  [81]
Q. No car seat?
A. No car seat.
Q. Describe the Defendant's demeanor?
A. He was just like get the -- can I say it.
Q. Tell us what he said?
A. Just get the fuck in the car, Katelyn stays in the front, he wouldn't let Katelyn in the back, I wanted to get in the front.  He just said get the fuck in the car.
Q. Why did you want to get in the front?
A. Because she was a baby, she should have been in the back.  It would have been safer, because there was no car seat.
Q. You get in the back seat?
A. Yes.
Q. What happens next?
A. He drives to the Wawa on Naamans Road.
Q. On Naamans Road in Delaware?
A. Yes.
Q. So he leaves your work and how does he get to Naamans Road in Delaware?
A. He drives my car.
Q. What route does he take?
A. He hops on 95.
Q. And he goes southbound on 95?  [82]
A. Yes.
Q. To Naamans Road?
A. Yes, very quickly.
Q. How fast was he driving?
A. I would say about 75 to 80, very fast.
Q. With Katelyn in the front seat?
A. Yes.
Q. Describe his appearance, how did he face look, what was he saying?
A. He was upset.
Q. Did he say he was upset?
A. I mean he was mad, it looked like he was mad, scared, I don't know what was going on because I didn't know everything that was going on. But he was shaky, obviously he knew he did something wrong.
Q. What was he telling you?
A. Just to shut up.
Q. You were trying to talk to him?
A. Yes.
Q. What were you trying to say?
A. I was trying to say slow down, he was weaving in and out of traffic, almost hit a car or two.  He was driving very fast.  It took us like six minutes to get there.
Q. How did you feel when he was driving like [83] that?
A. Scared.
Q. What happened when you got to Naamans Road?
A. He had got out of the car, he told me to watch Katelyn, he said because she gets scared when she is by herself.  So I sat outside in the car with Katelyn and made sure she was all right, while he used the pay phone.
Q. He used the pay phone at the Wawa?
A. He told me he was going to call Jen and I overhead him say meet me at Kmart, be at Kmart in five minutes.
Q. You heard him say that?
A. Yes.
Q. He got back in the car?
A. Yes.
Q. What did he say when he got back in the car?
A. I don't remember quite what he said when he got back in the car, I just remember what happened.
Q. What happened?
A. We didn't go to the Kmart, he went right past it, and jumped back on the highway, and we ...
Q. Now where is the Kmart in relation to [84] the Wawa where you stopped?
A. Basically right next to it.  It is the shopping center right next to the Wawa.  You could probably see it.
Q. So he told Jen he was going to meet at the Wawa?
A. I overhead him say meet me at Kmart.
Q. You heard him say to Jennifer on the phone meet me at Kmart?
A. Yes.
Q. And then what happened as you approached Kmart?
A. We just went past it.
Q. What did he say?
A. Nothing.
Q. He just drove right by?
A. Yes.
Q. What happened then?
A. He got on 95 North.
Q. Where did he go?
A. Jen's house.
Q. Describe for the jury how he was driving?
A. He wasn't driving as bad as he was, but still fast.
Q. How fast was he going?  [85]
A. Still about 70 or 75.  He was still going fast, I mean faster than what I drive.
Q. And Katelyn is still in the front seat.  Was he speaking to you at this point?
A. Not that I can recall.
Q. Did you say anything to him?
A. I asked him where we were going, he said to take Katelyn to her mother.
Q. What happened next?
A. We ended up on, I don't know the name of the street, I think it was Sharpless.
Q. Sharpless Avenue?
A. Yes, I think I am not sure.
Q. And did you know or did you believe that is where Jennifer was?
A. Yes.
Q. Why did you believe that?
A. Because she came outside.
Q. He drives down Sharpless Avenue, what does he do with the car?
A. He parks it about five feet in front of the house.
Q. In front of the house where Jennifer was?
A. Yeah, the house was here, and he parked like five feet ahead of the house.  Not in front of it, [86] like ahead.
Q. Did he stop the engine or was the engine still going?
A. The engine was still going.
Q. Did he put it in park?
A. Yes.
Q. And at that point you saw Jennifer?
A. She was at the door.
Q. And what was the Defendant doing?
A. He kept saying come and get Katelyn and he just kept telling her to come outside and get
Katelyn.
Q. So the Defendant doesn't get out, he doesn't open the door, he doesn't lift Katelyn out, he is yelling for Jennifer?
A. Yes.
Q. Is his window on -- is the driver side window next to Jennifer, or is he on the other side?
A. The driver side was on the same side as the house.
Q. Okay, so his driver side window, he is looking right out and yelling to Jennifer?
A. Yes.
Q. What happened next?
A. I think it was a screen door, she would [87] just come to the screen door and say hold on.
Q. For the record you are holding up your index finger?
A. Yes.
Q. She is holding up her index finger straight like that?
A. Yes, then she would go back into the house.
Q. And did the Defendant say anything else?
A. He just kept saying come and get Katelyn.
Q. And for how long was that going on?
A. Maybe four or five minutes.
Q. What happened next, did he say anything to you?
A. No, he said I think she is up to something.  She was probably calling the cops and that is when I panicked.
Q. What did you say?
A. I said just get me the fuck out of here, I don't want to be involved, I didn't do nothing, just get me out of here and he sped off.
Q. While he was there in front of Jennifer's house, in front of the home there.  Describe the Defendant's manner, his appearance, his state of mind?
A. He was just like racey.  [88]
Q. Tell the jury what you mean?
A. I don't know, I can't even explain it.
He was just in fast mode like come and get Katelyn, like shaky, racey.
Q. Did Jennifer ever come out of the house?
A. Not all the way, no.
Q. Not all the way?
A. No.
Q. What did she do?
A. She would just come off the porch onto the porch and like behind the screen door and she just kept on telling him to hold on.  I think she was going in the house to call the cops.
Q. And you told the Defendant you wanted to get out of there?
A. Yes.
Q. What happened next?
A. He dropped me off on Jones Drive.
Q. So he left Jennifer there and he left in your car?
A. Yes.
Q. You are with him?
A. Yes.
Q. And you go to Jones Drive?
A. Yes.  [89]
Q. Where is Jones Drive in relation to Sharpless, how far away is that?
A. It is not even a mile, it is a couple blocks down Chichester Avenue.
Q. Did the Defendant speak in the car between the time that he left Sharpless Avenue and the time you arrived at Jones Drive?
A. No.
Q. Were you saying anything to him?
A. I just told him that I wanted to get out of the car.  I didn't want to be involved, because they are going to get me for accessory.  He just said you are getting on my goddamn nerves, he is like get out.  I'll be back in 15 minutes, I am taking Katelyn home.  That is the last I heard of him.
Q. His last words to you were I am taking Katelyn home?
A. Yes.
Q. That was the last of you saw of the Defendant on August 10?
A. Yes.

Mr. Reilly:
Your Honor, those are all the questions I have of Ms. Lupi right now.  I did mention to Mr. [90] Smith that I will be recalling Ms. Lupi at a later point.

Mr. Smith:
And I have no objection to that, Your Honor.  I'll limit the cross-examination to this area.  May I have just a minute before I begin?

The Court:  Yes you may.

CROSS-EXAMINATION

By Mr. Smith:
Q. Ms. Lupi, good afternoon.
A. Good afternoon.
Q. Let me just address specifically when you pulled up at the house.  Is your car at two-door car or four door?
A. Four.
Q. So when you got in the back seat, did you could in the back seat behind Robert who was the driver, or behind Katelyn, who was the passenger?
A. I was behind Katelyn.
Q. So when you pulled up in front of the house and Jen was doing that little thing saying hold on, and didn't come out.  I want you to think very carefully about whether your side of the car was next to [91] the curb closest to the house or whether Rob's side of the car was closest to the curb?
A. Rob's side of the car was closer to the house.
Q. So your side was closer toward the street?
A. We were in the middle of the street.
Q. So you didn't pull up next to the curb?
A. Not next to the curb.
Q. It is a pretty narrow street, right?
A. Yes.
Q. You could see from the rear seat, you could see Jen at the door, right?
A. Yes.
Q. Were the windows down in the car, or any of the windows down?
A. Rob's was, not mine.
Q. So because you were in the car, I take it you could hear what Rob was saying pretty clearly?
A. Yes.
Q. And because Rob had his window down, could you hear what Jen was saying, the part where you said she is saying hold on, hold on, could you hear that?
A. Yes.  [92]
Q. And you could also see her?
A. Yes.
Q. You also said that you knew Rob for about two weeks before August 10, one week or two weeks whatever you said is that right?
A. Yes.
Q. And do you remember anytime during that two weeks driving Rob to a pay phone so that he could talk to Katelyn on the phone?
A. Several times.
Q. How many is several?
A. Three or four.
Q. And tell the jury about that, when did that happen and when was that?
A. I can't give you the exact day, but it was always around nine o'clock at night.
Q. And what would Rob ask you to do, or what would you do?
A. He asked me to take him to a pay phone so that he could say good night to his baby.
Q. And did you hear any of those conversations, did you hear Rob talking at all?
A. It sounded like he was given a hard time to have Katelyn put on the phone, but I did hear him on time say good night to her.  [93]
Q. Can you tell us what he said?
A. He said, “Good night baby, I love you.”
Q. Did he explain to you that was pursuant to any sort of agreement that he had with the court or a court order or any of those things?
A. He didn't tell me it had anything to do with a court order, but an argument with Jen.
Q. So you knew from that, that there was bad feelings between him and Jen?
A. I guess you can say bad feelings, but it was to my understanding an argument.
Q. And had he ever discussed with you before that morning his desire to get custody of Katelyn.  You said that morning he was going to go to court and prove Jen to be an unfit mother, so he could get custody of Katelyn, is that what you said?
A. Yes.
Q. Was that the first time that had came up?
A. That was the first time.  Well the night before was actually the first time.
Q. I'm sorry?
A. The night before he explained to me.
Q. So the night before and that morning was the same subject, he was saying to you he was going to court, as far as you knew he was going to court that [94] morning and he was going to try to prove Jen an unfit mother to get custody of his daughter Katelyn?
A. Yes.

Mr. Smith:  That's all I have.

The Court:  Nothing further for now.  Do you want to call somebody now, or do you want to recess?

Mr. Reilly:  I think this would be a perfect time for a recess.

The Court:  Until 1:30?

Mr. Reilly:  Yes sir.

The Court:
We will recess ladies and gentlemen until 1:30.  Don't discuss the case, or let anybody discuss it with you.  We will see you back at 1:30.

[Off the record]

[On the record] [95]

The Court:
We are returning again to the matter of the Commonwealth versus Robert Rivera, number 411 of 2000.  Counsel are you ready to proceed?

Mr. Reilly:
Yes, we are, Your Honor.  Your Honor prior to calling the Commonwealth's next witness the Commonwealth and the Defense will be entering into a stipulation.  Your Honor, Mr. Smith and I were previously incorrect when we stipulated that Ms. Clendening had not testified at the preliminary hearing that the Defendant said “Oh her head” after he and Katelyn went through the doorway.  In fact on September 1, 1999, at a prior hearing in this case and at a time before Mr. Smith became Mr. Rivera's attorney Ms. Clendening was asked a question.  Question, after you heard the noise, after you heard the thump on the way out did you hear anything else.  Ms. Clendening's answer was.  Answer, after I heard the thump Rob said “Oh her head” as he was going out the door, that is why I knew he had hit her head.

Mr. Smith:  [96]
Your Honor, that is a hearing at which neither Mr. Reilly nor I were present, there was other counsel involved.

The Court:  But they are the recorded notes of testimony.

Mr. Smith:  And Mr. Reilly did produce those notes from that hearing, and I so stipulate.

Mr. Reilly:  The Commonwealth calls Officer Hurley Smoak.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please?

Officer Smoak:  Hurley Lee Smoke, S-m-o-a-k.

[Witness sworn]

The Court Clerk:  Be seated and please speak up.

OFFICER HURLEY SMOAK, having been first duly sworn, was called as a witness herein and was examined and testified as follows:  [97]

DIRECT EXAMINATION

By Mr. Reilly:
Q. Officer, you are a police officer with the Upper Chichester Police Department is that correct?
A. That's correct.
Q. How long have you been a police officer?
A. 16 years.
Q. Were you employed as a police officer in Upper Chichester on August 10, 1999?
A. Yes I was.
Q. And did you participate in the investigation of the Katelyn Rivera case?
A. That's correct.
Q. Officer Smoak, I want to direct your attention to about 6:05 p.m. on that date.  Did you receive a call to which you responded?
A. Yes, we received a radio communication from Delaware County Radio Room in reference to a kidnapping suspect had just returned to the residence of 2623 Sharpless Avenue in Upper Chichester Township.
Q. And did you go to 2623 Sharpless?
A. Yes I did.
Q. And who did you meet when you got there?
A. Jennifer Helton.  [98]
Q. Was the suspect there at that point?
A. No he was not.
Q. Did you speak to Ms. Helton?
A. Yes I did.
Q. What did she tell you?
A. She just briefly indicated that he was just there and he left in a maroon vehicle.
Q. Did you stay on the scene there at 2623 Sharpless?
A. Yes I did.
Q. Were you in the house?
A. Yes.
Q. Tell the jury what happened next?
A. While in the house the phone rang, and shortly thereafter Jennifer answered the phone indicating that Rivera was on the phone.  I interject and I ask her can I speak to him briefly.  She said “Okay.”
Q. You picked up the phone?
A. I picked up the phone, and I end up speaking to Mr. Rivera and I asked him if possible he can return the child.
Q. Who spoke first, you or the Defendant?
A. I believe I did.  I indicated who I was, Officer Smoak from Upper Chichester Township Police [99] Department, and I requested him to return the child as soon as possible.  Also even asked him his location.  He declined to tell me exactly where he was at.
Q. What did he say, what were his words?
A. At that point he refused to answer any questions I even submitted to him whosoever.  He indicated that he wanted to meet with Jennifer so they could meet and only then will he return the child and he will also turn himself in to the Upper Chichester Police Department.
Q. Now were you able to hear any background noise?
A.. In the background noise while I was speaking to Mr. Rivera, also heard a child's voice in the background, and he indicated to Katelyn can you be quiet, I am trying to speak to your mother.
Q. How long did that conversation go on?
A. I would say roughly maybe a few minutes.
Q. What did the Defendant say, or were there conditions that the Defendant was placing on returning Katelyn?
A. Well the condition was I interject to him and I say, “Look, please can you return the child?  Is there any way possible that you can just give me a location where you can be, leave her, I can pick up the [100] child?”  He in turn stated, he got a little loud, got disgusted and he hung up on me.
Q. Did he give you any terms, did he say what would have to be done before he would return the child?
A. He indicated that he wanted to meet with her so that they can get back together.
Q. Did he say whether or not he would meet with the police?
A. He indicated that he would only meet with the police after he spoke with her at a location that he decided.  And only then, would he turn himself in to Upper Chichester Police.
Q. Now, when did you receive that call, you arrived there at about 6:05.
A. I would say roughly I received that call at about 6:20 p.m.
Q. Did you stay at the house after the Defendant hung up on you?
A. Yes I did.
Q. What happened next?
A. I received another call that came into the residence it was close to seven o'clock, I can't say exactly what time it was.  And shortly thereafter, Jennifer's mother picked up the phone and said it was [101] Rivera again.  She got on the phone and stated talking to him.
Q. What was Jennifer saying?
A. She was trying to convince him to return the child.
Q. Were you able to hear what he was saying at that point?
A. No I did not.  I ended up getting on the other line on the phone.
Q. You picked up another receiver?
A. That's correct.
Q. Tell me what you heard?
A. At that time he was trying to convince her to meet him at the Tri State Mall.
Q. What was he saying, tell the jury what his words were?
A. He said that he wanted to meet her at the Tri State Mall, so in turn they can get back together again.  And only then that he will turn in himself to Upper Chi.  I interject in the phone conversation and I stated if possible he can return the child, he said no.
Q. What did you say to him?
A. I explained again that I was Officer Smoak from Upper Chi and if possible you can return the child.  He said no, he is not going to do that. [102]
Q. What happened then?
A. From that point he wanted to speak to Jennifer again, and at that point I got off the phone.
Q. Was that the last contact that you had with the Defendant?
A. Yes.

Mr. Reilly:  That's all, Your Honor.  Thank you.

The Court:  Cross-examine.

Mr. Smith:  May I have just one moment please.  No questions.

The Court:  You may step down.

Mr. Reilly:  John McCabe, Your Honor.

The Court Clerk:  Place your right hand on the Bible.  State your full name and spell your last name please.

Mr. McCabe:  John Leonard McCabe, III, M-c-C-a-b-e.  [103]

[Witness sworn]

The Court Clerk:  Be seated and please speak up.

JOHN MCCABE, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Mr. McCabe you are a student is that correct?
A. Yes.
Q. I want to direct your attention back to August of 1999.  Where were you working then?
A. Leader Sunoco, Route 1 and 100.
Q. Route 1 and the Baltimore Pike?
A. Yes.
Q. And the intersection of Route 1 and Route 100 is Chadds Ford is that right?
A. Yes.
Q. How long had you been working there prior to August 10, 1999?
A. Probably two years, around two years.  [104]
Q. You just work part-time?
A. Yes.
Q. That is a gas station is that right?
A. Yes.
Q. And there are pumps out front?
A. Yes.
Q. What was your job?
A. I pumped the gas, that was my main job, but I also would sweep around the island outside, clean up the bays after the mechanics were done, clean the bathroom, that is about it.
Q. Were you working on August 10, 1999?
A. Yes.
Q. Did you have a particular shift that you were working that day?
A. From 6 p.m. until 11 p.m.
Q. Now John I want to direct your attention to about 7:17 p.m. on that day.  Would you describe for the jury what happened?
A. I was out at the pumps and a car pulled up to pump number five and asked for two dollars worth of gas.
Q. Now do you know what kind of car it was that pulled up, John?
A. I remember it was small, and I remember [105] the gas tank was on the driver side of the car.
Q. Now who was driving the car?
A. A man.
Q. Do you see that man here today?
A. Yes.
Q. Would you point him out for us and tell us what he is wearing?
A. He has a green shirt with a chain.
Q. Sitting next to his lawyer?
A. Yes.
Q. Was there anyone else with him at that time?
A. Yes, there was a young child.
Q. Where was the young child?
A. She was sitting on the passenger seat, the passenger seat was reclined all the way down.  She was on her hands and knees facing the back of the car.
Q. So she was in the front of the car?
A. Yes.
Q. In the passenger seat?
A. Yes.
Q. Was she strapped in when you saw her?
A. No.
Q. Mr. McCabe, I am going to ask you to take a look at these pictures.  This is Commonwealth Exhibit [106] C3.  Maybe you want to step down so you can see these.  Let me ask you first to look at 3-A, picture 3-A in the top left hand corner on C3.  Can you tell us what that picture is?
A. That is the intersection of 1 and 100, this road is Route 1 and this right here is Route 100.
Q. Okay, and where is your case station, the Sunoco Station?
A. It is located right there.
Q. And how about picture 3-B what is that?
A. That is basically our gas station lot.  The islands are out front and the three bays on the left where the mechanics work on the cars.  Then on the right side is where the office is at.
Q. Picture 3-C, what is that?
A. That is another picture of our lot.  That is looking at it, coming south on Route 1, heading north.  These are the three pumps.  That is the bathroom door right there and this with the windows that is our office.
Q. And then what is 3-D?
A. That is the bathroom the sink and mirror.
Q. Now did you see the car pull onto the Sunoco property?
A. The first time I was already out there so [107] I did not really see, but I know that he was facing ...
Q. Why don't you show us on 3-B.
A. He was facing this direction, this pump closest to the building facing north.
Q. Okay, so why don't you take this.  Show us which direction is north and which direction is south?
A. This is north, this is south.
Q. So the left side of 3-B is going north and the right side of 3-B goes south?
A. Yes.
Q. And when you first saw his car, his car was pulled and was facing in the northbound direction?
A. Yes.
Q. And the car was between the pumps as you see on 3-B and the building?
A. Yes.
Q. And which pump did the Defendant pull up to?
A. Pump number five, which is this one right here.
Q. Looking at 3-B, that would be the last pump on the left hand side as you look at 3-B?
A. Yes.
Q. What did you do when the Defendant pulled [108] up?
A. I walked over to him and asked him what he would like.  He asked for two dollar worth of gas.
Q. Did he have the money right on him?
A. He had a dollar, but then he was looking around.
Q. He had a dollar bill?
A. Yes, he had a dollar bill and he looked around the car and found four quarters.
Q. And what was the baby doing at that point?
A. Just sitting on her hands and knees facing the back of the car.
Q. Did the Defendant speak to you at all after that?
A. After he got his gas?
Q. Yes, or while you pumped his gas for him?
A. No, he was looking for money, and two dollars worth of gas didn't take too long to pump.  So once he got his gas he left pretty quickly.
Q. When you say that he left pretty quickly, what do you mean by that?  You can take your seat.
A. I turned around to help the next person and he was gone.  I mean he didn't squeal his tires or anything but he didn't stick around too long. [109]
Q. How much time passed from the time that he pulled up until the time that he left?
A. Not very long, maybe two minutes at the most.
Q. Now what time were you working until?
A. 11 o'clock that night.
Q. I want to direct your attention to about 9:16 p.m. that same evening.  You are still there at the
Sunoco Station?
A. Yes.
Q. Tell the jury what happened then?
A. The man came back.
Q. Who came back?
A. The Defendant came back and he pulled up to the -- can I point to the picture again?
Q. Sure you can.
A. He just pulled up back here to the parking spots.  There weren't really cars there so he just pulled up in there and headed for the bathroom.
Q. You are indicating on photograph 3-C, that he pulled up alongside of the building where the bathrooms are?
A. Yes.
Q. Where were you when he pulled up?
A. I was in the office sitting with my [110] sister.
Q. What did you see him do when he pulled up?
A. He got out of the car and went straight to the bathroom.
Q. How was he able to get into the bathroom?
A. My sister brought the key out to him, and he got in.
Q. And where were you at that point?
A. I was still in the office.
Q. Did you come out of the office at some point?
A. Yes, after he was done he called me over to his car.
Q. Wait a second, how long was he in the bathroom?
A. Probably around five minutes.
Q. Were you outside when he came out?
A. I believe he motioned for me to come out towards him.
Q. While you were still inside the office?
A. Yes.
Q. Did you come outside?
A. Yes.
Q. What happened next?  [111]
A. He told me a story about how he ran out of gas and he needed to go home to his wife because she was worrying about him.  So he offered me a watch as kind of collateral that he said he would come back and get, and give me the money on another day.  At first I didn't want to take the watch, because it is kind of weird to take stuff like that but he kept pressuring me to do it so I believed his story so I took the watch and he pulled over to the gas pump and I filled him up with $10 worth of gas.
Q. Did you see the little girl?
A. No.
Q. No little girl in the car?
A. No.
Q. When he pulled back over to the car what did you do?
A. Pumped him with ten dollars.  He stood out the whole time while I was pumping.
Q. Was he talking?
A. Yeah, he had a little chitchat.
Q. What was he saying?
A. Just thanks for doing this, he really appreciated it and when he left he shook my hand and said that his name was Rob and that he would be getting back to get the watch back because the watch was a [112] Christmas gift from his wife and it had sentimental value.
Q. This is Commonwealth Exhibit C44 for identification, Mr. McCabe.  Let me show that to you.
Do you recognize that?
A. Yes.
Q. What is that?
A. This is the watch that he gave me as collateral for gas.
Q. You gave that to the police after they came to question you, is that right?
A. Yes.
Q. Now, Mr. McCabe when you finished pumping the gas what did you see the Defendant do?
A. He got back into his car and I believe he pulled out onto Route 1, heading north.
Q. Would you show us on there what he did, maybe in the first picture the top left hand corner.
A. He pulled out of the station heading north which is up here and drove off.
Q. Toward Route 202?
A. Yes.
Q. Mr. McCabe, I am going to show you what has been marked as Commonwealth Exhibit C43 for identification.  You have seen this before, haven't you?  [113]
A. Yes.
Q. What is this?
A. This is the register on the inside, every time you clear the pumps, it prints out a receipt as to what time the gas was paid for.
Q. Okay.  Mr. McCabe let me show you first this portion of C43 between the paper clips there.  Would you tell us what that is, what is that a record of?
A. That is the record of the $2 gas that I pumped at pump number five at 7:17.
Q. Is that the pump that you pumped the gas into his car from?
A. Yes.
Q. And what time was that?
A. 7:17:23 that night.
Q. On Tuesday, August 10, 1999?
A. Yes.
Q. I knew this wasn't going to be easy, Your Honor.  Now we have moved further down the tape, Mr. McCabe.  Would you tell the jury please what is the transaction that is there at the paper clip, what does that say?
A. It is at 9:16 almost 9:17 the same night on pump number five.  [114]
Q. Again is that the pump on which you pumped his gas?
A. Yes, and there is $10 worth of gas.
Q. That is the $10 worth of gas that you pumped for him?
A. Yes.

Mr. Reilly:  That's all I have, Your Honor, thank you.

The Court:  You may cross.

Mr. Smith:  Thank you, Your Honor.

CROSS-EXAMINATION

By Mr. Smith:
Q. Mr. McCabe those two times on that tape.  I didn't hear you clearly, forgive me if you already said this but I will ask you again.  9:16 and 7:17 were the two times that are on the register tape, right?
A. Yes.
Q. Is that the time I don't want to split hairs, but is that the time that you start pumping the gas, when you stop pumping the gas, when you turn off the pump, what is that?  [115]
A. That is the time where you clear it out.  Both times we are taught pretty much almost every time you are done filling up, just to run in there and clear it.  Because if you don't clear it out right away, you try to pump somebody else, it denies it so you have to go inside and clear it out anyway.
Q. And where do you do this clearing it out process?
A. Inside the office there is a register.
Q. So the first time that Rob pulled up you are already outside?
A. Yes.
Q. He pulls up and he pulls up to pump five.  Are you are a station where the attendant pumps the gas instead of the customer?
A. Yes we are a mini-serve and I guess he pulled up to pump number five because there were people there already, so that was probably the first pump open.
Q. The open pump?
A. Yes.
Q. So he pulls up to pump five, and at that point before anything happens, do you have to go inside to make this pump clear so that you can pump gas?
A. No, at that time people had just come in, nobody had gone to pump number five yet.  [116]
Q. So you had already cleared it so to speak from whoever had been there sometime earlier?
A. Yes.
Q. And that had been enough time ago to allow you to get inside, clear it and be outside dealing with these other customers?
A. Yes, there is two people working, so usually one person will run in if the cars are just sitting there and running in.  So one person will just run in and do it real fast.
Q. But that didn't have to happen here because this pump was already cleared is that correct?
A. Yes.
Q. So now the pump is cleared, Rob comes in he says two dollars worth of gas?
A. Yes.
Q. You are already standing there so you go back take the nozzle flip that little gismo, give him two dollars worth of gas, put the nozzle back in right?
A. Yes.
Q. Am I doing okay so far?
A. Yes.
Q. And he gives you two dollars?
A. Yes.
Q. When he gives you the two dollars, you [117] say he gave you a dollar bill and some quarters?
A. Yes.
Q. Did you see that he was looking around to try to find this money while you were pumping the gas?
A. Yeah, I was standing right there, so I recollect that he was looking under seats or in the change drawer.
Q. So when you see him looking around, you figure that he is looking for money?
A. Yes.
Q. It is a common occurrence; people pull into the gas station and then start looking for the money right?
A. Yes.
Q. And at that point the passenger seat is fully reclined so Katelyn the little girl has access to the passenger seat and the top of the passenger seat is back so she can crawl on that also if she wanted?
A. Yes.
Q. Do you see her at that time?
A. Yes.
Q. Through what the back window?
A. Yes, the back window.
Q. And as you look through the back window does she look at you?  [118]
A. Yes, she was facing my direction.
Q. Do you see any bruises, cuts, bumps, injury, blood?
A. Nothing that I saw.
Q. Nothing?
A. No.
Q. Did she appear to you to be in distress of any kind?
A. She wasn't crying.
Q. She was not crying, not unhappy, not pouting, not whining, just in the car?
A. Yes.
Q. Are you in a uniform of same kind, do you have like a Sunoco uniform?
A. Yes we have Sunoco shirts.
Q. Did you notice how Rob was dressed?
A. I am pretty sure he had shorts and a tee shirt on.  I think they were dark.
Q. Shorts and a tee shirt, did you notice his shoes at all?
A. No.
Q. Do you know what kind of tee shirt was it like a white tee shirt, a colored tee shirt?
A. I am pretty sure it was colored and I do not recollect the color.  [119]
Q. Did you notice how the little girl was dressed?
A. Just that she had clothes on.
Q. Did you notice anything about the color, like little kids wear clothes with animals or horses any of those kind of things?
A. Yellow is coming to mind, the color yellow but I am not sure.
Q. So you didn't notice things like what kind of shoes did she have on?
A. No.
Q. Now you said that after he got the two dollars worth of gas he left, and I believe you words were he left rather quickly?
A. Yes.
Q. Mr. McCabe, is it fair to say that a lot of people come in and get gas and leave rather quickly, they are doing stuff, they don't hang around the gas station so to speak?
A. Yes, usually once they are done pumping, most people will sit there and they record stuff and take their time.  Usually I have to like make them--there is only six pumps to our gas station and because we are mini-serve and we pump it and nobody else does, and I mean it is the same price as self service, usually [120] we are pretty packed.  So we try to get people in and out pretty fast.  So usually people dilly dally and ...
Q. They become annoying?
A. Yeah, they become annoying.
Q. But there are some people who don't right?
A. Yes.
Q. And he didn't squeal the tires?
A. No.
Q. Or he didn't zoom out on the road and almost cause an accident or anything like that?
A. No.
Q. He didn't go so fast that you saw the car screeching?
A. No.
Q. Then if I understand the process, up until now there is no record of the two dollars worth of gas being bought until you go back inside and click the button, or whatever you have to do to make the pump clear is that right?
A. Yes sir.
Q. When do you do that after Rob leaves?  Do you do that immediately, do you wait, do you have another customer you are waiting on, do you recall?
A. It was probably within a two-minute time [121] frame.
Q. Now you said probably so give me a ...
A. Well it couldn't be more than four minutes.  But it was probably pretty close to after I was done.
Q. Okay so probably within two minutes, but certainly no more than four minutes, is that a fair characterization at the time?
A. Yes.
Q. You are comfortable with that?
A. Yes.
Q. That is realistic in your recollection?
A. Yes.
Q. So that means since it showed 7:17 on the register, he would have gotten the gas at 7:15 or 7:13 and you would have hit the gismo at 7:17?
A. Yes.
Q. Now at 9:16 the next entry, I think if the sitting rules hold true.  In other words that entry is only made after he gets the gas and after you go back in and click the gismo?
A. Yes, this time though the 9:16 there was nobody else there so it was within a minute of him leaving.
Q. That is what I am getting to.  So on that [122] occasion after you pump the gas $10 worth you said right?
A. Yes.
Q. After you pump the gas on that occasion there is nobody else there so you have a recollection of going back inside the station and hitting the button to clear the machine?
A. Yes, my sister was inside so if I didn't clear it, she probably cleared it, but it was cleared right away.
Q. You threw that probably at me again.  I have to ask you.  Do you recall who cleared the machine you or your sister?
A. No sir.
Q. So you don't recall who cleared it, so if you don't recall who cleared it, how do you know that you cleared it within a minute?
A. Because I was inside, and if it doesn't get cleared right away or if it is waiting to be cleared, it beeps, a really annoying shrill noise.  So if anybody was sitting in there and heard it, they would clear it really fast.
Q. So when you went back inside you didn't hear the beep?  I wasn't there so I have to ask you.  I am not trying to get you to do anything other than give [123] us your best recollection.  If your recollection is I give him $10 worth of gas, he gives me a watch, I go inside.  Am I right so far?
A. Yes.
Q. And then you say I am pretty sure I would have cleared it right away because there is this annoying beep that comes out if you don't clear it?
A. Yes.
Q. So in your recollection you went inside promptly after the car left?
A. Yes.
Q. And how sure are you of that?
A. 100 percent sure.
Q. Okay, and then once you get inside who clears the machine?
A. I can't give you an answer; I just know that it was cleared promptly.
Q. When you see Rob this second time, you said that we know the pump was cleared at 9:16, and you said it doesn't take very long to pump two dollars worth of gas, but it must take longer to pump ten dollars worth of gas?
A. Yes sir.
Q. So how long would it take to pump ten dollars worth of gas?  [124]
A. Probably around three to four minutes.
Q. And I guess I am working in backwards order here, so I will keep going that way.  Before you pump the gas you have the discussion with him or negotiations about the gas and the watch, right?
A. Yes sir.
Q. How long do those last?
A. That probably lasted around a minute or two.
Q. And before that, he is in the bathroom for how long?
A. No longer than five minutes I don't think.  But it was a couple of minutes, three or four.
Q. Now you said he was in the bathroom a fairly long time and you thought he was in there for at least five minutes?
A. Around five minutes.
Q. So now you just said no longer than five minutes, probably three or four.  I am not putting words in your mouth; I am just trying to get as accurate a representation as I can.  He is in the bathroom for no more than five minutes?
A. And no less than three minutes.
Q. And no less than three?
A. Yes.  [125]
Q. When he parks his car and walks into the bathroom, that is the first time you seen him get of the car, I take it he didn't get out the first time?
A. Well his door was open.
Q. I'm sorry which time?
A. The first time his door was open, but I don't think he stood up the first time.
Q. So he had the door open but didn't get out?
A. Yes.
Q. The second time he not only opens the door, but he gets out and goes to the bathroom, right?
A. Yes.
Q. Do you see him get out?
A. My sister was the one who actually saw him get out and go to the bathroom.
Q. And she is the one that I think you said brought him the key?
A. Yes.
Q. She gave him the key, because the bathroom door is locked?
A. Yes.
Q. So your sister is the one who sees him get out of the car.  She is the one that sees him heading for the bathroom so she brings him a key? [126]
A. Yes.
Q. And so the first time you see him outside the car is what, when he comes out of the bathroom?
A. Yes.
Q. He waves you out?
A. Yes.
Q. Where is the key at this point?  Does he have the key?
A. I am pretty sure he still had it then.
Q. Did he give it back to you?
A. Yes.
Q. When he gives you the key are you able to see him, I mean the gas station is pretty well lit?
A. Yes.
Q. How is he dressed?
A. I am pretty sure he is wearing the same stuff as before.
Q. Tee shirt, dark shorts, white tee shirt -- I'm sorry colored tee shirt, dark shorts.  Did you notice his shoes?
A. No sir.
Q. Did you notice whether there was mud or anything on his clothes?
A. No sir.
Q. Did you notice anything about the shoes [127] at all?  Did you see dirt of mud or anything?
A. I don't even think I looked at his shoes sir.
Q. Did you have occasion to go into that bathroom any time that night after Rob left the bathroom, either to go use it yourself or check it at the end of the shift, to make sure that somebody didn't take all the paper towels, use them up?
A. I think right before I left I went in and turned off the light and made sure everything was like the mirrors weren't broken or anything.
Q. That nobody did any damage or anything?
A. Yes.
Q. The bathroom looked okay to you then?
A. Yes.
Q. So you have to go in to check it out, you have to use the key to get in still, right?
A. Yes.
Q. You go in at the end of your shift you check the bathroom, the mirrors aren't broken, is the floor covered with dirt, mud or anything?  Did it pretty much look like the bathroom looks regularly or did it look?
A. Yes, regularly.  Our gas station bathroom floor is not too clean.  [128]
Q. Nothing extraordinary that caught your eye?
A. No sir.
Q. The second time he leaves, does he leave quickly the second time?
A. Well after he was done, and I finished he shook my hand and said goodbye, so it wasn't just a jump in the car and leave.
Q. Now when he first called you out he asked you about getting some gas and told you that he had no money, right?
A. Yes.
Q. Do you recall offering to give him five dollars worth of gas?
A. Yes.
Q. And then he said I'll give you the watch as security, and then there was some discussion about that right?
A. Yes.
Q. And you said as long as I am keeping the watch, I will give you ten dollars worth of gas?
A. Yes sir.

Mr. Smith:  May I have just one minute, Your Honor, I [129] believe I am done.

By Mr. Smith:
Q. I'll be brief in this last part.  You said that Katelyn was in the car on her hands and knees while you were pumping the gas.  Did she come towards the back of the car where you were at all?  Like how close to you did she get?  Did she come closer to you while you were doing that, do you remember?
A. I don't believe she crawled into the back seat.
Q. How far would you say you were from her?
A. Probably four feet, it was a small car so three or four feet.
Q. And your gas station is pretty well lit there?
A. Yes, it was still light out.
Q. So you had pretty good light?
A. Yes.
Q. And you could see her face clearly?
A. Yes.

Mr. Smith:  That's all I have, Your Honor, thank you.

The Court:  [130] You are excused, Mr. McCabe.

Mr. McCabe:  Thank you.

Mr. Reilly:  Thomas Whittaker, Your Honor.

The Court Clerk:
Place your right hand on the Bible.  State your full name and spell your last name please?

Mr. Whittaker:  Thomas Victor Whittaker, the last name is W-h-i-t-t-a-k-e-r.

[Witness sworn]

The Court Clerk:  Be seated and please speak up.

Thomas Whittaker, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good afternoon, Mr. Whittaker.  [131]
A. Good afternoon.
Q. Mr. Whittaker, you know the Defendant, Robert Rivera correct?
A. Yes sir.
Q. How do you know him?
A. He was an ex-neighbor of mine when I lived on Chichester Avenue.
Q. You used to live in Delaware County is that correct?
A. Yes sir.
Q. In Upper Chichester Township?
A. Yes sir.
Q. And where did the Defendant, you lived on Chichester Avenue?
A. Yes, in an apartment.
Q. Where did the Defendant live in relation to you?
A. Right next door.  I was a bottom apartment, and they were in a bottom apartment next door to us.
Q. You no longer live in Delaware County is that right?
A. Yes.
Q. You moved to Florida?
A. Yes sir.  [132]
Q. When did you live in Delaware County on Chichester Avenue?
A. I would say 1998 through 1999.
Q. How friendly were you with the Defendant?
A. Just basically neighborly.  We would hang out a little bit after work to talk to a little bit, that is about it.
Q. Did you also know Jennifer Helton?
A. Yes, she was a neighbor.
Q. The Defendant was living in the apartment with Jennifer Helton?
A. Yes sir.
Q. And how about Katelyn Rivera, did you know her?
A. Yes that was my daughter's first friend.
Q. How old is your daughter?
A. She will be four come May.
Q. She and Katelyn were about the same age?
A. Yes sir.
Q. Now Mr. Whittaker, I want to direct your attention to August 10, 1999.  Where were you living at that time?
A. Elkton, Maryland Blair Shore.
Q. When had you moved from Delaware County down to Maryland?  [133]
A. I think it was June of 1999.
Q. Mr. Whittaker do you recognize this map?
A. Yes sir, I do.
Q. Can you tell the jury for the record first of all what is the area in this map?
A. You got Maryland, Delaware and Pennsylvania.
Q. And can you show us on this map where you live.  Use the pointer -- I'm sorry where you lived at the time August 10, 1999?
A. Right here on Blair Shore.
Q. The red shaded area and there is a small number two next to it?
A. Yes sir.
Q. And that is just south of Elkton, Maryland?
A. Yes sir, a little ways right on down that road.
Q. Now August 10, 1999 did something unusual happen that evening?
A. Yes sir, when I came home from my neighbors, I was home for a little while, I was playing video games, and the next thing I know Rivera was at the door.
Q. About what time did the Defendant show [134] up?
A. I think around ten o'clock, or a little after.
Q. Were you surprised to see him?
A. Yes sir.
Q. Why were you surprised?
A. He was only down there one or two times before, and that was to help us move.  And other than that I hadn't seem him after we moved on down.  We don't really keep in contact with a lot of people.
Q. So you hadn't kept in contact by phone or anything like that?
A. No sir.
Q. What did the Defendant say to you?
A. The first thing out of his mouth was you are still playing that game and then we proceeded, I told him to come on in and he said -- he had told me that Jennifer and him were fighting, Richard threw him out of the apartment.
Q. Who threw the Defendant out?
A. Rich, our landlord, or old landlord.  Threw him out of the apartment and padlocked the door.
And he was going to take off.
Q. Who, the Defendant was going to take off?
A. Yes, I asked him where are you going to [135] go and he said he was going back to New York.
Q. What happened next?
A. Between then and walking back to the garage, to finish the conversation I had asked him what are you going to do about Katelyn.  He said he was going to send money to Jennifer and make sure she was taken care of, that it was his responsibility.
Q. So you left that you left your house, you went outside your house?
A. Yes.
Q. Where did you go?
A. Well first we walked into the front there, and my wife and my neighbor came on over.  So I told Rob just to come on back there and let the women talk and we walked back to the boathouse.
Q. At this point, Mr. Whittaker did you know what the Defendant was going to do that night?
A. What do you mean?
Q. Did you know if the Defendant was going to stay that night?
A. Not off the bat.  After we left the boathouse, I had an idea I was going to let him stay there, after I made sure he wasn't planning on staying there for a couple of weeks.  He was fighting with his woman, he needed a place to crash, he was down there I said all [136] right crash on the couch and be gone in the morning.
Q. So you were going to let him stay the night?
A. Yes sir.
Q. Take a look, Mr. Whittaker at Commonwealth Exhibit C4.  Now would you tell us first of all what is picture 4-A?
A. That was the cottage, the house we lived in.
Q. Okay you lived there with your wife?
A. And my daughter.
Q. Is that the door that the Defendant appeared at?
A. Yes sir, I was right inside sitting in my chair facing away from the door, and he was standing right there.
Q. How about photograph 4-B, can you tell me what that is?
A. Okay, this is the back of the trailer.  This is the metal shed, this is the outside shower, and do you want me to explain what was here?
Q. Yes.
A. The next morning I realized that is where the little red car was parked, that is the car he was driving.  [137]
Q. Okay, we will get to that in just a minute.  4-C, what is 4-C?
A. This is the outhouse and this is the boathouse and garage.
Q. So you were telling the jury that you left the house, which is pictured in 4-A and you walked with the Defendant back to the boathouse and that is what is in 4-C?
A. Yes sir, right there.
Q. Now tell he what happened when you and the Defendant went out to the boathouse?
A. We went out to the boathouse, went in the back.  I had my tool box back there, we went into the back of the boathouse and I sat down and grabbed, I had a little bottle of liquor in there and I pulled that out and took a swallow, and offered the Defendant some and he drank.
Q. Were the two of you talking to one another?
A. Yes sir.
Q. What were you talking about?
A. We talked about just basically he said he found pictures of Jen, just talking about why they were fighting and this, that and the other thing.  I have my own problems, I really don't want to hear anybody [138] else's.
Q. Did your conversation come to an end at some point and did you decide to leave the boathouse?
A. Yes sir.
Q. How long were you out there?
A. I would say about 20 minutes.
Q. What happened then?
A. We left the boathouse and went back up front.
Q. Back up into the cottage?
A. Yes sir.
Q. What happened then?
A. We sat up a little bit and threw him a blanket and pillow for the couch and went back and got undressed and we all went to bed.
Q. And the Defendant you said slept on the couch?
A. Yes sir.
Q. About what time did you go to bed, do you know?
A. Not really, I would say between 11 and 11:30.
Q. What time did you get up the next morning, August 11, 1999?
A. I would say about 7:30, 1 didn't have to [139] be to work until ten o'clock, so I would say about 7:30 I got up.
Q. Was the Defendant awake when you got up?
A. No, he was sleeping on the couch still.
Q. Still asleep.  So when you got up what did you do?
A. I got up, went out back.  I got my clothes, went out back to use the bathroom.  Well I dropped my clothes off at the shower.  Went to use the bathroom and then hopped in the shower.
Q. Okay, so you cleaned up and came back in the house?
A. Yes sir.
Q. Where was the Defendant when you came back in the house?
A. He wasn't in the house, he was back in the outhouse.
Q. What did you do when you came back into the house?
A. Went back and checked on my wife and the kid to see if they were awake or what was going on.
Q. When is the next point you saw the Defendant?
A. When I -- let me think.  Coming out from there he was coming back from the outhouse.  [140]
Q. So at some point you go out of your house again?
A. Yes sir.
Q. So you went to the outhouse, went and got a shower, went back into your house and then went back out again?
A. Yes sir.
Q. And it is when you go back out again that you see the Defendant?
A. Yes, he was tucking his clothes in and things like that.
Q. Where was he?
A. He was by the shower and then around his car.
Q. Can you show us on these pictures, Mr. Whittaker where you saw the Defendant's car.  First of all when was the first time that you saw the car that the Defendant was driving?
A. The first time I saw it was the next morning when I was coming back from the outhouse.
Q. And where was it parked?
A. It was parked right here, this wood wasn't there at the time, it was parked like that.
Q. Is that behind the cottage, is that behind what you see in 4-A?  [141]
A. Yes sir, that is in the back yard.
Q. Okay, so picture 4-B is a rear view of the cottage?
A. Yes sir.
Q. So the car was around the back of the cottage?
A. Yes sir.
Q. Did you think that was unusual when you saw it?
A. Very unusual.
Q. Why?
A. I don't drive around in my yard.  The driveway would have been back in this area, in the front.
Q. Is the driveway in the front of the cottage?
A. Yes, where everybody parks at, so we aren't tearing the yard up.
Q. And his car was all the way behind the house?
A. Yes sir.
Q. And when you came back outside, the Defendant was out of the outhouse is that right?
A. Yes sir.
Q. And he was tucking his clothes in?  [142]
A. Yes sir, he was straightening himself up.
Q. And where was he in relation to his car, how close to his car was he?
A. He was about up to the door, up in that area, past the car and up by the shed.  That is when I turned up into the house.
Q. What happened next?
A. After that, he was gone.  After he had left I went back in the house and talked, then he had left.
Q. Well was there at point at which you said goodbye to him?
A. No.
Q. Did you talk to him at all in the morning?
A. No I didn't.
Q. You just kind of passed one another, did either of you speak at all that morning?
A. No sir, not really.
Q. Not thank you, not goodbye, not anything like that?
A. No sir, I turned around and he was gone.  After all that he just left.
Q. Now what did you do that day, Mr. Whittaker, did you go to work?  [143]
A. Yes, I went in at ten o'clock.
Q. Now the photograph in the center of the exhibit there shows your shed is that correct?
A. The boathouse, yes sir.
Q. The boathouse, I'm sorry.  What kind of doors do you have on the boathouse?
A. Just two swinging doors that swing out like this.
Q. Do they have a lock on them?
A. Yes sir, I padlock them before I leave the property.
Q. After you left the boathouse the night of the 10th, when you and the Defendant left the boathouse, did you lock those doors?
A. No, I didn't lock them, I just wedged them together because it is old and I wedge them together.
Q. Okay, so you wedged them together, but they weren't locked?
A. Right.
Q. When was the next time that you went into the boathouse?
A. Probably after work the next day.  That morning I just happened to notice that it was open, so I went back and shut it back up again.  [144]
Q. When did you notice that the doors were open?
A. When before I left for work I went back to use the bathroom again, and I noticed the doors were open.
Q. So you had gone back into your house.  When you came out of your house, was the Defendant's car already gone?
A. Yes, he was gone.
Q. And you looked at the doors of the boathouse?
A. Yes sir.
Q. And what did you see?
A. I seen the door was cracked open, it was open about six to 12 inches.
Q. And is that how you had left it the night before?
A. No sir, we leave it shut so animals don't get in there.
Q. What did you do when you saw it was open?
A. Well I went back and opened it up, just poked in and I shut it again and I locked it before I went to work.
Q. And then you locked it?
A. Yes sir.  [145]
Q. Now, you went to work that day.  When you came home from work what did you do?  Did you go to the boathouse?
A. No, I didn't go to the boathouse.  Because I came home from work, I worked until six o'clock and I might have ran into town.  That night I went ahead and did what I had to do and went to bed.
Q. When is the next time that you went into the boathouse?
A. The next time I went into the boathouse was the day after, when the FBI agent that was down there.
Q. What did the FBI agent ask you to do?
A. The FBI agent asked me if he could go into the boathouse, and he asked me to look around to see if there was anything missing.
Q. So did you go into the boathouse?
A. Yes I did.
Q. And what did you notice?
A. Well I looked around and I noticed that my spade shovel was gone.
Q. Now that boathouse had been locked from the morning of the 11th that you went to work, is that correct?
A. Yes sir.  [146]
Q. Until the time that you and the FBI agent went in there?
A. Yes sir.
Q. So you told the FBI agent that the shovel was missing?
A. Yes sir.  I looked around the yard, I looked all around there, and I always put my tools back.
Q. When is the last time you had seen the blue spade shovel before that morning when you were in there with the FBI agent?
A. It was actually the day of the 10th, the morning I was out in the yard digging and moving the picnic table around.  So I had to dig posts up and move the holes around and that is the day I used it.
Q. And when you were finished using it on the 10th, what did you do with it?
A. I put it back in the boathouse with the saw.
Q. What time was that, what time did you put it back in?
A. I would say about two o'clock in the afternoon.
Q. Now at a later time, Mr. Whittaker did someone ask you to take a look at a shovel that had been found?  [147]
A. Yes sir.
Q. Who was that?
A. An officer came up to my job.
Q. Where were you working?
A. Meineke Mufflers.
Q. And what did the officer do?
A. He opened the trunk of his car and he said would you look at this here sir.  I went ahead and looked at it, and I said that is my shovel.
Q. Did it take you any time to figure out whether it was your shovel or not?
A. No sir, there aren't too many that looked like that.
Q. Let me show you what has been marked Commonwealth Exhibit C45 for identification.  Tell me what that is?
A. This is my father's spade shovel, which I inherited when he died.
Q. When the police officer brought that shovel to you, tell the jury how you knew that it was yours?
A. Because it is a blue spray paint.  My father spray paints all his tools one color.  This way he knows is isn't the neighbors, and it isn't anybody else's it is his.  And this is the blue paint that he [148] sprayed onto the handle.
Q. Mr. Whittaker, there was a point after you had identified this shovel when you wound up in Delaware County Prison is that right?
A. Yes sir.
Q. When was that?
A. March of 2000.
Q. And why did you -- how did you wind up in Delaware County Prison?
A. It was an old violation charge.
Q. You violated your parole?
A. Yes sir.
Q. What was the charge?
A. It was an old DUI.
Q. And you wound up in Delaware County Prison?
A. Yes sir.
Q. Did you see the Defendant when you were in Delaware County Prison?
A. Yes I did.
Q. Where did you see the Defendant?
A. In the Law library.
Q. Why were you in the Law library?
A. I got me a job working in the Law library.  [149]
Q. What was your job?
A. I would take books around and get books out of the back for other inmates and such.
Q. When you were in the Law library with whom did you see the Defendant.  Who else was in the Law library with you and the Defendant?
A. It would have been Dan Bush, Vincent Carr.
Q. Who is Vincent Carr?
A. He was another inmate.  And Charlie, I don't know his last name.  But Charlie who is another inmate that worked in there.
Q. Did you know about a relationship between the Defendant and Vincent Carr?
A. Later on.
Q. How did you know about that?
A. Just talking to Vinnie and I seen them back there talking all the time.  Vinnie helped him with his legal work.
Q. Tell the jury what you saw -- how many times you saw the Defendant and Vincent Carr together?
A. Quite a few times.
Q. Could you estimate how many times?
A. I would say at least ten.
Q. And where would they be in the law [150] library, what would they be doing?
A. They would be in the back part, back between the office you got the middle section, the up front with the inmates, then you have a little office with Dan Bush and the work inmates and then you have the law library in the back with all the books.  And he would be back there with Vincent Carr, where the books are.
Q. Were you able to observe how much time the Defendant would spend with Vincent Carr when the two of them were together in the law library?
A. I have got to remember but he spent most of his time that he was allowed up there.  He got together with Vince and they would be together most of the time that he was allowed in the law library.  Sometimes it would change on how long they were allowed in the law library.
Q. Now Mr. Whittaker, before you came up, you came up from Florida to testify is that correct?
A. Yes sir.
Q. And the District Attorney's Office bought your plane ticket for you to come up here, is that right?
A. Yes sir.
Q. We sent you a subpoena?  [151]
A. Yes sir.
Q. And we paid to have you come up here, is that right?
A. Yes sir.
Q. Before you came up, you expressed to me that you were concerned about your parole status here in Delaware County is that right?
A. Yes sir.
Q. I told you that I would help you with your parole officer, talk to your parole officer and give you whatever help I could and straighten out whatever problem you might have, correct?
A. Right.

Mr. Reilly:  That's all I have, Your Honor.

The Court:  You may cross-examine.

CROSS-EXAMINATION

By Mr. Smith:
Q. Mr. Whittaker, what is the problem with the parole officer that you asked Mr. Reilly's help?
A. I just wanted to get back to my family, my wife is getting ready to have another baby anytime [152] right now.
Q. He said that he offered to help you with your parole officer, because you expressed some concern about your status on parole in Delaware County.  Isn't that what you just answered to?
A. Yes sir.
Q. What is your concern with your status in Delaware County?
A. I wanted him to transfer everything for me.
Q. You want who to transfer what?
A. My parole.
Q. You want your parole officer to transfer your parole from Delaware County?
A. To Florida.
Q. And that is your only concern?
A. Yes sir.
Q. There is nothing else that you are asking for his help with?
A. No sir.
Q. And he has agreed to help you do that?
A. Yes sir.
Q. And is that the only help that you have asked for from the District Attorney's Office or the Commonwealth since you got arrested on your parole [153] violations for the DUI?
A. Yes sir.
Q. So you served your time and you got out of prison then is that right?
A. Yes sir.
Q. So you don't owe them anymore time, right?
A. Right.
Q. Now that night, the night of August 10 when Robert Rivera showed up.  You testified on direct examination that you went into this little back boathouse and you had a swallow of liquor from a little bottle that you kept back there?
A. Yes sir.
Q. And that he also had a swallow of liquor?
A. Yes sir.
Q. Do you remember talking to the police about that?
A. Yes sir.
Q. Did you tell the police that in fact you got pretty buzzed, I believe was the word you used?
A. I said I had a good buzz.
Q. And what was that good buzz from?
A. I was at my friends house and I had a couple of beers over there, and I drank a couple shots [154] of the liquor and it gave me a little buzz.
Q. Now you said that your daughter is going to be four this coming May?
A. Yes sir.
Q. So that would make her about five or six months younger than Katelyn right, your daughter is younger than Katelyn Rivera?
A. Yes sir.
Q. Did Jennifer and Rob every give you and your wife clothes, sort of hand-me-down stuff from Katelyn to your daughter?
A. Yes sir.
Q. I believe you said that Katelyn and your daughter, she was her first friend?
A. Right.
Q. And do you remember the last time before August 10, 1999 that they would have given you any clothes, any hand-me-downs?
A. I can't remember the last time.
Q. Specifically here is what I am getting to.  Do you remember them ever giving you a pair of sneaker?
A. No, no sneakers.  It was usually shirts or pants.  We always had sneakers, we always had extra shoes.  [155]
Q. Were you always present -- was your wife friendly with Jen?
A. Yeah, about the same we are old neighbors.
Q. And were there times when your wife would visit with Jen without you being around, like she would come up to Delaware County even after you moved?
A. No, not without me.
Q. Was there ever a time that Jen came down to your place in Maryland without Rob?
A. No.
Q. So the only time she would have been there, you would have been there?
A. Yeah, I would have been there.
Q. So there were no times for example when the wives would have gotten together and Jen would have given clothes to your wife for your little daughter?
A. Only when we were living at the apartments.
Q. And that would have been up until June, do you remember when in June?
A. I would say the beginning of June when I left.
Q. So that is two solid months because August 10th is the first half of August and if you move [156] out in the first half of June that is two solid months that you have moved out of Chichester Apartments, right?
A. Yes.
Q. And prior to that time because you were neighbors up there, is it possible that Jen had given clothes to your wife for your daughter back in those days?
A. Before we moved, yes.
Q. But you are saying to your knowledge it would have been clothes only, not shoes, not sneakers?
A. Most likely not sneakers.  It wouldn't be shoes because my mom ended up always buying shoes and we had too many of them.
Q. So you are saying most likely not shoes for that reason.
A. Yes.
Q. Did your mom buy sneakers also for your daughter?
A. Yes.
Q. So you are including sneakers when you say shoes?
A. Yes.
Q. Now you mentioned on direct examination you asked Rob where he was going to go, and Rob said he was going to go to New York, do you remember that?  [157]
A. Yes sir.
Q. Isn't it a fact that you mentioned New York to Rob, rather than Rob mention New York to you, and you said are you going to New York and he said yes to it.  You were the one that first mentioned New York?
A. It might have been but the fact is he said he was going to New York.
Q. Well I have, the Commonwealth has provided me with a copy of a statement that you gave to Lieutenant Peifer of the CID and Agent Donna Kibbe of the FBI on the 17th of August 1999.  I am just asking you if you have a recollection of making that statement to them?
A. I made statements to I think three or four different officers.  Between the FBI and Delaware County Officers.
Q. While making that particular statement, that would have been one week after August 10 if this as August 17, it would have been one week later August 17, 1999.
A. Okay.
Q. And I am asking you if that statement you remember saying you asked Rob if he was planning to go to New York and you told the Detective that Rivera did not bring up going to New York, you did.  Do you [158] remember saying that?
A. If that is what is written down on there, then I guess that is what I said.

Mr. Smith:  May I have just a minute.  Thank you.

Mr. Reilly:  I'm sorry, two more pictures.

The Court:  Okay.

REDIRECT EXAMINATION

By Mr. Reilly:
Q. Mr. Whittaker, Commonwealth Exhibit 4-D, what is Exhibit 4-D?
A. This is my neighbors, where they used to have their outhouse over here.
Q. Where is that in relation to the cottage that is pictured in 4-A?
A. From here it would be about 200 feet this way, back over my neighbors yard.
Q. So it is in the neighbors yard, 200 feet from the back of your house?
A. Or more, it is back a good ways.  It is more directly across from the boathouse over.  [159]
Q. How about photograph 4-E, what is that?
A. That is an old trailer that they have in the back there, they usually just store boxes and stuff in there.
Q. Whose trailer is that?
A. That is Edna's my next door neighbor.
Q. Edna's trailer?
A. Yes.
Q. And it is next door?
A. Yes sir.
Q. How far is that from your home?
A. From that cottage it is back further/
Q. How far would you say?
A. Say 500 feet or more.
Q. What is next to the trailer, a circle of stones what is that?
A. That is a little fire pit where they burn wood from back in the woods and just have fires and they sit around it.

Mr. Reilly:  Okay, that's all, Your Honor.

Mr. Smith:  No recross, Your Honor, thank you.

The Court:  [160] You are excused, Mr. Whittaker.

Mr. Reilly:  May we approach, Your Honor?

The Court:  Yes, off the record.

[Off the record]

[On the record]

The Court:
Ladies and gentlemen we are moving along very expeditiously.  And although I previously said when you were selected as jurors that I believed the case was not going to take longer than three weeks, I can assure you that it will be shorter than that, and I have great expectations that we can finish up next week.  We have run out of witnesses for today, therefore, we will recess until tomorrow morning at 9:30.  You can go back to that room where you have been going to and we will see you tomorrow morning at 9:30.  Don't discuss [161] the case with anyone, don't read anything about it, don't listen to anything about it, don't discuss it with anyone.  Thank you. [162]

[1][2][3][4]

Proceedings - January 17, 2002

[Robing Room Discussion:]

The Court:
All right.  We're now on the record.  Respective counsel are present.  This is the matter of the Commonwealth versus Robert Rivera, number 411 of 200.  This is juror in seat number five, Barry A. Reese.  Mr. Reese, apparently you made a comment to one of the court officers that you have a friend who said he went to school with me and I spit on his shoes.

Juror 5:  Yeah.  That was just -- I was talking about there -- or something.

The Court:  Who's Jay Linville?

Juror 5:
He says you did landscaping with him years ago and you like spit on his shoes or something.  Laughing and joking -- he lives in Drexel Hill, Park Avenue.  He got a white beard, [5] looks like Willie Nelson a little bit.

The Court:  Is that right?  Where did we do landscaping together?

Juror 5:  I could find out if you wanted me to.

The Court:  No.

Juror 5:
I told him -- he said he knew all about you, knew where you worked, you were in law school or something years ago.

The Court:  Why ...

Juror 5:  ... disrespect ...

The Court:  Not at all.  Why were you talking to him about the case?

Juror 5:
Oh, he just said, who's the judge, you know.  He said, oh, I know him.  I used to go to school with him.

The Court:  Why did he say, who's the judge?  How did the [6] conversation begin?

Juror 5:
Well, he just knew I was going to be a juror so he -- who's the judge.  He said, oh, I know him from years ago.

The Court:  Did you discuss the case ...

Juror 5:  Oh, no.  Of course not.

The Court:  Have you discussed any of this with your fellow jurors?

Juror 5:  No, not really.

The Court:  What do you mean, not really?

Juror 5:
Well, I just said to one, a friend of mine knew the judge or something.  That's all.  Years ago or something ...

The Court:  Counsel, any questions?

Mr. Reilly:  Yeah, I don't have any questions, Your Honor.

Mr. Smith:  [7]
Mr. Reese, I guess what we're concerned about is in the instructions from the court when you were first selected as a juror not to tell anybody anything until we -- we're stuck with a lot of fairly straight rules here that we have to follow.  And so the concern is that this man, this friend, Mr. Grandville or ...

Juror 5:  Yeah, Linville.

Mr. Smith:
Okay.  Linville, I'm sorry.  Mr. Linville -- the only way that Mr. Linville would have known that you were a juror in this case is if you told him you were a juror in this case.  Am I right?

Juror 5:
Oh, yeah.  They had to know at work because, see, these people are concerned -- I work with two other people and it affects them directly.

Mr. Smith:  Does Mr. Linville work with you?

Juror 5:  Yes.

Mr. Smith:  Okay.  [8]

Juror 5:
See, there's three emergency men, that's why I brought this in -- because like Monday and Tuesday would have been my days off.  Wednesday, Thursday, Friday, Saturday, Sunday I normally work.  Now on their days off they cover for me.  But then I had to know if I'm supposed to work a weekend or not.  Because then they got to know if they got to work or not.  So they got to -- my boss wants to be able to make plans.  They'll cover whatever has to be done.

Mr. Smith:  Is Mr. Linville your boss?

Juror 5:  No.  Linville is the other emergency man.  He's the senior to me.  I'm the second.

Mr. Smith:
Did you have an obligation at work to tell him the case you were on or the judge in the case?

Juror 5:
Well, I just had to let him know that I'm going to be on a jury so that they can plan for those two guys.  Because I just can't walk out and say, I'm just leaving.  [9]

Mr. Smith:
Mr. Reese, I think you have an obligation to let them know you're not going to be there.

Juror 5:  Yeah.

Mr. Smith:  But you told them, A, I'm not going to be there, right?

Juror 5:  Yeah.

Mr. Smith:  B, I'm on a jury, right?

Juror 5:  Yeah.

Mr. Smith:
And C, you told him that I'm on the case -- the missing baby case or did you give them an explanation about what you -- the kind of case you were on?  Or did you say, well, it's the case -- you know, the baby that's missing case ...

Juror 5:  I just said, it's the Rivera murder case.

Mr. Smith:  Okay.  So you gave them that information?

Juror 5:  Yeah.

Mr. Smith:  And then they asked you -- they or he, Mr ...

The Court:  Linville.

Mr. Smith:  ... Linville -- I'm sorry.  Mr. Linville then asked you who's the judge.

Juror 5:  Yeah.

Mr. Smith:  And you said it's Judge Keeler.  [10]

Juror 5:  Yeah.

Mr. Smith:
And then he then asked you why -- or did he ask you something further or did he make a statement to you ...

Juror 5:
He said, I remember him.  I used to work with him, you know -- we'd fool around -- landscaping or something like that.  That's all ...

Mr. Smith:  [11] What's the thing about spitting on shoes, where did that come in?

Juror 5:
Oh, he just said, we used to kid around.  He was like -- spit on my shoes or something, you know.  Just something humorous, you know, to -- recall about his past friendship or acquaintance with the judge.

Mr. Smith:  Did you say anything further to him about either the judge or about the case or ...

Juror 5:  No, no.

Mr. Smith:  How long did this conversation take place?

Juror 5:  Oh, three or four minutes.

Mr. Smith:  Was it more than one conversation or just the one?

Juror 5:  Just the one.

Mr. Smith:  And so the topic never came up again?

Juror 5:  [12] No.

Mr. Smith:
Okay.  Now since then, since you've been here you indicated you told something to another juror, you sort of mentioned that a friend of yours knows the judge somehow.  Is that ...

Juror 5:  Yeah.  That my friend knew the judge years ago.

Mr. Smith:
Okay.  Did you tell that person any of this stuff about the shoes or the working together or the ...

Juror 5:  No.  He said, I don't ...

Mr. Smith:  What did you -- what exactly did you tell this other juror?

Juror 5:
I just said -- thought we had something on the judge or something like that, you know, kidding around ...

Mr. Smith:  I'm sorry?  You thought we had something on the judge?  [13]

Juror 5:
I knew a friend, he had something on the judge or something -- you know -- it was just kidding ...

Mr. Smith:  Who was the other juror that you said this to?

Juror 5:  Well, it was -- Dawn, I think ...

Mr. Smith:  Do you know what her number is?

Juror 5:  She said something ...

Mr. Smith:  Okay.  And you said this to her after we convened for trial on Tuesday this week?

Juror 5:  No.  It was before the thing started.  The first time we were in the jury room.

Mr. Smith:  ... this Tuesday?

Juror 5:  Yes.

Mr. Smith:  Okay.

Mr. Reilly:  [14] Mr. Reese, you said that Dawn's response when you ...

Juror 5:  Yes. We ...

Mr. Reilly:
Hold on for a minute.  Let me ask the question.  Dawn's response to you when you told her this was, she put her hands up, she didn't want to hear about it.

Juror 5:  Right.

Mr. Reilly:  Is that right?

Juror 5:  Yeah.

Mr. Reilly:  She told you to stop.

Juror 5:  Yeah.  I did.

Mr. Reilly:  Okay.  Was anybody else there when you were talking to Dawn about this?

Juror 5:  I guess the rest were sitting there.  But I think it was only her that heard ...  [15]

Mr. Reilly:  So you were all in the jury room together ...

Juror 5:  Yeah.

Mr. Reilly:  ... when you said it?

Juror 5:  It was like breaking-the-ice, you know ...

The Court:  You also indicated my boss wants to know if I can work weekends.

Juror 5:
Yeah.  That would be I guess if there was a sequestered order if -- well, basically should I -- he can arrange where I don't work a midnight until I'm coming back at 7:30 in the morning so I wouldn't be coming off a shift tired or something.  That's what he's concerned about.  He's trying to make plans.  It's sort of difficult for everybody that's involved if I -- that's what I'm basically trying -- sorry if I offended anybody.

The Court:  No, no.  Look, there's rules to the ...

Juror 5: [16] I understand.

The Court:  You're brand new at this and we've got to check out some stuff, that's all.

Juror 5:  Yeah.

The Court:
Are there other people that you talked to or given information like I'm a juror on the Rivera murder case?

Juror 5:  Just my boss, of course.

The Court:  Okay.  And Mr. Linville?

Juror 5:  Yeah.

The Court:  Anybody else?

Juror 5:
They know in the office because they have to make plans and put schedules -- the superintendent in the office who has to make up the schedules and stuff like that.  And they just -- all they know is that I'm a juror and ...  [17]

The Court:  On the Rivera case?

Juror 5:  Yeah.

The Court:  Well, you called it the Rivera murder case.

Juror 5:  Yeah.

The Court:  But you said ...

Juror 5:  ... Rivera ...

The Court:  Is that what you told them?

Juror 5:  The Rivera trial I guess ...

The Court:  Well, the first time you told me that you said the Rivera murder case.

Juror 5:  Okay.  Well ...

The Court:  ... the difference between the ...

Juror 5:  Okay, Rivera murder trial I guess.  [18]

The Court:  Okay.  That's all the questions.  All right.

Juror 5:  I just thought remember ...

The Court:  We just have to go through ...

Mr. Smith:  Thank you.

The Court:  Leave it on.

Mr. Reilly:  Do you want him to go back to the jury room ...

The Court:  No.

Mr. Smith:  ... hold a minute.  Hold him there.  Thank you.

The Court:  What's your thinking, gentleman?

Mr. Smith:  Move to strike Mr. Reese for cause, Your Honor.

The Court:
I remember Jay Linville now.  He was a juvenile delinquent -- through political connections through a job in the park -- [19] motorcycle to work. Constant problems with the supervisory personnel.  That was a long time ago.

Mr. Reilly:  Your Honor, I am troubled by what this gentleman said.

The Court:  I am, too.  And that's -- controlled by the fact that he had a conversation.

Mr. Reilly:
I'm troubled by the fact that he did not follow the court's order not to discuss the case with anyone and he discussed it with the people he worked with.  He attempted to discuss it with a fellow juror, heartened by the fact that the fellow juror said, I don't want to hear it.  I don't think that it's anything -- I don't think what he said is anything that is serious or that creates a problem with the panel.  I think that he should be ...

The Court:  ... that he said something.

Mr. Reilly:
He should be removed from the jury because [20] he's discussing the case against the court's instruction.

Mr. Smith:
Your Honor, I concur that he should be removed.  I don't think he should return to the jury box to get his things -- or the jury room to get his things.  Someone should get his things, get him out of here and don't let him have any contact with those people.  I would ask further, Your Honor, that he be instructed when he leaves here that he is not to attempt to contact any of the other jurors for any reason during the pendency of this trial.  The penalty of law -- I'm concerned and I think the man was even in his answering the questions here he was loose in the way he explained things.  He wasn't precise.  He tried to make it look better than it was.  My fear is that it's worse than he said it.

The Court:  I agree.

Mr. Smith:
My fear is that he's done more than he's let on to doing here.  And even without that, what he has done here I believe is certainly [21] serious enough to warrant his immediate removal from this jury.

The Court:  Okay.  I agree.

Mr. Smith:
And I concur with Mr. Reilly's motion.  I would also ask Your Honor that when I guess when he's removed the question is, do we say anything to the rest of the jury that he had to leave.  I think we can simply tell the jury that he had to leave for personal reasons.  That he gave us a note, gave Your Honor and that asked to be -- and that because ...

The Court:  Because of that we determined to ...

Mr. Smith:
For personal reasons to excuse him rather than remove him, excuse him from further duty.

Mr. Reilly:
A suggestion, Your Honor.  It might be an opportunity for the court to re-enforce with the jury that they're not to have -- they're not to discuss the case with ...

The Court:  We can do that after ...  [22]

Mr. Smith:
The other concern I have is two-fold.  I knew we were going to have problems with the case.  I just didn't figure this was going to be -- I'm concerned about the woman identified as Dawn as one of the jurors that he spoke to.  I'm also concerned that even though he said he doesn't believe anybody else heard what he said, he does admit that he said it that first morning when they were all together in the jury room sort of introducing themselves each to the other.  And that I guess I'm concerned as to whether -- what's the right -- I mean, I'm in quite of a dilemma here.  The one part of me would like to know if in fact he has spread the word to other members of the jury even not knowing that he did.  And the second is, I don't want to call undo attention to this in a way that is going to -- I don't want to cause ...

The Court:  That's my ...

Mr. Smith:  I don't want to cause a problem with the remaining jurors here if that's possible.  [23]

The Court:
Whatever he may have said to them, I believe him when he said the other juror said -- I don't know that anything he could have said because it was before testimony even began would in anyway effect the outcome of the case.

Mr. Smith:  No. But ...

The Court:
My -- one instance we say we're excusing him and then the other time we're questioning him as to whether he ...

Mr. Smith:  But Your Honor ...

The Court:  I have no problem asking that ...

Mr. Smith:
Respectfully, Your Honor, the one thing he said was that he was telling her we got something on the judge.  We got something on the judge was what he said to me in that very end there.

The Court:  That's right.  [24]

Mr. Smith:
And that statement is of great concern to me.  We got something on the judge is not a good thing to have the jury hear before they even begin to hear the testimony in the case.  Your Honor, I rely heavily on what I consider to be the clean hands, the ...

The Court:  I'm not going to ask ...

Mr. Smith:  ... the judge's impartial ...

The Court:
... that specifically, we got something on the judge.  Because if they didn't hear that ...

Mr. Smith:  I know.  That's the dilemma I face, Your Honor.

The Court:
My question -- what I will do is bring the panel in and ask that, did he say anything pertaining to the judge, counsel, and the case.

Mr. Smith:
Judge, here's the problem I have with that.
On the one hand you say to them we're going to [25] release him for personal reasons, on the other hand if we start getting to a bunch -- I know what -- I don't want to poison these people.

The Court:  No.

Mr. Smith:
But at the same time if he's poisoned anybody in there, I'd like to know about it.  I mean, telling somebody that we've got something on the judge is a pretty serious statement before any case of this magnitude.  And I'm troubled by it.

Mr. Reilly:
Your Honor, my observation of Mr. Reese when he said that was that that comment had to taken in context.  He said that -- he said it in a joking way.  He was making reference to the fact that he knew someone who said that, you know, that years ago you had spit on this other person's shoes.  And that was the thing he had on the judge.  And he was saying that if he was -- it like an ice breaker I think was the words that he used. Nothing that he said in any way relates to ...

The Court:  [26] The case.

Mr. Reilly:  ... the case or the fairness of the trial.  It's ...

Mr. Smith:  To the contrary.  I think it relates ...

Mr. Reilly:  It's just foolishness.

Mr. Smith:  To the contrary.  I don't know that that lady knew him well enough to know that he was joking or throwing out an ice breaker. Sometimes people that you don't know who have a particular sense of humor or opinion of what's funny -- say something that at first is shocking. And then later on, somebody says, well, you don't him, he was joking.  They don't know this man from the man in the moon.  When he starts -- we've got something on the judge.  I take that serious.

The Court:
But isn't the only party that could be at risk or affected by that would be the Commonwealth?

Mr. Smith:
Your Honor, if he by implication taints the [27] court, Your Honor is the one who gives the instructions to the jury from the laws that are binding.  You know and I know that the great crux of my position in this case is going to be the application of the law.

The Court:  Okay.  What would you request that I would say to the panel?

Mr. Smith:  Could I have a minute to think, Your Honor?

The Court:  Yeah.

Mr. Smith:
This is certainly out of left field on me.  And I don't want to do anything at this point -- I'm not sure that by having you inquire to this panel I'm doing the right thing.  And I'm not that by not inquiring to this panel I'm doing the right thing.  I need to think for a minute only because ...

The Court:  Okay, that's fine.

Mr. Smith:  ... my overriding belief now is if we remove him, tell the jury that he ...  [28]

The Court:  Has been excused.

Mr. Smith:
... you know, he sent you a note and based on the note you excused him for personal reasons.  And they're not to draw any conclusions from that. It was just one of those things that happens from time to time.  My immediate concern is whether we should bring this Dawn in that he mentioned to find out from her if it was more to it than that.

The Court:  He said she sat up towards the end and -- I don't see any Dawns in here.

Mr. Smith:  ... do you know who Dawn is?

Court Clerk:  I think she might be the young blond -- let me ...

Mr. Smith:  ... number 12?

Court Clerk:  Yeah.  Let me go get my other sheet.

The Court:  That's right.  We removed one.  [29]

Mr. Smith:  She would have been 13 on the ...

The Court:
... first alternate.  There she is, Dawn Jones.  So she is in seat number 12 now because we
moved -- juror up.

Mr. Smith:  I don't -- we're still on the record.  Why don't we get rid of him first.

The Court:  Okay, let's do that.

Mr. Smith:  Okay.

The Court:  I have ...

Mr. Smith:  Bring him back in.

Court Clerk:  Number 12, Your Honor.

The Court:
Mr. Reese, after discussing this we determined that for various reasons that we're going to excuse you as a juror in this case.  Now make sure that you continue not to discuss the case with anyone.  Don't have any contact with your [30] fellow jurors.  Do you understand that?

Juror 5:  Uh-huh.

The Court:  And we'll ask ...

Mr. Reilly:
Mr. Reese, we're on the record here so we need you to say yes or no out loud so it's recorded ...

Juror 5:  Yes.

Mr. Reilly:
The judge is advising you not to have any contact with anybody else on the jury whatsoever for any reason during the pendency of this -- don't contact any of those people about anything, even to explain why you're not -- nothing.  And you have to say it on the record so that's ...

Juror 5:  Yes, I understand.

Mr. Reilly:  That you understand you're -- and you'll follow that instruction, sir.

The Court:  [31] Do you have any belongings down in the deliberation room?

Juror 5:  Yes ...

The Court:  All right.  We'll get our court officer to get them for you.

Juror 5:  Sorry for ...

Mr. Reilly:  That's okay.  Things happen.  Thank you.

The Court:
Beth, would you get Mr. Reese's belongings.  Don't say why to anybody but just get them for him.

Juror 5:  ... jacket and black bag and coffee.

Court Clerk:
Okay.  You let me know.  I'll bring out what I think is yours.  And then if there's anything else you let me know.  Okay.

Mr. Smith:
... get Mr. Reese -- but please don't have Mr. Reese return to the jury room.  Your Honor, at this point I feel compelled to ask the court [32] to at least make a private inquiry of this Dawn, juror number 12, the woman he identified ...

The Court:  Yeah.  Before we worry about the rest of the panel let's inquire of her.

Mr. Smith:
And then if she -- well, let's hear from her and then take it -- I think you're right.  If we take it a stage at a time then we stay on safe ground.

Court Clerk:  On that sheet, Your Honor, she was the alternate number 13.

The Court:  Correct.  She was moved up.  We excused ...

Mr. Smith:  Why don't we give Beth enough time to get rid of him before we bring her ...

Mr. Reilly:  May I be excused for a minute, Your Honor, to bring that juror down here?

The Court: Yes.

Mr. Reilly:  [33] Okay.

[Off record]

[Back on record]

The Court:
All right, again.  We're in the robing room behind courtroom number four.  All counsel are present.  We now have juror in seat number 12, Dawn Ann Jones.  We just basically want to ask you one question initially, Miss Jones.  Juror number five, Mr. Reese, you know who I mean?

Juror 12:  Harry ...

The Court:
Yes.  Did he at any time say anything to you about the court, counsel or the case?

Juror 12:  Did he say anything to me?

The Court:
Yes.  About knowing someone who knows -- someone who's involved in the case.

Juror 12:  Not that I can recall.  [34]

The Court:
Okay.  And you don't recall him at any time saying anything to fellow jurors about the court, counsel or the case itself?

Juror 12:
He was complaining about the lights.  I'm trying to think.  You know, he said something about knowing you.  Something about you.  But then I tell people to shut-up.  I don't mean to be rude.  And I -- because he ...

The Court:  What did he say, do you recall?

Juror 12:
He just said, oh, I know something about the judge.  And I asked him to shut-up.  But that early, like way -- even before the trial started.  That's why I couldn't -- but that was it.  That was it that I can recall, now that I think about it.  But he didn't say anything.

The Court:  And that was directed just at you?

Juror 12:  Well, I was sitting next to him at the time.

The Court:  [35] Okay.

Juror 12:  So he said it -- I don't know -- and I told him to shut-up.

The Court:  Okay.  And he did shut-up?

Juror 12:  He did.  That was all he said.

The Court:  Good for you.  Any questions, counsel?

Mr. Reilly:  No, Your Honor.  Thank you.

Mr. Smith:
Now we -- I think that counsel collectively agree you did the right thing to tell him to shut-up.  Go with that ...

The Court:  The way she said it, it sounds to me like it would work.

Mr. Smith:  You followed the rules.  We appreciate that.

The Court:  Thank you, ma'am.  You can go back ...

Juror 12:  Okay.  [36]

Mr. Smith:  Can she go back?

The Court:  Yes.

Mr. Smith:  She can go back.

The Court:  I don't see any ...

Mr. Smith:
Judge, I think we're okay.  I feel better having brought her in now that we're -- she did the right thing, she told him to shut-up.

The Court: Yeah.

Mr. Smith:  What's the matter with you, shut-up.  End of story.

The Court:
And I'm quite frankly, despite the fact that we wasted an hour, I'm glad to see him gone.

Mr. Smith:
Well, I'm glad to see him gone because in the middle of the duration he starts bringing that little goofy stories about somebody from the landscaper thing from 40 years ago -- oh, my [37] gosh.

The Court:  Or whatever else he might bring up.

Mr. Smith:
Something -- plus the fact that going around telling people that, you know, he's sitting as
a juror in the Rivera murder case when he knows he wasn't supposed to say anything like that to anybody.

The Court:  Okay.

Mr. Reilly:  Okay.

The Court:  You can turn it off, judge.  I just wanted to finish ...

[End of robing room discussion]

[In courtroom]

The Court:
Good morning, ladies and gentlemen of the jury.  Returning to the matter of the Commonwealth versus Robert Norman Rivera, number 411 of 2000.  Ladies and gentlemen, we [38] have excused juror in seat number five for personal reasons that he had.  And don't take anything from that.  He's been excused.  Therefore, we have moved up alternate number two, Jean Jannick, to seat number five.  Okay.

Mr. Reilly:  Your Honor, the Commonwealth calls Robert Jones.

[Witness sworn]

ROBERT JONES, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:

Q. Good morning.
A. Good morning.
Q. Mr. Jones, you were employed by the Cecil County Sheriff's Office in August of 1999.  Is that correct?
A. Yes.
Q. And what was your position?
A. I was a detective assigned to the [39] Criminal Investigation Division.
Q. For how long have you been a police officer prior to August of 1999?
A. Two-and-a-half-years, almost three years, I believe.
Q. How long as a detective?
A. I believe six months before that.
Q. You played a part in the investigation of the missing girl, Katelyn Rivera.  Is that correct?
A. Yes.
Q. You received some information on August the 23rd of 1999 that you had to investigate.  Is that right?
A. That's correct.
Q. What's the information that you received?
A. I received a phone call from my captain, Captain Erwin, who instructed me to search the construction site in the Cecil County, in the area.  And to search for a shovel that had been spray painted blue.  That was the information that I was given.

The Court:  I'm sorry.  Could you say that louder?

Officer Jones:
I was instructed to search for a shovel that [40] had been spray painted blue on the end, on the tip of the long wooden handle at the construction site in Cecil County.  That was the information that I had been given.

By Mr. Reilly:
Q. And did you do that?
A. Yes, I did.
Q. For how long did you search?
A. I was given the instruction that morning.  I searched during that morning.  Approximately four ...
Q. You can estimate.
A. Right.  Approximately four to five hours.
Q. And did you find what you were looking for the same day?
A. Yes, I did.
Q. I'm showing you what's been marked as Commonwealth Exhibit C13 for identification.  Do you recognize that map?
A. Yes, I do.
Q. What's the area that appears on that map?
A. This is ...
Q. If you could just describe generally what is that map of?
A. The Pennsylvania, Delaware, northeast [41] corner of Maryland area.
Q. Now did you have information regarding where the shovel had come from when you were told to search for it?
A. Not at that point, no.
Q. Did you later receive the information as to where the shovel had come from?
A. Yes.
Q. What was the information you received?
A. From Thomas Whittaker, I believe his name is.  He resided on Wood Duck Lane.
Q. On Wood Duck Lane in where?
A. In Elkton, Maryland, Cecil County, Maryland.
Q. On that map do you see where Wood Duck Lane in Elkton, Maryland is located?
A. It should be right here.
Q. Is that the red shaded area with the number two above it?
A. That's correct.
Q. Did you find the shovel?
A. Yes, I did.
Q. Where did you find the shovel?
A. I found it at the corner of Route 40 and Delancy Road on the construction site.  It would be
[42] right there.
Q. Is that the area that's shaded red, it has a number four next to it?
A. That's correct.
Q. What was being built there?
A. A car dealership, several car dealerships.
Q. Let me show you next what's been marked as Commonwealth Exhibit C4.  Do you recognize those pictures?
A. Yes, I do.
Q. Take a look at 4A, what's 4A?
A. That's the residence on 34 Wood Duck Lane.
Q. And the other pictures, 4B, C, D, and E, would you just describe generally what they are?
A. They're areas around 34 Wood Duck Lane.  I believe that's the shed that was in the back.  And this is behind the residence.
Q. Okay.
A. All in the same area.
Q. Now let me show you -- what's been marked as Commonwealth Exhibit C6.  And I ask you to take a look at photographs 6C and 6D.  Do you recognize those photographs?  [43]
A. Yes, I do.
Q. Would you tell us what they are?
A. That's the area of Route 40 and Delancy Road where William Chevrolet was being built.  It's the area I found -- located the shovel.
Q. Would you indicate for the jury in 6C and 6D the area where you found the shovel?
A. 6C I located the shovel right in that area.  And ...
Q. Okay.  And indicating for the record that would be at the center of the picture in 6C.  That would be at the -- I guess the "T", the macadam area that forms the "T".  And you found it just below that area.
A. That's correct.
Q. In the dirt.  Is that right?
A. That's correct.
Q. And how about on 6D.
A. 6D would be this area right here.
Q. And is that just another view of what you see in 6C?
A. That's correct.  Just a side view.
Q. Detective, I'm going to show -- here is a photograph, C46 through C51.  Would you take a look at those and tell us what they are?  [44]
A. These are the photographs that I took the day I found -- located the shovel.  These are the photographs ...
Q. What do the photographs show?
A. These are the photographs of the shovel as it was when I found it.
Q. Describe for the jury what happened, how was it that you found the shovel?
A. I responded to that area, that construction site and met with the foreman.  Went to several different work crews, asked them if they had seen a -- I described the shovel to them, a shovel with a blue handle, spade shovel.  It had spray painted blue.  And a group of men had seen this picture and said that they had seen it on the other side of the curb.  I went to look at it and I asked them if they had touched it.  They said no.  Went and looked at it and photographed it.  It was the shovel I was looking for.
Q. Did you pick up the shovel and take it with you?
A. Yes.
Q. I show what's been marked as Commonwealth Exhibit C45 for identification.  Do you recognize that?
A. Yes.
Q. Tell us what that is?  [45]
A. This is the shovel that I had located at Route 40 and Delancy Road.  The shovel that ...
Q. That's photographed in those photographs, C46 and thereafter?
A. That's correct.
Q. Once you seized the shovel what did you do?
A. I contacted my captain.  He advised me to respond to Meineke, I believe it was.  A auto repair store.  And ...
Q. And where is Meineke Auto Repair in relationship to Wood Duck Lane and William Chevrolet where you found the shovel?
A. It's in Elkton.  It's on Route 40 approximately five miles west of Delancy Road and Route 40 where I located the shovel.
Q. And who were you going to Meineke to see?
A. Thomas Whittaker.  I believe his name is Thomas Whittaker.
Q. And who did you know Thomas Whittaker to be?
A. I did not know at the time.  I was told that he was the owner of the shovel.
Q. Did you go to Meineke?
A. Yes, I did.
Q. You took the shovel with you?  [46]
A. That's correct.
Q. What did you do when you got there?
A. I made contact with Thomas Whittaker.
Q. Where was the shovel when you made contact with Thomas Whittaker?
A. It was in the trunk of my police car.
Q. Where did you speak to Tom Whittaker?
A. Inside the front office.
Q. What did you say to him when you got there?
A. I asked him to describe his shovel that had been missing.  I asked him to describe it to me.
Q. Tell the jury what Tom Whittaker told you.
A. He told me it was spade shovel with a wooden handle.  He advised me that the end, the tip of the shovel had been worn off over a period of time so it was flat and that the metal area of the shovel had been spray-painted blue.
Q. What did you do then?
A. I then showed him the shovel.  Opened up my trunk.
Q. When he described the shovel to you and before you got the shovel out of the trunk, what was your reaction?
A. It was my belief he was describing the [47] shovel perfectly.
Q. Now take a look at C45.  Does that shovel match the description that Mr. Whittaker gave to you before you took the shovel out of the trunk?
A. That's correct.  Yes, it does.
Q. Does that shovel in fact have the worn off tip?
A. Yes, it does.
Q. Would you show that to the jury.
A. Okay.  Right here.
Q. What did you do with the shovel next?
A. After I showed it to Mr. Whittaker and he identified it as his own, I submitted it into evidence.
Q. Was the shovel then submitted to the Maryland State Police Crime Lab?
A. Yes.
Q. Detective Jones, I'm going to show you -- this is a four-page document, it's marked as Commonwealth Exhibit C52.  Will you take a look at that.
A. Yes.
Q. And tell me if you recognize that document?
A. Yes, I do.  It's the request for laboratory examination that I sent down to the Maryland [48] State Police Crime Lab.
Q. So the shovel was sent to the lab?
A. That's correct.
Q. And it was tested.  Is that correct?
A. Yes.
Q. It was tested for blood, for fingerprints and for trace evidence.  Is that right?
A. That's correct.
Q. Was there anything of value that was discovered as a result of the testing?
A. No.  There were no latent fingerprints, blood evidence found.
Q. Okay.

Mr. Reilly:  Those are all the questions I have.

The Court:  You may cross-examine.

CROSS EXAMINATION
By Mr. Smith:
Q. Mr. Jones, you said there were no prints found and no blood found.  It was also submitted for trace evidence.  There was no trace evidence of any kind?  [49]
A. No, sir, there wasn't.
Q. In other words, as far as the physical evidence is concerned there was nothing to distinguish this shovel from any other shovel in the world?  In other words, to connect this shovel with the commission of any criminal act, is there?
A. There was no latent prints or trace evidence.  There was on evidence found on the shovel.  No, sir.

Mr. Smith:  That's all the questions I have.

The Court:  You're excused, detective.

Mr. Reilly:  Corporal Pam Martin, Your Honor.  Pam Martin.

[Witness sworn]

CORPORAL PAMELA MARTIN, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:  [50]
Q. Detective Martin, you're a police officer.  Is that correct?
A. Yes, sir.
Q. For how long have you been a police officer?
A. I've been employed with the Delaware State Police since 1993.
Q. Were you employed with Delaware State Police in August of 1999?
A. Yes, sir.
Q. I direct your attention specifically to August 31 of 1999 at about 8:50 p.m.  Did you have a particular assignment at that time?
A. Yes, sir, I did.
Q. And what was that assignment?
A. I was assigned to assist the Pennsylvania Police Department in looking along 202 for items pertaining to this case.
Q. What were these items you were instructed to look for?
A. Clothing that belonged to a victim, Katelyn Rivera.
Q. Were you told specifically what type of clothing you were looking for?
A. Yes.  I was told a yellow outfit -- I was [51] provided a picture also of the victim.  A yellow outfit, yellow socks and white sneakers with a floral design and rhinestones on the top.  Possibly the last outfit that the victim was seen wearing.
Q. Were you accompanied by other officers?
A. For the Delaware State Police it was myself alone.  There were other officers from Pennsylvania that were also there.
Q. Officers from Upper Chichester?
A. That's correct, sir.
Q. Describe for the jury what you did.  What did you and the other officers do physically to begin this search?
A. I met the officers at 202 right at the Delaware/Pennsylvania line.  They explained to me what they were doing which was looking for clothing along 202.  They were somewhat familiar with the area but not familiar with the area.  So we began our search.  And when I say we began our search, we literally parked our cars on 202 and we began to walk with flashlights down 202.
Q. Okay.  And you were walking southbound on 202?
A. Southbound 202 in New Castle County.
Q. Describe for the jury 202 in that area, [52] what kind of a highway is it?
A. Route 202 is a heavily traveled roadway, similar to your Baltimore Pike where it's a lot of traffic, there's a lot of store front, pedestrian walk, a lot of stores, a lot of shopping, mini-shopping malls, a college is along 202, Widener University.
Q. How many lanes in each direction on 202?
A. There are two lanes northbound and southbound.  And then some parts of 202 you'll get an additional lane to turn left or turn right, depending on certain shoppings -- have lanes.  It depends on what area you're in.
Q. Is there a median strip?
A. Yes.  Concrete and grass.  It depends on what area of 202 you're on.
Q. So you began walking ...
A. Southbound.
Q. ... southbound.
A. That's correct, sir.
Q. So you parked your police car and began to walk?
A. They used my police car because I had fully equipped police car with the lights.  So I parked mine.  They were in plain cars, unmarked cars. Mine was in the median part and then we got out of the car [53] and started walking.
Q. How many other officers were with you?
A. There was at least two other officers from another municipality.  And then another gentleman -- two other gentlemen there.  I'm assuming the DA's office or the State of Pennsylvania.
Q. Okay.  Now let me direct your attention to about 9:45 p.m. that night.  What did you find?
A. At 9:45 I was walking along 202 southbound.  There's a relatively very large median in this section of 202.  When I saw large, grassy median, I'm talking it's the size of two lanes of traffic, it's that large.  That's the first large grassy median that you'll come across going southbound on 202.  I parked my car at the top of this grassy median.  We began to walk down.  The width of it is two lanes of traffic easily.  So I started on the southbound side and headed towards the northbound side, going right across the two lanes -- the grass.  As I was checking that area with my flashlight, in the center -- of the center of the median I looked down and there was a yellow sock in the grass.
Q. Detective, I'm showing you a series of photographs.  They're marked as Commonwealth Exhibit C10 for identification.  Would you tell us please, leaf through these photographs and tell us what they are [54] starting with 10A.
A. Okay.  This side here is southbound 202.  As you can see, there's one, two, there's three lanes of traffic.  This left-hand side here is going to be the left turn lane going to this mini-shopping mall right here.  That's Helzburg Diamonds [ph] right there.  This grassy median is equivalent to five of these -- these two lanes at least, the very -- you can't tell from here but it's a very large median.  That night -- this is during the day, we were doing this at nighttime.  That night back here, my car was back here ...
Q. You're indicating that you're below the photograph on 10B.
A. Correct.
Q. Would be where your car would be located ...
A. Right.  I had my car semi-parked on the side here with my lights activated that people could see that we were walking on this roadway so that nobody would be hit.  Down side in the median there is where you would find the sock.
Q. And is that where you found the sock ...
A. Yes.
Q. ... right there?
A. Yep.  The yellow sock right there.  [55]
Q. All right.  And how about 10C, tell me what 10C is.
A. 10C is where we marked -- because this median is so large, this is where we found the sock right in here.  And that's what this -- this is the median, this is southbound 202.
Q. And that orange fluorescent painted mark that's on the concrete there, was that placed on there once you found the sock?
A. Yes.  They placed it there once I found the sock.  We didn't touch it.  They marked that so they could see where it was that I located it.
Q. And then about photograph 10D, tell us what that is.
A. 10D is actually the sock that I found right in the median.
Q. I'd like to show you what's been marked as Commonwealth Exhibit C41 for identification.  I ask if you recognize that.
A. Yes.  It's the sock.
Q. What is that?
A. That is the yellow sock I found.
Q. And is that the same sock that's in photograph 10D on C10?
A. Yes, sir.  [56]
Q. Now, detective, once you found the sock did you continue to walk southbound on 202?
A. That's correct, sir.
Q. I'm showing you now Commonwealth Exhibit C11 and there are four photographs on C11.  Before you describe those, describe the path you continued down south on 202?
A. Continued southbound on 202.
Q. How far did you walk before you found the next item?
A. It couldn't have been more than a quarter-of-a-mile from the sock that I find the shoe.
At this point though there is no grassy median.  All you have is this little small concrete median.  So at the end of the grassy area from where I found the sock, I left my car with the lights activated.  We proceeded with our lights, our flashlights to go down 202 southbound.  As I went down 202 southbound the people were behind me ...
Q. Who's the people, the other officers?
A. There was two other officers and two other gentlemen that were behind me.  As I approached this area, because they were checking areas over here also.  We were basically checking as much as we could.
Q. You're indicating on 11B they were [57] checking areas on the other ...
A. Yeah.  There were some people looking on the northbound side, I was looking on the southbound side.  As I walked down southbound I encountered a shoe matching the description that they had given me at the beginning of the search.  White shoe, it had a flowers on top and rhinestones sown into the sneaker.  And as soon as I saw that I called them to come over and they came over and observed the shoe.
Q. Now tell me what is the photograph that's marked 11A?
A. 11A is -- it's 202 again.  This is the Jiffy Lube where I found -- there's a mark there.  That's where the sock -- I'm sorry, not the sock.  That's where the shoe was found right there on the southbound side once again.
Q. Across from the Jiffy Lube?
A. Across from the Jiffy Lube, yes.
Q. Now that picture's taken during the day.
A. That's during the day.
Q. Your search was at night?
A. It was at nighttime.  It was a night.
Q. Okay.  11B is the photograph taken at night?
A. Yes.  [58]
Q. And what's that?
A. 11B is where the shoe was found right on southbound 202, as well as 11C, which is -- that's where the -- that's the shoe and that's the mark we made prior to anybody touching that shoe.
Q. So that orange fluorescent mark visible in 11B and 11C is the mark that an officer placed there once the sneaker had been found?
A. That's correct.  Once I found it they marked it so that they would know where it was located.  No one touched the shoe until they had come to pick it up.
Q. And then 11D is the photograph of what?
A. The same -- it's the shoe that I found.
Q. Okay.  And that's basically the view that you would have ...
A. Yes.
Q. ... as you walked up to it and looked right down at it?
A. Exactly what I saw.  Yes.
Q. Detective, I'm going to show you Commonwealth Exhibit C42 for identification.  Do you recognize that?
A. That's the shoe I found.
Q. Is that the shoe that's in photograph [59] 11D ?
A. 11D, yeah.
Q. Detective, these three photographs are Commonwealth Exhibit C9.  First of all, would you explain to the jury, those are overhead photographs?
A. Yes.
Q. In what direction are you facing as you look at these photographs?
A. Okay.  202 southbound is going straight up.  202 northbound is going straight down.
Q. So as you face these photographs you're looking at Route 202 southbound.  Is that correct?
A. Correct.
Q. Now would you show us on these photographs, indicate for us where you found the sock and where you found the sneaker.

Mr. Smith:  Mr. Reilly, I can't see through you so you'll need to ...

The Court:  You can move up.

Corporal Martin:
Okay.  In photograph 9B, the sock was located right in this grassy median right [60] there.

By Mr. Reilly:
Q. And in the bottom left-hand corner of 9B is that the Helzburg Diamond Store and the ...
A. Yes.  That's Helzburg Diamond right there.  The sock was found right across from it in there.
Q. Okay.  So how about the sneaker, where did you find the sneaker in relation to the sock?
A. Okay.  The sneaker was found down in the -- it would be up in this area here across from the Jiffy Lube.
Q. Past the end of the grassy median?
A. Yes.  Past the end of the grassy median.
Q. Now, detective, you're looking at a map that's been marked as Commonwealth Exhibit C13.  Do you recognize the area depicted in that map?
A. This is Pennsylvania area here.  And Delaware is right there.
Q. Okay.  So you can see -- you can see Route 202 there?
A. Route 202 is this main thoroughfare going right down.
Q. Okay.  And that's just below the dot [61] that's marked as number 12.
A. Correct.
Q. What intersection is just above the dot that's marked number 12?
A. That's Painters Crossroads is above number 12.
Q. Okay.  And what two roads intersect there?
A. Painters Crossroad and ...
Q. Is that Baltimore Pike, Route 1?
A. It sure looks like it.  Yes.
Q. Okay.  And is that Route 202 that's just south of Baltimore Pike there?
A. Yes.  202 comes down from there.  Yes.
Q. All right.  Now would you show the jury where on Route 202 you found the sock and sneaker, if you'd point to it for me.
A. Okay.  You come down 202 southbound.  Here sits Delaware, Pennsylvania line, right here from Painters Crossing.  From there this is 202 at Naamans Road, which is where the Brandywine Race Track used to be.  Continue southbound you would find the sock between Naamans Road and this one area marked Tallyville.  They would have been found right in -- basically dead center of Naamans Road and Tallyville.  [62]
Q. Okay.  I'm handing you a yellow highlighter.  Can you make a mark on there on Route 202, show us where you found the sock and sneaker.
A. It would be right there.
Q. Okay.  Now just below the yellow mark ...
A. Is Tallyville, Delaware.
Q. Just below the yellow mark that you made, there's a town on the map.  And you said that that's Tallyville?
A. Tallyville, yes.  That's where the heavily populated area begins on Concord Pike.  If you go down just south of Tallyville you'll hit an area called Fairfax.  That's -- into the area of 202 southbound and I-95.  They consider that to be Fairfax.
Q. If someone described the location of those two items of clothing as being before the Pep Boys in Tallyville, Delaware, would that be an accurate description of where you found the sock and the sneaker?
A. Yes, sir.

Mr. Reilly:  That's all, Your Honor.

The Court:  You may cross.

Mr. Smith:  [63] I have no questions.  Thank you.

The Court:  You're excused.

Corporal Martin:  Thank you, Your Honor.

Mr. Reilly:  Your Honor, I believe you'll want to hear from counsel at this point.

The Court:
All right.  Well, we'll take a brief recess at this time.  Don't discuss the case, ladies and gentlemen.

[Recess]

[Robing Room Discussion:]

The Court:
All right.  We're in the robing room behind courtroom number four, Robert Rivera, 4112000.  This is the stage where I believe we were prior to hearing any statements of the defendant making a -- preliminary determination with respect to corpus delicti.

Mr. Smith:
[64] Your Honor, it's my understanding that we have now reached the stage in the case that the Commonwealth intends to produce testimony and present evidence that our specifically statements coming from the defendant to various witnesses.  The court has already heard oral argument. The court has already considered written briefs, both by the Commonwealth and by the defense.  You made a written determination on the corpus delicti issue prior to the start of trial.

The Court:  That was the prima facie issue.

Mr. Smith:
Right.  Now we're at the stage where I believe it's incumbent upon the Commonwealth in order for them to produce statements made by the defendant at trial, the court must be satisfied that the Commonwealth has established the commission of the crime or the crimes charged by a fair preponderance of the evidence at this stage.  There is a second stage to that which will come when we get to the jury deliberation.

I've already submitted my brief containing the law and the cases [65] supporting that law.  And I think that applies both to the pre-trial issue of corpus delicti and the trial issue.  I suggest to the court the Commonwealth has not met its burden as to the crimes of murder in the first degree, murder in the second degree, murder in the third degree, kidnapping, reckless endangerment, false imprisonment, and unlawful restraint. And I ask the court, therefore, not to permit the Commonwealth to present that evidence at this time.

The Court:
Actually, the kidnapping issue is a legal issue.  There certainly is evidence, substantial under this, that he broke into the daycare facility and took the child.  But the legal issue is whether that in fact is kidnapping under Pennsylvania where it is by a parent.  It remains a legal issue and obviously will remain.  Mr. Reilly?

Mr. Reilly:
Your Honor, I would point out to the court that I did file trial memorandum regarding corpus.  And in addition, as Mr. Smith indicated, there were -- there was substantial [66] brief filed by both Mr. Smith and the Commonwealth prior to trial with regard to these corpus issues.  And I won't repeat what was said there.  But simply summarize, point out to the court that, first of all, as I said in the trial brief, the trial court controlled the order of proof and may permit the Commonwealth to introduce evidence of the defendant's admissions before it proved the case.  While the general rule is that the Commonwealth must prove the corpus delicti by a preponderance of the evidence before the admission of the statements. The court is free to admit statements so long as the Commonwealth proved corpus by a preponderance of the evidence at some point during the trial.

I would submit to the court even putting that aside, the Commonwealth has proved his corpus by a preponderance of the evidence at this point.  The Commonwealth -- the rule on corpus is that the Commonwealth is only required to prove by a preponderance of the evidence that the death occurred under circumstances more consistent with criminality than with suicide or natural or accidental [67] causes.  And based on the evidence that the court has heard up until this point, and considering as well, the court can take the Commonwealth's opening argument as an offer of proof, if it chooses to.  The Commonwealth has proven corpus delicti by a preponderance of the evidence.  We point out to the court as well that the Commonwealth is entitled as well to the benefit of the closely related crimes exception when the court weighs its decision with regard to corpus.

The Court:
Now with respect to the various witnesses and the evidence to establish corpus, would you just briefly review those for the record, Mr. Reilly.

Mr. Reilly:

Yes, sir.  First of all, the Commonwealth prevent -- has presented substantial evidence up to this point with regard to the defendant's state of mind prior to the commission of the kidnapping.  The Commonwealth presented Officer Gregory Kennard who testified with regard to the defendant's assault of Jennifer Helton on July the 30th.  [68] The provided -- presented the testimony of Jennifer Helton with regard to her relationship with the defendant, the defendant's prior physical abuse of her, and the defendant's state of mind leading up to the crime.  The Commonwealth presented testimony of Donna Marie Davis who testified regarding both the existence of the temporary PFA and the permanent PFA.  Miss Helton testified to those as well.  Then the Commonwealth presented the testimony of Jane Baxter, the aunt of Jennifer Helton.  She testified consistently with Miss Helton with regard to the defendant's assault of Jennifer and her, Jane Baxter, on August the 10th just minutes prior to the defendant's abduction of Katelyn.  Officer Robert Gray testified to corroborate the victim's account of what occurred at the Wawa.

The court has also heard from Shelia Clendening [ph], the owner of the daycare, who testified regarding the defendant's actions in breaking her door down, snatching up Katelyn and running off with her.  The court then heard from Michelle Lupi who testified with regard to the defendant's [69] actions on August the 10th.  Testified that the defendant was -- my characterization will be wild.  I don't recall precisely what her word was.  But she testified that defendant was manic, was driving like a wild man down 95.  And then engaged what it characterized as a cat-and-mouse game for the rest of the day.  Jennifer Helton testified with regard to that.  Miss Lupi testified as well with regard to the fact that the defendant was making phone calls to Jennifer attempting to dictate terms for the return of Katelyn.

The court heard as well testimony of Jennifer Helton that the defendant returned to the home several times.  The defendant attempted to lure Jennifer into the car.  And that the defendant took off without leaving Katelyn for Jennifer suggesting that the defendant had no intention of returning Katelyn to Jennifer.  The court heard as well from John McCabe who was the last person to see Katelyn alive.  The court heard that Katelyn was last seen at about 7:15 p.m. and was then missing at 9:15 p.m.  Mr. McCabe testified as well that immediately upon returning to the gas station the defendant [70] went into the bathroom and emerged five minutes later before departing.

The court has heard -- the court then heard yesterday from Tom Whittaker who's testified about the missing shovel, circumstantial evidence, proves that the defendant was -- it was the defendant who took the shovel from Mr. Whittaker, from Mr. Whittaker's boat house.  And Mr. Whittaker has identified the shovel as being a unique shovel and belonging to him.  The court then heard today from the detective who recovered the shovel.  The court has heard as well that Katelyn's sneaker and sock had been recovered on Route 202.  And the court is aware as well that the sneaker and sock have been identified by Jane Baxter as having belonged to Katelyn by a way of an offer of proof.

The Commonwealth will also present testimony that both Jennifer's mother testified that the sneaker and sock belonged to Katelyn. Jennifer too will testify that the sneaker and sock belonged to Katelyn.  Based on all of that evidence, Your Honor, as well as, the evidence that the -- well, let me say this.  The Commonwealth has proved corpus delicti by [71] a preponderance of the evidence at this point.  And the court would also be free to consider the evidence that the Commonwealth will present afterward that that evidence will certainly rise to the level of proof of corpus delicti by a preponderance of the evidence.

The Court:  And what evidence would that be?

Mr. Reilly:

The Commonwealth, Your Honor, will be presenting the testimony regarding the efforts that the Commonwealth undertook to locate Katelyn. That will include testimony by Lee Ray from Delaware Valley Search and Rescue that he and his rescuers engaged in over 5,000 hours of searches for Katelyn.  Those searches have been unsuccessful.  Evidence that Katelyn has been placed -- Katelyn's picture has been placed on the website of the National Center for Missing and Exploited Children, that her -- the fact that she is missing has been publicized and that we've been unsuccessful in locating her.

The court will hear testimony from FBI agents from Puerto Rico and from New York regarding their efforts, unsuccessful, to [72] locate Katelyn.  The court will hear also from Detective Peifer regarding his efforts to locate Katelyn.  I would point out as well that Jennifer Helton has already testified that since she dropped Katelyn off and Shelia Clendening's that morning she has not seen nor heard from Katelyn nor anyone on her behalf.  And it's the Commonwealth's position that all of this evidence proves by a preponderance of the evidence that Katelyn's death occurred under circumstances more consistent with criminality than with suicide or natural or accidental causes.

The Court:  And that in fact she is dead.

Mr. Reilly:  That's correct.

The Court:  Mr. Smith?

Mr. Smith:

Well, Your Honor, the testimony also shows that during the time that Katelyn was in the care of her father in his custody on the 10th of August that she was never in distress.  She did not appear to be injured.  Neither [73] Michelle Lupi nor Mr. McCabe, the two people that saw her that day with her father, said she wasn't in any discomfort, distress, pain, injury.  Did not testify that there were any marks or bruises.  To the contrary, Mr. McCabe said specifically there were no visible marks or bruises or injuries of any kind.  That she seemed like a little girl with the sort of -- sitting in the car.  And he said he had a real good look at her because she was looking him face to face.  Because she was facing the direction where he was standing.

We also had Jennifer Helton's testimony that on the occasion that day that she saw Katelyn in the car with her father she didn't say that she saw any bruises or anything.  You had Mrs. Shelia Clendening.  And the best thing that she could say was that whole issue about whether or not Robert running out the door with the child, that whether or not she hit her head.  And she drew the conclusion because she heard Robert saw, oh, her head, I believe was the exact phrase that she used.  But not an indication that in fact Katelyn had suffered.  And she didn't say, I heard Katelyn crying or [74] I saw any blood or any marks.  But rather she may have suffered some sort of an incidental bumping of her head.  But it didn't seem to be of any consequence in light of the testimony of the other people who came after.

You heard from Jane Baxter and what Mr. Reilly's categorized as an assault on Jane Baxter.  In fact, Jane Baxter's testimony was that the only action -- interaction between herself and Robert Rivera consisted of Robert talking nicely to her and asking her to be the one to provide him with supervised visitation of Katelyn.  And that the supervised visitation he was requesting, she said she would try to accommodate that when she wasn't working.  He attempted to shake her hand.  She said, that wasn't necessary.  The act of violence that was testified to directed towards Jennifer.

There was never any testimony by anybody that there were any acts of violence directed towards anybody other than Jennifer, including the aunt.  And the only reason the aunt suffered any injuries, as she testified to, was because she of her own volition apparently jumped, if I heard her correctly.  She jumped [75] on Jennifer who was the person being attacked by Rob.  And that she got injured when she jumped on Jennifer and her knees dragged on the ground and she said she was wearing shorts.

So, therefore, the statement that you've heard from witnesses that would indicate that Robert wished ill to Katelyn is not accurate.  To the contrary, you even heard from this Donna Marie Davis, a lawyer, who said that in her experience with Robert, he was deeply concerned about the welfare of Katelyn to the point that he was crying in court and almost cried with her, held back tears, asked her to pray for him or for Katelyn or both of them, whoever it was that he asked for prayers for.  An indication that he was concerned about the well-being of Katelyn.  She testified that he told Judge Osborne he was concerned about seeing Katelyn and Katelyn's well-being.

The other witnesses, Mr. Whittaker, Miss Davis, and Miss Lupi, all indicated that they at various times in the few weeks preceding Katelyn's disappearance in their conversations and discussions with Robert, they were all [76] discussions having to do with Robert contending that Jennifer was an unfit mother.  And that he, Robert, was going to get custody of his daughter and take her away from the unfit mother, indicating a positive reflection of Robert Rivera's relationship with his daughter, not a negative one.  That he had no animist towards Katelyn, that he had no desire to see Katelyn hurt, that he had no intent to hurt Katelyn.  That to the contrary, all of his intentions with regard to Katelyn were not just benign but were in fact loving and fatherly and appropriate.  And that he wanted to protect Katelyn from any harm, not cause her any harm.

You also had testimony from the child's mother that when she was pregnant Robert attended all of the doctor's visits, Robert went to the hospital with her, Robert was taking pictures, Robert cut the umbilical cord, Robert was, you know, delighted that they were having a child.  And that he was, you know, clearly somebody who loved the idea that he was going to be Katelyn's father.  And then you even heard from Michelle Lupi that on several occasions in that same two-week period [77] in that first part of August, the latter part of July, Robert -- she took Robert to a telephone so that he could phone Katelyn up at night.  And that it was the Helton family who gave him trouble just being able to make daily contact so that he could talk to Katelyn and tell her that he loved her and that he cared about her and that he was, you know, worried about her well-being.

So my position on this is that contrary to what the Commonwealth is arguing the evidence that has been presented, while it may go to an animist between Robert and Jennifer Helton, at no time has the Commonwealth presented anything that could be concluded by a fair preponderance of the evidence that Robert had any hostility towards Katelyn which would in anyway indicate that Katelyn was going to be the victim of a murder, a first degree murder, pre-meditated, willful, deliberate killing of another; that she was going to be the victim of a second degree felony murder, that the purpose of kidnapping her, if that's the charge that's pending, were interfering with the custody of Katelyn with her mother, was for the purpose [78] of murdering Katelyn, pre-meditated, wanton, willful, deliberate killing of Katelyn Rivera.

And that to the contrary, all of the efforts to return Katelyn to her mother, the phone calls, the statements that he intended to return her, the attempts to return her, the fact that Katelyn was in the car and playing and happy and things -- all these people were there are indicators that any of the evidence that the Commonwealth's presented to show prior crimes, those all go to the animist between Robert and Jennifer.  But none of them go to create or raise a fair preponderance that Robert intended any harm to the child.  All of that evidence is to the contrary.

Mr. Reilly:  Your Honor ...

The Court:
There was also the Testimony of Officer Smoke in a telephone conversation with the defendant requested the defendant to leave Katelyn some place which indicated to me, in other words, you don't even have to bring her to the police station, just leave her some place, tell me where she is. And he refused to do that.  [79]

Mr. Reilly:
Just one other thing that want to point out to the court.  Your Honor, the defendant made a statement to -- the defendant made a statement to Jennifer over the telephone.  He said -- asked Jennifer if she wanted to say good-bye to Katelyn and said that Katelyn's going to heaven and I'm going to hell.  The Commonwealth's position, Your Honor, is that that is a -- that's a verbal act.  That's part of the crime in this case.  And that's one of the things that the court can consider in deciding whether the Commonwealth has established its corpus.

The Court:
All right.  Based upon the arguments made, the review of the evidence that has been presented, based upon the direct and circumstantial evidence presented during the trial, I hereby find by a fair preponderance of the credible evidence that the Commonwealth has established the corpus delicti of the crimes charged.  In addition, based upon the offer of proof by the Commonwealth with the understanding that the items identified in [80] that offer of proof were properly presented during trial in conjunction with the direct and circumstantial evidence already made part of the record, I hereby find by a fair preponderance of the credible evidence that the Commonwealth has established the corpus delicti of the crimes charged. That's all for now, gentlemen.  Is there anything else ...

Mr. Smith:
Well, Your Honor, the question I have then is, is this explained to the jury in any fashion that we're going to proceed at this level.  In other words, does a fair preponderance of the evidence rule -- entitle me to any rulings for the jury, or is that something that when the court addresses the jury with the charge that the court will make reference to the one level in which this evidence was accepted, but the other level in which the jury will have to weigh it in order to make a determination of guilt or innocence.

The Court:  I think the final instructions really are the way to approach that.

Mr. Reilly:  [81]
Your Honor, the Commonwealth has to establish preponderance as a condition of admissibility. And admissibility is always for the court and it's never for the jury.  And the court would never instruct a jury with regard to an issue of admissibility.  It's either admissible or not admissible, and it's up to the court.

The Court:
And it's still up to the jury -- determine whether or not a corpus has been established beyond a reasonable doubt.

Mr. Reilly:  That's correct.

The Court:  Okay.  All right.  Yeah.

Mr. Smith:  That's all?

The Court:  Yeah.

[End of robing room discussion]

[Back in courtroom]

The Court:

... versus Robert Rivera, number 411 of 2000.  [82] Counsel ready to proceed?

Mr. Reilly:  Yes, Your Honor.  Commonwealth calls Brian Logue.

[Witness sworn]

BRIAN LOGUE, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION
By Mr. Reilly:
Q. You're Officer Brian Logue.  Is that correct?
A. Yes, I am.
Q. You are a police officer?
A. Yes, I am.
Q. Where are you employed?
A. The Borough of Marcus Hook.
Q. Do you know Jennifer Helton?
A. Yes, I do.
Q. How long have you known Jennifer?
A. Approximately ten years.
Q. And how do you know Jennifer?  [83]
A. I'm friends with her brother, Dave Helton.  And my wife is her cousin.
Q. Your wife is Jennifer's cousin?
A. She's Jennifer Helton's cousin.
Q. How long have you been a police officer?
A. Three years.
Q. Officer Logue, I want to direct your attention to August the 10th of 1999 shortly after four o'clock.  Where were you at that time?
A. I was at the Helton residence on Sharpless Avenue.
Q. 2623 Sharpless ...
A. Yes.
Q. ... in Upper Chichester?
A. Yes.
Q. Why had you gone there?
A. I was there with my wife because my wife wanted to go there and see how everybody was doing.
Q. Were you aware of what had happened earlier that day?
A. Yes, I was.
Q. You were aware that the defendant had taken Katelyn from daycare?
A. Yes, I was.
Q. Now shortly after four o'clock the phone [84] rang.  What happened?
A. Jennifer Helton picked up the phone in the living room, I went and picked up the phone in the kitchen to listen in to what was going on.
Q. And did you hear a voice on the other end?
A. Yes, I did.
Q. And whose voice did you hear?
A. Robert Rivera.
Q. Did you recognize his voice?
A. Yes, I did.
Q. Tell the jury what you heard.
A. Jennifer asked him how Katelyn was doing.  He said, she's fine.  They went and got something to eat at her favorite place.  And then he said that Katelyn was going to go to heaven, he was going to go to hell.  And you didn't have to worry about either of them anymore.
Q. What was your reaction when you heard that?
A. I didn't say anything at the time.  I just listened.  I was kind of set back by it.  And then they proceeded on setting up a rendezvous at the Tri State Mall where she was supposed to meet him.  And that was the end of the conversation at that time.  [85]
Q. So you heard Jennifer arranging to meet the defendant at the Tri State Mall?
A. Yes, I did.
Q. Were you part of that -- the planning for that at all?
A. It wasn't planned by Jennifer.  I believe it was Robert Rivera's idea.  I went to the Tri State Mall with her brother, David.
Q. Did you see the defendant at all?
A. No, I did not.
Q. Let me direct your attention to a while later, early in the evening.  Was there another contact between the defendant and Jennifer?
A. Yes, there was.
Q. What happened?
A. They set up a meeting to meet at the Carpenter's Plaza.  It's off Meetinghouse Road.  I believe that's in Delaware.
Q. Were you on the telephone at that point?
A. Yes, I was.
Q. You picked up the other line?
A. Yeah, I picked up the other line in the kitchen again.
Q. What did you hear the defendant say?
A. First he wanted her to tell the police [86] officer, I'm confused on who was there at the time, from Upper Chichester, that they were going to meet back at the Tri State Mall again.  But in reality he wanted her to go to Carpenter's Plaza by herself.  And that was the end of that conversation.
Q. He was trying to get the police to one place ...
A. Correct.
Q. ... and get Jennifer to come somewhere else by herself?
A. Correct.
Q. What did Jennifer say?
A. Jennifer said, okay.  And that's what she was going to do.
Q. And what did you do?
A. I went with Jennifer in I believe the mini-van that they had.  I sat in the back seat and we proceeded to go to Carpenter's Plaza.
Q. What happened when you got to Carpenter's Plaza?
A. The defendant was already there.  She pulled in facing him where the windshields were kind of facing each other when she pulled in to park. She got out of the vehicle.  I heard hollering, get in the vehicle, get in the vehicle, from the defendant.  That's [87] when I proceeded to attempt to get out of the vehicle through the sliding door and ...
Q. Let me just -- let me stop you for a minute.
A. Okay.
Q. You -- Jennifer pulls in and the defendant's car is nearby?
A. The defendant's car is parked -- I don't know if you're familiar with the area.  You go -- when you make the turn off of Meetinghouse Road you go in and to the left is where he was parked.
Q. Okay.  And Jennifer stops her van or her parents van, I guess it was, is that right?
A. Right.
Q. Parents van?
A. Right.
Q. She stops that nearby?
A. Correct.
Q. Now where are you physically in the car when you pull into Carpenter's Plaza?
A. The back seat of the van.
Q. Were you sitting up?
A. I believe I was at the time when she just pulled in.  I was about ready to duck down.
Q. So when Jennifer came in -- pulled into [88] the lot what did you do?
A. I stayed in the van and she got out of the van.
Q. And where were you physically in the van?
A. I was in the back seat basically on the floor, on the floorboards.
Q. Below the window level?
A. Correct.
Q. So the car stops and then what happens?
A. She parks it.  She gets out of the vehicle and approaches him.  I ...
Q. Okay.  Now had you seen the defendant at that point?
A. No, I didn't.
Q. Okay.
A. I did not.
Q. You had not seen the defendant.  Had you seen the vehicle that he was driving, did you ...
A. I seen the vehicle that matched the description.  I could not tell who was in the vehicle at the time.
Q. Okay.  What happened then?
A. She proceeded to get out of the vehicle.
Q. Jennifer?
A. Jennifer Helton, and approached the [89] defendant's vehicle.
Q. Were you able to see out at this point?
A. No, I wasn't.  I was trying to duck down below the dash.
Q. What happened next?
A. I heard a commotion, hollering, somebody saying, get in the vehicle, get in the vehicle.
Q. Who was saying, get in the vehicle?
A. The defendant.
Q. What did you do then?
A. At that time, I got out of the vehicle thinking that he was going to try and grab her and put her in the vehicle as well and take off.  When I got out of the vehicle he already started to pull away.
Q. Where was Jennifer when you got out of the vehicle?
A. She was standing beside his car.
Q. How close to the defendant's car was Jennifer?
A. A matter of feet, two or three feet.
Q. Did you see the defendant at that point?
A. Yes, I did.
Q. And what's his car doing then?
A. He's pulling out of the drive -- out of the parking lot going around -- he's parked here, he [90] went around the van.  I opened the door, he's like right beside the van of the door.
Q. Was he pulling out frontways or was he backing out?
A. No, he was pulling out frontways.
Q. So he pulls out and he's driving towards the van that you're getting out of?
A. Correct.
Q. How close does his car come to you?
A. At that time as I'm getting out of the van?
Q. Uh-huh.
A. Probably ten feet, 15 feet.
Q. Were you able to look into the car he was driving at that point?
A. Yes, I was.
Q. Did you see him?
A. Yes, I did.
Q. Did you see anyone else in the car?
A. No, I didn't.
Q. What happened next?
A. As he proceeded to pull around the van I got out.  I ran after the van up to the driver's side of the -- I mean, up to his car, up to the driver's side of the car.  [91]
Q. How close did you get to the driver's side of the car?
A. I was basically right next to it attempting to reach in and grab him.
Q. How fast would you say he was going as you were running alongside?
A. At that time, probably ten mile an hour, five mile an hour.  I don't know.  He was just -- just as he's going to make the other turn to go out of the parking lot.
Q. Were you running from behind, were you running to catch up?
A. Yes.
Q. So you're physically behind him?
A. Correct.
Q. How close does your body come to his?
A. Probably two or three feet.
Q. And what were you doing as you got there?
A. As I got there I was trying to -- thinking about trying to reach in grab through the window.  And he just got too far ahead, I fell behind.
Q. You couldn't catch up?
A. No.
Q. What happened then?
A. He proceeded to pull out of the parking [92] lot and make a left onto Meetinghouse Road and head down towards Naamans Road.  At that time I cut through -- there's a grass field.  I cut through the field to try to keep up with him.
Q. You ...
A. ... catch up ...
Q. You're still on foot?
A. Yes, I'm still on foot.  He goes down the bottom of the -- goes down a steep hill.  He's at the bottom of the hill.  I stop halfway down the hill and Jennifer Helton picked me back up in the van.
Q. And then what happened?
A. We proceeded -- believe he made a right turn onto Naamans Road heading towards -- I guess it would be towards Wilmington.  And we lost him there.  There was an Officer Montgomery from Upper Chichester Police was parked in a -- I think it was a restaurant parking lot on the right-hand side.  We stopped and notified him.
Q. Okay.

Mr. Reilly:  That's all I have, Your Honor.  Thank you.

The Court:  Cross-examine.  [93]

CROSS EXAMINATION

By Mr. Smith:
Q. Officer Logue, were on this case in your official capacity as Marcus Hook police officer at this time?
A. No, I wasn't.
Q. So when you're in the car with Jen you're going there as her friend, helper, relative, whatever, in a private capacity?
A. Correct.
Q. Okay.  And about what time was it that you went down to this Carpenter's Plaza?
A. Exact time I don't know.  It was early evening.
Q. Six o'clock, seven o'clock, eight o'clock?
A. In that area.  I ...
Q. Okay.
A. ... don't know the exact time.
Q. I've got -- I'm not trying to confuse you but I just gave you a big area.  I gave you six o'clock, seven o'clock, eight o'clock.  So what's your closest estimate of what time ...
A. I would say six o'clock, in that area.  [94]
Q. Did you get close enough to the car to actually look inside to see if anybody else was in there?
A. I could see into the car but only him.  I wasn't really paying attention to whether anybody was in the back seat or passenger seat.
Q. So you're focused on him?
A. Correct.
Q. So if somebody's in the back seat or the passenger seat you're not even focused in that direction, if that's a fair ...
A. Correct.
Q. Is that accurate?
A. That's accurate.
Q. And you're in the back seat of the van driven by Jennifer Helton.  She pulls into this plaza.
And as you pull in aren't there sort of concrete curbs on both sides as you pull in there?
A. Correct.
Q. Like an entrance path?
A. Yes.
Q. You can also get out that same way, right?
A. Yes.
Q. Okay.  So there's two lanes, curbs.  And [95] then if you were to go around those curbs you can park on either side of them?
A. Correct.
Q. You just can't ride over them?
A. Right.
Q. Okay.  When you pulled in with her driving are you watching at that point, you're still up above dashboard level so you can see?
A. Yeah.  I'm ducked down a little bit but I'm still looking out.
Q. Okay.  So it's not until sometime later that you actually go below the dashboard and don't see things, right?
A. Correct.
Q. Okay.  So as you're driving with Jennifer, you're in the back seat and you're looking out, as you pull up between those two concrete curbings do you see Rob's car, the car that Rob was driving?  I don't mean it was Rob's car, he was driving somebody else's car.  Did you see the car?
A. Yes.  I viewed a vehicle that fit the description that he was supposed to be in.
Q. And where do you see that, to your left, straight ahead, or to your right?
A. To my left.  [96]
Q. Your left.  And is it parked or moving?
A. Parked.
Q. Okay.  Are there lights on or not on or ...
A. No.
Q. No lights are on on the car?
A. Not that I noticed.
Q. Okay.  Do you see Rob at all at that point, do you see him inside the car, outside the car, or you don't see him?
A. No.  I don't see him at all.
Q. Okay.  So when Jennifer pulls in does she go to the left over by where the car is, or does she go to straight head, or does she go to the right?
A. She pulls in to the left where the car is.
Q. Okay.  And how -- where does she stop the van that you're in?
A. She parks in the parking space to the left-hand side.  Basically in front of him but I think there's like a space, there's a gap.
Q. Is -- when you see his car is it facing -- where you're coming in or is that the back of his car you see?
A. As you're coming down where you describe [97] having the curbs, if you're coming down there ...
Q. Yeah.  Between the concrete curbs.
A. Yeah.  He's facing the concrete curbs.  He's facing as if he can pull straight out and go back out.
Q. So the front of his car is looking at you, so to speak?
A. Correct.
Q. Okay.  So when she pulls up does she pull the front of her car up to the front of his car?
A. Correct.
Q. And just leaves a little space between them?
A. I believe there was -- he was in this -- there's two rows of parking spaces.  He was in a different row.  She stopped here.  She gave it some distance.
Q. So the distance you're talking about is the length of a car, two cars?
A. Probably.
Q. Okay.  Not like a football field or something?
A. No, no.
Q. Car or two?
A. Correct.  [98]
Q. And she stops.  She gets out.  You still don't see him at this point?
A. No.
Q. And then you duck down further so you're not visible?
A. Correct.
Q. After she gets out does she leave the windows open in the van?
A. Yeah, I believe they were down.
Q. So she gets out and then -- I guess this is pretty much an assumption, but reasonable assumption, she walks over to his car.  She walks over that way?
A. I'm assuming you're correct.
Q. You don't know where she walked?
A. I'm assuming -- I can't see where she walked but I ...
Q. Where was the noise coming from when you heard the hollering?
A. From the direction of the vehicle.
Q. From the direction of the car?
A. Correct.
Q. Okay.  And so at that point, and the words you used were, you hear him hollering, get in the vehicle.  He uses the word vehicle?
A. No.  Get into the car.  [99]
Q. Okay.  So he says, get in the car, get in the car.
A. Correct.
Q. How many times?
A. Probably two or three times that I can remember.
Q. You said he was hollering?
A. Correct.
Q. Loud, real loud?
A. Loud enough for me to hear him.
Q. Okay.
A. From where I was at.
Q. Did you hear her say anything?
A. No.
Q. You didn't hear her say a response like, no or ...
A. I heard -- just heard her scream something.  I can't understand what she's screaming.
Q. But you hear -- she's being loud, too?
A. I hear -- she's being loud as well.
Q. But you don't know what she's saying?
A. No, I don't.
Q. How come you don't know what she said?
A. I didn't understand what she was saying.
Q. Okay.  How long does that go on before [100] you decide you better get out of the car?
A. Seconds, ten seconds.
Q. Okay.  So for ten seconds he's saying whatever he's saying and she's saying whatever she's saying, and you decide you better get out of the car because it sounds like it's loud and you're afraid he's liable to grab her and try to put in the car?
A. Correct.
Q. Okay.  As you're getting out is that the first time you see who's out there?  In other words, you get to look as you're getting out ...
A. I've gotten out of the sliding van door, which puts me in a view I can't see him at all.  I see him as his car's coming by the van.
Q. So the first time you see him in his car driving out?
A. Correct.
Q. So you don't know whether he was ever outside his car?
A. Correct.
Q. Okay.  So you get out -- you get out the passenger side of the van?
A. Correct.
Q. The sliding door ...
A. Yes.  [101]
Q. ... rear sliding door.  You're getting out and this car goes by you.  Now does the car go by you on the same side that you're on?
A. Yes.
Q. So that would have been passenger side to passenger side the cars would have passed?
A. Correct.
Q. And as the car passes how close does it come to where you are?
A. I would say between ten and 15 feet.
Q. Okay.  And is that when you take off after the car as it's going out?
A. Correct.
Q. Does that car now have to go past the van that you're in -- around it, if you will, and then make, what, a right turn to get out?
A. Yeah.  Swing around that curb to go back out of the driveway.
Q. Okay.  So the car's going to make a right turn to go out.  And you -- after it goes by you, you run after it?
A. Correct.
Q. And that's when you get two to three feet away, did I hear you correctly?
A. Yes.  [102]
Q. Two to three feet away but you can't -- you can't get him because he just -- he out distances you?
A. Right.
Q. Okay.  And during this time because of your focus on him you don't get to see whether Katelyn's in the car or not in the car?
A. Right.  I have no idea.
Q. Okay.  Does he say anything to you, does he look at you, do you know that he sees you chasing him or ...
A. Not that I noticed.
Q. And then when he leaves you watch him make a turn onto Naamans Road, did you say?
A. Meetinghouse -- well, when you come out of Carpenter's Plaza, Meetinghouse Road -- he made a left onto Meetinghouse Road.
Q. And then you sort of take the shortcut across the parking lot ...
A. Correct.
Q. ... in the direction that you saw him turn?
A. Correct.
Q. But he still stays ahead of you?
A. Correct.  [103]
Q. You get about halfway down that little hill there and Jen comes up with the car -- the van.  You jump in the van and you guys go off after him. But he's made a turn down ...
A. Down Naamans Road.
Q. ... Naamans Road?
A. Yes.
Q. Did you ever see him again?
A. No.
Q. Okay.  Was it dark out or light out?
A. No, it was still light.
Q. Okay.  And you figure of those times I gave you closer to 6:00 than to 8:00?
A. Yeah.

Mr. Smith:  No further questions.

Mr. Reilly:  Nothing else, Your Honor.

The Court:  You're excused.

Officer Logue:  Thank you, Your Honor.

Mr. Reilly:  Olga Helton, Your Honor.  Olga Helton.  [104]

[Witness sworn]

OLGA HELTON, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Mrs. Helton, you are Jennifer Helton's mom.  Is that correct?
A. Yes, sir.
Q. This is C17.
A. That's Katy.
Q. Who's Katy?
A. My granddaughter.
Q. When's the last time you saw Katy?
A. On the morning of August the 10th
Q. Tell the jury what you did, what was the last time you saw her?
A. We were getting ready to go to court for a hearing.  Katy didn't want to get up.  I got dressed first and I had -- when I got dressed my daughter got dressed.  Then we woke Katy up.  She didn't want to get up and she didn't -- you know, she gave us a hard time.  [105] Usually, you know, she gets up, she's -- but this time she was just -- didn't want to go anywhere.  She was hard to get up.
Q. Did you get her dressed that morning?
A. We got her dressed.  Her -- my daughter and my husband and taken her to the baby-sitter's house.
Q. Who dressed Katy that morning?
A. I think it was a combination of both of us dressing her.  I really -- I don't know.  Because we -- we were both trying to get dressed.  Like I said, Katy was -- didn't want -- she wasn't feeling well the day before.
Q. You all worked together?
A. We were working together, yes.
Q. This is C42, Mrs. Helton.  Do you recognize that?
A. Yes, sir.  I do.
Q. What is that?
A. Katy's shoe -- shoe of Katy's.
Q. When was the last time you saw Katy wearing that?
A. On the morning of August the 11th when we got her dressed.
Q. How do you know that that's Katy shoe?
A. My sister, Jennifer, we all bought it for her.  We went to Payless and we bought her the shoes.  [106]
Q. Did you take Katy over to Shelia Clendening's?
A. That morning?
Q. Yes.
A. Not that morning.
Q. Who took Katy over?
A. Jennifer and my husband.
Q. Did you go to court with Jennifer that morning?
A. Yes, I did.
Q. And what did you do when court was over?
A. When court was over we had taken a friend of -- our neighbor with us.  We got in our van and we were heading back home.  Okay.
Q. Did you go home, you went back to your home?
A. Yes.  I went back home.
Q. On Sharpless Avenue?
A. On Sharpless Avenue and we just sat out like outside in our driveway talking to our neighbor.
Q. What happened then?
A. I -- get into the house.  And my sister was on the phone and she's crying and told me to hurry up get to the baby-sitter's because Rob had just attacked her and Jennifer at the Wawa parking lot.  [107]
Q. That was Jane Baxter who called ...
A. Yes, sir.
Q. ... your sister?
A. Yes, sir.
Q. What did you do then?
A. My husband, we all got into the van and went down to the baby-sitter’s, which is two blocks down from us.  By the time we got there Shelia, the baby-sitter, was outside.  We -- I walked over and she told me that ...

Mr. Smith:  Objection to what she told her.

The Court:  Sustained.

By Mr. Reilly:
Q. Mrs. Helton, I want to take you now to the following day, that's August the 11th of 1999.
A. Okay.
Q. Jennifer spent that night, August the 10th, with you.  Is that right?
A. Yes, sir.
Q. And you were home during the day ...
A. Yes, sir.  [108]
Q. ... August the 11th, following day?
A. Yes, sir.
Q. Sitting by the phone?
A. Yes, sir.
Q. I want to direct your attention to about ten minutes after 11:00 in the morning on that day, August the 11th, the following day.
A. Okay.
Q. Did you get a phone call then?
A. Yes, I did.
Q. Who was in the house at that point?
A. At that ...
Q. Where was Jennifer -- let me put it this way, where was Jennifer?
A. Jennifer actually was over at our neighbor's house at that point.
Q. Was anyone else in the house with you?
A. No.  It was just myself in the house.
Q. The phone rings about ten after 11:00.
A. Yes, sir.
Q. Who was on the other end?
A. It was a collect call.  Robert Rivera.
Q. I'm sorry?
A. Robert Rivera.
Q. What did he say to you?  [109]
A. He wanted to talk to Jennifer.  I told him she wasn't home.  I said to him, I said, Rob, where's the baby?  He told me that he had given the baby away to a woman that had lost a child.  And that she was going to take good care of her.  I said to him, Rob, why, why are you doing this to us?  He said, Jen -- good mother and you and your husband are great parents -- great grandparents.  He said, but this woman's going to take good care of her, you know.  I said to him, I said, Rob, why don't you give yourself up.  Do the right thing.  Give yourself up and tell every -- bring Katy back.  I'm going to give myself up, he says.  But I can't bring Katy back.  I don't have her.
Q. What happened then?
A. And then he hung up.
Q. The Rob Rivera that you talked to on the phone, do you see him in court today?
A. Yes, sir.
Q. Can you point him out to us and tell us what he's wearing?
A. The beige shirt with the big cross in front of it.

Mr. Reilly:  That's all, Your Honor.  [110]

The Court:  You may cross-examine.

Mr. Smith:  Thank you, Your Honor.

[Off record]

[Back on record]

The Court:  You're excused, ma'am.

Mrs. Helton:  Thank you.

Mr. Reilly:  Ed Specht, Your Honor.  Ed Specht.

[Witness sworn]

having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Sir, you -- you pronounce your last name [111] Specht?
A. Yes.
Q. Like s-p-a-y?
A. Yes.
Q. Okay.  Mr. Specht, by whom are you employed?
A. KYW Television.
Q. What do you do for KYW TV?
A. I'm a cameraman, editor, and I'm a live truck technician.
Q. For how long have you been employed in that position?
A. I've been at KYW for five-and-a-half years.
Q. Were you employed there on August the 11th of 1999?
A. Yes.
Q. And were you working that day?
A. Yes.
Q. I want to direct your attention to about 25 minutes after 11:00 on that day.  Do you recall where you were at that time?
A. I was enroute to a story in southern Chester County.  I was driving on I-95.
Q. You were driving a news van?  [112]
A. Yes.
Q. Was there anyone else with you?
A. I had a reporter with me in the back seat, and I had an intern sitting to my right in the passenger seat.
Q. On what highway were you traveling?
A. I was headed southbound on I-95.
Q. About where south on 95?
A. Right near the airport, Philly International.
Q. Were you at the airport or south of the airport?
A. I was right about parallel with it.
Q. Describe for the jury what you saw at that point.
A. I was driving southbound.  A car came up from behind and was beeping his horn, flashing headlights, basically trying to get my attention.
Q. Do you -- let me stop you.  Do you recall what kind of car it was?  Do you recall what it looked like?
A. It was a red car.  I believe it was a Dodge Shadow or that type of similar build.
Q. Let me show you this, Mr. Specht.  This is Commonwealth Exhibit C1.  Take a look at photograph [113] 1A up in the left-hand corner.  Does that look like the car you saw?
A. Similar to the car I saw, yes.
Q. Okay.  What happened?
A. After getting my attention the driver of the car pulled along the right side of me and rolled down his window.  He wanted to say something to me.
Q. Did you have to slow down?
A. I may have slowed down a bit but I was still probably traveling about 60 miles an hour.
Q. And was he going 60 miles an hour also?
A. Yeah.  He was -- he pulled up right alongside of me and was basically going the same speed I was.
Q. All right.  Do you see that man in court today?
A. Someone who looks similar to him, yes.
Q. All right.  Would you -- who is it in court that looks similar to the man that you saw that day?
A. The gentleman sitting over at this table.
Q. What happened when this man came up to your car?
A. He rolled down his window and I was -- I have power windows so I was able to roll down the window on the [114] passenger side.  And he said to me that he wanted us to follow him because he was going to Chichester to turn himself into the police because he had kidnapped his daughter.
Q. What did you say?
A. I don't think I really said anything.  I was just kind of like, you know, hey, okay, have a nice day.  I was -- I had another assignment so I really didn't think much about it.  And I proceeded on my way.  And he sped off ahead of me and, you know, I lost the sight of him.
Q. At that point, did the story ring a bell, did what he said to you make any sense to you at that point?
A. Not really.
Q. When were you able to put two and two together?
A. The day after I got a call from one of the Delaware County detectives.  And he asked me if anybody had said something to me regarding kidnapping of a daughter.
Q. Did you learn about the new story afterwards, after you had this encounter on I-95?
A. Yes.
Q. When?  [115]
A. I don't know how soon after my incident that I learned about the story.  I don't know if it was a day or two.  But I remember there was a story about a person who said he gave his daughter away to a couple at Longwood Gardens.  And that's when I first became aware of the story.
Q. And did you actually see the footage of this person who had been arrested?
A. When he was arrested, yes, I had seen it.
Q. And when you saw that footage, when you saw the person who had been arrested, what was your reaction?
A. My reaction was after remembering that the detective had talked to me on the phone about this incident, I'm like, oh, my, god, that's the guy. That's the guy who was in the red car.
Q. So the person you saw in the arrest footage was the same person you'd seen in the car?
A. Yes.
Q. All right.  Mr. Specht, you described the fact that this was a news story.
A. It became a news story, yes.
Q. Okay.  Not your particular part in it, but the abduction of Katelyn Rivera was a news story.  Is that right?  It was broadcast on your station? [116]
A. Yes.
Q. Would you describe the level of news coverage, you know, beginning August the 11th and in the days thereafter.
A. Well, bearing in mind everybody was looking for this girl because she had been given to a couple at Longwood Gardens.  People were searching for her.  And that was what some of the original stories were about.
Q. How much -- how often was that story on your news station in those days beginning on August the 11th?
A. I couldn't say exactly.  But I know we did the story for a couple days and then there were follow-up searches as they were looking for the body of the little girl.
Q. And those were broadcast on television as well?
A. Yes.
Q. Were you involved in covering those searches?
A. Twice I was assigned to cover the search.  One was off the Elk Neck River in Cecil County,
Maryland.  And the other was along Route 40 near Elkton, Maryland.  [117]
Q. Route 40 near Elkton, Maryland?
A. Yes.  Just off Next Door Retention Pond.

Mr. Reilly:  That's all, Your Honor.

The Court:  You may cross-examine.

CROSS EXAMINATION

By Mr. Smith:
Q. Mr. Specht, there was somebody -- you were driving this van.  I take it, it's one of those news vans with the big stuff on it that tells everybody ...
A. Yes.  It's a live truck.  It has a mast that when you -- it will extend about 50 feet up in the air.  And that's how we can do live stories in the field.  It's a large Ford Econoline van.
Q. And you're driving.  There's somebody in the passenger seat?
A. Yes.
Q. A female reporter is in the passenger seat?
A. No.  I had a male intern sitting in the passenger seat.  The reporter was sitting -- there's [118] like a captain's chair in the back and she was sitting in that.
Q. Captain's chair.  And you slowed down to 60 you say, and this car is going about the same speed alongside of you?
A. Yes.
Q. And then he has his window down so you hit the button and put the passenger window down?
A. Yes.
Q. And the person says, I'm going to Chichester to turn myself into the police.
A. Yes.
Q. Because I kidnapped my daughter?
A. Yes.
Q. And you don't like follow-up or do anything at that point other than sort of acknowledge, okay, thanks for the info sort of a thing.
A. Correct.
Q. And off you go.
A. Yes.
Q. And then he goes his way and you go yours.
A. Yes.
Q. Subsequently, do you try to make contact with the man who's the person who turned himself in [119] here?
A. Had I tried to contact him?
Q. Yeah.  You and your news agency or your KYW TV ...
A. Yes.  I personally had not.  I don't know if any of our reporters had tried to get in contact with him.
Q. Now you're sure about what the man said?
A. Words to that effect, yes.
Q. You say words to that effect.
A. He said he was going to the Chichester Police Department to turn himself in.
Q. No.  But I'm ...
A. I don't know if that's his words verbatim as he spoke them to me.
Q. I'm more interested in the part about the word kidnapping.  Did he say kidnap or did he say, I took her, or did he say, I'm taking her back -- did he say kidnap?
A. I believe he said kidnap.
Q. Okay.  And how sure are you of that?
A. I'm pretty sure.
Q. Okay.  He didn't say, I kidnapped her and murdered her, did he?
A. No.  [120]
Q. He said, I kidnapped her.
A. Yes.
Q. You're sure?
A. Yes.

Mr. Smith:  That's all the questions I have.

The Court:  You're excused, sir.

Mr. Reilly:
The next witness is Officer -- or Detective Reardon, Your Honor.  May Mr. Smith and I approach?

The Court:  Yes.  On the record?

Mr. Reilly:  Not necessary.

[Off record]

[Back on record]

The Court:
... don't discuss the case, don't let anybody discuss it with you.  See you back here at [121] 1:30.

[Recess]

[Second tape begins]

The Court:
Returning to the matter of the Commonwealth versus Robert Norman Rivera, number 411 of 2000.  Counsel, ready to proceed?

Mr. Reilly:  Yes, Your Honor.  Commonwealth calls Detective James Reardon.

[Witness sworn]

JAMES PATRICK REARDON, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Detective Reardon, you're employed by the Upper Chichester Township Police Department.  Is that correct?  [122]
A. Yes, sir.
Q. How long have you been a police officer?
A. Approximately 14 years.
Q. How long a detective?
A. Approximately seven years.
Q. Were you employed as a detective in Upper Chichester in August of 1999?
A. Yes, I was.
Q. Directing your attention specifically to August the 10th of 1999, were you working day -- work that day?
A. Yes, I was.  The 8:00 to 4:00 shift.
Q. And at about 11:00 a.m. did you respond to a call?
A. Yes, I did.
Q. And what was the call?
A. I was requested by our patrol units to respond to a residence on Second Avenue in Boothwyn.
Q. And was that Shelia Clendening's house?
A. Yes, it was.
Q. And did you go there?
A. Yes, I did.
Q. What did you do when you got there?
A. I was asked to take two written statements from the Clendening's regarding an abduction of [123] a child.
Q. Did you continue to participate in the investigation of the crime as the rest of the day unfolded?
A. Yes, I did.
Q. Now I want to direct your attention to later in the day about 6:30 p.m.  What did you have to do at that time?
A. I was actually called by our shift supervisor to come back into work to assist them in the investigation of the kidnapping of Katelyn Rivera.
Q. Had you -- did you go off work at four o'clock?
A. Yes, I did.
Q. So you left work at 4:00 and you were called back in?
A. Yes.
Q. Where did you go at 6:30?
A. Initially I met with our patrol units just about a block away from the Carpenter Station Plaza, which is located in Delaware.
Q. And why did you go down there?
A. When I met with the shift supervisor he was -- he had told me that they had been investigating some contacts by Robert Rivera to Jennifer Helton's [124] house.  And some possible meetings and a possible exchange of the child.
Q. By the way, do you see Robert Rivera in court today?
A. Yes, I do.
Q. Would you point him out for us and tell us what he's wearing?
A. He's seated at the defense table in a tan, long-sleeved shirt.
Q. After you met with the other police officials at 6:30 what did you do then?
A. It was -- I was directed to respond to the Helton residence on Sharpless Avenue in -- Sharpless Avenue and relieve an officer who had responded to that house.
Q. Okay.  It's 2623 Sharpless?
A. Yes.
Q. You were relieving Officer Smoke?
A. Yes, I was.
Q. Who testified here yesterday?
A. Yes, sir.
Q. What happened when you got to the Helton residence at Sharpless Avenue?
A. The purpose of me going to the house was to set up a surveillance for some possible future [125] contacts to that house by Mr. Rivera.
Q. And were there future contacts with the house, did Mr. Rivera call the house again?
A. Later on that evening there was a call to the house by Robert.
Q. What time did you get there?
A. Approximately 7:00 p.m.
Q. And do you recall what time the call came in from the defendant?
A. It was shortly after 9:00 p.m.
Q. Who answered the phone?
A. Jennifer Helton.
Q. What hap -- what did you hear when Jennifer answered the phone?
A. Jennifer was speaking with Robert.
Q. What did you hear Jennifer saying?
A. She was pleading with him to tell her where Katelyn was.
Q. What were her words?
A. Can, you know, tell me please, you know, where Katelyn ...
Q. Were you able to hear at that point what the defendant was saying?
A. No.
Q. What happened next?  [126]
A. In my -- it was my opinion that she was not getting -- she was not getting anywhere, you know, with her questions.  So I asked if I could get on the telephone and speak with Robert.
Q. Did you get on the phone?
A. Yes.
Q. Did you speak with the defendant?
A. Yes, I did.
Q. What did the defendant say?
A. When I spoke with him he was -- he was somewhat hesitative.  He didn't want to speak with me.
He continued to ask to put Jennifer back on the phone.
Q. Describe the tone of his voice.
A. He was somewhat loud, agitated.
Q. You said -- you came to a conclusion that he didn't want to talk to you.  Why was that, what did
he say?
A. He kept asking me to put Jennifer back on the telephone.
Q. What were you saying to him?
A. I was asking him where, you know, where was Katelyn.
Q. What was he saying to you?
A. I do recall him saying that she was safe but he would not tell me where she was.  [127]
Q. How did the phone call come to an end?
A. I also was asking him where Katelyn was.  I also asked him about turning himself to the police.  And during our short conversation he kept asking to, you know, put Jennifer back on the phone, I want to talk to Jennifer.  I'm not going to tell you where Katelyn is.  And then when I asked him about turning himself in, he said that he would be there in five minutes.  And then he threatened to hang up -- he threatened to hang up if I didn't give the phone back to Jennifer.
Q. Did you give the phone back to Jennifer?
A. Yes, I did.
Q. What happened next?
A. She briefly spoke with him and ...
Q. What did you hear Jennifer say?
A. The same questions, where -- you know, where is Katelyn.  But at that time what I was attempting to do was contact our police officers to let them know that he had made an indication that he was going to come to the residence within five minutes.
Q. At anytime during that conversation you had with him, did the defendant tell you if he had Katelyn?
A. No, he didn't.
Q. What did he -- did he tell you anything [128] about where Katelyn was?
A. No.
Q. Did the other officers come to Jennifer's house on Sharpless Avenue?
A. What we had done was we had the other officers had set themselves up in certain sit -- locations to monitor the house in case he did show.
Q. How many officers did you have there?
A. At least three or four.
Q. Did the defendant ever show?
A. No, he did not.
Q. What time did you break off the surveillance there?
A. It was decided about two o'clock in the morning that he probably would not show and it was terminated then.
Q. So you waited from shortly after 9:00 until two o'clock in the morning?
A. Yes.
Q. Now the following day is August the 11th.  You go back to work on August the 11th?
A. Yes, sir.
Q. Were you working a shift that day?
A. The same shift, 8:00 a.m. to 4:00 p.m.
Q. Now tell me what was your next contact, [129] what was the next thing that you did on the Rivera case that day, August the 11th?
A. At about that 1030, 1035 hours we were at the police station and we received a phone call, a direct-line phone call from Jennifer.
Q. At 10:35 in the morning?
A. Yes, sir.  The context of that phone call was Jennifer had told us that she had just received a phone call from Robert.  And that he was pleading with her to run down the street so they could meet.
Q. What did you do then?
A. At that time, we were trying to ascertain the location of where he was making the phone call from.  And it was learned several minutes later that the phone call was made from a pay phone by Naamans Road and Peachtree Road in Claymont, Delaware.
Q. What did you do then?
A. We sent officers who were on the street to that location to attempt to locate Robert.
Q. And what did you do?
A. Shortly thereafter, after that phone call was received at the police station, we got a second phone call from Jennifer, the same type of phone call.  She was calling the police station direct to tell us that she just received another phone call.  It was about [130] five minutes after the first phone call.  And that Robert had just called her again and this time he wanted to meet her at the Chichester Middle School, which is about a block-and-a-half from the Helton residence.
Q. From Sharpless Avenue?
A. Yes.
Q. What did you do then?
A. It was learned at that time that that phone call was made from a pay phone at the Exxon Station, which is in Upper Chichester Township at the I-95 and 452 intersection.
Q. Now that Exxon station at I-95 and 452, how far away from Sharpless Avenue is that?
A. It's within a mile.
Q. Okay.
A. It's a short distance away.
Q. So what did you do then?
A. We -- the officers that were enroute to the other gas station were now redirected to that location in order to try to locate Robert.
Q. What happened next?
A. While the officers were enroute, we received a 911 call through our dispatch center that came from the Helton residence that indicated that Robert was at the end of the street in the red Ford
[131] Escort that had believed he was operating.  And that Mr. Helton and the brother was actually outside and they had run down -- ran down the street to -- in an attempt to apprehend Robert.
Q. What happened next?
A. With that information we re-routed from the Exxon station to that location, Sharpless -- house to a, you know, in an attempt to look for Robert.
Q. Did you go over there?
A. At that time, not initially.  But I did respond to that location shortly after that 911 call.
Q. By the time you got over there what did you learn about whether the officers were successful in stopping the defendant?
A. He actually fled almost immediately when the brother and the father had left the residence and ran down the street.
Q. The defendant was no longer there when you arrived at Sharpless Avenue?
A. That's correct.
Q. What did you do when you got there?
A. He was not located by the responding officers.  And what we had done, we had decided to set up another surveillance at the residence in the hope of apprehending him.  [132]
Q. So did you stay at the Sharpless Avenue house?
A. Yes.  Yes, I did.
Q. You were inside?
A. Yes.
Q. Were there other officers outside?
A. There were officers that were in the area, yes.
Q. Okay.  About what time was it that you arrived over at Sharpless Avenue?
A. Between 11:00 and 11:30, in that area.
Q. What happened next after you set up at Sharpless Avenue?
A. When I arrived there I learned of a third phone call to the -- to the Helton residence that was picked up by Olga Helton, Jennifer's mother.
Q. Uh-huh.
A. And that there was some discussion between Olga Helton and Robert Rivera.
Q. Did the defendant call in while you were there?
A. Yes, he did.
Q. About what time did he call in?
A. About two hours later, it was about 1:45 p.m.  [133]
Q. Uh-huh.  Who answered the phone when the call came in?
A. Jennifer answered the telephone.
Q. What did Jennifer say when she picked up the phone?
A. The same type of questions, you know, where's Katelyn, are you going to turn yourself in, you know, where is Katelyn.
Q. Were you able to hear the defendant's words through the phone at that point?
A. No.
Q. Did you get on the phone with the defendant?
A. No.
Q. How long did that call last?
A. It only lasted several seconds.  But while that phone call was going on the Helton's had a caller ID box and the phone number that was on the caller ID box I recognized as being the pay phone at the Exxon station.  So I radioed ...
Q. The Exxon station is at?
A. 452 and I-95.
Q. So what did you do?
A. So I radioed for officers to respond to that location.  [134]
Q. You stayed on location there at Sharpless Avenue?
A. Yes, I did.
Q. What happened next?
A. About two or three minutes later Robert actually pulled up in front of the residence.
Q. Where were you?
A. At that time, I had requested Jennifer to stand in the doorway and I was standing behind the door observing him from the crack in the doorjamb.
Q. Describe for the jury how you were able to see outside if you're standing behind the door.
A. The -- there -- at the Helton residence there's a front door and then a front porch that is glass.
Q. There's a door right next to you.  Maybe you can show us right there in the doorway right next to you.
A. Can I stand up?
Q. Absolutely.
A. Okay.  If this is the front door, the door -- the hinges are on this side.  Jennifer was standing here.
Q. Uh-huh.  You're indicating for the record standing within ...  [135]
A. ... in the doorjamb, in the door opening looking out into the street.
Q. And where were you?
A. I was standing behind the door off to her right.
Q. And you said there's a crack you could see through?
A. Yeah.  You could see through the door and the doorjamb.
Q. Okay.  You can take your seat.  What did you see outside?
A. When Robert pulled up he was in the red Ford Escort that we had information that he was operating.
Q. Were you able to see inside the car?
A. Yes.
Q. Who did you see was driving the car?
A. Robert was.
Q. The defendant?
A. Yes, sir.
Q. What happened next?
A. The car was facing the front of the house with the passenger side closest to the house.  He had the passenger window down.  He was leaning over the passenger seat.  He was yelling at Jennifer through the [136] open window.
Q. Tell the jury, what did he say, what were his words?
A. He was very agitated, very anxious.
Q. How could you tell that?
A. Just by his mannerisms, his behavior.  His hands were moving.  He was telling Jennifer, come on, let's go.  We got to get out of here.
Q. Were you able to see his head?
A. Yes.
Q. What was he doing?
A. It looked like besides looking at Jennifer and yelling at her, he was looking around as if he was looking for, in my opinion, looking for police officers.
Q. And what was he saying to Jennifer?
A. He was yelling, he was motioning for her to come to the car.  We have to get out of here, come on, let's go.  And at that time I was directing her to, you know, don't move.  Ask him to come into the house.  You could see that the car was actually still in gear.  He was moving actually forward.  She was not successful in, you know, in asking -- coaching him out of the car.
Q. But she's asking him to get out of the car?  And what's he saying to her in response?  [137]
A. He said, no.  And you know, he repeats, come on, let's go.  You know, get in the car.
Q. What happened next?
A. I was telling Jennifer not to, you know, not to go down there, not to leave the house.  And she was scared, she was nervous.  But she did obey my request and stayed in the door -- in the doorjamb.
Q. For how long was this going on?
A. About 30 seconds.
Q. What happened at the end of the 30 seconds?
A. During that time I was radioing the assisting officers that he was in front of the house at that time and that we need -- you know, that they needed to respond there to, you know, to take him into custody.
Q. Did the other officers arrive?
A. During that exchange with the car moving Robert did at one point leave.
Q. When you say left, describe what he did.
A. He accelerated down the street.  He left the front of the Helton residence.
Q. What did you do then?
A. At that time, as he accelerated away, assisting officers came from both directions and actually boxed him in about 100 feet down the street [138] from the Helton residence.
Q. Okay.  You go outside at that point?
A. Yes.
Q. And you walk down the street?
A. Yes.
Q. What happens when you get down there?
A. By the time I got to the location of where the officers had the car stopped, they had already had Robert out of the car and they were placing him in the back of the police car.
Q. Did you go over to the police car where Robert was?
A. Yes, I did.
Q. What did you do?
A. At that time when I -- I opened up the back of the police car and I actually Mirandized him.
Q. What -- tell the jury what does it mean to Mirandize someone?
A. I gave him his Miranda Warnings.  I gave him his rights.
Q. How did you do that?
A. We have a standard issue card that we get from the District Attorney's Office that has the -- you know, the rights on there.
Q. Do you have that card with you?  [139]
A. Yes, I do.
Q. Do you have a card like ...
A. Yeah, I have a card like the one that I would use.
Q. Do you have it with you?
A. Yes, sir.
Q. Is this the same card -- this is a form.  Is that right?
A. Yes.
Q. And there's -- you get these in boxes, correct?
A. Yes.
Q. Is this the same card, the same type of form from which you read the Miranda Warnings to the defendant?
A. Yes.
Q. This would be C53 for identification.  You've already identified that a -- the Miranda Warning card.  Would you please tell us what you read to the defendant?
A. The card says, entitled Warnings Before Questioning Adult Suspects.  Pursuant to law, I'm informing you of the following rights.  And then you fill in the blanks.  I'm Detective James Reardon of the Upper Chichester Township Police Department.  I'm about to [140] give you this kidnapping and missing child.  You have the right to remain silent.  However, if you say anything, such can and will be used against in the court of law.  And then it asks, do you understand this.
Q. What did the defendant respond?
A. To all the questions he responded yes.
Q. What was ...
A. ... said.
Q. What was the next question?
A. You have the right to talk to a lawyer before answering any questions and have a lawyer with you during questioning.  Do you understand this?
Q. What did he say?
A. Yes, with a shake of his head, yes.
Q. What's the next question?
A. If you cannot afford a lawyer you have the right to have a lawyer appointed for you free of charge before any questions are asked and during any questioning.  Do you understand this?
Q. What did he say?
A. Yes, with a shake of his head.
Q. What happened next?
A. During questioning you may stop at any time or refuse to answer any further questions.  And do you understand this?  [141]
Q. And he said?
A. Yes.
Q. What did you do then?
A. At that time, my intentions were trying to obtain the location of Katelyn.
Q. Did the defendant agree to speak to you?
A. Yes.
Q. What did he say?
A. He -- at that time he wasn't -- he wasn't' going to tell me where Katelyn was.
Q. Do you remember what his words were?
A. At that time, not exactly, no.  He just did not -- he was not going to tell me what -- what, you know, where Katelyn was or whereabouts.
Q. What happened next?
A. At that time, we transported him back to our police station for processing.
Q. What did you do then?
A. After he was processed we ...
Q. Processed, what's processed?
A. Fingerprints, photographs and arrest information on the initial kidnapping warrant that we had -- that was already signed and sealed by a judge for arresting him.
Q. After he's processed what happened?  [142]
A. We sat down and we were going to have another interview to ascertain the whereabouts of Katelyn.
Q. Who sat down?
A. Myself and Lieutenant Harris from our police department.
Q. What happened when you and Lieutenant Harris and the defendant sat down?  Who spoke first?
A. Myself and Lieutenant Harris, we spoke together.
Q. What did you say?
A. We were -- we asked Robert, you know, where was Katelyn, you know, where was she.  We attempted to play out some different scenarios with regards to some possible jail time.
Q. What did you say to the defendant?  You said, where's Katelyn?
A. We would ask him, you know, you need to tell us where Katelyn is.  We need to make sure she's safe.
Q. And what did he say to you when you first sat down, what was his initial statements to you about Katelyn?
A. He said that she was safe.
Q. What were his words?  [143]
A. That she was safe.  She -- during our interview there he made some other statements with regards to a -- giving Katelyn to a woman he knew.
Q. Tell us what he said, what were his words?
A. That he had a female friend that he knew that had lost a child.  And that he had given Katelyn to her.
Q. So you continued to question him, you continued to try to get more information from him?
A. Well, our purpose was to locate where was she at, what was, you know, an address.
Q. You asked that over and over?
A. We wanted to know the place where she was.
Q. Did you get any further information from him?
A. No.
Q. For how long did this go on?
A. Probably about a half hour.
Q. At the end of the half hour what happened?
A. At one point during this interview I actually showed Robert a picture of Katelyn in the hopes of getting that location.  [144]
Q. What was the defendant's reaction when you showed him that picture?
A. He got very upset with me.
Q. Describe what you mean.
A. He was crying.  He got mad that I showed him the picture.
Q. What did he say?
A. He said, I knew you were going to show that to me.  Take that away.  I don't want to see that.
Q. What happened then?
A. Also during that discussion, during that interview in trying to find out the whereabouts of Katelyn, Robert kept asking us to -- requesting that we -- that he wanted to meet Jennifer.  That he wanted to meet Jennifer.  I have to meet Jennifer.  I have to talk to Jennifer.  At that point, we felt that he was not going to tell us the whereabouts of Katelyn, I made a verbal agreement with Robert.
Q. What did you say to Robert?
A. That if we allowed him to speak with Jennifer would he disclose the whereabouts of Katelyn.
Q. And what did he say?
A. He said he would.
Q. Was that the end of the half hour, the end of the first half hour?  [145]
A. Yes.
Q. What did you do?
A. We made contact with Jennifer.  We asked her to come out to the police station.  And she did.
Q. Do you remember about what time Jennifer came to the police station?
A. It was after three o'clock, shortly after 3:00.
Q. What happened when Jennifer arrived?
A. We explained to her that Robert was not telling us at that time where Katelyn was.  And that he wanted to speak with you.  And that he told us that if we gave him that opportunity that he would tell us where Katelyn was.
Q. What happened then?
A. We set up that meeting in our conference room with the -- at the township building.
Q. Did the defendant remain in the conference room?
A. Yes.
Q. You sent Jennifer in there with him?
A. Yes.
Q. Did you go in with Jennifer?
A. In the beginning, yes.  And then I left the room and stood outside of the conference.  [146]
Q. When you went into the conference room did you say anything to the defendant?
A. That Jennifer was here and allowed them to, you know, allowed them to speak.
Q. Jennifer goes into the conference room, you walk out.
A. Yes.
Q. Where are you when Jennifer's speaking to the defendant?
A. In the conference room, it's a large rectangular table.  Robert was seated on one side, Jennifer was seated on the other side, and I was standing just outside the door.
Q. Is there a window in the door?
A. No.
Q. Was the door open or closed?
A. It was left ajar.  It was closed but left ajar.
Q. So it's cracked?
A. Yes.
Q. Were you able to see in and see Jennifer and the defendant?
A. Yes.
Q. For how long was Jennifer speaking to the defendant?  [147]
A. Their conversation lasted approximately one-hour-and-twenty-minutes.
Q. Were you able to here what the defendant was saying?
A. I could hear them speaking but I could not hear words verbatim.
Q. Were you able to hear the tone of the defendant's voice?
A. Yes.
Q. Describe that for the jury.
A. At times during their conversation you could hear them crying.
Q. Who was crying?
A. Both Jennifer and Robert.  Their conversation centered around their relationship and what Robert needed to do for them to get back together. That was the majority of their -- that was their conversation, that's what it was about.
Q. What was Jennifer asking the defendant?
A. I could not hear exact questions.
Q. So this goes on for an hour-and-twenty minutes?
A. Yes.
Q. At the end of that end of that hour-and twenty-minutes what did you decide to do?  [148]
A. Several times during the conversation Jennifer had actually gotten up out of her chair, come to the door, open the door, tell me that everything was okay, and that she needed more time to talk to Robert.
Q. Did she come to the door at the end of the hour-and-twenty-minutes?
A. She came to the door about three or four times during her conversation.  And I guess about an hour -- about an hour-and-ten-minutes into the conversation I opened the door to check on them.  Jennifer at that time was not sitting in her chair but she was actually on the same side of the table as Robert and she was standing in front of him.  He was seated in the chair.
Q. Originally she's sitting across the table from him?
A. Yes.
Q. At a later point she was around on the -- same side of the table as the defendant?
A. Yes.
Q. Was the defendant shackled, in handcuffs or what?
A. Well, for safety reasons he was handcuffed and shackled to the chair that he was seated in.  [149]
Q. Now what happens at the end of the hour and twenty-minutes?
A. At that time Jennifer said that she was okay and that they were still talking.  But I allowed them to speak for a little bit longer.  About ten minutes later I checked on them again.  And at this time Jennifer actually had sat down on his lap.  And at that time I felt that it was not safe and that the conversation should stop.  And she actually she actually responded and said that they were finished talking.
Q. Jennifer gets up, where does she go?
A. At that time, Jennifer's asked to leave the room.  And I remained in the room with Robert.
Q. How about Lieutenant Harris, was he still there?
A. He was actually in the hallway.  And when Jennifer left the room she was directed to him.
Q. So it's just you and the defendant in the room at this point?
A. Yes.
Q. What do you tell him?
A. At that time, I asked him -- I told him, I said, we held up our end of the bargain.  Now you know, you need -- you know, you need to tell us, you know, the whereabouts of Katelyn.  [150]
Q. What did he say?
A. At that time, he said he wasn't going to tell us.
Q. What were his words, tell us what his words were.
A. He said, I'm not telling you where she is.  I reminded him that we had a verbal agreement.  And at that time he told me, he said that I said I might tell you where she is.
Q. What did you ...
A. I told him that we had an agreement that you would tell us.  He said, I said might.  And we were in a disagreement there.  I told him he needed to tell me where Katelyn was.  And he told me that he wasn't going to tell me, that she was safe and that I would take it to my grave and ...
Q. Okay, hold on.  You said, I would take it to my grave.  Who's saying that?
A. Robert's saying that.
Q. Tell us what the defendant said, tell us in his words.
A. He said, I'm not going to tell you where she is.  I will take it to my grave.  I won't tell anybody where she is.
Q. You're describing this conversation today [151] in kind of -- in kind of a quiet way or kind of a detached way.  What was your emotion as you're talking to the defendant after you go back into the room?
A. I wasn't happy because we had a verbal agreement.  And that he broke that, you know, he broke that verbal agreement.
Q. Did you raise your voice at the defendant?
A. I was probably a little loud.
Q. How about the defendant, what was his reaction?
A. He was -- his response was the same as mine.  That he was a little loud, a little angry.
Q. And that's the tone of voice in which he told you he'll take it to his grave?
A. Yes.
Q. What happened next?
A. At that time, Jennifer actually came back into the room and she began to plead with him.
Q. Tell us what she was saying.
A. She, you know, please, Robert, tell us where Katelyn is.
Q. What was the tone of Jennifer's voice?
A. She was scared, concerned.  She was more than begging him.  [152]
Q. What did he say?
A. He got angry at her.  He got mad at her.  He started yelling at her.  And ...
Q. What did he say when he was yelling?
A. He was telling her that everything that we just talked about was bullshit.  And at that time he actually said that you can consider Katelyn dead because you're never going to see her again.
Q. What did you do?
A. We -- Jennifer was not supposed to come back into the room so we, you know, we hastily removed her from the room again.  And I, you know, I asked Robert again, I said, you know, you need to tell us where Katelyn is.  We need to know she's safe.
Q. Did you say it that nicely?
A. No.
Q. What did he respond?
A. He said he was not going to tell me.  He was frustrated.  And at one point while he tried to get up from the chair and he yelled out that she's in upstate New York.
Q. Tell the jury exactly what he did physically.
A. He -- he was -- like I said before, he was handcuffed and shackled to the -- you know, to the [153] chair that he was seated in.  And he stood up and tried to walk out of the room, and at the same time in a frustrating voice said, she's in upstate New York.  And ...
Q. When he stood up did the chair go with him?
A. Yes.
Q. Where were you standing when he stood up?
A. Right in front of him.
Q. How far away were you?
A. A foot, two foot.
Q. You were right in his face?
A. Yes.
Q. And he got right in your face?
A. Yes.
Q. What did you do at that point?
A. At that point we stopped questioning, we felt we weren't getting anywhere.  And that at that point I knew that -- we had asked for some assistance from the Delaware County District Attorney's Office and the FBI.  And I knew that we had some -- several investigators enroute.
Q. And when did that assistance arrive, how much later, if you remember?
A. I don't recall exactly what time they [154] arrived.
Q. How much longer after you had broken off the -- your questioning of the defendant?
A. I would say within the hour.
Q. Was that Lieutenant Peifer that arrived?
A. Yes.
Q. Along with who?
A. Agent Donny Kibby from the FBI.
Q. And did you -- you backed off at that point?
A. Yes.
Q. When they arrived did they begin to question the defendant?
A. When Lieutenant Peifer and Agent Kibby got there we explained to them -- we brought them up to speed as to what had taken place up until that point.
Q. And then they began to question the defendant?
A. Yes.
Q. Those are all the questions I have.  Thank you.

The Court:  You may cross-examine.  [155]

Mr. Smith:  May I have just a minute, Your Honor, please.

CROSS EXAMINATION

By Mr. Smith:
Q. Detective Reardon, I have just a very few questions, please.  As I understand it, when you came -- when you came down the street and started to give Robert his Miranda Warnings, he was in the back of somebody's police car by then.  Is that right?
A. Yes, sir.
Q. And you -- did you get in the car?
A. No, not totally.  I had the door open and I leaned in the car.
Q. He's in the backseat?
A. Yes.
Q. You had the back door open?
A. Yes.
Q. Okay.  And you had your Miranda card out?
A. Yes.
Q. And when you were giving him the Miranda Warnings did I hear you correctly that in fact he never gave you a verbal response to anything. His acquiescence, what you called yes was simply him nodding his head yes?  [156]
A. No.  It was both yes with him nodding his head.
Q. So he said the word yes and he shook his head yes?
A. Yes.
Q. To every question?
A. Yes.
Q. And did you complete the entire set of Miranda Warnings to him, you weren't interrupted by another officer or anything?
A. I don't believe so, no.
Q. Do you recall?
A. No.  I don't recall.
Q. When you got to the part about the lawyers did he give you the names of any lawyers?
A. Not that I'm aware of, no.
Q. Do you remember him telling you that a lawyer by the name of Al Gretto or a lawyer by the name of Rob Augustino?
A. I don't recall him saying that, no.
Q. You don't remember that.  Did you make any immediate or contemporaneous notes with -- like after you left this Miranda situation, did you write anything down about what had just transpired?
A. No.  [157]
Q. When you had him in this, I think you called it the conference room, was it a conference room?
A. Yes.
Q. When you had him in this conference room he was chained to the chair.  So in other words, he couldn't get up and go sit in another chair?
A. That's correct.
Q. You had him handcuffed or something, some kind of restraint that kept him in that chair?
A. Yes.
Q. One on each arm?
A. Yes.
Q. Okay.  And so when you left Jennifer Helton in there with him, did you keep -- you said the door was open a crack.  Did you keep a watchful eye, did you look to see what was going on in the room or were you sort of in a place that you could hear but not necessarily see?
A. I could hear and see.  I was standing just outside the door.  Standing on the other side of the door.
Q. When Robert was taken into custody do you remember what he was wearing?
A. No.
Q. When you asked Jen to leave you said she [158] was sitting on his lap, right?  That's at the end of the hour-and-twenty-minutes, you said at some point you went to the door and she was sitting on his lap?
A. Yes.
Q. How long had she been sitting on his lap?
A. It could only have been a few minutes.
Q. Why's that?
A. I had checked on them a few minutes before that, and at that time she was standing.
Q. Well, okay.  But I don't want to put words in your mouth but if you -- if you were watching wouldn't you have seen when she got on his lap?
A. I was not watching the entire time.
Q. Okay.  So then you were watching them some of the time but not all of the time?
A. Yes.
Q. Do you know how many times she sat on his lap?
A. I only saw one time.
Q. Do you know of the total hour and twenty minutes how many -- that's 60 plus 20, that's 80 minutes.  Do you know of those 80 minutes how many of those minutes you were actually watching and how many of those minutes you were only listening and not watching?
A. No, I do not know.  [159]
Q. Can you give us percentage?  Is it like half or more than half or less than half?
A. During the conversation I was -- crack open the door and check on them periodically.  And I was listening most of the time.
Q. Well, the reason I'm asking that is I'm trying to find out, if you know, how many times did she sit on his lap.  I mean ...
A. I only observed once.
Q. Okay.  And when you saw her sitting on his lap what -- she -- I mean, she wasn't sitting there against her will, I guess is what I'm getting ...
A. When I opened up the door and I observed her sitting on the lap ...
Q. Right.
A. ... at that point I felt that the conversation should stop.  At that point it was unsafe.  And ...
Q. Why?
A. What's that?
Q. Why?  Was he doing something to hurt her?
A. No.
Q. Was she doing something to hurt him?
A. No, not at that particular time.
Q. If you were to characterize her sitting [160] on his lap, would it be fair to say that it basically looked too friendly to you?
A. It could have been friendly.
Q. Going in a direction you certainly didn't want to go.  Isn't that so?
A. At that point, I would say, in my opinion, I didn't want it to go that way.

Mr. Smith:  That's all the questions I have.  Thank you, Detective Reardon.

REDIRECT EXAMINATION

By Mr. Reilly:
Q. Detective Reardon, you wanted to get Jennifer off of the defendant's lap.  Is that correct?
A. That's correct.
Q. You were concerned?
A. Yes.
Q. Tell us why you were concerned?
A. We had some knowledge, I had some knowledge of his violent behavior directed towards her.
Q. That's what you were worried about?
A. Yes.  [161]

Mr. Reilly:  That's all.

Mr. Smith:  I ...

RECROSS EXAMINATION

By Mr. Smith:
Q. You're not telling this jury that you saw in that room was violent behavior, are you?
A. No.

Mr. Smith:  That's all.  Thank you.

The Court:  You're excused.

Mr. Reilly:  Your Honor, a follow-up, please.

RE-REDIRECT EXAMINATION

By Mr. Reilly:
Q. How would you characterize the defendant's behavior towards you when he stood up and the chair got up with him?

Mr. Smith:
[162] Objection, Your Honor.  That's not what I asked on my recross.  I was referring to the one situation that he asked on his redirect.

Mr. Reilly: Withdrawn, Your Honor.

The Court:  You're excused, detective.

Mr. Reilly:  Sheri Lancianese, Your Honor.  Sheri Lancianese.

[Witness sworn]

SHERI LANCIANESE, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good afternoon.  Miss Lancianese, you know the defendant, Robert Rivera.  Is that correct?
A. Yes, I do.
Q. When did you first meet the defendant?
A. In February of 1999.
Q. How did you meet him?  [163]
A. I was his caseworker.
Q. For whom do you work?
A. Delaware County Board of Assistance.
Q. What's the Delaware County Board of Assistance?
A. The welfare office.
Q. Was the defendant a client of yours at the welfare office?
A. Yes, he was.
Q. And how about Jennifer Helton, did you know Jennifer as well?
A. Yes.  All three, Jennifer, Katelyn and Robert.
Q. They were all clients; they received benefits from the welfare office?
A. Yes.  Cash, food stamps and medical.
Q. You first met both the defendant and Jennifer at the same time?
A. Yes.
Q. And that was when?
A. February of '99.
Q. What -- describe the relationship that you had with the defendant between February of 1999 and the beginning of August of 1999.  How often would you see the defendant?  [164]
A. I saw him five times in that period.
Q. And when he came in to see you would he be by himself or would he be with Jennifer?
A. I saw him twice -- three times by himself.  The other two times were with Jennifer.
Q. How would you characterize the defendant's behavior in the five times that you met with him prior to August of 1999?
A. With Jen or without?
Q. Both.
A. Both.  He was easily agitated.  Most times would confuse very easily, get upset or frustrated during an interview.  At times he would cry out of frustration, like not understanding things that were going on.
Q. Was the defendant working during the time that he was on welfare the beginning of February of '99?
A. No, he was not.
Q. Why was he not working?
A. He said he had bleeding ulcer and colitis.  And he was given a medical form, which would exempt him because he is required to work 20 hours a week to receive cash assistance.
Q. For ...
A. He had to have the medical verification [165] to not work.
Q. So the defendant and Jennifer and Katelyn what benefits?
A. Cash, food stamps and medical.
Q. Now, Miss Lancianese, I want to direct your attention to August the 3rd of 1999.  Did you see Jennifer Helton on that day?
A. Yes, I did.
Q. Describe what happened.
A. The day before she had called me and told me that he had physically abused her and she had left the household.  She needed to come into the office to bring me -- she received a protection from abuse order.  She wanted to bring the paperwork to me and she needed a new -- it's like a MAC card that we use.  She had to get a new one because he had cut hers up.  And she came in the next day to get one.  That next day.
Q. Did -- what happened when she came in?
A. She was with Miss Baxter and she had Katelyn with her.  And she gave me the protection from abuse order.  And we had a brief conversation and then she left.
Q. Did she get the new card that she needed?
A. Yes, she did.
Q. And when you received the protection from [166] abuse order, what did you have to do?
A. I removed Robert from her case and changed the address to -- back to her mother's.  Because the case record has to stay with the child.  So he was removed.
Q. When you say the case record has to stay with the child, what do you mean by that?
A. The cash and food stamps and the medical, they all hinge around the care of the child.  The child was with her mother so all material I had in the case that I had had to remain with Katelyn.  Had Katelyn stayed with Robert it would have stayed with him and Jen would have been removed.
Q. What did that mean to the defendant?
A. That he was no longer covered by public assistance.
Q. I want to direct your attention forward to August the 9th of 1999.  Did you see the defendant on that day?
A. Yes, I did.
Q. Tell the jury what you saw?
A. Robert came in that morning to see me.  He needed income verification for the Public Defender's Office because he had a court case the next day with Jen.  And at that time, I told him that Jen had already [167] been in the office and removed him from the case and he would have to reapply for benefits on his own.
Q. And what did he say?
A. He got very upset at that point.
Q. What do you mean by that?
A. He started to cry.  And he wanted to explain to me -- not necessarily explain, he wanted to tell me what events had led up to this last fight which caused her to leave him.
Q. What did he tell you?
A. He said that he had found pictures of Jen with another man that she had done things that she didn't approve of.  She had done some modeling and had done some dancing.  And he didn't approve of that.  And she was unfit to take care of Katelyn.  And he was very, very upset.  He said that without Katelyn or Jen he had no reason to live.  He was distraught at that point.
Q. He said he had no reason to live?
A. Yes.
Q. What was your response when he said that?
A. At that point, I suggested he go to Crozer Crisis to receive some counseling.  That he needed help with anger management because a lot of their problems always stemmed from his inability to remain calm, to focus.  And ...  [168]
Q. How did you end the conversation with him that day?
A. I had told him ...
Q. Did you know that he was going to be going to court?
A. Yes, I did.  He told me, that's why he needed the verification of his income.
Q. And what did he say, did he talk to you about court, did he say that he would contact you after the court hearing?
A. He said that he would.  He had told me during that interview that he was upset because he couldn't see Katelyn but one hour a week.  And it had to be a supervised visitation.  So he was very upset about that.  I tried to make him understand that -- he said that Jen's parents would not allow him near him -- near Jen, I'm sorry, or the baby.  And I tried to put it in a way that if Katelyn had come to him like 15 years down the road and said that someone had hurt her, that he as a parent would not be forgiving to that person who hurt his child.
Q. So at the end of that conversation he leaves the office?
A. Yes.  He composed himself and he left.
Q. Did you speak to him the following day, [169] that would be August the 10th?
A. No.  He came back in later August ...
Q. Came back in later on August the 9th?
A. Later on August 9 because he needed me to help him fill out the application.
Q. So he filled out an application for his own ...
A. For his own case, yes.
Q. And you helped him with that?
A. Yes.  He had a limited ability for reading and writing and he needed me to help him with that.
Q. So you helped him with that and then he left the office?
A. Yes.
Q. Now you go to work the following day, August the 10th.
A. Uh-huh.
Q. Did -- you were contacted by the defendant that day?
A. Around one o'clock Robert called and I could hear him speaking to Katelyn in the background.  And I just assumed that he was on one of his visitations.  And I said to him, if you only have one hour a week don't waste it calling me.  If you need [170] something from me call me later. And he cut me off.
Q. What did he say?
A. I kidnapped the baby.  He was screaming that he took her.  That's -- he wanted to know, what do I do.  I took the baby.  What am I going to do.  I screwed up.  And I was in shock, total shock.
Q. What did you say to him?
A. I told him to take the baby back.  I said -- I tried.  I said to him that it hadn't been that long.  It's only been a couple of hours.  You were distraught over the court case and it hasn't been that long.  And take her back.
Q. And what did he say to you?
A. He said that he would.  And I called the baby-sitter and said he was coming.  And he ...
Q. You called the baby-sitter?
A. Yes.  I told him that I would do that.  I called the baby-sitter and said that he was bringing the baby back.
Q. What happened then?
A. He never did.  He called me back ...
Q. When did he call you back?
A. About ten of 4:00 that same day.
Q. What was the tone of his voice when he spoke to you?  [171]
A. He wasn't so willing to -- he wasn't in a panic at that point with, what do I do.  He said he had Katelyn, she was fine.  He was not going to take her back until he could speak to Jen.  He had said ...
Q. What did you say to him?
A. Well, I was a little bit concerned because he had earlier said that he was taking Jen -- I'm sorry.  He was taking Katelyn to a place where no one could hurt either of them again.  And ...
Q. When did he say that?
A. During the first conversation.  During the ...
Q. And what time was that first conversation?
A. One o'clock.
Q. And what were the words that he said to you?  Tell us in his words.
A. That he was taking the baby somewhere where no one could hurt either one of them again.  And when he asked me to call Jen to talk to him, I did it mainly because he had threatened the suicide the day before.  And I was afraid he would hurt himself or the baby.  So I called.
Q. Was that the last contact, that second phone call, was that the contact you had with the [172] defendant that day?
A. Yes.
Q. Now later, that is the following day, August the 11th
A. Uh-huh.
Q. ... you spoke to the police.  Is that right?
A. Yes.
Q. The police -- what did the police ask you to do?
A. They asked if I would be willing to come to the police station to talk to Robert.  To see if he would tell me anything -- because he -- he seemed to trust me or he seemed to want to talk to me.
Q. So the police asked you to come?
A. They asked me to try and talk to him, yes.
Q. And did you speak to the defendant on the following day, that is August the 12th?
A. Yes, I did.
Q. Where did you speak to him?
A. At the Media Police Station.
Q. Did you speak to the defendant alone, was it just you and the defendant?
A. No.  It was myself, the defendant and [173] Detective Peifer was in the room.
Q. Did you speak first or did the defendant speak to you, if you remember?
A. I honestly think it was me.  Because when he came in ...
Q. So what did you say to him?
A. I -- the only question I really got around to asking him was where is the baby?  Did you hurt the baby?
Q. What did the defendant say?
A. As soon as he saw me when he walked in the room he started to cry.  He dropped, you know, his head in his hands and ...
Q. You're indicating for the record that his head nodded down and he put his hands over his face?
A. Yes.  Yes, he started to cry.  He sat down in the chair next to me.  He was very upset.  They -- he didn't understand why everybody thinks he hurt Katelyn.  He would never hurt her.  And he didn't know -- understand why we were all asking those questions.
Q. So you asked him, where is she.  What did he say?
A. He told me that he had taken her to Longwood Gardens and given her to a couple at the giftshop.  And put her in their care.  They put her in [174] the car.  He walked away and never looked back again.

Mr. Reilly:  Those are all the questions I have, Your Honor.  Thank you.

The Court:  You may cross-examine.

Mr. Smith:  Thank you, Your Honor.  No questions.  Thank you, ma'am.

The Court:  You may be excused, ma'am.

Mr. Reilly:  William Lively, Your Honor.  William Lively.

The Court:  Let me see counsel briefly at sidebar, please.

[Side Bar Discussion]

Mr. Smith:  ... on the record, judge.

The Court:
She made a couple references about the defendant asking her to give him financial applications for public defender representation.  Do you [175] want me to put something on the record that the defendant is not represented by the public defender?

Mr. Smith:  No.  I thought she was talking about public assistance.

The Court:  Public defender.

Mr. Reilly:
She testified that he came into the office because he needed a form showing that he was on welfare so he could get the assistance of the public defender.

Mr. Smith:  You're right, she did say that.

Mr. Reilly:  Right.

The Court:  I think -- you know how goofy the appellant court is on -- with respect to that particular issue.

Mr. Reilly:
I just don't see it as being an issue.  There's no doubt but that [176] the defendant was on welfare and he's ...

The Court:  But they still ...

Mr. Smith:  You want to just say -- you want to just tell them this is not a public defender situation.

Mr. Reilly:  I don't think ...

(End of side bar discussion)

The Court:
Just for the record, ladies and gentlemen, there was some reference about filling out an application for representation.  Mr. Rivera's not represented by the Public Defender's Office.  Mr. Smith is his private counsel.  So I just want to clear that up so there's no issue with that.

[Witness sworn]

WILLIAM EDWARD LIVELY, having been first duly sworn, was called as a witness [177] herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good afternoon, Mr. Lively.
A. Good afternoon.
Q. Mr. Lively, you know the defendant, Robert Rivera.  Is that correct?
A. Yes.
Q. How do you know the defendant?
A. Through the Delaware County Prison System.
Q. You're going to have to speak up so everyone can hear you.
A. Through the Delaware County Prison System.  When I was an inmate there he was also an inmate there.  He came in after me.
Q. Again, Mr. Lively, you're going to have to raise your voice so we can all hear you.  Okay.
A. Was I was an inmate at the Delaware County Prison he was also an inmate.  He came in after me.  I met him that way when he came onto my block that I was on.
Q. On August 11 of 1999 you were an inmate in Delaware County Prison.  Is that right?  [178]
A. That's correct, yes.
Q. Why were you in prison?
A. For ...
Q. What were you charged -- what were you charged ...
A. Disorderly conduct, receiving stolen property.  Like eight counts of receiving stolen property.  And ...
Q. Terroristic threats.
A. Terroristic threats.
Q. There were a number of charges.  Is that right?
A. Yes, that's right.
Q. How many cases were you charged under?
A. Approximately like eight -- or five different cases like ...
Q. Five cases?
A. Yes.  Five cases.
Q. So do you remember when you came into the prison?
A. Originally it was May 24.
Q. So you're a prisoner on August 11 of 1999.  And the defendant arrives.
A. Yes.
Q. Is that right?  [179]
A. Yes.
Q. When did you first meet the defendant?
A. It would be the day that he came into the prison.
Q. That very day, August the 11th?
A. Yeah.  The day he came on my block.  Whether he was an intake for a day or two I have no idea.
Q. All right.
A. It would be the 11th of August, yes.
Q. Now were you -- what block were you on?
A. I was on 8C.
Q. And did the dependant come onto your block ...
A. Yes.  He was in general population.
Q. Nearby you?
A. Yes.
Q. How far away was his cell from yours?
A. I was -- the way they're set up is like an "L" shape.  I was two or three from the end.  And he was the first as you made the "L", he was in the corner.
Q. How many cells in the blocks?
A. I'd say about -- guessing, maybe 20 -- I don't even know.  Maybe 40 cells, 20 on top ...
Q. How many people in a cell?  [180]
A. Most two, unless you're considered classified where they don't want you with somebody.
Q. So he was nearby you?
A. Yes.  About three cells down.
Q. And describe the first conversation that you had with the defendant.
A. Well, when he first came in -- like -- when I first came in I didn't have nothing.  People -- like you don't have soap, you don't have shampoo, none of that, you know.  When he came in he was in that same position so I helped him out with certain things.  I think he didn't have socks, shampoo, things of that nature.  So I got him -- helping him out with that and just started talking with him.
Q. When was the first time that you and the defendant spoke about this case?
A. The first time we spoke or that I heard what it was?
Q. The first time that you and the defendant spoke about this case?
A. It would have been within like a day or so of him coming in.  It would be in my cell.
Q. What did the defendant tell you?
A. He was -- actually, he had asked me to read his charges to him.  [181]
Q. Would you speak up so I ...
A. He was actually asking me would I read his affidavit to him, his charges, because he didn't want people on the block to know that he couldn't read or write or nothing like that.
Q. So you read the complaint to him?
A. Yes.
Q. And you read the Affidavit of Probable Cause?
A. Yes.
Q. The affidavit was a number of paragraphs describing what the defendant had done.  Is that right?
A. Right.  Your charges and all, right.
Q. And did you and he discuss what was in there?
A. As I would read it to him, yes.  He would ...
Q. What did the defendant tell you?
A. I'd be reading what it said and he would just get like irate at times about what it said.
Q. Please speak up.
A. I'd be reading what it said to him and at times he would like -- if I was reading to you what your charges said and something came up that you didn't agree with or you'd be embarrassed of or something, he would [182] get like just denial and start getting mad at certain things.  Telling me that -- that ain't right, I didn't do that.  You know, just as we went along he would stop me as I would go through thing by thing.
Q. Tell the jury what he -- what he said about what he had done.
A. That he had -- when I got -- I started to read the charges.  It would say that he had assaulted an aunt and her in a Wawa parking lot, I believe it was.  And when he got to the point he told me that that was a lie, that he had went after the girl.  He didn't assault the aunt.  That she had actually jumped on his back and that what he was -- her getting drug along was strictly by what he was doing to the girlfriend.  That it wasn't meant -- he never assault the aunt.
Q. How many days did you speak to him about the charge and what he had done?
A. I'd say approximately up until the first time I called the CID, which was about mid-month, I guess, the seventeenth or so.  About five or six days.
Q. Okay.  What's CID?
A. Criminal Investigation, I think.  Something like -- police ...
Q. Was it county police ...
A. Right, I guess.  [183]
Q. Why did you call CID?
A. Because in the course of talking with him and reading him his charges, I'm reading the paper.  And in this thing that he's claiming that he had given the baby to someone in Longwood Gardens.  And he's telling me that that ain't true.  Also that when -- in the papers it said that he had ran out the house with her and that he struck his thumb on the doorjamb.  And that that was just totally everybody against him, ganging up on him. That that ain't what -- or it said that the baby's head had hit the doorjamb.  He said that was everybody ganging up on him.  That that wasn't true. That what actually happened is he was running out the house his thumb holding the baby's head had struck the doorjamb.  And that that's what they had heard.  It wasn't that.  So I called CID to let them know that he's telling me that she's alive.  That you're wasting your time looking for this couple because he didn't give her to the couple.
Q. What did he tell you about Katelyn, did he tell you where she was?
A. That he had people that he knew he could just.  He told me he was in with like -- I believe it was Latin king, some prison gang when he was on, I believe it was Riker's Island in New York.  He said [184] that he had people he could trust, that they were in his hands.  He had planned it for two weeks.  That he knew for a fact there was no way they were ever going to find her.  And that he had a hearing coming up.  He had been mad about the custody battle, like some type of custody batter over a restraining order on her.
Q. Mr. Lively, will you please speak up.
A. Okay.  He was talking about somebody he knew and he trusted, he knew could -- would not tell where the baby is.  He knew he could trust them to the end.  And that he told me about the prison gang members that he had been in with them.  And that he was going to -- he had a hearing coming up.  That all he would have to do is do a certain thing during the hearing and that was going to be to attack the parent.  The thing didn't go his way in the next hearing.
Q. Mr. Lively, I can't hear what you're saying.  I can't keep asking ...
A. Okay.  I keep forgetting.  I think ...
Q. ... move forward.  And speak up.
A. Okay.  He had said that he -- that he was going to attack the mother and FBI lady.  I remember Donna but I don't remember the last name. And that if he did that, that at that point the baby would be killed.  She would be thrown in Schuylkill River to be [185] exact with you.  And that he would have an alibi because he's in prison.
Q. So he's telling you this and you believed that the baby is alive.
A. Yes.
Q. Is that right?
A. Yes.
Q. So why do you contact CID, why do you contact the police?
A. Because I wanted -- I heard there was reward money and I wanted the reward money.
Q. Who did you speak to at CID?
A. Actually, I had tried to get a hold of some numbers in the paper.  I tried to get a hold of that first but to no avail because the prison phone -- you could only call certain people and stuff like that.  So it actually took me a whole week then.  I finally went ...
Q. Who did you talk to ...
A. ... through my mother through my lawyer ...
Q. Who did you talk to at CID?
A. Lieutenant Peifer.
Q. Lieutenant Peifer ...
A. Yes.
Q. ... sitting right here?
A. Yes.  Or Detective Peifer it was.  [186]
Q. Now when did you speak to Lieutenant Peifer?
A. That would be on I believe the 17th of August.
Q. Where did you speak to him?
A. In CID headquarters.
Q. And ...
A. Which I believe is in the basement here of the courthouse.
Q. Did you tell Lieutenant Peifer what you just told the jury?
A. Yes.
Q. What happened at the end of your conversation with Lieutenant Peifer?
A. I got the impression that I wasn't believed at all.  That he just didn't believe me.  I was told that I was being taken back to the prison.  And then on the ride back to the prison he tells me that I'm full of crap, that he thinks I'm full of crap, to stay out of the case.  That he didn't my help.  If I have something to say that was truthful to tell him, the truth helps.  But that me lying ain't going to do no good to the case.  And I wasn't lying to him.  That's what I was told.
Q. So you go back to the prison.  That's on [187] August the 17th.  Do you talk to Lieutenant Peifer again?
A. Yes.  Not that day.
Q. When was the next time you spoke to him?
A. I had recalled the CID again.  I believe ...
Q. Who did you ...
A. ... day later, the nineteenth.
Q. The nineteenth?
A. Yes.
Q. Who did you call?
A. Peifer.
Q. And did you talk to Lieutenant Peifer?
A. Yes.
Q. You spoke to him on the phone?
A. I believe again through my attorney.
Q. Did you meet with Lieutenant Peifer?
A. Yes.  I believe it was nighttime then.
Q. Now tell the jury what happened at the prison between the time you first came to CID on August
17, and then the time that you came to CID two days later on August 19.
A. Well, I would find the most out about his case by like -- at first -- when he first came in we were allowed to watch TV all the time.  We'd be like [188] under like 24 hour lock-up.  They would let us have TV a little at a time in the dayroom.  It got to the point where he would come on the television and  be like -- his case would come about her missing.  And he would just -- like he thought he was a star or something.  He would just start ranting and raving, this is me, look.  They'd go to a commercial.  I'm going to be coming on, I'm going to be coming on.  And you could just see nobody on the block liked -- didn't like it, didn't like what he was doing.  So I was pretty much the only friend he had.  So after talking to him the first time when he told me I was full of crap or shit or ...
Q. After talking to Lieutenant Peifer the first time.
A. Right.  I went back to the jail.  He told me to stay out of it, I was full of shit.  And I wasn't and I knew it.  I figured I'm going to get the money and I'll show him.  So I went back and I just used that like his ego against him.  I started telling him that he had been asking around the block did anybody have ...
Q. Who was asking around the block?
A. Rivera.  Does anybody have a good lawyer, that he could make his lawyer famous.  Get him all the publicity he wants.  So when I went back to the block I used that against him, figuring I'll get the live kid [189] and I'll get my money and just basically lie to him that I even talked to my attorney.  So I get back to the jail.  And over the course of the next day-and-a-half, two days I started telling him that -- I wrote down some stuff on like a legal pad, stuff like that there was interviews available with the -- that I talked to my lawyer, he can get him interviews, he can get him money.  He guarantees him the reward money, all that.  Make it look like he's going to be a big man, getting notoriety from it.
Q. And what did he say to you, what did he tell you about Katelyn?
A. Part of the deal was that he would have to -- in order to get all that -- my lawyer's representation, I told him my lawyer can't meet face to face with you because you're already represented.  I told him just so he wouldn't ask to speak to my attorney, he would give me the information I wanted.  He told me that ...
Q. Who told you?
A. Rivera.  Part of the thing was that at the time of him getting the reward money and the interviews and he would have to give Katelyn over, the whereabouts of Katelyn, the people responsible who you gave her to.  You would have immunity, they would be [190] prosecuted.  I think I told him ...
Q. Hold on for a minute, Mr. Lively.  Is that what you're telling him?
A. Yes.  That's what I'm telling him between the first time and the second meeting ...
Q. Okay.  What do you tell the defendant he has to do ...
A. That he has to ...
Q. ... to -- let me finish the question.
A. Okay.
Q. What do you tell him that he has to do so that he -- so that you can get the reward money and you can ...
A. That he has to give the baby at that time.
Q. Okay.
A. He has to give the baby back.  Tell them where she is and ...
Q. And when you told him that what did he say to you?
A. Well, he started crying.  And he told me that that was impossible, that the baby was dead.  That he had suffocated her.  And he started telling me about how he buried her and stuff like that.
Q. What did he tell you about how he buried [191] her?
A. That she -- that he buried her in a hole.  That instead of a regular grave, like a long grave that you would normally put a person in, that it's a just a round hole and deep so he could put her in it that way.  He then stuffed the sticks in, rocks, the baby's body, more sticks, rocks, dirt.
Q. Did he say where that was?
A. And rocks on top.
Q. Did he say where it was?
A. At the time, no.
Q. All right.  So after he tells you that what do you do?
A. Call -- get a hold of CID, let them know that she was dead, she wasn't alive.
Q. You talked to Lieutenant Peifer?
A. Yes.
Q. And then did you come into CID and speak to Lieutenant Peifer in person?
A. Yes.
Q. And after you spoke to Lieutenant Peifer you went back out to the prison, correct?
A. Yes.
Q. Now both times when you spoke to Lieutenant Peifer you had your -- your lawyer was [192] involved.  Is that right?
A. Yes.
Q. Now the second time you came here to CID was August 19.
A. Yes.
Q. I direct your attention forward to August the 23rd.  Did you speak to the defendant again between August 19 and August the 23rd?
A. I go back and I continue to tell him that -- I speak of my lawyer, that he still can't talk to you because you're represented.  That he would love to have your case and get your publicity and all that.  But I'm lying to him.  I never told my lawyer nothing.  And I told him that but in order to do so that he needs some type of proof -- and he's talking -- they only -- for reading papers, was me, him.  And I told him he was talking to Meehan.
Q. Who was Meehan?  What do ...
A. I believe the head DA at the time.
Q. Okay.
A. Like I read about another case in the paper ...
Q. Patrick Meehan?
A. Yeah, that's it.  And I told him that he's talking to him.  But before he could do anything [193] for you he wants to be sure because he's going to do it behind the scenes, it could cost him his job.  I gave him the whole nine yards.
Q. What did the defendant say?
A. He -- after I told him that, he told me that he wasn't going to give them -- there's no where that he was going to say where he is at this point.  I don't think he trusted me at the time.  But he did tell me that the -- that the shovel that was reported missing he had used it to bury her with.  That he would tell me where that was.  That it was thrown on a construction site.
Q. Okay.
A. And he gave me that information.
Q. Hold on for a minute, Mr. Lively.  Now there was -- what did you know -- at this point, what did you know about a shovel?
A. That -- just from what he had told me.  That it -- apparently he said that that and a tire iron was missing.  That he would give the shovel to my attorney just to show that he's being truthful with him.  But he wouldn't tell me where the item, we would to it as, the baby.
Q. I couldn't hear what you're saying.
A. But he wouldn't tell me at that time [194] where the, item, was what we would refer to it as, meaning the baby was, but that he would tell me the shovel.
Q. So he was going to tell you where the shovel was.
A. Right.
Q. But he wouldn't tell you where the baby was.
A. Right.
Q. What did the defendant tell you about the shovel?
A. That he had -- after he had buried her with it, that he had thrown it on a construction site.  I believe he told me it was either a bank -- that they were building a bank or they were building a car lot.  I ain't sure.
Q. And where did he say this construction site was?
A. He had told me, but I forget that part.  I know I referred it to -- within like a small distance of -- I believe her name was Tom and Sissy, the place where he had lived.  Like within -- he had told me roads to take and I ...
Q. Okay.  Who is -- did he tell you about Tom and Sissy Whittaker?  [195]
A. Well, I don't the last name.  I know them by Tom ...
Q. You knew Tom and Sissy?
A. Right.
Q. What did he tell you about Tom and Sissy?
A. That just he had stuff like -- that he was ...
Q. Okay.  What -- did he tell you where Tom and Sissy live?
A. Yes.
Q. Where did he tell you they live?
A. He didn't tell me exact roads.  Just ...
Q. I'm not asking for the exact road.  Where did he tell you that they lived?
A. In Maryland.
Q. And where did he say the shovel was in relation to Tom and Sissy's?
A. Like it was basically down the street from there, a construction site as you get down from -- I know -- I remember him talking about a dirt road and a concrete road and it wasn't far from the house.  Pretty much around the corner from the house.  I don't remember exactly.
Q. And when you got that information from the defendant, what did you do?  [196]
A. I was again trying to get a hold of somebody.  I could not do it.  I had court the next morning.  And I remember being up all night with real bad pains, stuff in my stomach.  And as I got to court the next day, a courtroom out here, I referred the information to my attorney who then called again Mr. Peifer.  I remember, if this was my courtroom, it came to like that door there.  And my attorney told him.  And he left.
Q. So you passed that information onto your attorney.
A. Yes.
Q. And your attorney gave it to Lieutenant Peifer?
A. Yes.
Q. Now did you continue to talk to the defendant after August the 23rd?
A. Yes.  But it had been a little while.  Because they night they -- the pain in my stomach ended up being my appendix ruptured.
Q. Okay.
A. And I was put in the hospital.
Q. Okay.  Did you talk to the defendant again after August 23?
A. Yes.  [197]
Q. What were the conversations you had with the defendant between August the 23rd and August 31?
A. Just -- I remember coming back to the prison and they had me in like a wheelchair and stuff.  And I remember the first time I seen him, I had woke up in the hospital to find out that I told him my attorney to tell them that I -- you know, I'm in jail.  You can't be letting this stuff hit the papers.  You know, like if I tell you a shovel that he told me and they go find the shovel I'm on the same block with this guy, you know.  And I wake up in the hospital like a day-and-a-half later and it's in the paper that they found the shovel.  So when I get back to the jail ...
Q. Did that create a problem for you?
A. When I get back to the jail I headed it off the pass.  I just -- because I was being pushed down the hallway.  I actually spent a couple days in the prison infirmary.  And the first time I seen him I just flat out just told him, look, he -- pushed in the hallway, I said something along the lines of like, look, I seen what's in the paper.  I don't know what happened.  I didn't even talk to my attorney since -- I just told him where it was.  He told me he was going to go look.  The story got stretched to where I had told him, look, later on when he was -- I told him -- I talked to my [198] attorney again.  I told him that -- I told him -- and a lie.  I said, they don't have the real shovel.  And this was to protect myself.  I told him, my attorney just gave them the top part.  He didn't give them the spade part.  Because he was pretty adamant that something about the spade was -- would stand out.  He kept asking me, what does it look like.  What does it look like.  He's telling me if your attorney has the shovel you tell me what's special about the shovel.  But I didn't know because I hadn't talked to anybody about it.
Q. Now, Mr. Lively, on August 31 you had a conversation with a counselor at the prison.  Is that right?
A. Yes.
Q. And you had the prison counselor contact CID.  Is that correct?
A. Yes.
Q. Now why did you do that?  Had you spoken to he defendant prior to that conversation with the prison counselor?
A. Yes.
Q. What information did you get from the defendant?
A. I had told them what the shovel had looked like because I went back and when I talked with [199] him I asked him, I told him I needed to know that.  He told me it was blue and scraped up.  When I went back and them that ...
Q. Speak up, Mr. Lively.
A. When I went back and told him that he again trusted me.  And had told me that -- drew me a map to Sissy's telling me that that's where the body was.  That it was on Sissy's -- he wouldn't be again -- he says, look -- I told him my attorney would need -- that he's got the shovel.  He has what you're telling him.  He says you're giving him the run-around.  I think at this he even told me a couple different places that had showed up.  I told him that he doesn't believe, he needs more.  He needs me that he could -- he isn't going to give me the exact spot, but that he would put me in the general area of it, in like a grand scale of it.  And he would draw me a map.
Q. Okay.  Did Mr. Rivera draw a map for you?
A. Yes.
Q. When you got that map what did you do?
A. Again I got a hold of CID.
Q. Did you talk to the prison counselor?
A. Yes.
Q. What did you with the prison counselor?
A. Got a hold of the detective.  [200]
Q. Did you go to see the prison counselor?
A. Yes.
Q. Did you give the prison counselor the map?
A. Yes.
Q. What happened then?
A. He faxed it over to I believe CID.  I believe it was Peifer.
Q. So the prison counselor faxed the map that you gave him?
A. Yes.
Q. Mr. Lively, this is Commonwealth Exhibit C54 for identification.  Would you ...
A. Yes.
Q. ... take a look a that.
A. That's it.  That's the map.
Q. Now who drew that map?
A. He drew it.
Q. Speak up, Mr. Lively.
A. Rivera drew the map.  The writing's mine.
Q. Okay.  The defendant drew the squares and drew the streets through the property line?
A. Yes.
Q. And you wrote in the words?
A. Yes.  Because he told me what was what.  [201]
Q. Okay.  Will you hold this up.  All right.  Now will you look at it and tell the jury what that is a map of?
A. He told that ...
Q. Speak up, Mr. Lively.
A. He told me that in the front of his property there was a dirt road.
Q. In the front of whose property?
A. Sissy and Tom's, Tom and Sissy he referred to them actually as.  That it was a dirt road in front of the property.  This was the trailer.  This was some type of little addition right here, like a little add-on and stuff.  That the neighbor's house -- and he put like -- told me how far away it was.  I wrote all that down there.  A fire pit he had told me about.  Told me that the -- up in here was like a wooded area is what I believe he told me. And like ...
Q. And what was on Sissy and Tom's property behind their cottage?  Hold it up and show the jury.
A. They had the garage there and an outhouse with like a little -- he said it was lean-to or shed hooked onto the side of it, built on the side.
Q. And what was the purpose of the defendant drawing this map for you?
A. It was to give me the grand ...  [202]
Q. Speak up, Mr. Lively.
A. To give me the grand scale of where he was saying the baby was, which we referred to as the item.
Q. And where did he say the baby was?
A. He said, off towards about ten and eleven o'clock.  He said if they walk up that way, which I would tell him -- I told him my attorney an ex-state trooper who would know about this kind of stuff and nobody would have to be involved.  They just wanted to confirm.  He said, he put them in the grand area of it.  And then he said, I believe there was a woods, corn field, stuff like that would be up in this area.  And that that's where they would find her.
Q. Back towards the fire pit?
A. Right.
Q. Behind the fire pit?
A. Say eleven o'clock from the trailer ...
Q. Hold the map up so the jury can see it.  What are the words that are written in the area behind the fire pit?  What does that say?
A. Item is in this area.
Q. Speak up, Mr. Lively.
A. Item is in this area.
Q. Item is in this area?  [203]
A. Right.
Q. And what were you and her referring to as the item?
A. The baby's body.
Q. So you got this map from the defendant and you took it to the prison counselor.
A. Yes.
Q. And what did he do?
A. He had got me in touch with CID.  I was telling them about it.  And they asked could it be faxed to them.  Because apparently they were on that property at that time and had man ...
Q Now ...
A. ... power down there or something along them lines already.
Q. All right.  Now the same day, August the 31st, about a half-an-hour later you contacted CID again.  Is that right?
A. Yes.  I had been sent back to my block again.  And when I went back to the block ...
Q. What hap -- tell them what happened when you went back to the block?
A. I went back and told Rivera that -- he feels that you're jerking him around that that ain't enough.  You're sending him to some grand area.  That he [204] needs more to show that you're telling him the truth.  You got to be able to make it worth his risk to talk to the DA.  And at that point he told me that he would tell me that -- where he threw clothes and that ...
Q. Okay.  Tell the jury what he told you about the clothes.
A. That after he buried her ...
Q. Speak up, Mr. Lively.
A. After he buried her and he threw the shovel, that he threw the clothes on Route 202.  And tell him he could find them on 202.  That if he went further than I believe it was a Pep Boys, that he went too far.  And that the -- that that's where he dumped the baby's clothes.
Q. Did he tell you why he took the baby's clothing off?
A. Because he felt that it would make it harder for them to find the body, to sniff the body out and it would make it decay quicker.  The same with putting sticks and stuff in the grave with her and the rocks to hold it down.  Or if it rained or ...
Q. Now did he say -- did he give you an area on Route 202 as to where he had thrown out the clothing?
A. He had told me to -- I can't remember if he told me northbound or southbound.  But whatever he [205] told me he wanted me to say the opposite to my attorney.  And to tell my attorney that -- to describe that it was thrown out of a black pick-up truck that he said would match -- he wanted me to frame the Tom guy.
Q. All right.
A. Tom and Sissy.
Q. All right, Mr. Lively.
A. Threw it on the median in the middle.
Q. Okay.  Hold on for a minute, Mr. Lively.  Now what was he -- what exactly did he tell you was the area where he threw the clothing out?
A. I remember him saying -- I believe just over the state line.  If you pass near Concord Mall or some mall, if you pass -- I believe it was Pep Boys then he's gone too far.
Q. Did he say where the Pep Boys was, did he give you the name of the town for Pep Boys?
A. No, I don't believe so.  If he did I don't' recall.
Q. Now you said that he was -- he was giving you this information.  But he wanted you to report it in a different way.  Is that right?
A. Yes.
Q. How was it that he wanted you to report it, and why did he want you to report it that way?  [206]
A. He wanted me to say that -- like I said, it was thrown out of a black pick-up truck.
Q. Speak up, Mr. Lively.
A. That he had been told that by Tom.  That Tom -- I was supposed to be telling my attorney to help protect him until he could get ...
Q. To help protect ...
A. ... Rivera ...
Q. Mr. Lively, you're going to have to follow my questions.  If I'm asking you a question I need you to stop.  Okay.  Listen to my question.  Now he told you that he threw the clothing out.  What was the connection -- what was the defendant saying about Tom Whittaker?
A. To say that he did, that he threw the clothes out of a black pick-up truck.  That Tom had told him -- I was supposed to tell my attorney that Tom had told him that he threw the clothes out of his pick-up truck.  And if he did it southbound, whatever he told me, I was supposed to say northbound into the medial.  And that if he passes the Pep Boys that he went too far.  That that would be the area it would be in in the medial, in the middle of the highway ...
Q. Now was the defendant telling you to tell your lawyer that it was Tom Whittaker that had thrown the [207] clothing out?
A. Yes.  Just to tell my lawyer I didn't know the truth or if my lawyer didn't tell -- he wouldn't tell -- but it was plain between us that ...
Q. So the idea was you tell your lawyer that Tom Whittaker threw the clothing out of a black pick-up truck ...
A. Yes.
Q. ... on Route 202?
A. In the opposite direction from the way he did it.
Q. And did he say which direction he did it in?
A. Yes, he did, but I can't remember that if it was north or south.  I was supposed to tell my lawyer the opposite way.  I know when I talked to the people I definitely told them the right way.  So I can't remember if it was north or south or ...
Q. All right.  Now did you contact CID when you received that information about the clothing from the defendant?
A. Yes.  I immediate went back -- after going back ...
Q. Speak up, Mr. Lively.
A. Yes.  I immediate went back after getting [208] that information.
Q. Where did you do?
A. Back to the counselor again, asked to see the counselor.
Q. Which is?
A. Another -- it ain't our counselor but it's I guess the in-take counselor.
Q. Okay.  You went to see a prison counselor?
A. Same one, yes.
Q. All right.  And you told him what the defendant had told you?
A. Yes.
Q. And what did the prison counselor do?
A. Again, put -- got me in contact with the Detective Peifer.
Q. Did you get on the phone with Lieutenant Peifer?
A. Yes.  Then I talked to him personally.
Q. And you told him what the defendant told you?
A. Right.  And I'm also forgetting that in order to throw them off a little more he told me that Tom has a -- I believe it was his mom that lived in Aston up off -- up around like Five Points.  And to [209] throw in there that it could also -- just -- don't tell them that I said the body is on Tom's property.  Just say that he -- that he either put it there or that it's possible from what he was telling him that it could be on -- in behind his mom's property in Aston.  That there's a wooded area there.  And I told ...
Q. So he said tell them that the body could be on the property, on the -- Mr. Lively, let me finish the question.  He said, tell them that the body could be on the property next to Sissy and Tom's, or that it could be on the -- Tom Whittaker's mom's property in Aston?
A. Yes.  That was after he told me the clothes.  That's the second time before I went back.
Q. And that's what you were supposed to tell your lawyer?
A. Right.
Q. That was what ...
A. Right.
Q. ... you and he had discussed?
A. Right.
Q. You turned around and you told Lieutenant Peifer?
A. Yes.
Q. Now you contacted CID again on September [210] the 9th of 1999.
A. Yes.
Q. You had more information from the defendant.  Is that correct?
A. Yes.
Q. Tell the jury what you did on September the 9th
A. I had ...
Q. Take your hand away from your mouth and talk ...
A. I got access to, in the prison, by telling lies and hustling people and -- I printed up my own ...

Mr. Smith:  I'm sorry, I cannot -- I cannot ...

By Mr. Reilly:
Q. Mr. Lively, I can't hear you.  Please.
A. I got access to the prison and I printed up my own court papers by copying headings off mine, made up a contract and everything, forged my attorney's name like he was going to represent him.  Telling him again that he needs -- that he's been jerking him around basically.  And that he needs to at this time give him [211] the exact spot or he was going to owe him money.  I put in there that he would be getting reward money, that he would be getting interviews again, the whole nine yards.  And that he had to give, at that moment for me to turn over to my lawyer because he could not represent him up to that moment.  A map of where the body was, the exact location.  And he started telling me that.  He drew the map and told me that he wanted added to that agreement that he wanted a -- it had to be in there he wanted her, when they got the body, buried in his hometown cemetery, which is ...
Q. Did he say where that was?
A. I know New York.  I remember the name of it.  Port Jefferson Station, I believe it was, or something along them lines.  That that was his family's cemetery.  He wanted the body there not where her or her family wanted it buried.  That he had bought earrings, diamond earrings for her, that he wanted them ...
Q. For who?
A. For the baby.  And that he wanted them back.  And then he told me that she wasn't -- that he had lied to me, that she wasn't buried, dead. That she was wearing this T-shirt that the baby had given him as a present for her birth.
Q. Did he describe the T-shirt to you?  [212]
A. Yeah.
Q. Did you tell Lieutenant Peifer what he told you about that T-shirt?
A. Yes.
Q. What did the defendant tell you about the T-shirt?
A. That -- again that it was given to him from the baby, or like from the mom through the baby.
Q. Describe ...
A. That ...
Q. ... how -- Mr. Lively, how did the defendant describe the T-shirt to you?
A. A white T-shirt with a guy sitting in a lounge chair watching football.  And he's paying such attention to the football, he's baby-sitting the baby, but that -- like he's paying more attention to the ba -- to the TV than the baby that's he's holding a bottle down thinking he's feeding the baby but it's a dog sucking on the bottle.  And that the dog's eating out of the -- or that the baby's eating out of the dog bowl.
Q. Hold on for a minute, Mr. Lively.  The shirt has a man on it who's watching a football game.
A. In a lounge chair, yes.
Q. Is -- are there words on the shirt?
A. New dad.  New dad, I believe.  [213]
Q. And the man's watching television, he's got a bottle in his hand.
A. Holding it down like this, like -- but he's watching TV thinking he's babysitting the baby.
Q. You're indicating physically for the record, you're holding your arm down ...
A. Right.
Q. ... down to your side.
A. Right.  Thinking he's feeding the baby but it's actually the dog's sucking on the baby bottle.
And the baby's over eating out of the dog's bowl.
Q. And what did he tell you about that shirt?
A. That that's what the baby's buried in.  He buried the baby in that shirt.
Q. Now he had already told you that he undressed the baby before he buried the baby.
A. Yes.
Q. Isn't that right?
A. Yes.
Q. So what he said contradicted what he had said earlier, correct?
A. Yes.
Q. You said that he drew you a map that day?
A. Yes.
Q. What was it a map of?  [214]
A. Again, a property near that property.  I believe it was off maybe that same dirt road.
Q. Off of what same dirt road?
A. The one in front of the house.
Q. In front of Sissy and Tom's house?
A. Yes.  I believe that was it, or a road right around there.
Q. And what did he say about the map that he drew?
A. That that was where the baby was.  Again, I'm supposed to insinuate that when he told me this that it's Tom telling him that.  And that Tom thinks that he was seen dumping the baby here because there was a lady, some old lady in the area, and that he believes he saw his truck.  Or something along them lines.
Q. Let me show you Commonwealth's Exhibit C55.
A. I remember a white mail box.  He told me it was like the big thing ...
Q. Okay.  Let me -- this is C55 for identification.  Do you recognize that?
A. Yes.
Q. What is that?
A. That's the map I was just saying.  [215]
Q. Now who drew the map?
A. Rivera again.
Q. Speak up, Mr. Lively.
A. Rivera.
Q. And who put the words on there?
A. I put the words again because he can't read or write.
Q. Okay.  Do you want to hold that up.  Tell us what's on there.
A. Tom and Sissy -- live up this way.  Now that I look at the map I remember it ain't the dirt road.
Q. Okay.
A. The dirt road ends.
Q. Mr. Lively, hold on.  What does it say up here?
A. Trailer location.
Q. Okay.
A. That's Sissy and Tom's trailer.  Like I said, it's up this way he had told me.
Q. Okay.  Indicate -- you're indicating for the record that Sissy and Tom's trailer would be to the right of this map as you look at it.  Is that correct?
A. Yes.
Q. And that's where the words trailer [216] location and the hour ...
A. Right.
Q. ... point.  All right.  Now describe what else is on this map?
A. The dirt road he was telling me ended at the line. So I wrote in dirt road when he was -- he did the drawing.  And he said it becomes paved, that there would be at least one turn that wouldn't be there.  When you would past the second -- thing it would be a dirt driveway, to look for a white mailbox.  And if you had seen the white mailbox you'd be able to pull in this driveway.  The house would be up top and as you pull in the driveway there was an unpaved little like parking area more or less that you could pull into, with a bunch of bushes and trees and debris type stuff laying there.
Q. And what did he say was going to be there?
A. The baby's location again under some ...
Q. Mr. Lively, you had said at the beginning of your testimony that you were in jail.  You had five cases, you were being held in jail on five cases. Is that correct?
A. Yes.
Q. You had your attorney negotiate with the District Attorney's Office to plead guilty in some of [217] those cases.  Is that correct?
A. Yes, that's correct.
Q. How many cases -- in how many cases did you plead guilty?
A. It was I believe four.
Q. You start with five cases.
A. Yes.
Q. Mr. Lively, this is Commonwealth's Exhibit C56 for identification.  Do you want to take a look at that, flip through that and tell me if you recognize it.
A. Yeah, I know what it is.  It's my ...
Q. Okay.  Would you go all the way to the last page.  Whose signature is there on the last page?
A. Mine first.
Q. And then whose signature is second?
A. My attorney, Lawrence Foti [ph].
Q. And what's the title on this document?
A. Memorandum of Plea Agreement.
Q. Was this the plea agreement that you entered into with the District Attorney's Office regarding your five cases that put you in jail?
A. Yes, it is.
Q. Mr. Lively, this is the third page of the plea agreement.  At the bottom there you see the charges [218] that you plead guilty to.
A. Yes.
Q. What are those charges?
A. Terroristic threats, three counts.  Which M-1 means it's a misdemeanor.  Receiving stolen property.  I pled to eight counts, misdemeanor first degree.  And receiving stolen property, one count, misdemeanor to the second degree.
Q. And that's on two different cases.  Is that correct?  You pled guilty to those charges on two different cases?
A. Yes.
Q. You had been charged with five cases.  Is that right?
A. Yes.
Q. So you weren't prosecuted on three of those cases.  Is that right?
A. No.
Q. Is that your plea agreement, Mr. Lively?
A. Yes.
Q. Okay.  Now you have not been sentenced on that plea agreement.  Is that right?
A. Right.
Q. What was the condition of the -- of your plea agreement?  [219]
A. To -- that I would have to testify and tell the truth.
Q. And when will you be sentenced?
A. I believe March the 2nd, I believe.  Coming up -- yeah, March 2 is my next court hearing.
Q. Now have you been previously convicted of any other offenses, Mr. Lively?
A. Yes.
Q. You've been in trouble before?
A. Yes.
Q. For what?
A. Loitering and prowling.  Possession of marijuana.  And then cases as a juvenile also.
Q. Why did you get the information from the defendant, why did you give the information to Lieutenant Peifer?
A. Like I had said, I wanted the reward money.  And that I could get anything out of it if it would help my case.  It would -- if I could take that in front of a judge and be like I helped them get a baby's body back, then so be it, you know.  But mainly, I wanted the money.

Mr. Reilly:  That's all, Your Honor.  [220]

The Court:  Let see counsel at sidebar just off the record.

[Side Bar Discussion]

The Court:  How long do you think you're ...

Mr. Smith:  I'm going to be a while.

The Court:  ... take a brief recess.

[End of side bar discussion]

The Court:
We'll take a brief recess, ladies and gentlemen.  Don't' discuss the case, don't let anybody discuss it with you.

[Recess]

[Third tape begins]

The Court:
Returning to the matter of the Commonwealth versus Robert Rivera, number 411 of 2000.  Mr.
[221] Smith, ready to begin cross examination?

Mr. Smith:  Yes, Your Honor, I am.  Thank you.

CROSS EXAMINATION

By Mr. Smith:
Q. Mr. Lively, how many different times while you were in the Delaware County Prison did you talk with Robert Rivera?
A. How many different times?
Q. Yes.  Like did you talk to him, you know, once a day for a week, or twice a day over that week, or ten times in two weeks.  How many different times did you talk to Robert Rivera?
A. Numerous times.  I don't know the exact number.  I would see him when he was on my block every day until he was moved to protective custody.  And whenever I would see him when he was on protective custody bumping each other in the corridor, the octagon between the three pods.  And pretty -- and every day when I was put on his block after my operation, put on protective custody.
Q. Well, let's start with -- you said Robert Rivera came to the Delaware County Prison onto your block sometime after August the 11th.  We know that's the [222] day he got arrested, August 11 of 1999, right?
A. Yeah, I guess.
Q. And you said that he got -- that you got put in prison May the 24th of 1999, correct?
A. Originally, yes.
Q. And then you stayed in Delaware County Prison from May the 24th up until what day that you left the prison?
A. On -- I believe it was June 31, July 1.
Q. Of 2000?
A. Of '99.  Like a month before he came in.
Q. Okay.  So you came in May the 24th, you left, we'll call it June 30 because there's no thirtyfirst in June.  So we'll call it June 30 ...
A. Okay.
Q. ... or July 1.
A. Right.
Q. Right?  And why did you leave then?
A. I posted bail.  I was there on $50,000.
Q. And then how did you get back into prison before August the 11th?
A. I was -- when I was in the prison I was waiting to post bail from day one.  And every time I would go to a bail hearing the detectives or the police would say, oh, we're waiting to put felony theft charges [223] on him.  And so after about a month's worth of hearing this, I went to one of my hearings.  He said the same thing.  So my attorney advised me the best thing I could do would be call his bluff.  He asked me, do I have the money to bail out?  I said, yes, I do.  I bailed out.  The night I bailed out, the very next day they refilled charges on me.  I posted bail again.  While -- and then while in the courtroom on that case, one of the defendant's said that I had leaned back and made a gesture with my finger like I had a gun.  They put another case on me then.  I posted bail.  Within a day after that him getting mad in court because I posted bail on that, they only gave me $500, where the witness said that I ...
Q. Okay.
A. ... because it was right next door to me, claimed that I had pulled up next to him in traffic, rubbed my eyes as though I was calling him a cry-baby.  And made some remark he couldn't understand because my window was up and his window was up.  So they gave me $100,000 cash bail again and stuck me back in the prison.  That was July 15.
Q. Okay.  Does people that were saying those things about you, were they telling the truth?
A. That case, no.  [224]
Q. So the guy making the little cry-baby thing he wasn't telling the truth?
A. No.
Q. And the guy that said you made a little gun motion, he wasn't ...
A. No.
Q. Liar?
A. Yes.
Q. So now you get back in jail.  And when do you get back in jail from these liars putting more charges on you?
A. When do I get back in jail?
Q. Yeah.
A. It would the end of July.  I was out like a month.
Q. Okay.  So you get out of jail the beginning of July, you get back in jail the end of July, and then sometime before the middle of August Robert Rivera shows up on your block?
A. Yes.
Q. Okay.  Now you at some point in May of the year 2000 sign a deal with the DA's office, don't you?
A. That's correct.
Q. A written deal?  [225]
A. That's correct.
Q. And Mr. Reilly showed you that written deal, right?
A. That's correct.
Q. And in that written deal it says many, many times that you have to tell the truth, right?
A. That's right, yes.
Q. Do you know why they put that in there so many times?
A. That I have to tell the truth?
Q. Yeah.  Why didn't they just put it in there once?
A. To make sure I'm telling the truth.
Q. Who wrote that paper?
A. Either -- to the best of my knowledge, the lawyer or the District Attorney.  I couldn't -- one or the other.  However legally it would be done.  I don't know who would draw that up the memorandum agreement.
Q. But in that paper it says, as I indicated to you, many, many times it says in there that you're to tell the truth.
A. Yes.
Q. Have you ever lied before?
A. In my life, you mean?  [226]
Q. Yeah.
A. Of course.  Yeah.
Q. Have you ever lied under oath?
A. Not to the best of my knowledge, no.
Q. Well, Mr. Lively, you either know you did or you know you didn't.
A. No, I did not.  Uh-uh.
Q. Okay.  So you didn't -- never lied under oath?
A. No.
Q. Okay.  And these five cases that you had pending against you, you were facing some serious jail time with those, weren't you?
A. No.
Q. You had $100,000 bail and you weren't facing any serious jail?
A. I had misdemeanors the first time.  I had $50,000 bail.  My block, there was -- his bail was less than my bail.  Bail don't mean nothing.  Bail is ...
Q. Okay.  Does it mean anything that you had a couple of prior cases and then you got five new cases all pending, right?
A. Right.  All off the same case.
Q. You say ...
A. Like I got ...  [227]
Q. ... off the same case.  But it's still five separate cases, isn't it?
A. Yes, it is.
Q. You had to post bail several times to get out.  And then finally they put bail on you -- they kept making new cases against you, right?
A. Yes.
Q. Now you said they were lying but they can ...
A. No, not all lying.  But the gun lying and the Blazer, yes.
Q. Okay.  So three of five they're not lying, two of the five they are?  Are you with me?
A. Yes.
Q. Okay.  And in those cases if you get convicted you're looking at jail, right?
A. From what my attorney told me, between seven and 23 months.
Q. I'm sorry?
A. Between seven and 23 months is my attorney's guess.
Q. All right.  And you agree with me that if you get convicted in one case and then you get convicted in the second case, it's more serious because you have like a prior record now, isn't it?  [228]
A. If I'm convicted on one of the five, you mean?
Q. Let's say you do the same thing two times.  The first time you get convicted you might not get such a bad sentence.  But the second time you come back, now you got a prior record, so to speak.
A. Sure, I would figure that, yes.
Q. More serious, huh?
A. Yes.
Q. So -- and you've already got a prior record before you get to these five cases, don't you?
A. And that's what he had told me.  A mitigated -- or some range I was in would be seven to, I believe, he said 23 months.
Q. Okay.  And so you decide when Robert Rivera comes into the prison that you want the reward, right?
A. Yes.
Q. That's what you testified to on direct examination.
A. Yes.
Q. And then later on in the direct examination you said, oh, I also figured if I could get anything out of this for myself that would be fine, too, right?  [229]
A. Sure.  If I'm going to the judge, meaning my lawyer's telling me seven to 23, but that's up to the judge.  What he wants to say is it mitigated, is it not mitigated.  Sure, if they're going to say I helped with the baby, why would I not take that.
Q. Now, Mr. Lively ...
A. ... tell them, no, I don't want it.
Q. And once you start talking to the DA's office, you get out of jail, don't' you?
A. No, not at all.
Q. How long do you stay in jail then?
A. For -- until December, right before Christmas, when I bailed out.
Q. So you get out in December.  And when you get out in December you're on electronic home monitoring, aren't you?
A. That's right.
Q. And you don't to be on electronic home monitoring, do you?
A. Sure, I do.  I had asked for before I bailed out the first time.
Q. You wanted to be on electronic home monitoring?
A. I had actually asked for it, yes.  Knowing that they were going to -- that they were going [230] to be like he did this or he did that, just stick me right back in the jail.  I had asked for it.  And I was told that they could not do that, is what I was told.  So when I heard that when I was getting out the last time, yeah, I took it.  That sounded good to me.
Q. So then in paragraph number seven of this plea agreement that you entered, that's Commonwealth's Exhibit #56, it says, at the time William Lively enters the above referenced plea of guilty by agreement between William Lively and the Office of the District Attorney of Delaware County, the bail requirement that William Lively be kept on electronic home monitoring shall be removed.  It says that in here, do you see that?  Do you want to see it?
A. Read it again to me.
Q. Sure.  Paragraph number seven.
A. Right.
Q. It's C56, it's the agreement -- Memorandum of Plea Agreement.
A. Okay.

Mr. Smith:  May I approach the witness?

The Court:  Sure.  [231]

By Mr. Smith:
Q. Paragraph seven here -- page three, okay.
A. Okay.
Q. You keep that page open, I'll go back out here.  We'll start reading together.  At the time William Lively enters the above referenced plea of guilty by agreement between William Lively and the Office of the District Attorney of Delaware County, the bail requirement that William Lively be kept on electronic home monitoring shall be removed.  All other conditions of bail are to remain the same.  Do you see that?
A. Yes.
Q. Okay.  How did that get in there?
A. I guess my attorney or the District Attorney's Office.
Q. Well, I thought you said you wanted to be on the electronic home monitoring?
A. That's what I said.  And I had asked for it prior to this, my original release.
Q. So did you change your mind somewhere between your original release and May the 12th?
A. What did I want -- yes, I did.
Q. Oh.  When did you change your mind?  [232]
A. Not my original -- between these release and May the 12th, you mean?
Q. No.  You said you got released from prison in December ...
A. Right.  That ...
Q. ... on the electronic home monitoring.
A. ... okay.  Original release, I'm taking you to mean when I first bailed out.  Okay.
Q. You got to let me finish.
A. Okay.
Q. It's hard for both ...
A. I'm with you now.
Q. ... us -- you got released in December on the electronic home monitoring.
A. Okay.
Q. This agreement is dated the following May the 12th
A. Okay.
Q. ... year 2000, about six months later.
A. Uh-huh.
Q. You just testified that you wanted to be on the electronic home monitoring.
A. Yes.
Q. You signed this agreement.  Mr. Reilly showed you the signature page and you said that was your [233] signature.
A. Yes.
Q. And that was your lawyer's signature, right?
A. Yes.
Q. And that you signed this paper because this was the deal that you struck, right?  This was ...
A. That my attorney struck, yes.  The plea agreement.
Q. Well, he's your attorney, isn't he?
A. Yes.
Q. He's not the DA's attorney, is he?
A. Yes.  I mean, he's my attorney, right.
And he's not theirs, right.
Q. Right.  So your attorney made a deal for you that said, get him off the electronic home monitoring and that's in the deal, and you took advantage of that.  You got off.
A. That's what it says.
Q. Right.  In addition, what it says here is they're going to postpone the sentence in these cases in which you've entered the guilty pleas to a fair number of these charges.  Three counts of terroristic threats.
A. Uh-huh.
Q. Right?  What are terroristic threats, do you know?  [234]
A. Was me telling somebody that I was going to do the same to their car that they did to my car.  You shove my mom, I'm going to shove your mom.  That type stuff.
Q. So in other words, that's a threat you made to somebody to hurt them ...
A. Yes.
Q. ... terrorize them?
A. Yes.
Q. Okay.
A. Yes.
Q. And you pled guilty to three of those.  Guilty to eight counts of receiving stolen property as a first-degree misdemeanor.  And one count of receiving stolen property as a second-degree misdemeanor.
A. Correct.
Q. So that means eight of these things are sort of bigger than the other -- than the one, right?
A. Yes.
Q. First-degree is bigger than second-degree.
A. Right.  They go by the price of the goods or something.
Q. So the first-degree misdemeanor ones, the price of the goods was higher, bigger number.  [235]
A. Yes.
Q. And then it says, once you enter a plea of guilty to all of this, we're going to defer the sentencing until after you testify against Robert Rivera, right?
A. Correct.
Q. And then when you testify against Robert Rivera and you give us what we want when you testify here, and that's what they also put in there they want you to tell the truth a whole bunch of times, right?
A. Right.
Q. That we'll then say nice things about you when you get in front of the judge to be sentenced, right?
A. No.  That ain't what they said.  That's what my attorney told me that you'll be able to -- you're looking at a mitigated range between seven and I believe he told me 23 months.  But you're going to hear them say stuff like, if you're sentenced per case, if you're sentenced -- that is you could end up getting more.  It depends on what the judge, if thinks you're mitigated, if he thinks you're not.  You're going to have victims in the courtroom saying that you threatened them.  That they could change the judge's mind.  But, Bill, by doing this, when we go we can tell the judge [236] that you came and you gave truthful testimony in the Rivera case.  That was how it was explained to me.
Q. You just did paragraph seven.  So right there in that same page, paragraph eight, right in the middle it says, the Commonwealth -- if you do all this stuff that you're supposed to do in this agreement, the Commonwealth will inform the sentencing judge of the nature of the crimes which William Lively assisted in exposing, William Lively's role in the investigations and resulting prosecution, as well as, the background of William Lively, right?
A. Correct.
Q. So that means the DA's going to come in and try to help you here, right?
A. If that's what that -- yes, that's what that says.  I suppose.
Q. You don't agree with that?  You don't think that's what it says?
A. Yeah.  They're going to come in and tell them then what I did, sure.
Q. And you wanted that in there because you want some help to get a better sentence, don't you?
A. Sure.  I mean, if I -- what do you think I'm going to say no to it.  If my attorney comes to me with it and they're -- sure, I'm going to take that. [237]
Q. So the District Attorney came to you with this deal, you didn't go after them for it.  Is that what you're saying?
A. Right.  By this time they already had the information, right.
Q. In other words, you don't say to the DA, I'll cooperate with you guys if you help me get a better sentence?  They say to you, you know what, Bill, out of the goodness of our hearts here ...
A. They didn't say nothing to me.
Q. ... we're going to give you this deal where we're going to go say nice things about you in front of the sentencing judge.  Is that the import of what you're saying?
A. They didn't nothing to me.
Q. So how -- who started the ball rolling to get this deal?
A. My attorney came to me with the agreement.  Told me what I'd be pleading guilty to, advising that it wasn't -- that you already have seven months in, Bill.  Before you had bailed out you had seven months in.  You're looking at a seven to 23.  He could sentence you to more than that. For all I know right now, I could get 40 years is the way -- the day I went into court over this, they had to say right on the [238] thing.  They didn't say nothing about me getting no set amount of time.  As a matter of fact, they had to read in the thing which got me nervous as hell that I could get up to 40 years total between them if the judge decides to sentence me each one.
Q. You think that's going to happen?
A. You never know.
Q. Well ...
A. To tell the truth is what I've been telling you.
Q. Right.
A. And for what it's worth.
Q. Let's talk about that.  How many times do you figure you lied to Robert Rivera in the course of those many, numerous conversations you had with him?
A. All the time.
Q. All the time?
A. Yes.
Q. How many times do you figure Robert Rivera lied back to you?
A. Apparently, a couple about where she was, sure.
Q. You even went so far as to prepare what you called a fake agreement on lawyer paper, right?  I have a really bad copy of it here.  [239]
A. Yes.
Q. Do you have the original of this?
A. I believe so, yes.
Q. Do you have it with you?
A. Yes.
Q. Do you want to get it out?
A. I have to get out and get it.  I don't think it's on my person.  Yeah, I got it with me outside.

The Court:  Do you have a clean copy, Mr. Reilly?

Mr. Reilly:  Mr. Lively has the original, Your Honor.

Mr. Smith:  This is all I have, Your Honor.

Mr. Lively:  I have it having showed it to nobody from the time I took it off ...

The Court:  It is outside?

Mr. Lively:  Yes.

The Court:  All right.  You can go ahead and get it.  [240]

[Off record]

[Back on record]

The Court:  All right.  Mr. Smith?

By Mr. Smith:
Q. Your copy of that doesn't look any better than mine does.
A. Oh, yeah, sure.
Q. It's all sort of beat up here.
A. Well, he had it folded down in his prison garb hiding it from -- at one time.
Q. And this is a two-page document that you prepared, right?
A. Yes.
Q. And see where it says, Lawrence T. Foti, Esquire, at the top?
A. Yes.
Q. And his attorney ID number?
A. Uh-huh.
Q. And his address and the phone number and all that?  [241]
A. Yes.
Q. And then on the second page it has a signature, Lawrence T. Foti, right?
A. Well, on mine I got three pages so it would be the third page, you're saying, right?

Mr. Smith:  May I approach, Your Honor?

The Court:  Sure.

Mr. Lively:
I put that on the front, which is like something I got off of my court papers just to make it look good to try and bullshit him.

By Mr. Smith:
Q. All right.  And then on the first page, the one that you have has three pages ...
A. You have this, you have this.
Q. I got the two typed up pages.
A. Right.
Q. You got another page.
A. Yes.
Q. And that first page says, verification, I, Lawrence T. Foti -- and then there's a space and it [242] looks like a signature in there, right?
A. Yes.  And then a signature on the back also.
Q. Did Lawrence T. Foti sign that?
A. No, he did not.
Q. Who signed it?
A. I did.  I traced it.
Q. How about on the third page?
A. Same thing, I traced it.
Q. So you forged your lawyer's name?
A. Yes.
Q. And did you have your lawyer's permission to do any of this?
A. No, I did not.
Q. Did you tell your lawyer you were doing any of this?
A. No, I didn't.
Q. And you put a whole bunch of stuff in here.  I guess if I were to characterize it, is it fair to say basically this thing is a pack of lies, both pages?
A. Of promises to the -- to him to get the baby out?
Q. Yes.
A. Uh-huh.  [243]
Q. Pack of lies.  Is that fair?
A. Right.  What he wanted to hear, yeah.  Some of it he asked for.  Some of them things he wanted in the agreement.  This is actually -- I'd actually done another one prior to this.  And that's when he had told me the baby was dead.
Q. All right.
A. That that was no good.  That he needed a new one made up.  He wanted the cemetery put in, he wanted a few things that are in here.
Q. All right.  So let's run down some of those things.  He -- you say that he told you the baby was alive.
A. At first, yes.
Q. And then he told you the baby was dead.
A. Uh-huh.
Q. And then he told you the baby was buried in some kind of a round pit or a round hole or something.
A. Yes.
Q. On a piece of Tom and Sissy's property.
A. To make it harder to find.  The smaller hole, deeper instead of wider.  You disturb less ground.
Q. And then he told you that she was buried some place on the property next to Tom and Sissy's property.  [244]
A. Yes, I guess so, yep.
Q. Well, I don't want you to guess now.  Is that what he told you?
A. Yeah, uh-huh.  Yes.
Q. And you know that -- you gave all that information that he gave you, you gave that to the police, right?
A. Yes.
Q. And they did a -- I guess it's safe to say that they did a pretty thorough search in the area of which those little maps are located, right?
A. Yeah, I guess so.  You'd have to ask them.  But ...
Q. They didn't find anything, did they?
A. To the best of my knowledge, no.
Q. So he must have been lying to you.
A. That -- what ...
Q. Rob was lying to you.
A. Oh ...
Q. You're lying to him, you're given him a written pack of lies.
A. Sure.
Q. And he's giving you some map, lies right back, didn't he?
A. Possibly.  I'm just telling what he gave [245] me.
Q. All right.  So that's your deal, right?  Tell them what he gave you?
A. Telling the truth is my deal.
Q. Yeah.  When you testified at the hearing in court you came here on September the 14th of the year 2000.  Do you remember that?
A. Yes, suppression hearing.
Q. And you testified in court that day.
A. Yes.
Q. And you talked about what Rob told you that day.
A. Yes.
Q. You talked about what you told him that day.
A. Yes.
Q. Was there ever a time in the Delaware County Prison when you had to get physical with Rob when he wasn't given you what you wanted and you started to assault him at all or threaten him at all or give him any terroristic threats or anything?
A. I protected myself, yes.
Q. I'm sorry, what?
A. I protected myself, yes.
Q. You protected yourself how?  [246]
A. In the cell when he had found all of my paperwork and maps that I had been telling him that I was giving to my attorney, but I had been keeping them.  My little write -- like people tell me stuff, I ain't got the best memory all the time.  I'm in a prison environment, 22-hour lock up. When you're out of the cell it's all hell.  When you're in the cell it's usually all hell.  He found my paperwork and confronted me with the paperwork.  And I just protected myself, that's all.
Q. How did you protect yourself?
A. By swinging back.
Q. What did you do?  Did you hit him?
A. Yes.
Q. How many times?
A. I don't know.  He threatened me with the lunch tray, we were locked in the cell.  Plastic trays they give you your food on.
Q. Threatened you with a lunch tray?
A. Yes.
Q. So he threatened you with a lunch tray, what do you do?
A. Reacted.
Q. Tell me what that is.
A. Jumped up swinging, kicking, telling him I wanted my shit back.  Started trashing the cell [247] because he had given the crap of mine away, stuff of mine away.  He -- I didn't' know what he was going to do.  He had the lunch tray like this.  I'm laying on the top bunk and he swings it like this and stops.  What are you going to do?  Telling me that I'd better not testify on him.  That he's found my paperwork.  That he showed these other inmates and that they told him that it isn't a court paper because it looks like it was done on a computer to them.
Q. Were you a cellmate of his?
A. At that time, yes.
Q. For how long?
A. I don't know, maybe -- guessing a week, two weeks.  Well, I was in PC for my surgery.
Q. How did you get to be his cellmate?

A. Because I had -- my appendix went on the day I told them about the shovel.  I was taken to Crozer Chester to have the operation done.  I spent about five days there.  They seemed to be in a rush to get me back to the prison.  When I got back to the prison I spent time in the infirmary there and was brung back to my block.  Was told that I had to go to PC.  I told them I didn't want to go to the PC block, which is protective custody.  They told me, well, there really isn't much of an option.  You're not able to protect yourself.  I had [248] been having problems, fights with -- like Muslims, stuff like that, which mainly started because I was friends with him.  People didn't know like what I was doing.  They really thought I was helping him when they'd see me talk to him and stuff like that.  So I got back to the jail.

They told me that I needed to be in PC, because how are you going to protect yourself.  I refused it.  Some ensuing stuff happened.  They seen that I wasn't -- really wasn't able to protect myself.  I couldn't even go up the flight of steps to get into my cell, the second tier.  And they came in, told me I had to go to PC.  I told them I wasn't going.  They came in with the mob squad, which is guys in helmets, the bats.  Not forcibly removing me, but telling me you're going.  I didn't want to go.  It's nothing over there but fags, baby-molesters.  And I didn't want to be on that block.  I don't want to be on the block with fagots.  That's just -- I didn't want to go.  But I was forced to go over.  I was put on the block.  That was I believe the only cell open at the time.  He was asked, we were friends.  Between us we both said, he thought it, I was lying about it.  And I was put in his cell.  He had no disagreement with it.  Even gave me the -- offered me the bottom bunk so I didn't have to climb up on the top.

Q. Did you get any the reward money [249] thereafter?
A. No.  They never got the body.
Q. I'm sorry, what?
A. No.  The body was never -- uh-uh.  My intention was never even to have to testify.  I strictly wanted the baby found, the baby buried, the money and being told that I got the body.
Q. So you don't have any reward money?
A. No.  Of course not, uh-uh.
Q. You're not going to get any, are you?
A. Never know.

Mr. Smith:  May I approach?

The Court:  Sure.

By Mr. Smith:
Q. Mr. Lively, I'm going to -- I'm going to show you what's been marked as Defendant's Exhibit #2 for identification.  Here, you hang onto your original of that.  Let me -- take a look at Defendant's Exhibit #2.  Do you recognize it?
A. Uh-huh.
Q. Is that a copy of something that you [250] handwrote?
A. Yes.
Q. Do you remember writing that?
A. Yes.
Q. It's about seven pages long.
A. Uh-huh.
Q. Now ...
A. This was the hand one that I originally was talking about.
Q. Mr. Lively, D2, that's seven pages that you wrote out in your own handwriting, isn't it?
A. Yes, it is.
Q. And I asked you about that other statement that you wrote that had Larry Foti's signatures on it and I've had my copy of that marked.  It's up there with you if you look at it.  You'll see I've had that marked as D3.
A. Okay.
Q. I want to ask you about D3.  It's basically it was a pack of lies as far as akin to ...
A. Yes ...
Q. ... the things that were supposedly agreed to or intended to take place on behalf of Robert Rivera, right?
A. Right.  Part on me, part on what he [251] wanted put into it -- had into it.  This is the second one.
Q. Now looking at D2 ...
A. The second printed one.
Q. Looking at D2, the seven page handwritten statement ...
A. Right.
Q. ... is it fair to characterize that in pretty much the same category, that the stuff you say in there that you're going to do and take care of and things, that's also a pack of lies?
A. Right.  This is the original one.  I had written this and told him that I would speak of my attorney through like an attorney -- like when I speak to my attorney I'm not actually like -- allowed to touch him -- like be talking to the lady here on the end.  And I just told him that ain't how it happened.  I wrote this in my cell.  Went back and told him originally when I thought the baby was alive that he would agree to something like this.  And this is when -- when I was reading this to him and he was going to okay it is when he broke down crying and telling me that she was not alive.  She was dead.  He had suffocated her and buried her in the hole.
Q. And so we know, again just so we keep [252] this straight -- so what you were writing down in this paper you wanted him to believe but in fact it was lies.
A. Yes.
Q. Same thing with D2, the later-on paper.
A. The more official, yes.
Q. The typed one.
A. Right.  He said he wanted something more official.
Q. And then these maps that are marked C54 and C55 are Commonwealth's exhibits.  These are the maps that Robert gave to you.
A. Right.
Q. You gave to the police.
A. Yes.
Q. You say he drew the maps and you wrote the words?
A. Correct.
Q. And now you know that these aren't true either, are they?
A. What's that, the maps?
Q. What he said to you in these maps isn't true either, is it?
A. All I know is they didn't find nothing there.  [253]

Mr. Smith:  That's all the questions I have.

The Court:  Mr. Reilly.

REDIRECT EXAMINATION
By Mr. Reilly:
Q. Mr. Lively, did you -- when did you enter into this plea agreement with the DA's office, do you remember?
A. I don't know the exact date.  It was after I was out on bail.  Because my attorney told me that I was supposed -- they hadn't found the body, I needed to testify.
Q. See your signature there on the last page -- hold on for a minute.
A. Sure.
Q. This is C56.
A. Right.
Q. See your signature there?
A. Yes.
Q. What's the date that you signed the plea agreement?
A. It looks like it says 5/12 but it's wrote over letters.  It could be 5/11 or 5/12.  [254]
Q. Okay.
A. 5/12 because my attorney writes it there, 5/12.
Q. Of what year?
A. Of 2000.
Q. Okay.  So it's 5/11 or 5/12 ...
A. It's 5/12 because he's got 5/12.
Q. Okay.
A. ... change ...
Q. 5/12 of 2000.  Is that right?
A. Yes.
Q. And the information that you gave to the police about the defendant was in August and September of 1999.  Is that right?
A. Yes.
Q. Did you have any agreement with the DA's office when you were getting the information from the defendant and giving it to Lieutenant Peifer?
A. Absolutely not.  No.
Q. Did you know -- did you ever meet Tom Whittaker?
A. No.
Q. Do you know Tom Whittaker at all?
A. No.  The only ...
Q. Sissy and Tom?  [255]
A. Well, I know him by Tom.
Q. All right.  How did you know them?
A. From what he had told me about them.
Q. Sissy and Tom weren't friends of yours, right?
A. No.
Q. You lived in Upper Darby?
A. Yes.
Q. You didn't live next door to them or anything like that?
A. No.
Q. Did you ever visit them?
A. No.

Mr. Reilly:  That's all I have.

Mr. Smith:  Just two questions.

RECROSS EXAMINATION
By Mr. Smith:
Q. Did you ever read about this case in the papers while you were out there at the prison?
A. Yeah, on occasion, yes.
Q. On occasion?  [256]
A. Uh-huh.
Q. But you ...
A. After he would start bragging when he would see the news.  They would -- it got to the point they wouldn't even -- the news would come on, six o'clock news on the TV's, they'd cut them off because he would do that and it would start this -- getting people mad.  Newspapers he would get them.  And that's what I tried to tell the detective.  I came -- like hindsight was he thought I was telling them -- I see why he thought I was full of crap.  He thought I was telling him that -- stuff that I had read in the papers.  When -- I would get a paper that would be a week old, we get the paper.  They gave the paper to the block.  And it was on time that day.  You're lucky to see it for three days by the time it got passed around cell to cell to cell.  We wouldn't get them on the blocks for three, four, five days after ...
Q. So that means somebody on the block got it on time but it was never you?
A. Not after -- originally starting out, yes.
Q. That's what -- some -- if the paper came in ...
A. The guard would have to give it to you.  [257] They would wait.
Q. You got to let me finish.
A. Okay.
Q. Let's say today's Thursday and you get Thursday's paper.  Somebody on that block gets Thursday's paper on Thursday, don't they?
A. I guess they could have, yeah.  To my knowledge, no.
Q. But it was never -- it was never you, was it?  You never got the paper until like a week later?
A. That's how it works in the block.  It goes cell to cell.  And they were keeping it from everybody.  They were letting it blow over because he would brag.  It would come on -- you couldn't even watch the news.  They would shut the news off.
Q. And so you never got any of your information from the newspapers, did you?
A. No.
Q. But when you saw the papers even a week late you had to admit there was a lot of stuff in the papers about this case, right?
A. Right.
Q. Did you ever read Tom Whittaker's name in the paper?  Sissy Whittaker's name in the paper?
A. I guess that's possible.  [258]
Q. Did you ever see any little drawings or maps or air photos in the paper or anything in the paper about where those people lived in Maryland? Did you ...
A. No.
Q. ... right?
A. No.
Q. And you -- nothing about any of these locations being in the paper either about the gas station or 202 or any of that stuff.  You didn't read any of that in the paper, did you?
A. Like to him, when I'd be reading the papers he'd want to read ...
Q. Did you read any of that stuff in the paper or not?  That's all I want to know.
A. Sure.  About the gas station and ...
Q. Yeah.
A. ... and the baby.  Sure.
Q. So you read a lot of stuff in the paper ...
A. Sure, uh-huh.

Mr. Smith:  That's all I have.

Mr. Reilly:  That's all, Your Honor.  [259]

The Court:  You're excused, Mr. Lively.

Mr. Lively:  Okay.  What do I do with this?

The Court:  Just leave those there.

Mr. Reilly:  Rose Quinn, Your Honor.  Rose Quinn.

[Witness sworn]

Mr. Reilly:
Your Honor, a housekeeping matter before we continue.  The -- Mr. Lively's typewritten plea agreement that was ...

Mr. Smith:  No, no.

The Court:  No, no.  That's the ...

Mr. Reilly:  It was -- yeah, it was an agreement ...

Mr. Smith:
Mr. Lively testified as to two statements.  The first statement, which was the handwritten statement, was the first in time.  I had that [260] marked as ...

The Court:  D2.

Mr. Smith:  ... D2.  The second one, which was the typed one ...

The Court:  Correct.

Mr. Smith:  ... is D3.  The one that Mr. Lively produced had a page that I didn't have.

The Court:  A supposed final draft.

Mr. Smith:  And we've had that one marked as D4.

The Court:  Okay.

ROSE QUINN, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Good afternoon.  You are Rose Quinn.  Is [261] that correct?
A. Yes, sir.
Q. By whom are you employed?
A. Delaware County Daily Times.
Q. And what do you do for the daily times?
A. I am a full-time staff reporter.
Q. For how long have you been a reporter?
A. Since 1987 on staff.
Q. And for how long with the Daily Times?
A. Since 1987.
Q. Now are you aware or were you aware in September of 1999 of the case involving Robert Rivera and the disappearance of Katelyn Rivera?
A. Yes.
Q. How did you know about it?
A. I'm a police report.
Q. You are a?
A. Police reporter.
Q. So you're aware of what's going on with the police and with the courts.  Is that right?
A. Yes.
Q. If you recall receiving a letter dated September the 23rd.  It was a letter to the Delaware County Daily Times and it was signed by Robert Rivera.
A. Yes.  [262]
Q. How did you come to receive that?
A. I believe it did not come to me directly.  It came to the Daily Times in care of Soundoff.
Q. What's Soundoff?
A. Soundoff is basically the answering machine.  People call in and sound off if they're upset about something or want -- or happy about something.  It's an answering machine basically.
Q. So a letter came in that was addressed to Soundoff.  And someone directed it to you?
A. Yes.  Because I was covering the story.
Q. Because you were covering the Rivera story?
A. Yes.
Q. Okay.  Let me show you what's been marked as Commonwealth's Exhibit C37 for identification.  Do you recognize that?
A. Yes.
Q. Can you tell the jury what that is?
A. It's one of the letters that was received by the Daily Times.
Q. And that letter came into your possession.  Is that correct?
A. Yes, it did.
Q. When you received the -- let me just take [263] a step back.  The letter's dated September the 23rd of 1999.  Is that right?
A. Yes.
Q. Do you remember when you received the letter?
A. No.
Q. Within a matter of days after September the 23rd of ' 99?
A. Yes.
Q. When you received the letter what did you do with it?
A. I began trying to verify the signature because I wanted to write a story based on this letter.
Q. And were you able to verify the signature?
A. I believe so, yes.
Q. How did you do that?
A. Jennifer Helton.
Q. What ...
A. Katelyn's mother.  I went to their house.  I showed her this letter.  She pulled out another document.  We compared signatures.  We believed -- she believed that this was Robert's signature.
Q. Now when you verified that the signature belonged to the defendant, what did you do?  [264]
A. I proceeded to write a story based on this letter.
Q. Would you read the letter for us, please.
A. The entire including the date and everything?
Q. Please.
A. You want the whole thing?
Q. Please.
A. It's from

Robert Rivera, 984556
Delaware County Prison
Post Office Box 23-A
Thorton, PA, 18373.

Dated September 23, 1999.

To the
Delaware County Times
Care of Soundoff, USPS, 157900,
500 Mildred Avenue
Plymouth, PA.  [Primos, PA?]

Dear Sir,
Jail house snitches are making deals by outright lying about my case.  They are facing a great deal of time with their own cases.  They will lie to get less time and collect the reward money.  The DA, FBI and CID are far too anxious to have -- to make any kind of deal right or wrong. These agencies are only busy collecting overtime pay from the taxpayer money.  What a rip-off.  I don't understand how the DA, FBI and CID can easily accept a lying inmate's false statements about me.  I am the only one, only one is underlined, who knows the true story.  So if you hear anything from anyone else, consider it a lie.  I know where my daughter, Katelyn, is located.  You can contact [265] me by mail at the address above.  Please include a phone number that I may call you collect.

And then the signature that I -- that was verified as Robert Rivera.
Q. And that's a letter that you turned over to Lieutenant Peifer.  Is that right?
A. Actually, we printed a story the next day.  I received a phone call from Lieutenant Peifer and he wanted the letter.
Q. And you turned it over to him?
A. My editor did.
Q. Okay.  This -- I want to show you now what's been marked as Commonwealth's Exhibit C36 for identification.  Would you take a lock at that and tell me if you recognize it.
A. This is: a subsequent letter we received.
Q. What's the date on that letter?
A. 9/30/99.
Q. Do you recall when you received it?
A. No.
Q. What did you do when you received it?
A. Pretty much the same thing.  I tried to verify it and subsequently wrote a story.
Q. All right.  You verified the signature?
A. Actually, I think I basically just contacted Jennifer again and let her know that we had [266] the second letter and read portions.  And wanted her reactions to what was said.
Q. Did you write another story about it?
A. Yes.
Q. Who signed the letter?
A. Robert Rivera.
Q. Was -- you looked at the signature, were you satisfied that it was the same signature that was on the previous letter that you received?
A. Yes.
Q. Would you read the letter for us, please.
A. It's sent to the Delaware County Times, Soundoff again.

Dear Sir,
I was very surprised to see the news article that was one-sided.  I feel it is necessary to give my side of the story.  I wish Jennifer would remember all of the good times that we had and not the bad times.  Here is my list of problems.  Jennifer was not a maid.  I was the one who cleaned the house, all of the laundry and vacuumed.

Q. Let me stop you.  The "I" in I was one, that's underlined, isn't it?
A. Right.  Yes.
Q. Underlined twice, ""I".
A. Underscored twice.
Q. Please continue.  [267]
A. Okay.  Jennifer did the dishes when not using paper plates, which was 90 percent of the time.  I used colitis because welfare gave us more money and cash assistance and more food stamps.  This was Jen's idea.  I was working off the books.  I am appalled and agitated that she mentioned the story about my 15-year-old daughter (December 4) that lives in New York.  Jennifer ...
Q. Please continue.
A. Jennifer did take good care of Katelyn.  She kept Katelyn clean and well dressed.  I'm glad Jen remembered where we met.  In story -- in story Creek Shopping Center -- in Stonycreek Shopping Center is where she worked as a telemarketing rep, and I worked as a baker in the bagel store in 1995.  She was the most beautiful customer in the store.  I gave her free food.  After I quit six months later I spotted her in Barnaby's Bar in Chadds Ford.  I was attracted to her smile.  A friend of mine was friend of her roommates.  It was the third week of September when we went up to Barnaby's with her roommate, Di.  We sat in front where we talked and fooled around.  Since the day I -- since that day I know that she was the one for me.  The published picture of Katelyn is the one I took of her while at a cari -- at a ...  [268]
Q. Camden ...

A. ... Camden County Music fair, Radio Station 92.5.  I remember what Katelyn wore.  It was a yellow top with white flowers around her neck, yellow pants with white flowers going around each leg, little yellow socks and little white sneakers, each with three different colored rhinestones. Even other people sitting next to us were playing with Katelyn.  Katelyn, Jen and I had so much fun at the fair.  We always went places and had fun.  These clothes were the exact same clothes that she was wearing the day I removed her from daycare.

The day I took her from daycare I didn't think to bring her extra clothing.  I didn't know she was on medication.  I didn't plan this.  I took her to her favorite place, which was McDonald's.  I wish I could do a live interview.  I think of my daughter every second of the day.  I wish I could write Jennifer.  Also, I wish she would send some pictures of her and Katelyn.  I wish the FBI and DA would leave the people in Maryland alone.  I only spent the night there because I had no where else to go.  The main problem I have is finding the lawyers that will take my case.  I realize some of the things I did was wrong.  But there is a reason for everything.  I truly need help to get all of the legal representation I need.  No matter what happens between [269] me and Jennifer, Katelyn is the most important thing to me and Jennifer.

Q. And the next ...
A. Then there's a line scratched out.  It says -- it says ...
Q. ... portion is scratched out.  Would you read the portion that's scratched out.
A. Katelyn is the most important thing to me.  And it looks like Jennifer, Jen, all scratched out.  And then the last sentence.  I didn't mean to hurt Jennifer.  But she and her parents were taking everything away from me, including Katelyn.  And it's signed by Robert Rivera.
Q. And then is there a number beneath the signature?
A. 994556.
Q. Now, Miss Quinn, you went to Delaware County Prison on October 19 of 1999.  Is that correct?
A. The nineteenth or the twenty-ninth.
Q. October 19.  Does that sound right?
A. I know it was a Tuesday night in October.
Q. You went out to the Delaware County Prison to interview the defendant for a news story.  Is that correct?
A. Yes.  [270]
Q. With whom did you go to the -- or I should say who did you meet at the prison?
A. Jackie Morris and Michelle Lupi.
Q. And who are Jackie Morris and Michelle Lupi?
A. Jackie Morris at the time was an independent advocate of Katelyn.  And Michelle Lupi was identifying herself as Robert's girlfriend.
Q. Did you -- were you admitted to the prison?
A. Yes.
Q. And once admitted to the prison did you meet with the defendant?
A. Yes, I did.
Q. Did you interview the defendant?
A. Yes.
Q. Did the -- you ask questions?
A. Yes.
Q. The defendant responded to your questions?
A. Yes.
Q. Did you later publish a story about the interview you did with the defendant?
A. Yes.
Q. Let me show you what's been marked as [271] Commonwealth's Exhibit C57 for identification.  It's three photocopied pages.  Would you take a look at those pages.  Is that the story you wrote as a result of your interview of the defendant at Delaware County Prison?
A. Yes.
Q. And are the quotations contained within that story the quotations of the defendant, are they accurate?
A. Yes.

Mr. Reilly:  Those are all my questions, Your Honor.  Thank you.

The Court:  All right.  You may cross-examine.

Mr. Smith:  I have no questions.  Thank you, ma'am.

The Court:  You're excused, Miss Quinn.  Who's next?

Mr. Reilly:  Michelle Lupi, Your Honor.  Michelle Lupi.  Your Honor, Miss Lupi is the last witness that I have planned for today.  [272]

[Witness previously sworn]

Mr. Reilly:  Court's indulgence for one minute, please, Your Honor.

DIRECT EXAMINATION AS ON REBUTTAL

By Mr. Reilly:
Q. Miss Lupi, you had testified yesterday about your relationship with the defendant and the defendant's actions on August the 10th of 1999.  Is that correct?
A. Yes, I did.
Q. Once the defendant was incarcerated in Delaware County Prison, did you maintain contact with him?
A. Yes.
Q. You would go to visit him at the prison.  Is that correct?
A. Yes.
Q. And he would write to you.  Is that correct?
A. Yes.
Q. Miss Lupi, I'm showing you what's been marked as Commonwealth's Exhibit C58 for [273] identification.  It's a one-page letter with writing on both sides and it's an envelope.  The envelope is addressed to whom?
A. To me.
Q. It says Michelle Lupi.  Is that your address?
A. Yes, it is.
Q. And what's the return address on the envelope?
A. Delaware County Prison, PO Box 23-A, Thorton, PA, 19373.
Q. And do you recognize the envelope and the letter, Commonwealth's Exhibit C58?
A. Yes.
Q. The -- what's the postmark date?
A. September 29.
Q. Of what year?
A. Of 1999.
Q. Do you recall when you received this letter?
A. Obviously, it was the end of September.  But I don't remember -- if I didn't see that I wouldn't.
Q. All right.  Within a couple days ...
A. Yes.
Q. ... of September 29?  And by whom is the [274] letter signed?
A. Robert.
Q. Would you please read the letter for us.

A. Hi, Michelle.

How are you doing?  I got your letter on the twenty-first.  It was a Tuesday.  It was really good to hear from you.  I really want you and Shawn to come visit me or at least you alone.  Our visiting days are Saturday 8:30 to 11:30 a.m., Sunday 12:30 to 3:30 p.m., Tuesday 7:00 p.m. to 10:00 p.m.  How are things going out there?  Did you get your car back?  What have you heard, what are they saying like what you said, I'm the only one who knows the truth so I should fess up.  I don't trust my two attorneys.  Each tell me not to talk to the other.  I don't know how -- I don't know what to do.  How can I fess up when my attorneys tell me to say nothing.

Since I've been here I've had eight different cellmates.  They all call the FBI, CID and DA to talk about me.  I go back to court October 14 in front of Judge Wright in Media.  If you want to see some courtroom drama I hope to see you there.  How has Shawn been doing?  I really miss Shawn and his mom.  I can't wait to get out of here to, as you said, make mad love.  We can go to UPS in Philly.  Most of all, when I get out we can go and get Katelyn together.  How is that?  It's going to take two or three days to get down [275] there.  A minute doesn't go by when I don't think about Katelyn.  I know what I did was wrong but no one would listen.  I hope and pray that things will work out, good or bad.  I have to do time.  Hope to hear or see you soon.

Love always,
Robert.

Q. Miss Lupi, after you received that letter you gave that letter to CID.  Is that correct?
A. Yes.
Q. I want to show you the second letter.  This is Commonwealth's Exhibit C59.  Take a look at that.  Do you recognize that?  And what is that?
A. This is another letter from Robert.
Q. And is it signed by the defendant at the bottom?
A. Yes.
Q. What's the date on the letter?
A. October 14, `99.
Q. Would you read that letter to us, please.
A. Dear Michelle,
I want to thank you from the bottom of my heart for bringing Jackie to the visit with you.  I was so shocked that you went out of your way to go to Jackie's house.  I don't know how I can repay you for all the things you've done for me.  The only thing is that I wish I had met you sooner.  Things would have been much different.  I hope Jackie helps you and your [276] son.  It really bothers me that his father doesn't spend time with his own son.  You really need to stay away from Jim.  Your son should stay away from him also.  You know what your priorities are. First your son, next your mother and your father, and finally your job.  Stay away from bad people.  Each time I see you I feel better about me -- about you and me.  You look better and better.  I can't wait to see you tomorrow in court.  One guy going to court with me tomorrow is trying to testify against me.  I will be nervous.  I hope the judge received my letter yesterday.  I hope to see you Saturday.  I'm not going anywhere.  Ha, ha.  I'm going for arraignment tomorrow.  I hope I get a bail reduction.  I hope some of these charges are dropped.  Jackie seems to be a nice lady.  She is attractive, too.  I know she's married.  I'll let you go now.

Sincerely yours, old head, Robert N. Rivera.

Q. What's old head, what's that mean?
A. It was a little private joke between me and Rob about his age.
Q. You're younger than him?
A. No.  He told me he was younger than what he really was.
Q. Ma'am, this next letter is a two-page letter dated -- I'm sorry.  It's marked as [277] Commonwealth's Exhibit C60.  What's the date on that letter, the top of that letter?
A. This is October 17.
Q. Did you receive that letter in the mail?
A. Uh-huh.  Yes, I did.
Q. Like C59 and like C58, you turned those over to Lieutenant Peifer?
A. Yes.
Q. Would you read that letter to us, please.

A. Dear Michelle,

Hey, how are you doing?  Right now I'm busy watching Baywatch Hawaii and writing you.  I'm glad they let you in with no ID.  Every time you visit me it makes me feel so good.  I go back to my cell and think about our visit.  I hope what you told me about Jackie is true. Sometimes it is so hard to believe.  I hope things will work out.  Hopefully, things will work out with this lawyer for this money.  I'd like to know where you are going to hold this beef and beer thing for me.  Are you going to advertise it at the event?  I want people to know why I did what I did.  They only know one side of the story.

I think you should stay away from Jim.  He's not a good influence on you or your son.  The most important thing is your son, family and job.  I can't wait for you -- I can't wait for you to bring your son up to a visit.  Thanks for the [278] letter.  I like to hear from you.  When we get mail here everyone swears -- wait -- everyone swarms the guard like flies on shit.  When he calls my name I feel real good.  Especially if the letter comes from you.  Tell me how this lawyer can get me bailed out.  How can we make sure that I won't get a detainer placed on me?  I have two other bails in Media from PSA hearings.  The main case is $100,000 bail.  And the two -- the other two is $500,000 each cash bail.  Before they let me go I need a Pennsylvania address.  Can you find out from Jackie where I can stay or what address I can use?

Jen is sending pictures of herself to inmates.  They contacted her when they saw the doc number in the papers.  Now I'm getting more threats.  She told the inmates that I was harassing her.  And then it says, Sunday, and I wrote today's visit, you were so funny today.  I'm hoping that next weekend you will being up your son.  I hope we raise enough money for this lawyer in time at the beef and beer.  After this morning hearing this stuff I'm really getting stressed.  I want to get out of here.  I really want to stay away from Shawn.  All that Jen has put me through I get mad at myself for allowing Jen to put me through this stuff.

Sometimes I think about how -- I think about was it worth it.  Sometimes I wish I had met you sooner.  Katelyn is worth everything and [279] more.  I can't wait to come home and get that hot oil massage.  I can't wait to see you with some purple lingerie.  I hope that your son is doing good.  I'm glad your mom is starting to support you.  I'm glad you read the letters to your mom.  She's starting to believe in you.  I'm glad you remember so much more than I do.  Some things I really don't remember.  The shoes and socks thing I feel that they are setting me up.  My sister told me that they showed her something totally different.  I can't wait to see you this weekend.

Sincerely yours, your old head.

PS: I'm going to give you my mom's number, my sister's and my uncle's number.  And they're listed.

Q. Did he write the names of three people down there?
A. Mom, Lisa and Sam Huff.
Q. In your conversations with him did you -- did he tell you who was Bonnie Bagley?
A. Bonnie's his mother.
Q. Did he tell you who Lisa was?
A. Lisa is his sister.
Q. Did he tell you who Sam Huff was?
A. An uncle -- but not by relation.  Like the respect.
Q. And where did Sam Huff live?  [280]
A. New York.
Q. Did -- when you visited the prison did you ask the defendant where Katelyn was?
A. Yes.
Q. What did the defendant tell you?
A. He was very shy about answering my questions.  First -- it flipped around to ...
Q. Speak up, ma'am.
A. It flipped around to Maryland.
Q. What was the first thing that he told you about Katelyn?
A. The first thing that I can recall, it was two different scenarios that I got.  The first one I think was given to a couple, a Maryland couple.
Q. Where did he say that he had given Katelyn away?
A. Longwood Gardens.
Q. And he said he gave her to who?
A. A couple.
Q. From where?
A. Maryland.
Q. How did he know that the couple was from Maryland?
A. The license plate he state, I think, was orange.  But that's a Florida license plate.  [281]
Q. What did he say about the license plates on the car?
A. One time it was orange.  One time it was a bird on one foot.
Q. Did you -- when he said that there was a bird on one foot on the license plate, what did you take from that?  Did you know what kind of license plate that was?
A. Not until I seen it recently as a Maryland plate.
Q. And the license plate that had the orange on it, what did you believe that to mean?
A. I knew that was Florida.
Q. So he -- one time he told you they were from Maryland, another time he told you they were from Florida?
A. He ended up telling me they were from Florida.
Q. What else did he tell you?
A. That she's safe.  She is being well kept by whoever she is with.
Q. Where did he -- did he ever tell you in what state she was?
A. He went around about with the two to three days to get there.  And from my recollection I [282] think that we did discuss somewhere down south in Florida.
Q. Did he tell you what kind of car these people took Katelyn away in?
A. First it was a Dodge Caravan.  And it was red.  And then like later discussion it went to a Durango.
Q. First a Caravan then it's a Durango?
A. Yeah.
Q. Were you present with Rose Quinn in Delaware County Prison on October the 19th of 1999?
A. Yes, I was.
Q. Rose Quinn from the Daily Times was asking the defendant questions.  Is that right?
A. Yes.
Q. And was the defendant answering those questions?
A. Yes.
Q. Did he answer all the questions?
A. No, I don't think he answered all of them.  I basically stayed out of it.  But he was ...
Q. You sat there and listened ...
A. Yes.
Q. ... to Rose Quinn ask the questions and you heard the defendant give the answers to some of the [283] questions?
A. Yes.
Q. What did Kait -- what did the defendant say during that interview when Rose Quinn asked him about where Katelyn was?
A. Only me and God know ...
Q. I'm sorry, please speak up.
A. Only me and God know where Katelyn is.
Q. Only me and God know where Katelyn is?
A. Yes.
Q. Did Rose Quinn ask the defendant about the sneaker and the sock?
A. I don't remember.
Q. Did you read the article in the paper?
A. Yes.
Q. Let me show you Commonwealth's Exhibit C57.  Would you take that?  Would you look about half-way down the first column.
A. Uh-huh.  This one, this one?
Q. Right.
A. Okay.
Q. Have you read that?
A. I read this article, yes.
Q. Okay.  Does that refresh your recollection about Rose Quinn's question and the [284] defendant's answer regarding the sneaker and the sock?
A. It doesn't refresh my recollection of her question, no.
Q. Does it refresh your recollection about the defendant's answer when he was asked about the sneaker and the sock?
A. No, not really.
Q. What did the defendant say about the sneaker and the sock?  What does the story say?
A. This says that he's being railroaded.
Q. Is that what the defendant said?
A. It's too far back for me to remember.  It was basically them talking.
Q. Do you have any reason to believe that Miss Quinn put something in there that the defendant didn't say?
A. No.

Mr. Smith:  I object, Your Honor.

The Court:  Sustained.

By Mr. Reilly:
Q. Ma'am, did the defendant say during the [285] course of that interview, did the defendant give a reason for why he took Katelyn?
A. To get back at Jen.
Q. It that what he said?
A. That's all I can remember.
Q. Did he say why he wanted to get back at Jen?
A. Nope.  I really can't go back that far.
Q. Did the defendant say that at some point in the future he would talk about what happened to Katelyn?
A. When he was ready.
Q. I'm sorry?
A. When he was ready.
Q. He said that he would tell when he was ready?
A. Yes.

Mr. Reilly:  That's all I have, Your Honor.  Thank you.

The Court:  Cross-examine.

Mr. Smith:  Thank you, Your Honor.  [286]

CROSS EXAMINATION AS ON REBUTTAL

By Mr. Smith:
Q. Miss Lupi, those letters that you read, the three letters, 58, 59 and 60, there's a signature on them that you've identified as Robert's.  Do you know his signature?
A. Yes.
Q. Did Robert also write the letters?  I mean, they're handwritten letters.  Is that Robert's handwriting?
A. That I can't tell you.  I wasn't there when he -- when they were written.  But from my understanding that he doesn't know how to write.
Q. So you don't know who wrote those letters?
A. As far as I'm concerned, Rob did.
Q. But all you know is what you know is it's his signature on them.
A. Yes.
Q. But you don't recognize the penmanship in the letter itself?
A. No.  Because I never seen his writing before.
Q. So he could have had somebody write it for him and say somebody else writes the letter and he [287] signs his name.
A. Yes.
Q. Okay.  So if he can't read or write, then what he's got to rely on is that whoever wrote the letter for him wrote what he either wanted in there or wrote and told him what he believed to be in the letter to be a reflection of what he said, right?
A. Possibly.
Q. Okay.

Mr. Smith:  That's all I have.

Mr. Reilly:  Just one more, Your Honor.

REDIRECT EXAMINATION AS ON REBUTTAL

By Mr. Reilly:
Q. Miss Lupi, in two of these letters the defendant makes reference to a beef and beer that was going to be organized on the defendant's behalf. Would you tell the jury what you discussed with the defendant about having a beef and beer?
A. That was actually not my idea.
Q. That was the defendant's idea I guess?
A. No.  That was a lady named Jackie Morris [288] who's a child advocate.
Q. Uh-huh.
A. She has faith in Rob.
Q. And the defendant believed that there was going to be a beef and beer for him.  Is that right?
A. Yeah.
Q. And what was the reason that there was a beef and beer going to be organized for the defendant?
A. The reason for the beef and beer was to raise enough money to get him out to take us to get Katelyn.
Q. Uh-huh.  And that was going to be the two or three day trip that he refers to in there?
A. Yes.
Q. All right.

Mr. Reilly:  That's all, Your Honor.  Thank you.

Mr. Smith:  One question.

RECROSS EXAMINATION AS ON REBUTTAL

By Mr. Smith:
Q. Did any such beef and beer ever take place?  [289]
A. No.
Q. Thank you.

The Court:  You're excused, ma'am.

Miss Lupi:  Thank you.

The Court:  Is that all?

Mr. Reilly:  Yes, sir.

The Court:
All right.  Ladies and gentlemen, we're going to recess for the day.  Remember, don't discuss the case, don't let anyone discuss it with you.  Don't ready anything about it.  Don't listen.  Don't discuss.  We'll see you back here tomorrow morning at 9:30. [290]

[1][2][3][4]

Proceedings - January 18, 2002

[Side-bar conference]

The Court:
This is the matter of Commonwealth vs. Robert Rivera, 411 of 2000.  Gentlemen, there is an issue that we want to put on the record.

Mr. Smith:
Yes, Your Honor, yesterday, during the testimony of Detective Reardon, he made reference to the fact that he -- after Robert Rivera was taken into custody on August 11, 1999, he, Detective Reardon, went over to him in the car where he was then in custody and gave him certain Miranda warnings.  And then, having given him those Miranda warnings, asked him a question, asked him where's Katelyn.  At that point, in some fashion, the Defendant indicated a reluctance to talk.  He either said I'm not going to tell you or he didn't say anything or shook his [5] head, but somehow he indicated that he was silent.  Detective Reardon then indicated, in similar fashion, to the jury that Defendant remained silent.

Obviously, Your Honor, any reference to a Defendant remaining silent after being arrested and after being Mirandized, that he has the right to remain silent and that I don't want any prejudice to my client on account of that -- that testimony by Detective Reardon.  So it's my position, at this time, that we need to address that as an issue and resolve it in some fashion that would be appropriate so that the jury does not maintain a false impression that somehow the Defendant had an obligation to speak.  I believe it was not intended by Detective Reardon but, nonetheless, it came out and even could be interpreted that way.

The Court:  Just a summation of the factual [6] background.

Mr. Reilly:
Your Honor, I would point out for the record that it was a brief reference.  It was a mistake by Detective Reardon.  It is not something that the Commonwealth did or will exploit.  And viewed in its context, Your Honor, as the Court is aware, the Defendant gave -- the Defendant spoke at length to Detective Reardon, to Ms. Helton and has spoken to virtually everyone else involved in this case since then.  So there's no issue of the Defendant being silent, as you typically see in these post-duress and silence cases.

The Court:
No, in fact, after he had spoken with Jennifer, detective again asked him we had a deal that if I allowed you to meet with Jennifer you'd tell me where Katelyn is.  And he said I won't tell you.  So, I mean, it [7] flows right through that.

Mr. Reilly:
I believe in context, Your Honor, that the error is harmless and ask the Court to make that finding on the record.  And I have no objection to the Court giving a cautionary instruction.

The Court:
All right, as requested, but I certainly believe it's harmless because it is in context with everything that transpired thereafter.

Mr. Reilly:  Yes, sir.

Mr. Smith:
And then, Your Honor, I think it should be agreed by counsel with the cautionary instruction at this point to the jury that the best way to preserve that cautionary instruction would be for neither counsel to raise it as an issue subsequent thereto.  [8]

The Court:  I think that's a given.

Mr. Reilly:  It's absolutely not an issue in this case, yes, sir.

[End side-bar conference]

The Court:
Good morning, ladies and gentlemen of the jury.  Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  Just preliminarily, you recall when Detective Reardon testified he indicated that after Defendant was placed under arrest and given his Miranda warnings, Detective Reardon asked him where Katelyn was.  He indicated -- Defendant indicated he didn't want to talk about it.  Now under the Constitution, Defendant has a right, he doesn't have to say anything.  He has a perfect right not to say anything and keep quiet if he wishes to. Under the law, that cannot be used against him.  Therefore, you will ignore that particular comment.  Satisfactory, gentlemen?

Mr. Smith:  Yes, sir.  [9]

Mr. Reilly:  Yes, Your Honor, thank you.

The Court:  Okay.

Mr. Reilly:  Your Honor, Commonwealth calls Agent Donna Kibbie.

Donna Kibbie, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Agent Kibbie, by whom are you employed?
A. The Federal Bureau of Investigation.
Q. And for how long have you been an FBI agent?
A. Twenty-two years in May of this year.
Q. Where are you stationed?
A. I'm assigned to the Newtown Square Resident Agency in Newtown Square, Pennsylvania.
Q. Now did you become involved in the investigation or the disappearance of Katelyn Rivera?  [10]
A. Yes, I did.
Q. How did you become involved in it?
A. I got a call from the -- I think it's Sergeant Harris of the Upper Chichester Police Department, who requested -- he gave me a little thumbnail sketch of what had happened.  And they requested some assistance.
Q. And did you respond to Upper Chichester Police Department?
A. Yes, I called Lieutenant Peifer and we went down.
Q. Now did you meet with the Defendant, Robert Rivera?
A. Yes, we did.
Q. You met with him on August 11, 1999?
A. Right.
Q. That was the day he had been arrested, correct?
A. Right.
Q. How was it that you came to meet the Defendant?
A. He was in custody at the Upper Chichester Police Department.  We had been requested to assist, so we went down and spoke with him, asked if he would speak with us and he said he would.  So we spoke with him.  [11]
Q. Was that you and Lieutenant Peifer?
A. Right.
Q. Now subsequent to your interview of the Defendant, you prepared a report called a 302, is that correct?
A. That's correct.
Q. Tell the jury, what's a 302?
A. It's a memorialization of what transpires in the interview.  It's my write-up of what happened during the interview.
Q. I show you what's been marked as Commonwealth's Exhibit C61 for identification.  It's a three-page document.  Would you take a look at that and tell me if you recognize it?
A. Yes, I do.
Q. What is that?
A. This is a 302 that I prepared as a result of my interview with Robert Rivera.
Q. Where did you begin your interview of the Defendant?  Where were you, physically?
A. Oh, physically, at the police department.
Q. Was it just you and Lieutenant Peifer?
A. And Robert Rivera, yes.
Q. And the Defendant; you were the only two police officers that were there?  [12]
A. Yes.
Q. How did you begin the Defendant's interview?
A. Lieutenant Peifer asked -- advised Mr. Rivera that he had gotten his Miranda rights earlier in the day.  He understood them and asked would you be willing to speak with us.  And Mr. Rivera indicated that he would.
Q. And how did you begin the questioning?
A. Well we began the questioning by tell us what happened.
Q. And what did the Defendant tell you?
A. He had said that he had went to Court that morning.  He said it was a -- during the -- he didn't have any representation.  He was upset because he had no representation and Jennifer Helton did have representation.  And he got the impression from the Court proceeding that he would not -- he would be going to jail for a long time and he would not be seeing Katelyn for a long time.
Q. All right.
A. He was upset at that.  After leaving the proceeding, he saw Jennifer at the Wawa.  He saw that she had stopped at the Wawa.  So he stopped at the Wawa, also, and they had a fight.  [13]
Q. Did he describe the fight, at all?
A. He may have, but all I recall is he said they had a fight.  He left.  And when he left, he went over to the daycare provider where Katelyn was staying, took the -- Katelyn and left with her.  He said he just wanted to spend the day with her, spend some time with her.
Q. What did he tell you next?
A. He said -- well he told us where he took her.
Q. Where did he say that he went?
A. He went to the art museum, and they saw some motorcycles, which -- the police on motorcycles, which Katelyn enjoyed.  And then they went to South Street.  They went to a hoagie shop in Delaware and some park down there.  They did not go into the park because it required an entrance fee and he was short on money.
Q. Did he say that he spoke to anyone that day?
A. He spoke to a woman who used to live near him, who he knew as Big Momma.
Q. Big Momma?
A. Big Momma.
Q. And did he say what he -- the reason why -- what he had said to this woman?  [14]
A. He said that he just wanted to talk to somebody.  He wanted to tell his problems, you know.  He was upset because he was allowed visitation with Katelyn.  And it was supervised visitation.  And in his view, he was not getting as much time as he was supposed to.  So he wanted to talk about his problems.  And nobody would listen, so he went to talk to Big Momma.
Q. Now what's the next thing that he told you?
A. The next thing he told us is that he had stopped at a Sunoco Gas Station on Route 1 in Chadds Ford.  And he bought $2 worth of gas.  Then he took Katelyn down to a Dairy Queen.  And then they went to what he called a park/museum.  He said there were pictures on the wall, which we took to be Longwood Gardens.  And he had planned -- he had planned on having -- on taking Katelyn to the Amish and asking them to take care of her.  And when he went to Longwood Gardens, he met a woman by the gift shop.  And he asked this woman if she would take care of Katelyn because he thought she was nice.  And she agreed.  So he said I'm in the back of the parking lot.  So the woman and man who he assumed was her husband went to the back of the parking lot and he gave Katelyn to these people.
Q. Did he describe to you how he and Katelyn [15] parted when he gave Katelyn to these strangers?
A. When he was giving her to the strangers, he said she said, no, daddy.  And then he just closed his eyes and gave her away.
Q. What was the next thing that he told you?
A. Well they left with Katelyn.  He described the van that they had.  They had a dark green Caravan with a license tag with a bird standing on one foot in the middle.
Q. Did you -- when he described that, did you recognize that as being a particular license plate?
A. Yes, from Maryland.
Q. You knew that to be a Maryland license plate?
A. Yes.
Q. What else did he tell you?
A. Well they drove off and he said he sat in the parking lot for awhile.  And he was listening to some records.  Then he headed back into Philadelphia.  He stopped to get some gas at that same Sunoco Station.  He said he wanted $3 worth of gas.  And the -- he really didn't have any money.  The station attendant was going to give him some gas.  And he said no, take my watch.  So the station attendant took his watch and gave him $10 worth of gas and said I'll hold onto you watch until you [16] come back, you know, you can pay me later.  He said he went back to Longwood Gardens and sat in the parking lot for a few more minutes to think.  And then he left.
Q. Did he say at what time he gave Katelyn away to these strangers?
A. He said it was approximately 8:30 p.m.
Q. And as the Defendant was telling you that, what was your reaction?
A. To the time or ...
Q. To the time?  I mean, did 8:30, did that time sound accurate to you?
A. At the time I really didn't have any reason not to think that the time was accurate.
Q. Okay, now what did the Defendant say about -- about his leaving, about his departing the area?  Did he tell you anything about what he did when he left the area?
A. My recollection is that he told us he went and stayed in his car outside a friend's house.
Q. I'm sorry?
A. My recollection is that he spent the night in his car outside a friend's house.
Q. Now when you received this story from the Defendant, what did you do?
A. Well we asked if he'd be willing to take  [17] us to the area so we could see where all this happened.  And he agreed.  So we ...
Q. We being who?
A. Detective Peifer and myself -- or Lieutenant Peifer and myself.
Q. And the Defendant?
A. Yes.
Q. You all got into a police car?
A. Right.
Q. And where did you go?
A. We went to the vicinity of Route 202 and Route 1, and then Mr. Rivera directed us to go south on Route 1, towards Longwood Gardens.
Q. What happened when you got to Longwood Gardens, what did the Defendant do?
A. He took us to the area of the parking lot where he says the exchange had taken place.
Q. What happened then?
A. Well then we had called for assistance, K-9 assistance, and they started searching the area.  Some clothes had been brought.
Q. Explain to the jury what you mean, it was K-9 assistance, you called dogs in?
A. We called -- the State Police were involved.  And they have dogs that do searches, you [18] know, that take a piece of clothing and will search the area.  So that's what we did.  We had called for -- the State Police were there and we had their assistance and their dogs.  And somebody had brought some clothes that belonged to Katelyn.  So we searched the area, trying to get a lead on, you know, where she might have gone.
Q. And did the dogs develop any lead or any sign of Katelyn's presence there?
A. No.
Q. What -- what happened next?
A. Then Mr. Rivera was taken to the Media Police Department.
Q. Did the Defendant show you the route that he had taken to get to Longwood Gardens, how exactly he got there?
A. Yes, he did.
Q. What did he say?
A. He said he went down to the Dairy Queen, which is beyond Longwood Gardens.
Q. Is that south of Longwood Gardens?
A. South of Longwood Gardens; stopped there and then came back north.  He said he made an illegal left turn into Longwood Gardens, and there was a fire station.  The fire trucks had been out.  And Katelyn liked the fire trucks, so he stopped there and looked at [19] the fire trucks. Then he described there was a cemetery on the left and then the entrance to Longwood Gardens was to the right.  They went into Longwood Gardens.
Q. So he was emphatic that that was the place where this exchange had taken place?
A. Yes.
Q. For how long did you, the police officer -- the other police officers and the dogs search there at Longwood Gardens?
A. We were there probably close to midnight.
Q. From what time, about what time did you arrive?
A. Maybe -- it was just getting dark, maybe 8:30, 9:00, somewhere in there.
Q And ...
A. And after -- excuse me, after Mr. Rivera went to Media, we continued.  We stayed there.  We continued to search.  We looked at the Brandywine River Museum.  He had mentioned art on the walls.  So we thought well maybe it was the Brandywine and not Longwood Gardens, because he said he couldn't read or write.  So we thought maybe he had gotten there.  We looked there.  We looked -- you know, the dogs were searching all around Longwood Gardens.  And we looked at the dumpsters and the Sunoco parking lot.  And there was [20] a Wawa close. There were -- anything around where, you know, where we could look, where you could put something, we stayed for a while and looked.
Q. And you found nothing?
A. Nothing.
Q. Not a trace of Katelyn?
A. No.
Q. Okay, now Agent Kibbie, you maintained your involvement in the investigation after August 11, is that correct?
A. Correct.
Q. Searches continued?
A. Yes.
Q. Is that right?
A. Yes.
Q. Searches down in Maryland?
A. Right.
Q. And you were present down at Tom Whittaker's property in Elkton, is that right?
A. Yes.
Q. Now I want to direct your attention next to September 1, 1999.  It was shortly after 11:00 in the morning that day, did you meet with Jennifer Helton?
A. Yes.
Q. What was the reason you were going to [21] meet with Jennifer?
A. A shoe and a sock had been found that belonged -- likely belonged to Katelyn Rivera.  So we took the shoe and sock to Jennifer Helton's house.  And the purpose was to have her identify whether or not these did, in fact, belong to Katelyn.
Q. I'm going to show you Commonwealth Exhibit C41.  Do you recognize that?
A. Yes.
Q. What's that?
A. That's a little yellow sock.
Q. And which little yellow sock is that?
A. This is one that we showed to Jennifer Helton and her mother, Mrs. Helton, Olga Helton, and her aunt, Jane Baxter, was there, too.  We showed her the sock.  And she identified the sock as belonging to Katelyn.
Q. How about 42, tell us what that is?
A. Yes, this is a little sneaker that was found on Route 202.
Q. And did you show the sneaker to Jennifer and to her mother and to her aunt?
A. Well what we did is ...
Q. I was going to get to that next.
A. Oh.  [22]
Q. Did you show that to ...
A. Yes.
Q. Now when you arrived at Jennifer's -- you went to Sharples [ph] Avenue in Upper Chichester?
A. Right.
Q. Describe the method that you used to have the witnesses identify the sneaker and the sock?
A. Before we showed Jennifer the sneaker, we had her describe it, because it's unique.  It's got the little flowers on it.  She described a little white sneaker from Payless Shoe Store with little flowers on the front.
Q. And did she -- once she described it to you, did you recognize that she had described the sneaker you brought with you?
A. Right.
Q. And then what did you do?
A. Then we showed it to her.  And she said yes, it's a Coasters brand from -- that she had bought -- or that her aunt, I think, had bought at Payless.  And that was Katelyn's sneaker.
Q. Now Agent Kibbie, you contacted the other FBI field offices across the country, gave them information about Katelyn's disappearance, is that correct?  [23]
A. Right.
Q. Describe for the jury what you did?
A. All right, we have a cover sheet, a cover -- it's called an electronic communication.  We call it an EC.  It's a cover sheet for us that we put on a memorandum that I prepared, which is a summary of what has happened.  We have a missing child and this is what occurred on these dates.  And then I also attached a flier that has two pictures of Katelyn and all the information about her, her size and color of hair and all that.  And what I do is attach the memorandum and the poster to the cover communication, which directs -- and I sent it out to all the 55 field offices.  It directs them to contact all the law enforcement agencies in their area, give them the information.  They are to make however many copies they need to of the memorandum and the flier and distribute them to all the law enforcement agencies in the area.  And if there's any information that they can find out or if there's any -- like, for instance, if a child is found, anything like that, that we can match it up and get the information back to Philadelphia.
Q. So you sent that information to the 55 FBI field offices, is that correct?
A. Right.  [24]
Q. When they received that information, what did they do with it?
A. They disseminate; they make the copies and they give it out to the law enforcement ...
Q. Who would they give it out to?
A. All the police departments, the local media, whoever can help us find the child.  And then I asked them for only positive information, because it's huge, you know, all the contacts are huge.  So what the normal course of business is, if they have positive information to get back to me, otherwise, you know, just do what I asked you to do and that's it.
Q. And did you receive back any information that Katelyn had been sited?
A. None, at all.

Mr. Reilly:  Those are all the questions I have, Your Honor, thank you.

The Court:  You may cross-examine.

CROSS EXAMINATION

By Mr. Smith:
Q. Agent Kibbie, when you went out with [25] Robert, you went -- did you go to the Dairy Queen?
A. Yes, we drove down through there.
Q. And there was a Dairy Queen where he said there was?
A. Yes.
Q. And when you went by Longwood Gardens, there was a firehouse where he said there was one, wasn't there?
A. Yes, there was.
Q. And he showed you where he made the illegal turn into the Longwood Gardens, didn't he?
A. Yes.
Q. And there was a place where you could make an illegal turn, wasn't there?
A. Yes.
Q. And the other descriptions that he gave you about the cemetery being -- those things were there, weren't they?
A. Yes.
Q. And this -- this flier and this form that you sent about missing children, you have a whole procedure for that in your FBI training and offices and things, don't you?
A. Yes.
Q. And that's because a lot of children go [26] missing, so to speak?
A. Yes.

Mr. Smith:  That's all the questions I have.

Mr. Reilly:  Just one more thing, Your Honor.

REDIRECT EXAMINATION

By Mr. Reilly:
Q. I show you what's been marked Commonwealth's Exhibit C62 for identification purposes.  Could you take a look at that and I ask if you can recognize that?
A. Yes, I do.
Q. And what is that?
A. This is my electronic communication and attached is the LHM, which is the memorandum, letterhead memorandum, which is distributed with the flier to all the law enforcement and the media.  This gives a synopsis of what's happened, so if the media needs information, it's all here.  It's more information than is on the flier.
Q. And I show you Commonwealth's Exhibit C63.  Do you recognize that?  [27]
A. Yes.
Q. What's that?
A. This is the flier that I attached.  In fact, I sent all the field offices three copies of this and three copies ...
Q. Three copies -- you say three copies of this, three copies of C63, which is the flier?
A. Yes.
Q. And the flier contains Katelyn's name and two pictures and some other information?
A. Right and numbers to get in contact with if they have any information.

Mr. Reilly:  That's all, Your Honor.

The Court:  You're excused.

Mr. Reilly:  Agent James McCarthy, Your Honor.

James McCarthy, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION  [28]

By Mr. Reilly:
Q. Agent McCarthy, you're employed by the FBI, is that correct?
A. Yes, sir.
Q. For how long have you been an FBI agent?
A. Eleven years.
Q. Were you employed as an FBI agent in August of 1999?
A. Yes, sir, I was.
Q. And were you asked to participate in the investigation of the disappearance of Katelyn Rivera?
A. Yes.
Q. Directing your attention specifically to August 18 and August 19 of 1999, what did you do?
A. I interviewed several relatives of Mr. Rivera.
Q. You interviewed a Lisa McLardy, is that correct?
A. Yes.
Q. And who is she?
A. She is a sister of Mr. Rivera.
Q. And you also interviewed a woman named Bonnie Bagley, is that right?
A. Yes.
Q. And who is she?  [29]
A. She's Mr. Rivera's mother.
Q. You interviewed Ms. McLardy on August 18?
A. Yes.
Q. And Ms. Bagley when?
A. It would have been probably the day after, the 19th.
Q. Were you admitted to their homes?
A. Yes; I interviewed Ms. McLardy at her home, at 31 Cradle Lake Drive in Corm, New York.
Q. Where is it, Corm, New York?
A. Corm.
Q. C-o-r-m?
A. Yes, sir.
Q. And how about Ms. Bagley, where did you interview her?
A. I interviewed her at her home at 5 Barbara Drive -- 5 Barbara Avenue, Port Jefferson Station, New York.
Q. Port Jefferson Station, New York?
A. Yes.
Q. Now how much time did you spend with these two ladies?
A. At least an hour with each; Ms. McLardy, somewhat longer.  But with Ms. Bagley there, at least an hour.  I was permitted into her home, took a look [30] around.
Q. And as a result of your visit to their home and the interviews that you conducted, did you locate Katelyn?
A. No.

Mr. Reilly:  That's all, Your Honor.

The Court:  You may cross-examine.

Mr. Smith:  No questions.

The Court:  You're excused.

The Witness:  Thank you.

Mr. Reilly: Charles Pickett, Your Honor.

[Side-bar conference]

Mr. Smith:
Your Honor, at this time I would move to strike the testimony of Agent McCarthy on the grounds that it is nothing but innuendo and that he did not even testify and was not [31] able to testify as to any questions that were asked.  He never even testified that he asked them if they knew about Katelyn.  He wasn't asked anything that indicated that he was there to interview them specifically about the location of -- or the whereabouts of Katelyn.  And so the conclusion that he drew is unsupported by any testimony.  And I move to strike.

Mr. Reilly:
There's -- there's no conclusion, whatsoever, in his testimony.  The Commonwealth is proving that Agent McCarthy and now Agent Pickett went looking for, trying to -- looking for Katelyn, trying to find information.  They found none.

Mr. Smith:
No, but he didn't say that.  He didn't say that.  He didn't testify that he asked them anything about the whereabouts of Katelyn or was there to discuss with them the [32] whereabouts of Katelyn.  To the contrary, he simply said he was involved in the case as an FBI agent, in the disappearance of Katelyn.  He then went and interviewed the Defendant's mother and the Defendant's sister.  And after he interviewed them, did he locate Katelyn, no.  That's -- that's highly prejudicial and certainly not probative of -- he didn't ask -- he wasn't even asked did you inquire of them any information about the location of Katelyn.  He wasn't even asked any of that.

So to put that on now draws a conclusion based on no facts and creates a prejudicial inference that somehow, because this was the mother and sister that this Defendant is now prejudiced by -- even his mother and sister couldn't come up with the location of Katelyn.  He wasn't even asked whether he was there to talk to them [33] about that, let alone that they said they knew something or didn't know something, or that they were hiding something or not hiding anything.  Your Honor, that's a conclusion that's not substantiated by any testimony and should be stricken.  And Your Honor, is the next witness going to be the same?  Is this the same -- more of the same?

Mr. Reilly:  Yes.

Mr. Smith:  May I just -- I'll make my objection now ...

The Court:  Okay, it's on the record.

[End side-bar conference]

Charles Pickett, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:  [34]
Q. Mr. Pickett, by whom are you employed?
A. I'm employed as a senior case manager for the National Center for Missing and Exploited Children.
Q. And for how long have you held that position?
A. I have been with them since December of 1984.
Q. Before you were employed at the National Center in 1984, would you describe briefly your employment background?
A. I started my law enforcement career with the Richmond Bureau of Police.  During that tenure I worked in a division within the Western Bureau of Police.  I became a Virginia state trooper and during that time became a licensed polygraph examiner.  I worked in the private sector and was hired by the national sector in 1984, coming from the State of Virginia as the Investigative Bureau for Child Support Enforcement.
Q. I direct your attention to August 12, 1999.  Did you receive information about a missing child named Katelyn Rivera?
A. Detective Reardon contacted the National Center for Missing and Exploited Children and made us aware that a child had become missing. And we became [35] involved in the search for the child.
Q. Tell me what did the National Center do to assist the police in this case?
A. During the time that she has been missing, we've ...
Q. Let's start from the beginning.  You got some information about Katelyn?
A. Yes, Detective Reardon got in touch with us.  We developed a poster that we set up to distribute.
Q. Let me show this to you, Mr. Pickett.  This is Commonwealth Exhibit Cl6 for identification.  Do you recognize that?
A. Yes.
Q. Tell us what that is?
A. That's a poster that's utilized by the National Center to distribute around the country, Canada, Puerto Rico, used in our website, missingkids.com.  It's distributed throughout the United States.
Q. What's the information that you put on C16?
A. We put information about the child, circumstances about how the child became missing during that time.  We put the Upper Chi phone number in case anybody wants to call them, directly, and our 800 [36] number, which is 800-843-5678, or 800-THE-LOST.  It's actually accessible free also from Canada and Puerto Rico.
Q. Now how do you publicize the information that's contained in this poster?
A. We have a media department.  We make them aware of the case that we're involved in.  And we distribute the media throughout our resources where we have over 900 different types of media that we have access to.  During the early time that she was missing, we actually even sent posters by fax to all the open fax machines in the zip code around the area that the child was missing.
Q. Let me show you Commonwealth's Exhibit C64 for identification, two-page document.  I'd ask you to take a look at that.  Do you recognize that?
A. Yes, can I have that for my note?
Q. Yes.
A. This is -- because of our computer capabilities, when we put in Rivera-Helton and asked where has the child been distributed, this particular document comes out of our computer and it ties to the medial that we actually had sent the child's picture to through our media department.
Q. Now there are quite a number of places [37] there that you sent information about Katelyn, is that correct?
A. Yes.
Q. Would you indicate for the jury some of the more significant places to whom you sent this information?
A. Federal Times, since the first year the child has been missing.  She was on the WABC TV out of New York right during prime time news.  The IRS actually used this for their guide for the federal income tax in 2001 and actually was put in 38 million documents that was made available to anyone in the United States.  The early year that she was missing, she actually, in the year 2000, she was on the 1040 instruction booklet that is distributed to everybody if you want to know how to fill out the 1040.  Her picture was actually on the booklet that went out to anybody that was a taxpayer in the United States.  The Eckerd Drug Corporation, which is a nationally and regionally organized Eckerd Drug Pharmacy piece, they actually distributed her in the Sunday documents, you know, when they do the little ad for the Eckerd Drugs, they actually had Katelyn's picture in there.  When we did the fax count up in the Upper Chi area ...
Q. You say fax count, what do you mean by [38] that?
A. This is when we -- we have the capability, if you have a fax machine in your house and you have it on, we hit a button and if you're in the zip code that we want to hit, every fax machine gets that picture.  And we sent it out to 2,587 homes in the area where the child was missing.  And that actually was documented that it was received by 1,960.  So it was kind of an emergent thing.  We wanted anybody to know anything that they may know about this child, that they would call the police department or call our 800 number.  We also sent this to every Wal-Mart in Puerto Rico; also distributed this as a Spanish poster to Puerto Rico.  There were 17 Wal-Marts in Puerto Rico, and every one of them distributed this child or had this child on their bulletin board as you walk into the Wal-Mart store there.
Q. It wasn't just the Wal-Marts in Puerto Rico, is that correct?
A. That's right; that's right, but that was a special mailing that we did.  Every state police organization in the country within the days after she became missing actually had her child -- was sent to them on their website, so they could distribute it in their state.  They could be alerted to it that it was, [39] you know, made available.  We also sent it to the medical examiners from Virginia to Maine to cover, you know, different aspects along that line.  There's a Valu-Mail, which is like the cards that you maybe get in your mail that covered the whole northeast and Pennsylvania up to Maine, where they did a distribution early on in 1999.
Q. How about airports, Mr. Pickett?
A. The -- in many of the airports we have kiosks that talk about missing children.  And they had safety pieces in there.  But also in those kiosks, in this country and most of them are located in international airports in this country and in Canada, we have these kiosks in place.  In the week that a child becomes missing, we're able to go on that kiosk, electronically, all over the country, and hit a button, put Katelyn's picture up there.  And as you're walking down the aisle in the airport, you're looking at Katelyn's picture during that week that she was missing.
Q. You have a website, as well, is that
right?
A. Our website, called missingkids.com, gets approximately three million hits a day where people go on that website looking at information about missing child or to get information about their family or to use  [40] in a school project.  There are various resources that are available on there.
Q. Now, Mr. Pickett, have you been contacted by -- how many people have you been contacted by regarding this information that you've sent out?  How many folks have contacted you about Katelyn?
A. Is this leads that we have received?
Q. Yes, sir.
A. Yes, we have received -- since the time the child had become missing, we had received 8 leads.  They were forwarded to law enforcement for their followup.  We do not handle the investigative side of it, but we assure that they have the information so they can follow up and confirm whether that's a valid lead or not.
Q. Katelyn's mother, Jennifer Helton, contact you?
A. Katelyn's mother was very important early on, getting us the picture, coordinating with us information about the description, those kinds of variables, to see early on was an important piece to us, to get us the information that we needed.
Q. Has Katelyn's father, Robert Rivera, ever contacted the National Center regarding his daughter?
A. No, he has never talked to me at the  [41]
National Center for Missing Children since the child became missing.

Mr. Reilly:  That's all I have, Your Honor.

The Court:  You may cross-examine.

Mr. Smith:  May I see the Court at side-bar?

[Side-bar conference]

Mr. Smith:
Your Honor, I'm distressed at that last question and answer session about Robert Rivera not contacting the Center.  We're now four-square with the Defendant, who's been placed under arrest, who has a sixth amendment right to counsel, who is represented by counsel, who has expressed his right to remain silent.  And now this man has been asked whether or not Robert Rivera spoke to him about this.  And this man's been under arrest from the 11th of August, 1999.  I, first of [42] all, move for a mistrial on the grounds that this is an inflammatory and highly prejudicial statement and answer, because now we are back to and facing not 30 minutes after we just went through the cautionary instruction to the jury, that he has an absolute right to remain silent, and they're not to consider anything from it.  He just gets asked a question about the Defendant exercising his right to remain silent.

Mr. Reilly:
Your Honor, I believe that Mr. Rivera's -- it would be consistent with Mr. Rivera's duties as a father to communicate with those people who were looking for his missing daughter.  And it is for that reason that the witness has so testified.

Mr. Smith:
Your Honor, that's a preposterous misinterpretation.  And what he's trying to do now is ignore the  [43] Defendant's fifth amendment right to silence and sixth amendment right to counsel, which are the overriding Constitutional concerns here, not some emotionally fueled relationship as a father to deal with these people.  This man has testified he's a former state trooper, career in law enforcement was the way he described himself at the outset here.  And now Defendant's silence is the four-square issue that I cannot address without creating more problems.  I move for a mistrial.

The Court:
I'm going to deny your motion for a mistrial.  Do you want me to give a curative instruction similar to the one I gave with respect to Detective Reardon, that he had no obligation to contact

Mr. Smith:  Absolutely, Your Honor.

The Court:  Okay.  [44]

[End side-bar conference]

The Court:
Ladies and gentlemen of the jury, with respect to the last answer concerning whether or not -- the last question did Robert Rivera contact the Center, just as I had mentioned to you at the outset of today's proceedings, Defendant has the absolute right under the Constitution to remain silent.  The fact that he did or did not make contact cannot be taken as any evidence against him.  Strike that from any consideration.  That's stricken from the record.  Anything else?

Mr. Reilly:  No, sir.

Mr. Smith:  Thank you, Your Honor.

CROSS EXAMINATION
By Mr. Smith:
Q. Mr. Pickett, how many children are on your -- is your website your primary -- every child that goes missing, as you call it, are they on your website, is that where they go?
A. It's gotten media ready.  We have about [45] 8,000 cases that we're actively involved in at this time.
Q. So there are 8,000 ...
A. No; no, some of them we don't have pictures on and we're in the process -- there's a -- we have a constant where we recover children and children remain missing.  I'm not quite sure what the number is.  It's on the website right now.
Q. Okay, but I may be asking the question inartfully, sir.  I don't -- all I'm trying to get to is the number you're working on now.  And I take it that's about 8,000, am I hearing you correctly?
A. Yes.
Q. Okay, and going back to the year 2000, was that number substantially different, was it smaller, greater, is 8,000 still approximately the number then?
A. It seems to hold.  We, you know, recover a high number of the cases that we're involved in.  But we're getting new cases in, every day.  Since the Center was created, we've had 1,622,000-plus calls for assistance.
Q. 1,622,000 missing children ...
A. Well no, calls for assistance for people to utilize the National Center as a resource.
Q. For a claim of a missing child?  [46]
A. Well or to give us leads about cases.
Q. And you said since the Center was started?
A. That was 1984.
Q. 1984; do you keep records on percentages of children you find or don't find?  Do you keep some sort of statistic on that?
A. Yes.

Mr. Reilly:  Objection, Your Honor, objection; may we see you at side-bar?

[Side-bar conference]

The Court:  I understand where you're coming from.  But put it on the record.

Mr. Reilly:
I believe that Mr. Smith is attempting to extrapolate some kind of statistics from Mr. Pickett and have Mr. Pickett -- and then use that information to say it's more or less likely that Katelyn could be found.  And I believe that such testimony is not relevant.  [47]

Mr. Smith:
Why isn't it relevant?  If -- if the testimony, so far, is to indicate that they did all these things to find her, I want to be able to ask him do they do the same or similar things in other cases and have they found those children, as well.

Mr. Reilly:
What happens in other cases is not relevant to what happens in this case.  Mr. Pickett has testified to what he did in this case, the efforts that his organization put forth to find her.  What happened in some other case, in one other case or a group of other cases, is of no mind.

Mr. Smith:
But the genesis of this testimony comes from his organization's ability to go and find children.

Mr. Reilly:
He's testified about what he's done to try and help find Katelyn, and [48] we've been unsuccessful.  Whether he's been successful in another case or cases, what the percentage of those cases are not relevant to what he's done in finding -- in attempting to find Katelyn.

The Court:  Or what the circumstances were in those other cases

Mr. Smith:  Well so then I'll limit my question to cases of similar circumstances.

Mr. Reilly:  No, Your Honor, I disagree.  I disagree.  It would be wholly inappropriate ...

The Court:
In other words, to say they weren't successful in finding a 16-year-old who was having problems at home would not be relevant.  If you restrict it to similar circumstances, I'll permit it as appropriate cross-examination, if you can do that.  [49]

[End side-bar conference]

By Mr. Smith:
Q. Mr. Pickett, do you -- I know this is a difficult question, do you keep your statistical information on the basis of what I'll call circumstances, like cases similar to this one, where you have a child two-years-of-age or slightly less than two years of age, that goes missing, do you keep statistics on -- like you have a child that's twenty-months-old, twenty-one-months-old, that goes missing, two-year-olds that go missing, and statistically do you keep track of those by how many you find, how many you don't find, that kind of thing?
A. We can identify that as a special search or as a special request, if you ask that.  We could go into the computer and identify cases in that age range.
Q You ...
A. But I don't have that number here today.
Q. Do you have any general information about your organization's, what I'll call, success rate under similar -- in similar cases as this one, similar circumstances to Katelyn?

Mr. Reilly:  [50] Objection, Your Honor.

The Court:  Ask the question, again.

By Mr. Smith:
Q. I'm referring to, again, you said if you had specific information, you'd have to go to your computer to give us the percent, so to speak ...
A. Yes, for that age range.
Q. So I'm saying to you, do you, sir, as the senior case manager for the Center, do you, sir, have any general information with regard to your success rate in finding missing children in cases that are -- when I say similar to, that means, you know, a child like Katelyn's age and circumstances?

Mr. Reilly:  Objection, Your Honor.

The Court:  Let him answer the question, first, if he could.

The Witness:
I have -- I can give you an overview of 1990, of all the cases that the National Center has handled.

By Mr. Smith:  [51]
Q. Would that include other cases not similar to -- that includes like 12-year-olds and ...
A. Yes.
Q. You can't break it down the way I've asked you to?
A. No, not here today.

Mr. Smith:  Then I have nothing further.

Mr. Reilly:  Nothing else, Your Honor.

The Court:  You're excused.

Mr. Reilly: Carlos Pacheco, Your Honor.

CARLOS PACHECO, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

The Court:  I'm sorry, I didn't get your last name, sir?

The Witness:  [52] Carlos Pacheco.

The Court:  Could you spell that, please?

The Witness:  P-a-c-h-e-c-o.

DIRECT EXAMINATION  [53]
By Mr. Reilly:
Q. Agent Pacheco, you're employed by the Department of Justice in the Commonwealth of Puerto Rico, is that correct?
A. Yes, sir.
Q. And you are assigned right now to the FBI, FBI's Puerto Rico's office, is that right?
A. Yes, sir.
Q. So you're paid by the Commonwealth of Puerto Rico, but you work for the FBI, is that right?
A. I get paid from the Commonwealth and also by the FBI.
Q. Okay, now were you assigned to investigate the disappearance of Katelyn Rivera?
A. Yes, sir, we covered some leads and we ...

Mr. Smith:  I object to what we did, Your Honor.

By Mr. Reilly:
Q. You have to testify about what you did, Agent Pacheco.
A. Oh, followed some leads regarding a kidnap of Katherine [sic] Rivera.
Q. Now you spoke to three people.  You interviewed three people in Puerto Rico, is that correct?
A. Yes, sir.
Q. Who were the three people you interviewed?
A. Tomas Martinez, Sonya Rivera and Hector Rivera.
Q. And who are those three people?
A. Tomas Martinez is married to Sonya Rivera; Sonya Rivera is the sister of Robert Rivera.
Q. And how about Hector Rivera?
A. Hector Rivera is the father of Robert Rivera.
Q. You conducted those interviews on August 23 and 24 of 1999, is that correct?
A. Yes, sir.
Q. And as a result of those interviews, were you successful in locating Katelyn Rivera?  [54]
A. No, sir.

Mr. Reilly:  That's all, Your Honor.

Mr. Smith:  No questions.

The Court:  You're excused.

The Witness:  Thank you, sir.

Mr. Reilly:  May we see Your Honor at side-bar?

[Side-bar conference]

Mr. Smith:
Same objection with Pacheco as to McCarthy, Agent McCarthy, same thing, Your Honor, no basis, no foundation, unsubstantiated answer, gives a false impression.

Mr. Reilly:
Same as before, Your Honor, it was -- the witness demonstrates the Commonwealth's effort to locate Katelyn Rivera and the fact that our efforts have been unsuccessful.  [55]

The Court:  I'll overrule the objection.

[End side-bar conference]

Mr. Reilly:  Lee Wray, Your Honor.

LEE WRAY, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION
By Mr. Reilly:
Q. Mr. Wray, what's your occupation?
A. I'm a house painter.
Q. I'm sorry?
A. House painter.
Q. All right, and what do you do in addition to being a house painter?
A. I'm the operations chief for Delaware Valley Regional Search and Rescue.
Q. Tell the jury, what's Delaware Valley Regional Search and Rescue?
A. We're a non-profit volunteer search and rescue team that provides search and rescue resources to law enforcement agencies.  We provide search management [56] and navigational support to K-9 groups.
Q. What is search management?
A. We oversee the actual running of a search, the actual tasking of individuals to go into the field and search areas.
Q. Now were you called to participate in the search for Katelyn Rivera?
A. Yes.
Q. And did you -- when were you first called in to help?
A. 12 August, '99, late in the afternoon, early evening, by Trooper Todd Hershey.
Q. You were called in by Trooper Todd Hershey?
A. Correct.
Q. Is that right; and he's a Pennsylvania State Trooper?
A. Correct.
Q. Where were you called to?
A. I'm sorry?
Q. Where were you called to?
A. I was called to Longwood Gardens, Pennsylvania.
Q. Did you go to Longwood Gardens?
A. Yes.  [57]
Q. Who did you take with you?
A. When I arrived, there was two canine present, already, and some other members of my team.
Q. And what did you do when you arrived?
A. We got up to speed on what actually had been happening before I got there.  They had been searching for a few hours before I got there.
Q. And who did you begin -- did you participate in the searches of Longwood Gardens?
A. I started the paperwork trail, at that point.
Q. You were managing the searches, correct?
A. Yes.
Q. What did you have the searchers do at Longwood Gardens?
A. When I arrived, I played catch-up to find out what they had been doing for the few hours, where they had searched, what they had searched, if they had any results.
Q. How many dogs did you have on scene at the time?
A. Three.
Q. And what kind of dogs were they?  What were the dogs doing?
A. They're search dogs.  Two of them are [58] cross-trained, which means they were trained to find individuals, live individuals, and they were also trained in cadaver.  And there was one cadaver specific dog.

Mr. Reilly:
I'd like the easel brought out, Your Honor.  Your Honor, I'd like to set both of these up at the same time.  And what I'd like to do is perhaps set one next to Mr. Wray and the other on the easel, and I guess Mr. Smith will have to come around to be able to see.

The Court:  Okay, sure.

By Mr. Reilly:
Q. All right, now Mr. Wray, I'm showing you two exhibits, Commonwealth Exhibit C13 and Commonwealth Exhibit C14.  Do you recognize those?
A. Yes, I do.
Q. And how do you recognize them?
A. I made them.
Q. Tell us, first, what is C13?
A. C13 is an overview of the entire theoretical search area.  [59]
Q. Tell us what's the theoretical search area?
A. The theoretical search area is the red circle, the outer line.  It's based on the time elapse between the first time at the Sunoco Station and the second time at the Sunoco Station.
Q. Tell us how you came to put those circles on there, the red circle, the blue circle, what was the information that you received that led you to create that theoretical search area?
A. The information I was given was that there was a two hour time elapse, which means that it's impossible for ...
Q. Two hour time elapse how?
A. Between the two sightings at the Sunoco Station in Chadds Ford.  And what that means to me is that the Defendant can only go one hour out and one hour back.  He can't go beyond the red line.
Q. So based on that information, you put the red line on that map, correct?
A. Correct.
Q. And what's the blue line?
A. The blue line is our probable search area, which is only a half-hour out from Chadds Ford, which is a more highly likely area that Katelyn would be [60] in.
Q. You're measuring from the center of that -- from the center of those two circles out to the outside, is that correct?
A. Correct.
Q. What's the center of the two circles?
A. The Chadds Ford, right here.
Q. And is that the location of the Sunoco Station?
A. Yes.
Q. Now your first search is at Longwood Gardens, is that correct?
A. Correct.
Q. And that began on August 12, 1999?
A. Correct.
Q. Now between August 12 of 1999, and October 13, 2000, you did a large number of searches, is that correct?
A. 2000?
Q. Yes, you did a large number of searches, right?
A. Yes.
Q. You did how many?
A. Thirty-nine.
Q. And you searched a large area, is that [61] correct?
A. Yes.
Q. I understand -- I understand that that's relative.  How much -- how many total acres did you search during that time?
A. In that time we searched 1,644 acres.
Q. And when you searched those acres, you're searching with rescuers, human beings, searchers who are along with you, managed by you, is that correct?
A. Yes.
Q. And you're also searching with dogs, is that right?
A. Correct.
Q. And with both cadaver dogs and live scent dogs, is that correct?
A. No, they were all cadaver dogs; they'd either been cross-trained to do both or ...
Q. Some of them were cross trained?
A. Right.
Q. Now you prepared the exhibit that's next to you, that's C14, correct?
A. Yes.
Q. That's to your right; tell the jury what is C14?
A. It's a chart showing each of the [62] individual areas that we searched.
Q. You've also prepared a report of all the areas that you searched, is that correct?
A. Correct.
Q. Would you please take us through that report, take us through the areas that you searched that you've identified there on the map?
A. Okay, August 12, '99, we started Longwood Gardens.  We do a search of the parking lot area.  And across the road there's an old cemetery and a small wooded area.  On 13 August, we moved to Blair Shore Road and ...
Q. Where's Blair Shore Road?
A. That's in Maryland.
Q. Show us on C13, is that where Sissy and Tom Whittaker's property is located?
A. Yes, we do a small search there, behind the house, we searched a few acres.  It's a very, very hot day.  We can only really search in the morning.  We stop around 11:00 or 12:00 because it was too hot for the dogs.  On 17 August, we go back to that location.  We research the area that we did on the 13th and expand it to a larger area of about 10 acres.  On the 21st of August, we go to Brandywine River Museum in Chadds Ford, which is behind the Sunoco Station.
Q. Okay, would you show us on the map there?  [63]
A. This squiggly line here.
Q. Directly behind the Sunoco Station, correct?
A. Correct; then we go to the car dealership in Elkton, Maryland, where the shovel was found.
Q. Williams Chevrolet?
A. Yes.
Q. Would you show us that on both the maps?
A. Which is here and here.  We do a small search of the area that night.  The next morning we start again with more canine and end up searching 64 acres there.  The 31st of August we go back to Blair Shore Road.
Q. Again, that's Tom and Sissy Whittaker's?
A. Correct; we searched 309 acres there.  We used eight dogs and about forty people.  31 August, the same day, late in that evening, one of my dog handlers goes to Aston Mills and searches the property of, I believe, Tom Whittaker's mother, which is right here.
Q. On that map -- on both of those maps you have them numerically coded, is that correct?
A. Correct.
Q. That is, the smaller map is numerically coded to match the area on the larger map?  [64]
A. Correct; 2 January, '00, we go to Clayton Park, Pennsylvania, in Delaware County, which is here and here.  We search about 27 acres there, heavily wooded.  The 6th of March, we fly over most of southern Delaware County and Chester County.
Q. Helicopter?
A. Helicopter; my job is to look for possible areas to search on that flight.  On 8 March, we go to Longwood Garden, again, and we search the pond that is northwest of it.  On 23 March, we search an area called the dump or the pit at Longwood Gardens, which we saw on the fly-over, which is back here.  27 March we go back to Blair Shore Road, to Tom and Sissy's.  Early April of '00 we go to the Brandywine River Museum, again, and search a small area just south of it that was missed on the first search.  On that same day the gas station at Route 202 and Route 1 is searched.  Then 12 April, '00, we go back to Longwood Gardens and search the ponds, again, the back ponds.  And it's a small wooded area. On 15 April we search the same area.  On the beginning -- in the beginning of May of '00, two dog handlers go back to Clayton Park and re-search the whole area, again.
Q. 27 April?
A. Yes; on 24 May we searched the off-ramps [65] at Route 1 and Newark Road, which is here.
Q. What number is that?
A. Seven.
Q. Okay.
A. 25 May we searched them, again, and expanded the area a little bit.  And on 1 June we search them, again, and expanded it to go to a small dirt road that's just off of that.  And also on that date we go to Nixon Park in Kennett Square.  30 June, Brandywine Creek State Park in Delaware, we searched a small area along the river, between an old carriage road and the river.  Early July we searched there, again.  This time we searched the other side of Route 96, actually in the park.  And on -- and then roughly a week later we actually searched again there.  10 July we searched there, again, at Brandywine Creek State Park and also another area further up from the park, which is this area up here.
Q. At the top of the smaller map of
Brandywine Creek State Park, which number is that?
A. That is #9.
Q. On the map?
A. #9.
Q. Okay.
A. I do a recognizance running down Route  [66] 100, from Route 926 all the way into Delaware, looking to see if there's any place you can pull off or pull over on that road.  And there isn't any.  August of '00, we searched below Route 100 and the Brandywine Creek State Park -- or Brandywine Creek Museum.  We searched down here.
Q. What number is that?
A. That is #3.  18 August we searched about 9 acres at the Herrs property in Southern Chester County.
Q. Could you show us that one?

A. Which is #8; on 25 August we go back to Brandywine Creek State Park.  I go there to see what the light conditions are around the time the baby went missing to see if there's enough light to see, you could dig or anything.  26 August we go back to Herrs property and search again.  26 August we also, later in that day, go back to Brandywine Creek State Park and search another area that had not been searched the first time, which is this area here.  And then we also stopped back at Longwood Garden that day, 26 August, to hit a small area that we missed in the initial search the first day of about 2 acres.  27 August we searched at the Herrs property, again.

Also on that day, myself and Trooper Hershey go to Coops Reservoir and look at a small spot [67] where there was a report of a smell and found a dead dog, nothing else, and no place to pull over.  28 August I take a look at the Philadelphia Airport, behind it, back in Tinicum to see if it's a likely search area, and it's ruled very hard to search without anymore information to lead us there.  And 13 August -- or 13 October, 2000, we search a power line area, which is here.

Q. What number is that?
A. That is 13, and here, which is not that far from where the shovel was found, which was one of the reasons we searched it.  And then on 10 January,
'02, I take another look at Brandywine Creek State Park, again.
Q. How many days, total days, did you spend searching?
A. Thirty-nine.
Q. And how many -- did you have a different number of searchers each time you're out searching?
A. Yes, it ranged anywhere from two to forty.
Q. Have you calculated the total number of man hours that you've been searching for Katelyn?
A. In excess of 5,000.
Q. What's the size of the -- of the search [68] of a larger search area and then probable search area?
A. The larger area, the 1,800 square miles, is 1,152,000 acres.
Q. Okay, that's the theoretical?
A. Yes.
Q. And then the probable search area?
A. Is 450 square miles, which is 2,800 -- I'm sorry, 288,000 acres.
Q. And of those 288,000 probable acres, how many acres did you cover?
A. 1,644.
Q. And can you express that as a percentage of the probable search area?
A. It's 1/100 -- it's .0057 percent of that 288,000 acres.
Q. Were you successful in locating Katelyn Rivera?
A. No.

Mr. Reilly:  That's all I have.

The Court:  Mr. Smith?

Mr. Smith:  No questions, sir, thank you.

The Court:  Thank you.

Mr. Reilly:  May we approach, please, Your Honor?  [69]

The Court:  Yes.

[Side-bar conference held off the record]

The Court:
We're going to recess now until 1:30.  Don't discuss the case with anyone; don't let anyone discuss it with you.  We'll see you back in the deliberation room at 1:30.

[Off the record]

The Court:
Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000, counsel ready to continue?

Mr. Reilly:
Yes, we are.  Commonwealth calls Lieutenant David Peifer.

DAVID PEIFER, having been first duly sworn, was called as a witness herein and was examined and testified as follows:  [70]

DIRECT EXAMINATION

By Mr. Reilly:
Q. Lieutenant Peifer, you are employed by the Delaware County CID, is that correct?
A. That is correct.
Q. What's CID?
A. The CID is the Criminal Investigation Division, the investigative branch of the District Attorney's office.
Q. For how long have you been a police officer?
A. January 31 of this year I'll start my 25th year.
Q. All of those years with CID?
A. That's correct.
Q. Would you describe for the jury your training and experience as a member of CID?

A. I started as an evidence fingerprint technician in 1978; attended the Municipal Police Academy of Pennsylvania in 1979; was promoted to detective upon graduation of the police academy; was assigned to the homicide unit from 1979/80 to 1988, where I was promoted to the rank of sergeant and put in charge of a burglary, robbery and rape unit.  I did that for about six months; worked narcotics for six months.  [71]  Then I went back into the homicide unit, running -- this time I was sergeant in charge.  Until 1993 I attended the FBI National Academy in Quantico, Virginia; graduated the 174th session there; came back and was the operations lieutenant in charge of all the different units within CID, broken down into different types of units, homicide, burglary, robbery, child abuse, that kind of thing.

In 1995 I was acting chief for one year while my chief was out on disability; new District Attorney took over.  I stayed in the administrative lieutenant for the next year until I was transferred to supervisor of the child abuse unit, investigating physical and sexual abuse of children.  In the year 2000 we kind of split that unit because we started an Internet crimes against children task force, and we do proactive and reactive investigations involving children being exploited online.

Q. And that's the unit to which you're assigned now, is that correct?
A. That is correct.
Q. How many homicide investigations would you say you participated in during your career?
A. Well over 100.
Q. Now I want to direct your attention to August 11, 1999.  Did you become involved in the [72] disappearance of Katelyn Rivera?
A. Yes, I did.
Q. How did you become involved?
A. I was contacted by Lieutenant Harris of the Upper Chichester Police Department, that they were requesting CID assistance in the investigation of the kidnapping of Katelyn Rivera.
Q. You met with Agent Kibbie from the FBI, is that correct?
A. Yes, prior to going down to the Upper Chichester Police, we met here in Media.  We rode down together and met with Lieutenant Harris and Detective Reardon upon arrival.
Q. You then met with the Defendant, is that correct?
A. That is correct.
Q. Describe what happened when you met with the Defendant?
A. Defendant was in a conference room located on the first floor of the Upper Chichester Police Department.  And I had asked for his handcuffs to be removed and the shackles to be removed from his feet.  I then went in, along with Donna Kibbie.  I sat in front of the Defendant and I had reminded him that -- I told him who I was, who Donna Kibbie was.  And I said that [73] you've already been advised of your constitutional rights and I'm asking you if you're willing to talk to us about the -- your missing daughter.  And he agreed to talk to us at that time.
Q. Did you give him his Miranda warnings, again?
A. No, I just reiterated, I said if you have any questions concerning your Miranda warnings, and he indicated he did not, that he was willing to talk to me.
Q. What did you do then?
A. I then went on to interview him, to find out what happened to his daughter.  In the beginning, the very beginning, he was telling the same story that he had told the Upper Chichester Police.  And we immediately -- I didn't believe that story right away, that this woman in New York -- there was no planning involved and it was a hike to go to New York to take this child there, to give her to this woman in New York.  So it really wasn't fitting.  And then he said well I'll tell you what happened, I gave the child to a couple in Longwood Gardens.
Q. Did you follow up with further questions or details about what the Defendant had done?

A. I did.  I asked him what happened.  He indicated -- he went through the story about how he had [74] gone to Court; that he was not represented in Court; that Jennifer, her parents had a lawyer there representing their interests; that he felt like Katelyn was being taken away from him and that he took Katelyn because he wanted to spend time with her.  He indicated that following the Court hearing that day that he saw Jennifer at the Wawa and went in and confronted her and ended up in assault at the Wawa with Jennifer, then immediately went over and got Katelyn.  He then described a lengthy time during that day where he went to Philadelphia; he went to Delaware Avenue; he went down to the State of Delaware, to Brandywine Park.  He indicated that he didn't have any money so he couldn't get admission into the park.

He then went to McDonald’s, where he had -- I believe he had said that was Katelyn's favorite restaurant.  And at that point he had indicated that he had made several phone calls during that day.  And we were -- tried to confirm different locations of where those phone calls were.  He later indicated that he ended up around 7:00 or whatever out at the Sunoco Station at Route 1 and 100; that he got $2 worth of gas. He paid for that with a one dollar bill and four quarters.  He then left that gas station and proceeded to Longwood Gardens.

And as he went into Longwood Gardens, he parked and went into the actual facility, [75] itself, said there was artwork hanging around. He didn't identify Longwood Gardens, at first.  He identified a place that had art in it.  And I was thinking in my head that was the Brandywine Art Museum, because it was right near Route 1 and 100.  But it wasn't until we took him for a ride that he indicated, no, it was further out.  And that's when we figured it was Longwood Gardens.

But he said he went into the lobby of that area, into the gift shop, and met a woman just outside the gift shop who he explained that he was going to give his child away to an Amish couple or to the Amish to have her raised because her mother was unfit and he was going to jail for a long time.  At that point the woman said well I'll take your kid, and they agreed to meet in the back parking lot.  He said that he drove over to where their van was.  He described it as a green minivan with a tag on the back that had a bird standing on one foot; that he exchanged the child.  And as he turned around he heard, no, daddy, and he continued to walk to his car.  Then he said he got in his car and left and went back to the Sunoco. So that was pretty much ...

Q. Did he say what time the exchange had taken place?
A. He indicated that was right around 8:30.  [76]
Q. Did you respond to that or did you discuss the time, 8:30, with him?
A. I did.  On the ride-around he took us exactly on his route.  And he indicated that 8:30, when he left the Longwood Gardens, he went back and traded his watch for $10 worth of gasoline, but it's only about a five-minute trip down the road and that takes him to 8:35 or 8:40.  Even if you want to go 15 minutes to 8:45, he wasn't there until 9:15.  I said what did you do with that extra time, it doesn't fit.  You had to have done something else.  He said, I left, then I turned around and came back into Longwood Gardens parking lot a few minutes later, after the car had left, and I sat there and reflected on Katelyn and listened to the radio.  And then he left closer, I guess, to the 9:15 time and went to the gas station to fill up.
Q. Now once you had questioned him at Upper Chichester Police Department, where did you go?

A. He then agreed to take us on the route.  It was myself driving.  It was Agent Donna Kibbie in the front seat.  Robert Rivera was in the right rear passenger, and Detective James Reardon was in -- behind me in the left rear passenger.  I drove.  We went out Baltimore Pike.  As we passed the Sunoco Station at Route 1 and 202, Mr. Rivera pointed to a phone and said [77] that's where I spoke to you from.  There was a call made about 9:00, 9:04, to the Helton residence.  And he indicated that's where he made the phone call from.  As we continued towards Route 100, there's a Sunoco Station on the left, just before the Brandywine River.  And he indicated that's where he traded his watch to the attendant at the gas station.  I believe we made a brief stop there to identify who that person was who was working.  I was working on having another car make contact with that individual or trying to confirm his story.

Then we went by the Brandywine Art Museum, and I said is that the location you went to, and he said, no, it's further out.  We continued past the stone overpass that's out by Longwood Gardens.  We went past that to a Dairy Queen, where he said he made a U-turn through the parking lot, came back north on Route 1 to the firehouse, which would now be on the left side on the southbound side lanes.  He then made an illegal left, past the firehouse, and he said there were fire trucks out.  And he pulled in there and was walking around the fire trucks with Katelyn, because Katelyn liked fire trucks.  He then went back to the car and then pulled over into the Longwood Gardens parking lot.

Q. But did he show you where, in the parking lot, he parked his car?  [78]
A. He did.
Q. And did you go there with him?
A. Yes, I did.
Q. What further discussion did you have with the Defendant when you got there?
A. That's where he indicated the exchange took place, where he pulled his car over to -- I remember a tree being in the parking lot, surrounded by like a stone.  And that's where the exchange of the child took place.
Q. You brought other police officers, Pennsylvania State Police came to Longwood Gardens, is that correct?
A. Detective Reardon had contacted a uniformed officer from his department and requested that he go to the house and residence to obtain some clothing of Katelyn's, something that she had worn, and make contact with the radio room and found out that Ridley Township Police Department had a tracking dog on duty and asked them to respond to the Longwood Gardens.  Once the dog and the clothing arrived, we did a test search with the dog by allowing the dog to smell Katelyn's clothing and then hiding it on the dog.  And the dog was able to find those clothing.  And then the officer proceeded to search the area for Katelyn.  [79]
Q. Successful?
A. No.
Q. Did the dog hit on any scent of Katelyn?
A. No.
Q. Was the Defendant still there at this point?
A. Yes, he was.
Q. Did you speak to the Defendant, again?
A. Yes.
Q. Tell us what happened?
A. I told him we're not finding anything.  Are you sure this is where you did this at?  Are you sure you gave the child away here?  And he kept -- he was adamant that that was his story, yes, this is what I did.  I didn't plan this; it was a spur of the moment kind of thing.  And he claimed that he didn't know who these people were.  I then asked him if he would be willing to talk to his mother.  He supplied me with his mother's phone number in New York, and I used my cell phone and contacted his mother and allowed him to talk to his mother.
Q. Now were you able to hear the Defendant's mother talking to him on the telephone?  Could you hear her voice?
A. No, I had talked to her after he had [80] talked to her, but I did not hear their conversation.  I only heard his side.
Q. Okay, what did you hear the Defendant saying to his mother?
A. As soon as he got on the phone with his mother he started crying.  He told his mother the same story he related to Agent Kibbie and myself.
Q. Then you got on the phone with his mother?
A. Yes.
Q. What did you do next?
A. It was getting late.  It was around midnight at that time, maybe 11:30.  I had asked -- requested the same Upper Chichester police car that had brought the clothing to transport Mr. Rivera to the Media police lockup because the Judge that he would be arraigned by was not on duty until the next morning or would not be in until the next morning.  So he would be housed at the Media Police Department, at Fourth and Jackson Street, until the next day.
Q. Now did you and other CID officers investigate this -- the Defendant's statement regarding what had happened at Longwood Gardens in the days subsequent to August 11?
A. Yes, we did.  [81]
Q. Questioned witnesses and whatnot?
A. Yes, we questioned witnesses.  We obtained the watch from the attendant, John McCabe.  And we followed up whatever other information we could follow-up on.
Q. Did you develop any leads as a result of what the Defendant told you about Longwood Gardens?
A. No, we didn't develop anymore leads there.  We did additional searches there in the following days, until we had information that he had spent the night, that same night, down in Cecil County, Maryland, at the Whittaker residence.
Q. Did you go inside Longwood Gardens to the area where the -- where you saw the gift shop?
A. Yes, the gift shop has a videotape system, I guess it's just a monitor system that shows the gift shop, maybe it's for theft, whatever.  But we retrieved -- the Pennsylvania State Police, out of Avondale Barracks, retrieved that tape and we reviewed that tape in an attempt to locate Mr. Rivera and the child on the tape.  And we were unable to find that.
Q. Did you see any artwork on the walls of the Longwood Gardens where the gift shop was?
A. There may have been one picture.  There may have been a plaque or something to that effect, but, [82] no, there wasn't a number of artworks around.  It's a fairly large lobby.
Q. You took the -- you had the Defendant taken back to Media Police Department, is that correct?
A. That is correct.
Q. And that was the end of what you would do that night, is that right?
A. We continued to search -- yes, at around 1:30 we called the searches off because we weren't successful.
Q. Once you called the searches off, that was all that you would do, at that point?
A. Until the next morning, yes.
Q. Tell us what you did the following morning?
A. The following morning I was at Media Police Department, right at around quarter of eight in the morning.  I had contact with Robert Rivera at that time.  And at that point, the first thing I did was advised him of his constitutional rights.
Q. I show you Commonwealth Exhibit C66 for identification.  Can you tell us what that is?
A. This is a procedure before questioning form.  It's a standard form printed by our office that advises a person of their constitutional rights.  And we [83] review that form and we have the person sign their answer and put their initials.  And then there's a waiver of rights statement down at the bottom, which I read to him, and he signed the bottom.
Q. Could you tell us what you said to the Defendant and what the Defendant replied to you?

A. I said pursuant to law, I am Lieutenant Peifer of the Criminal Investigation Division.  I'm investigating your missing daughter, Katelyn.  You have the right to remain silent; however, you say anything such can and will be used against you in a Court of law, do you understand this?  And he indicated, yes, he did, and wrote yes and put RR as his initials.  You have the right to talk to a lawyer before answering any questions and have a lawyer with you during questioning, do you understand this, at which time he indicated, yes, and initialed it RR.  If you cannot afford a lawyer, you have the right to have a lawyer appointed for you free of charge before any questions are asked and during any questioning, do you understand this?  He indicated, yes, with the initials RR.

And during question, you may stop at anytime and refuse to answer any further questions, do you understand this?  He indicated, yes, and initialed RR.  Understanding these rights, are you willing to give up these rights and answer questions  [84] now?  And he indicated, yes, with the initials RR.  At the bottom there's a section that I read to him that said waiver of rights, I have read this statement of my rights and understand what my rights are.  I am willing to make a statement and answer questions.  I do not want a lawyer at this time.  I understand and know what I am doing.  No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me.  And it was signed by Robert Rivera.  It was witnessed by Detective James Reardon and myself.

Q. He spoke to Sherry Lansonese [ph] that morning, is that correct?
A. Yes, I did.
Q. You spoke to her and the Defendant spoke to her, as well, is that right?
A. Yes, I had learned that there was a relationship between Sherry Lansonese and Robert Rivera.  And I thought that there was a chance of getting Katelyn back, it could be that he would tell her.  So that's when I was able to get hold of Sherry Lansonese and have her come to the Media Police Department.
Q. She went in and was able to speak to the Defendant, is that right?
A. That is correct.
Q. What happened next?  [85]
A. Well when Sherry entered the room, he began to cry.  And he looked like he was a little bit surprised that she was there, but that I had brought her there and he just broke down and was crying to her and saying that, you know, reiterating the problems that him and Jen were having.  And that was it.  He stayed to the same story as previously discussed with the taking of the child and giving her to a Longwood Gardens couple.
Q. What happened next?
A. Robert Rivera was then -- I had contacted the District Court.  I had him transported to the Linwood District Court for arraignment.
Q. Were searches continuing at that point?
A. Searches continued, yes, and I believe I went down to -- after the arraignment I went down to Cecil County, Maryland, and assisted with the searches down there.
Q. What was the reason you went down to Cecil County?
A. We -- the FBI agents out of Cecil County or the Maryland area interviewed Tom and Sissy Whittaker, who indicated that Robert Rivera had arrived late on the evening before, stayed overnight and left.  And we wanted to -- or I'm sorry, on the 10th, into the 11th, and we wanted to search that area for Katelyn.  [86]
Q. So those searches had begun by the 13th?
A. Those ...
Q. Or by the 12th?
A. By the 12th, actually.
Q. Now when was the first time you met William Lively?
A. First time I met William Lively was on August 17 of 1999.
Q. How did that come about?
A. I was contacted, I believe through his attorney, or through a -- I believe it was through his attorney, that William Lively had information relative to the Katelyn Rivera kidnapping.
Q. What did you do then?
A. I arranged to have a release prepared, to have Lively transported to my headquarters here in the Courthouse.
Q. Was he brought into the Courthouse?
A. I brought him, myself, yes.
Q. You went out and got him yourself?
A. Yes.
Q. And did you speak to him when he got here?
A. Yes, I did.
Q. Was his lawyer present?  [87]
A. Yes, he was.
Q. What did William Lively tell you?
A. William Lively told me that he was on the same protective custody block as Robert Rivera and that Robert had -- had been talking to him and told him a little bit about the case.  He had indicated that Katelyn was alive but that she was with a couple that he had planned this kidnapping with weeks before.  And that she was all right at that time; however, if -- when he went to Court, if things didn't go his way, there were certain plans that he had made with this person or with this man or couple that when he would attack the FBI agent in the Courtroom or Jennifer, that that person was to take Katelyn to the Susquehanna -- or the Delaware River -- or the Schuylkill [ph] River, I'm sorry, the Schuylkill River and drown her body -- drown her in the Schuylkill River.  That I believe that his sister would get a letter -- or that was the first time.  His sister would get a letter saying that Katelyn was dead on the following week or whatever, that letter would be sent.  And that was basically that conversation that I was getting from William Lively.
Q. How much time did you spend with Lively that day, the 17th?
A. Maybe a little more than an hour, maybe [88] an hour-and-a-half.
Q. And what was your reaction at the end of the time you spent with Lively?
A. I was -- I felt that Lively's intentions were -- nothing came up about the Susquehanna River, drowning ...
Q. Schuylkill River, you mean?
A. I'm sorry, the Schuylkill River.  It was information that just didn't make sense.  I didn't think that he had any information.  So I said I don't even think you're telling me the truth on some of this stuff.  And maybe you are talking to Robert Rivera, but the information we're getting is so much to the opposite direction of where he was last seen, heading east instead of west -- or actually north instead of south.  So I didn't really trust his information, didn't put a lot of faith in his information on that first interview.
Q. You met with Lively, again, is that correct?
A. That is correct.
Q. When did you meet with him, again?
A. On the 19th I was contacted, again.  I believe it was through Brandon Hickey from the prison.  He is a counselor.  And I was told that William Lively needed to speak with me, that he had information.  I had [89] contacted his attorney and I had made arrangements to have him brought to the CID headquarters or I transported him.
Q. What happened when Lively came in the second time?
A. The second time he was a little more excited, like he had relative information that he -- this is the first time he had told -- or Robert Rivera had told him that Katelyn was dead and that he had smothered her.
Q. That who smothered who?
A. That Robert Rivera smothered Katelyn Rivera.
Q. What was your reaction when Lively was telling you this?
A. Well I wanted to listen to him because this is now the first time -- because we haven't -- the story didn't make sense, the Longwood Garden story didn't make sense to me, that I felt that he may be on to something here since we haven't been able to find any signs of Katelyn, at all.
Q. Had you actually seen the Defendant earlier that day?
A. Yes, I did.
Q. That was the 19th?  [90]
A. Yes, I did.
Q. Where had you seen the Defendant?
A. On the second floor of the Courthouse, just up the hallway here, there's a holding cell and he was in the female holding cell on the opposite side of where they keep the males, by himself.
Q. What did the Defendant do?
A. I was walking by to go to the Sheriff's office, which is right across the hall from there, asking if they had brought Robert Rivera into the Courthouse.  As I walked by the female cell, I didn't expect to hear Robert Rivera's voice, because they don't normally house male prisoners there; that he called me into the cell.  He said come here, come here, I want to talk to you.  So I went into the cellblock and was talking to him.
Q. What did the Defendant say?
A. He was agitated.  He was very agitated.
He had indicated that he had watched the news program the night before in which Sissy Whittaker was interviewed and that he felt like she was trapping him on television.  And he was very upset about that.  He -- at that point, I believe an attorney walked in, one of Robert's attorneys, and accused me of interviewing his client without representation.  And I said I wasn't [91] interviewing him.  He was explaining to me that he was upset.  He called me in here.  At that point a big discussion ensued between Al Gretto [ph], another attorney, defense attorney, and John Reilly, Jr., another District Attorney in our office, and myself and Robert Rivera.
Q. And what did the Defendant say to you?
A. He said that he would be willing to turn over Katelyn if I promised him that she would not go back to her mother.  And I assured him, I said if you tell me where Katelyn is and you tell me where she is right now I will promise you that I will take her right to a hospital, have her checked out and we'll keep her in custody until there can be a Court hearing or whatever to -- so that they can determine who will have custody of Katelyn.
Q. Now you got that -- you had your second meeting with William Lively on August 19, is that correct?
A. Yes.
Q. You got more information from William Lively on August 23, is that right?
A. Yes.
Q. How did that come about?
A. I was actually, on the 23rd, I was up in [92] the back of -- I was actually in Courtroom 3, down the hall, and Mr. Foti, Larry Foti, who is William Lively's attorney, was in the Courtroom.
Q. Mr. Foti, he was representing William Lively, is that right?
A. Yes, but not -- I don't know if he was there for that, but he was just by himself in the Courtroom.
Q. I understand, but Mr. Foti had been with Mr. Lively when you had met with Mr. Lively, is that right?
A. Yes, that is who represents him.
Q. So you know that -- you knew that Mr. Foti was representing Mr. Lively'?
A. That is correct.
Q. Okay, so tell us what happened?
A. Mr. Foti told me that William Lively told him that Robert Rivera had indicated to Mr. Lively that he had taken a shovel from the Whittaker property and discarded it in a construction site somewhere in Cecil County.  I said well I'll take that information and I'll turn it over to Cecil County authorities and see if we can find a shovel at a construction site.
Q. And is that what you did?
A. Yes, sir.  [93]
Q. You called Cecil County?
A. I talked to Captain Bob Irwin of the Cecil County Sheriff's Office, and he assigned Detective Rob Jones to go to the area of all the construction sites.  And I later received a call back later that day that they, in fact, had found a shovel.  And it was described to me from Larry Foti as being painted blue on the end.  And that was the -- that was the turning point for me where I felt that William Lively had some credible information here.
Q. The searches ...
A. And the map that he had provided.
Q. Okay, we'll get to that in just a minute.  Now the searches are continuing, is that correct?
A. That is correct.
Q. The next time that you had -- that you got any information from William Lively was August 31, is that right?
A. That's correct.
Q. Where were you at that point?

A. I was in Cecil County, Maryland.  We had -- once we found the shovel at the Williams Construction site at 40th and Delancy Road in Cecil County, we had done extensive searches of that area.  It was -- at the time they were pouring the foundation for the car [94] dealership.  And all of the metal was erected.  And I believe the roof was being put on.  They were also putting curbs in, at the time, with these curb machines, digging out the trenches.  And they have a form that runs along and creates the curb.  So they were making the parking lot areas and all that.  Just off of one of those parking lot/curb areas that had been poured was the shovel.  So we had concentrated our searches there.

We had done extensive searches from the air.  We also had -- there was a big water drain-off area, it was pretty large, and we had that pumped to see if there was anything underneath it.  And there were some large amounts of dirt that we went through.  We also brought a backhoe in, into a couple areas, to try and dig in a couple areas that may have looked like it had been disturbed, had a backhoe dig it up.  And we were unable to find anything.  So we continued our searches down on Sissy and Tom's property, the Whittakers, down on -- off of Locust Point Road, which is down on the Muddy Duck -- or ...

Q. Wood Duck?
A. Wood Duck Lane residence; so I was on that location or that property when I got called by Mr. Hicky from the prison that William Lively had information.  I contacted -- I talked to Lively and he [95] said that Rivera had drew a map of that area and that he is indicating where the body was buried, the body of Katelyn was buried.  And I asked him to fax that map to the Cecil County Sheriff's Office, which he did.  And that was brought to us at the search area.
Q. I'll show you Commonwealth's Exhibit C54 for identification.  Do you recognize that?
A. Yes, I do.
Q. Could you tell us what that is?
A. This is a map of Sissy and Tom Whittaker's property, and it indicates the neighbor's house and the dirt road in front of the house.  It also indicates the boathouse in the back and the outhouse.
Q. I'm putting Commonwealth Exhibit C4 on the easel.  Let me just put this aside.  Can you tell us what is Commonwealth Exhibit C4?
A. They are photographs of Sissy and Tom Whittaker's property and the property immediately around Sissy and Tom's property.
Q. Now where were you when you received that map that had been faxed to you from Lively at the prison?
A. I can almost tell you the exact location.  I was back in this yard right here.
Q. Where was the map faxed to?  [96]
A. To Cecil County and then one of their detectives brought it over to the search site.
Q. So you were actually onsite at 34 Wood Duck Lane, which is Whittaker's property, when you get this map from Lively, is that correct?
A. Yes, we had an extensive search going that day there.
Q. Now when you looked at that map, you're actually standing on Whittaker's property, what is your reaction?
A. This map is identical to the property, the trailer, which is here ...
Q. Why don't you hold it up so the jury can see?
A. This trailer here, which is here, the boathouse in the back ...
Q. Okay, hold on for a minute; now you're indicating on Commonwealth Exhibit C54, you pointed towards the middle of C54.  There's an area on there that says trailer and -- yes, and addition, and there's a #34 in front of it.  Now what corresponds on C4?
A. This would be the trailer.  The addition is just off the back here.
Q. Okay, and that's 4-A?
A. Yes.  [97]
Q. That's photograph 4-A on C4?
A. That is correct.
Q. Okay, and how about 4-B?
A. 4-B is looking from the back of the property towards the front.  In looking at the back of the addition, which would be right here, we're looking back here, so that the -- I would be standing with my back to the outhouse, at this point.  And that would be a location -- I would be standing right here.  This picture was taken probably from this location looking forward.
Q. So did that -- this photograph 4-B corresponds to what appears on C54?
A. Yes, it does, exactly.
Q. Now how about 4-C?  What's photograph 4-C?
A. 4-C would be the outhouse, the boat awning and the garage or the shed that they call the boathouse.  And that would be ...
Q. How about on C54?
A. That would be the building located right here, which is to the rear of the property that's closest to the -- I guess at this point of the paper, the top of the paper.  This would be the garage.  This would be the awning and the outhouse, which is located [98] right next to it, is right here.
Q. Now how about photograph 4-D, what's photograph 4-D?
A. 4-D is a foundation for -- actually it's a pit that is filled with cinderblock and sticks and dirt and leaves and human defecation.  It used to be an old outhouse foundation.  And this is now covered, and they put boards over top of it.  That would be in -- this location would be over in this location somewhere, right here.
Q. And how about 4-E?
A. 4-E is a trailer.  And in front of the trailer is a fireplace.  That trailer actually sits where that dot is on the paper here.  And this is ...
Q. Okay, you're indicating the dot on C54 that's next to the circle?
A. Yes, that's where that trailer actually sits.  And that fireplace is right in front of the trailer.  That would be indicated by the round circle.
Q. Okay, now this photograph 4-E, what -- there's a circle on C54 that's on the neighbor's property, is that right?
A. That is correct.
Q. And what corresponds to that in photograph 4-E?  [99]
A. The fireplace that's surrounded by stone in front of the trailer.
Q. Now you're standing on the property.  You have C54.  Did you conclude that what you saw in C54 corresponded to what you saw all around you and, in fact, today what you see in these pictures?
A. This is corresponded exactly with what was at the property.
Q. Had any member of the news media been on Tom Whittaker's property?
A. They weren't permitted down to the property; however, they were in helicopters over top of the property.  But they were stopped further up the road.  We didn't want them down there while we were doing searches.  Later on, towards the -- past this date, eventually they were permitted down closer into the area.
Q. Commonwealth Exhibit C6 for identification, I'm asking you, Lieutenant, take a look at photograph 6-A and 6-B, what are they?
A. These would be aerial photographs of -- looking down onto Sissy and Tom Whittaker's property; 6-A and 6-B would.
Q. Now can you see -- looking from the sky, in a helicopter, can you actually see Sissy and Tom's [100] cottage, the boathouse, the outhouse, the fire pit on the neighbor's house, can you see any of that from the sky?
A. No, you can't.
Q. Why not?
A. Well the trees are in full bloom.  And that would be located right here on the map.
Q. Okay.
A. All of that would be in this area here.
Q. Okay, you're indicating on 6-A that Sissy and Tom's property is below -- is beneath the trees?
A. Yes, it is.
Q. And 6-B is a photograph that's similar to 6-A, is that correct?
A. Yes, and that would be over in this area right here.
Q. Indicating, again ...
A. Covered by trees.
Q. ... an area that's covered by trees?
A. Yes, sir.
Q. So when you got this map what did you do?
A. At that point, we shared it with all the search -- people that were on the search line at that time.  And we gridded out a section.  We drew a line directly from the back of Tom and Sissy's trailer, [101] straight back into the woods, and then went back on the angle that is indicated on this -- on this map here.  And we gridded out the area and we concentrated all of the dogs in a grid section of that area.
Q. Were you successful?
A. No, we were not.  We even dug up the fireplace.
Q. The fire pit?
A. The fire pit; we also lifted -- on the previous photograph, we lifted that -- that old outhouse pit and we dug that out.  And then we also ...
Q. That was the cover that appears on photograph 4-D, is that right?
A. Yes, sir.
Q. You actually picked that up?
A. And we cleaned that out.
Q. You didn't clean it out, did you?
A. Well no, we dug it up and -- yes.
Q. You were unsuccessful in finding anything, is that right?
A. We were not able to find anything.
Q. Now not long after you received that map, faxed from Lively at the prison, you got a second call from Lively, is that correct?
A. Yes, I did.  I was still on the search [102] site.  We were still searching -- or concentrating our searches in that area.
Q. Did you actually speak to Lively on the phone?
A. Yes, I did.
Q. What did he say?
A. I said we're not finding anything in this area down here, this map.  And he said well that's where he said that the item -- he's calling it an item, it's really the baby that he's calling an item, but it's in that area.  And I said well we're concentrating all our efforts and we're not able to find it. Now the dogs are working; we're giving them breaks.  The dogs are working.  He goes well -- he also told me that he had removed Katelyn's clothing prior to burying her so that her body would decompose faster and that when he was driving down 202 he threw the clothing out of the car, off the highway, in the area of the Pep Boys.  If you go to the Pep Boys, you went too far.  So I took two detectives and I dispatched those detectives to the area of the Pep Boys on 202 and had them meet with Delaware State Police.
Q. And that was Corporal Martin who testified yesterday, is that correct?
A. That is correct.  [103]
Q. And they found the sneaker and they found the sock, is that right?
A. They found a sneaker and they found a sock, yes.
Q. Now after the finding of the sneaker and the sock, searches continued, is that right?
A. Yes, the searches continued.  I felt that this was reliable information now that we found the shovel.  We got the map with details as to location. And we also found her clothing.  So he's getting real good information.  And all that information was substantiated.  So we wanted to stay with that information.
Q. Tom and Sissy's is right on the water there, is that right?
A. Yes.
Q. Did you search around the water?
A. We called in the Maryland Marine Unit and we started all the way north here and from -- this is real shallow out to about 50 to 75 yards, in that water.  It's only a couple feet deep at any given time.  That whole area was -- we used dragnets and we drug the whole river area coming down.  Along the shoreline we also dug in certain locations where we saw just rocks and stuff.  There was some indication that some rocks and sticks and [104] stuff had been put on top of the body.  So we dug in those areas along the shoreline, all the way down.  And so all of this area was searched.  All this area was searched.
Q. Now you -- you got the sneaker and the sock.  You started looking for the sneaker and the sock.  You had the map on August 31.  Following day is September 1.  You went to Court that day, is that right?
A. September 1, I went to Court, yes.
Q And ...
A. I also dispatched detectives to 202 during the daytime, the very next day, to do a walk from Route 1 to 95, both in the southbound lanes and again in the northbound lanes in an attempt to locate the clothing.  I also -- we ordered the sewage drain specs.  When that highway was designed, because there's a lot of storm drains going down 202, we figured anything additional clothing may have been washed into the storm drain.  So we got the whole detailed map and met with the -- I guess the officials that run that highway.  And we wanted to actually try to get into the sewers and clean out some -- we ended up actually looking in each sewer drain for additional clothing.

Mr. Reilly:  [105] Court's indulgence, for a minute, please, Your Honor.

The Court:  Okay.

[Off the record]

By Mr. Reilly:
Q. On September 1 you went to Court, is that right?
A. That's right.
Q. The Defendant was in Court that day?
A. Yes, he was.
Q. For a hearing; you were present in the Courtroom for that hearing, is that correct?
A. I was.
Q. Jennifer Helton was there, also?
A. Yes.
Q. Did you hear the Defendant speak, the Defendant say something as that hearing was winding up?
A. Yes, I did.
Q. I'm going to show you a copy of notes of testimony from September 1, 1999, of -- before Rocco Gaspari in the Linwood District Court.  I direct your attention to page 60.  Would you tell us -- before you read that, can you tell us the context, what had [106] transpired at that point?
A. I believe ending arguments had just happened, and they were awaiting, I guess, to get an arraignment date here in Media, when -- I don't know what prompted Robert Rivera to say -- and should I ...
Q. You heard the Defendant speak?
A. Yes.
Q. Is that right?
A. And I believe it was because he was looking at Jennifer ...

Mr. Smith:  Objection, objection.

The Court:  Sustained.

By Mr. Reilly:
Q. Tell us what you saw?  What did you see -- before the Defendant spoke, where did you see him looking?
A. He turned around and looked at the audience, in the direction of where Jennifer was sitting.
Q. And tell us what he said?
A. He said you better tell them where she is [107] because you know where she is.  She knows where she is.  I'm telling you, she went and seen her.
Q. To whom was he referring?
A. Katelyn.

Mr. Smith:  Objection, objection.

The Court:  You're talking about who knows.  He's talking about who they were talking about.

Mr. Smith:
My understanding is that -- the question was, he's asking this witness to say what was in the mind of Mr. Rivera ...

Mr. Reilly:  How about if I try again?

Mr. Smith:  All right.

By Mr. Reilly:
Q. There are -- there are really two statements that the Defendant makes there, is that correct?  There are at least two sentences, is that right?
A. Yes, sir.  [108]
Q. Now the first -- the first sentence, to whom was that first sentence directed?  Who was the Defendant looking at when he says that first sentence?
A. He's looking in the direction of Jennifer
Helton.
Q. And what are the words that he says?  What are the words of that first sentence?
A. You better tell them where she is, because you know where she is.
Q. And then the next sentence, was the next sentence directed at Jennifer, was it directed at someone else?
A. The way I heard it was it was directed to everybody, she knows where she is.
Q. All right, and tell us the Defendant's words, what did the Defendant say after he made that statement at Jennifer?
A. That she knows where she is, I'm telling you, she went and seen her.  I guess that was for the audience.

Mr. Smith:  Objection.

The Court:
Sustained, as far as the I guess.  Part of the [109] statement comes in, just the I guess comes out.

Mr. Reilly:  Yes, sir.

By Mr. Reilly:
Q. Now that's September 1.  September 9 you have another contact with William Lively, is that right?
A. Yes, I do.
Q. Tell us what happens?
A. I'm contacted -- I actually end up getting the original map, a second map, which was created by Robert Rivera ...

Mr. Smith:  Objection.

The Court:  Sustained.

By Mr. Reilly:
Q. What did William Lively tell you?
A. That the map was created by Robert Rivera, indicating another location of where Katelyn's body could be found.
Q. This is Commonwealth's Exhibit C55 for [110] identification.  Do you recognize that?
A. Yes, I do.
Q. Tell us what that is?
A. This is a map of the area at the top of Wood Duck Lane.  Wood Duck Lane goes down a hill.  From the macadam it goes onto a dirt road and it's a real -- I guess it's a thin road that goes down to the cottages that are down by the lake, which would be down in this area.  So this would all be a dirt road down in here.  At the top of that, where you enter to go down, it changes to macadam.  And ...
Q. Okay, detective, the top of Wood Duck Lane is macadam, is that right?
A. The road, which is -- it's the road -- the main road at the top of 213, it's macadam.  It goes back to Wood Duck Lane.
Q. And what ...
A. It actually goes down to the road that goes down to Wood Duck Lane.
Q. Okay, and tell us where -- what's that a map of?  What area does that map indicate?
A. This map is -- this line which indicates dirt road on one side ...
Q. Can you take it out of the plastic there?
A. Yes, right where this line is drawn is [111] approximately where it changes into a dirt road.  This is all macadam.  And there's actually a turn that goes down.  This road continues down, but that's a paved road.  The only dirt road is when you cross this line, then it turns into a dirt road. So that's the intersection at the top of where you go down to Wood Duck Lane.
Q. Towards Tom and Sissy's?
A. Yes, this indicates a location further towards 213, on the right side, indicating a white mailbox and some rocks.  They're in an area right near a house and a driveway.
Q. Did you go there?
A. Yes, we did.
Q. Did the area correspond to what you saw on the map?
A. Well there were two houses that came close to this description.  The one was real close, because it did have rocks.  It had a lot of underbrush, cut-offs of trees that have been laying for awhile.  And it did have a mailbox.  We concentrated our search in that area with the dogs.
Q. Any success?
A. No.
Q. Lieutenant, you also received -- also [112] received these letters, C37 -- I'm sorry, C36 and C37 from whom?
A. These were received from Rose Quinn, from the Delaware County Daily Times.
Q. She gave them to you, brought them to you here?
A. Actually Donna Kibbie, from the FBI, and I went down to the Daily Times on each occasion and picked these up.  We went down there twice, after the first letter, then after the second letter.

Mr. Reilly:  We're ready for the tape now.

The Court:
Ladies and gentlemen, due to the unique circumstances of this case, I'm instructing you that Detective Peifer's testimony -- now we're going to the next step, concerning statements allegedly made by Mr. Rivera to Detective Peifer with respect to the conversation of November 23, 1999, as well as the recorded statement made that day, may not be considered for any purpose of deciding whether or not the Defendant is guilty of the charges of kidnapping, interfering with the [113] custody of children or burglary.  In contrast, you may consider these alleged statements and the recording in the context of deciding the charges of Murder in the First Degree, Murder in the Second Degree, Murder in the Third Degree and any other charges.  It's because of the legal reasons and you need not concern yourselves with those reasons.

Mr. Reilly:
Your Honor, I have transcripts of the taped statement that I'd like to distribute to the jury.

The Court:  Okay.

Mr. Reilly:  The transcript will be marked as Commonwealth Exhibit C67.  The tape is C65.

The Court:  I suggest before we start to run the tape, I believe that they put the microphones on and just test it, am I correct?

Mr. Reilly:  We're going to need to test the earphones, Your Honor.

[Off the record] [114]

[Wherein the taped cassette interview of Robert Rivera was played for the jury, inaudible on tape for trial transcript.  Tape was transcribed on Sept. 13, 2000.  That transcript is inserted here.  Page numbers refer to that transcript.]  [51]

[Playback of Audiotape, as follows:]

Lt. Peifer:
Okay, we are present at CID Headquarters.  The time is now 3:25 p.m. on the 23rd of November 1999.  Present is Detective Kelly, Robert Rivera and myself.  What has happened to this point is Robert, you just came out of Court.  The Judge granted you a new attorney?

Mr. Rivera:  [52] Yes.

Lt. Peifer:
You had indicated on your way into the courtroom when you saw me, that you tried to get a hold of me?

Mr. Rivera: Yes.

Lt. Peifer:
And you have been trying to get a hold of me, but you couldn't get through on the telephone?

Mr. Rivera: Yes.

Lt. Peifer:
And you came out of the courtroom, you reinitiated again, and said you wanted to talk to me, and I agreed to bring you down here, is that correct?

Mr. Rivera: Yes.

Lt. Peifer:
And this is all on your approaching us, saying that you wanted to talk to and you have been wanting to talk [53] to me in fact?

Mr. Rivera:  For a while.

Lt. Peifer:  Do you know what re-initiation means?

Mr. Rivera:  No, I don't.

Lt. Peifer:
It means that once we break contact with you, we don't talk to you anymore, but they you came and approached us and said I do want to talk to you.  In fact you made that statement in the courtroom, is that correct?

Mr. Rivera: Yes.

Lt. Peifer:
Robert, there has been some issues about whether or not you can read and write and all that.  You understand, you just can't read is that correct?

Mr. Rivera:  [54] Yes.

Lt. Peifer:  How much can you read?

Mr. Rivera:
I guess third grade level; that is what my girl says.  I am supposed to be tested sometimes after Thanksgiving in the jail.

Lt. Peifer:
Okay, is there anything that you don't understand about what is going on right now, or what has happened to this point?

Mr. Rivera:  I hear so many different things; I don't know what is going on.

Lt. Peifer:  Okay, other than you wanted to talk to me?

Mr. Rivera:
I have been hearing the stuff on the TV, the newspapers and I have nine or ten different cell mates.  Some of them, the main one of them has gotten in my drawer, underneath my [55] bed, got my paperwork out, photocopied my paperwork, made up stuff.

Lt. Peifer:
Okay, prior to going on here, I told you that we were going to be tape recording our conversation now, because I didn't want any mistake as to what is going on and it is to protect you and also to protect us.  Is that correct?

Mr. Rivera: Yes.

Lt. Peifer:
So you are aware that this tape recording is happening, and this is all part of the record, is that correct?

Mr. Rivera: Yes.

Lt. Peifer:
Robert, I am again going to advise you of your constitutional rights, because you have those rights, and I am going to read them to you, [56] because I know that you can't read.  But if there is anything that you don't understand of these rights I want you to tell me, okay.  First of all I am going to inform you that I am Lt. Peifer and this is Detective Kelly.  We are investigating Katelyn's disappearance.  You have the right to remain silent.  Anything you say can and will be used against you in a Court of law.  Do you understand that?

Mr. Rivera: Yes.

Lt. Peifer:
You have the right to talk to a lawyer before answering any questions, and have a lawyer with you before and during questioning do you understand this?

Mr. Rivera: Yes.

Lt. Peifer:
If you cannot afford a lawyer, you have the right to have a free lawyer [57] appointed for you before any questions are asked and during questioning, is that correct?

Mr. Rivera: Yes.

Lt. Peifer:  Do you understand that?

Mr. Rivera: Yes.

Lt. Peifer:
During our questioning here, you can choose to stop at any time if you choose to do so, do you understand that?

Mr. Rivera: Yes.

Lt. Peifer:
Now understanding these rights, and knowing that the Judge just ordered a new attorney to be appointed to you at a future date, and he said he is going to do it real soon.  Is it your intention, or your wish to talk to us about anything, that you indicated that you wanted to talk.  [58] Is it your wish to talk to us know, without an attorney being here?

Mr. Rivera:  Yes, I wanted to talk to you, I didn't know other people were going to be listening.

Lt. Peifer:
It is just us right now.  Detective Kelly, nobody can hear.  Now they may be able to see.  I am not going to full you, they can see through two way glass, but they cannot hear anything that is being said.  Now Detective Kelly is here, I am here, we both work together, we are both in the same unit.  Do you have any objections to Detective Kelly being here?

Mr. Rivera:  I just wanted to talk to you alone.  Don't take offense or anything like that.

Detective Kelly:  That is not a problem; I can leave.

Lt. Peifer:  [59]
Okay, Detective Kelly has left the room; it is just you and I.  It is still being tape recorded, so it is still on tape, just so you are aware that this is all being recorded, because I don't want any mistakes.

Mr. Rivera:  This will not disappear like the other one.

Lt. Peifer:
This will not disappear.  What I want you to do is have I coerced you into talking to me now? Have I promised you anything, has anybody done anything to cause you to come here or force you to come here and talk to me?

Mr. Rivera:  No, I did it on my own free will.

Lt. Peifer:
And actually you reinitiated it, as I said before, you are the one that came to me and said I want to talk to you?

Mr. Rivera:  [60] Yes.

Lt. Peifer:  Okay, what do you want to tell me?

Mr. Rivera:
I want to know what is going on.  I know from the beginning the first story I told you about the people from Maryland or whatever I told you, I did lie about that because I was scared.  The lady that works with you Donna Kibbie got my mother on the phone and this and that.  I wasn't thinking right and I was just so scared because the people that I gave her to told me all these different things.  They made me so upset, that day in Court when I got up and said what I said about Jen.  She knew where I was with Katelyn.  Then I see you and your partner jump right back in the car, went back to her mother's house.  There are two sides to everything.

Lt. Peifer:
That is exactly right.  And that is [61] why you wanted your opportunity to tell your side.  You had said that in Court the last time.  That you want the opportunity to tell your side.  I am giving you that opportunity to tell your side.

Mr. Rivera:
If you find Katelyn that she doesn't go back to her mother, because her mother looks so innocent.

Lt. Peifer:
I will take you right now, if you choose to do so to wherever Katelyn is.

Mr. Rivera:  She is far away.

Lt. Peifer:  All you have to do is make the phone call and we will go get her.

Mr. Rivera:
When my sister came up to see me, I was trying to remember what they did drive.  I am not sure what they look like, then we found out what state.

Lt. Peifer:  [62] Robert, you indicated that you know who has Katelyn.

Mr. Rivera:  No, I don't know who has her, no.  If I did say that you know what I mean.

Lt. Peifer:  You indicated only god and you know where Katelyn is.

Mr. Rivera:
But they blew that out of proportion.  I meant god knows, god is everywhere.  They blew up everything, the reporter she blew everything out of context so much.  And when I told the guy to write the letter in jail, I can tell them one thing and he writes another you know what I mean.

Lt. Peifer:
Robert, you had made a statement in the Court that said this has gone on way too long the last time.

Mr. Rivera: Yes.  [63]

Lt. Peifer:
And I believe that you want to tell where Katelyn, wherever she is.  Whether she in the ground, whether she is somewhere.  If she is somewhere, Robert now is the time to tell us.  Like you said this has gone on far too long.  I think that you want to say where she is, I am giving you this opportunity right now.  And I will take you.  If you want to go, I will take you to go get her.

Mr. Rivera:
When you find her, you have got to promise me because I don't want her going back to her mother for what her mother was doing to her.  You don't know her.

Lt. Peifer:
Well she is not going directly, she is going for custody.  If you could tell me where she is right now, I can assure you that we will take here immediately to a hospital, have [64] her examined to make sure she is okay.  That is what I promise you, and I will stay with her the entire time. And I will make that promise to you right now, but you need to tell us where Katelyn is.

Mr. Rivera:  Then she goes back to her mother.

Lt. Peifer:
There will be a hearing on that matter, because that matter is still pending before the Court, and there will be a hearing.  But she will remain in our custody until we release her from our custody.  Because there is a pending allegation, you have every right to have that.  The pending allegation, you say she is unfit.  That is presently before the Court.

Mr. Rivera:  You don't understand.

Lt. Peifer:
Robert, now is the time to say where Katelyn is.  It is like the bottom [65] of the ninth, and this is the last out.  And this is the last opportunity I am going to be talking to you.  What I would like you to do is tell me where she is so that we can go get here.

Mr. Rivera:
I don't know what city I think it was Florida because it had oranges on the license plate, in Orange County.  They had a red whatever those things are.

Lt. Peifer:  Robert, tell me about the sneaker and the sock that I found?

Mr. Rivera:  That is not Katelyn's.

Lt. Peifer:  It is Katelyn's.

Mr. Rivera:  I don't want to argue with you.

Lt. Peifer:  It has been identified by several people that it was Katelyn's.

Mr. Rivera:  [66] Well that is not her actual one because she doesn't wear a size four; that is a size four.

Lt. Peifer:
She was wearing a size four at the time.  And there was several people that identified it, and it was her yellow sock.  What you need to do is tell me how that got there?

Mr. Rivera:
When I gave her to the people at Longwood Gardens, when I went down 202, I was going back to Maryland on the one side is Pep Boys, on the other side is a children's clothing store.  I got the clothes, I put them in the bag, I tied them on the door.

Lt. Peifer:  Why would you have taken her clothes?

Mr. Rivera:  I took them off her at that point I had other clothes to put on her.

Lt. Peifer:  [67]
But you had indicated before, you didn't have any clothes, you didn't have any medication, you didn't have any diapers.

Mr. Rivera:
No I didn't have it but I got that stuff.  I didn't know Katelyn was on medication.  I didn't plan this.  I didn't go in with the intention that I wanted to kidnap her.  I just wanted to say goodbye to her.  Because there is plenty of times I went to day care.  Picked her up, dropped her off.  Nobody told me that I wasn't allowed to go to the day care and see my daughter.  Nobody told me that, no Courts, nobody told me that.

Lt. Peifer:  Robert, tell me about the shovel?

Mr. Rivera:  I don't want to talk about that.

Lt. Peifer: Why?

Mr. Rivera:  Because I don't want to incriminate myself.

Lt. Peifer:  [68]
Everything is on tape, everything is being recorded, so it can't be misinterpreted because they are actually your words.  Tell me in your words.  I am asking you about the shovel.  Tell me about the shovel?

Mr. Rivera:  The next thing you are going to ask me about the car jack.

Lt. Peifer:  But I found the shovel; tell me about the shovel?

Mr. Rivera:
No, because everybody thinks I used it, and I killed my daughter or something, but that is not the truth.

Lt. Peifer:  Well then why is the shovel where it is?

Mr. Rivera:  [69] I don't want to discuss it.

Lt. Peifer:
I am not asking you to say any lies, all I want is the truth.  I am giving you this opportunity.  This is your chance to tell the truth, Robert.  It is the time to put everything out on the table and say hey look this is the time, and I am doing this for Katelyn.  And I am doing this for Katelyn and you are doing it for Katelyn, so let's put our cards on the table.  Let's do this for Katelyn.  It is coming up on her birthday.

Mr. Rivera:  I know it is.

Lt. Peifer:
Then let's do this for Katelyn.  You have every chance right now to do this for Katelyn, just like I am.  We can lay our cards out on the table. You ask me questions, I ask you questions.

Mr. Rivera:  [70] The questions I want to know about you, I already know.

Lt. Peifer:
All I am doing, I want to give you the opportunity to tell us.  That is why we are here, that is why you wanted to talk to me.

Mr. Rivera:
I wanted you to find her and promise me that she won't go back to her mother, and her mother won't abuse her, which is what she was doing to her.

Lt. Peifer:  But you indicated that you know where she is.

Mr. Rivera:
The state and city, yes.  But I don't know the people got her.  People blow things out of proportion.

Lt. Peifer:
Robert, we have sent fliers, we have done interviews, we plastered Orlando and Orange County with [71] fliers of Katelyn, and we have absolutely no responses, none.  We have the whole state covered with fliers.  The National Center for Missing Children have also flooded the state of Florida, based on the information that she was in Florida.  We have absolutely no responses from Florida, none.  Anyone down there would know of a child because of the high publicity that we have sent to that area.  As soon as we got that information that she possibly was in Florida, we sent agents, the agents in Florida disseminated all of the information.  That is what I am saying, now is the time that you need to come forward, step up and tell where she is.  Say where she is.  I will take, I promise you if you need to go and point exactly where she is, I will take you.  I will take you right this minute.

Mr. Rivera:  Believe me, I know that.  [72]

Lt. Peifer:  And we would be doing it for whom?

Mr. Rivera:  For Katelyn.

Lt. Peifer:  That is exactly right.

Mr. Rivera:  Because of all the lies I hear all the time on the news.

Lt. Peifer:
Now is the time to end it.  Now is the time to just put everything out on the table.  You won't get another chance, this is it.  This is the final chance.  It is like the bottom of the ninth, and there is two outs.  And you can do this.

Mr. Rivera:  I know she is not dead; I don't care what anybody says.

Lt. Peifer:
I believe you know where she is; there is no way you are going to part with your child, without knowing where she is.  You cared [73] about your child too much.  You even checked out the baby-sitters to make sure that she wasn't going to someone -- when you guys were looking for baby-sitters.  You wanted to make sure that she wasn't going to be mistreated by any baby-sitters.  So that is direct contradiction to you letting her go with people you wouldn't even know.  Because Robert, you cared about her.  You wouldn't let me go with just anybody.

Mr. Rivera:  Why wouldn't her mother take her back, when I tried to give her back.

Lt. Peifer:
I don't know; I wasn't there Robert.  That was a whole messed up day.  You know that was a whole messed up day.

Mr. Rivera:
Four times I went in front of her house.  Four times and she kept on running to the door.  Katelyn was right in the front seat, Michelle [74] was in the back seat.  She could have sent her brother or her mother or her father to come out and get her, you know.

Lt. Peifer:
You can give us Katelyn now.  I believe in my heart that you can give us Katelyn right now.  And I believed it from the night that I talked to you, the very first night that I met you.  I believe that you can give us Katelyn.  And I still believe that today, that you know exactly where she is, and now is the opportunity.  This is the opportunity.  All you got to say Robert is okay.

Mr. Rivera:  Okay, and then her mother wins.

Lt. Peifer:
Her mother doesn't win.  Katelyn wins, Katelyn wins.  There is no winner or loser here.  Right now everybody loses, everyone.  Katelyn is losing, you are losing.  [75]

Mr. Rivera:  Her mom don't give a crap about her, you don't see it.

Lt. Peifer:  Robert you care about her.

Mr. Rivera:  Yes, I do care, right.

Lt. Peifer:  You know what, then help me get her back.

Mr. Rivera:  I was an abused child and I don't want Jen -- was abused too.

Lt. Peifer:
Robert, all you have to say is okay, and you can do that.  You have made your point, now it is time to come forward and tell us where she is.  All you have to do is say okay, Robert.

Mr. Rivera:  Turn this off.

Lt. Peifer:  You want to turn it off?

Mr. Rivera:  [76] Yes.

Lt. Peifer:  All right I am turning the tape off, the time is 3:44 p.m.

[Audiotape playback concluded]

[Continuation of 01-18-2002 Transcript, page 114]

By Mr. Reilly:
Q. Lieutenant Peifer, what happened when you turned the tape off?
A. I continued to question Robert in reference to the whereabouts of Katelyn.
Q. What did you say?
A. I kept asking him, Robert, tell me where Katelyn is.  And pretty much the same as was on the tape, he just didn't want it taped.  He wanted the tape turned off.  So this went on for awhile, long periods of silence.  I would ask him, tell me where Katelyn is, looking right at him.  And towards the end of that tape he started crying more.  And he was sobbing.  And his head was down.  And this continued; tell me where Katelyn is.  And he would look at me and then he would put his head down.  And there would be long periods of silence.  And towards the end of that tape you could hear that the silence portions were getting longer.  They actually got longer while we were off tape, just waiting for a response from him.
At certain times he would then bring up the fact that Jennifer would win; [115] Jennifer would win this, you know.  And I would say no one wins.  And it's pretty much the same as was reiterated on the tape, before.  At one point I said tell me where Katelyn is.  There was a long period of silence.  He was sobbing.  He looked up and he said if I tell you where Katelyn is, I'll spend the rest of my life in jail.  And I looked at him and I said, Robert, you'll only spend the rest of your life in jail if you killed her.  You don't go for the rest of your life if you kidnapped her or burglarized the house.  And that's when the interview ended.

Mr. Reilly:
Your Honor, there is a stipulation between myself and Mr. Smith that after the defense said that, Lieutenant Peifer turned the tape back on.  And the Defendant confirmed on the tape what he had said to Lieutenant Peifer off the tape.

Mr. Smith:  Agreed, Your Honor, stipulated.

By Mr. Reilly:
Q. Lieutenant Peifer, I next want to direct your attention to March 22 of 2000, you had contact with [116] the Defendant that day, is that right?
A. I did.
Q. Where did that take place?
A. That took place -- well actually he was picked up at the prison, I believe, transported and arraigned on the new charges, including the murder charges.
Q. And did you actually transport the Defendant that day?
A. It was myself, Agent Donna Kibbie sitting in the front passenger seat, Robert Rivera was in the right rear passenger seat and Detective John Kelly, from my office, was behind me in the left rear passenger seat.
Q. What happened on the trip back to the prison?
A. I had made a comment to Donna Kibbie -- and I said to her where ...
Q. The Defendant is in the back seat, at this point?
A. Yes, he is.
Q. And you're up front?
A. Yes.
Q. Is there anything between you?
A.    [117]
Q. I should say between you and the Defendant?
A. No, it's open.  I had said to Donna Kibbie, I'll have to check with the prison or I wonder if this will change his status now that he's charged with the murder.  And at that point Robert just blurted out, no, it won't, there are other murderers on my block.  And we all just looked at each other.
Q. Detective Peifer, you mentioned on the tape your efforts to locate Katelyn in Florida.  Was that information correct?
A. Yes, it was.
Q. When you had heard about Florida and you heard about Orange County, you did those things that you described on the tape?
A. Yes, I did.  I continually told him -- I was giving him the opportunity to talk to me.  I was kind of calling his bluff, saying, you know, hey, here we are, take me to her, she's alive, take me to her.  And he couldn't.
Q. In addition to your efforts in Florida, you also interviewed some folks in North Jersey, is that correct?
A. Yes, they were also relatives of Robert Rivera, along with neighbors in that area.  [118]
Q. Were you successful in locating Katelyn?
A. No, we were not.

Mr. Reilly:  Your Honor, those are all the questions I have, thank you.

The Court:  You may cross.

Mr. Smith:  Thank you, Your Honor.

CROSS EXAMINATION

By Mr. Smith:
Q. Lieutenant Peifer, when you went out on that first day, the night that you went out looking by Longwood Gardens, that was the night of the 11th or the 12th?
A. That would have been the night of the 11th.
Q. Night of the 11th?
A. Yes, sir.
Q. Robert told you that he'd gone and turned around in the Dairy Queen out there, right?
A. That's correct.
Q. And you went out and, in fact, found such [119] a Dairy Queen, right?
A. I did.
Q. And when he said that he made a phone call at like 9:04 p.m., from a Sunoco Station, you were driving past the Sunoco Station and he said that's where I made the phone call from?
A. Yes, sir.
Q. You checked that out, didn't you?
A. Yes, I did.
Q. And that was accurate, wasn't it?
A. Yes, it was.
Q. That's where he made the phone call from?
A. Yes, it was.
Q. And then when he said there was a firehouse with fire trucks, there was, in fact, a firehouse there with fire trucks, right?
A. Yes, there was.
Q. And he said across the street there was that cemetery, gravestones and things and that's where that was, right?
A. Yes.
Q. And then he told you how he made an illegal turn into Longwood Gardens, right?
A. Yes.
Q. And in fact, it was possible, things were [120] -- possible to make an illegal turn right there and go to Longwood Gardens, wasn't it?
A. Yes, it was.
Q. And then when you got there, he told you certain times that he said he was there, didn't he?  In other words, he said the time he was there, the night before when he was there and gave Katelyn to the people, right?
A. Yes, sir.
Q. And you checked on that and found out that Longwood Gardens is normally closed at that time, didn't you?
A. Yes, I did.
Q. But then you further checked and found out that that night, that would have been the night of the 10th, that there was a special event going on at Longwood Gardens and that it was, in fact, open that night, right?
A. That is correct.
Q. So when he said he was there at a certain time, normally the place would have been closed.  In other words, normally, on a regular routine day, not a special event, it would have been closed at that time?
A. Yes, it would have been closed.
Q. But on that particular night there was, [121] in fact, a special event on that night and it was open at the time he said he was there with Katelyn?
A. That's correct.
Q. You mentioned the two maps, remember I made an objection, the question was who said what about the maps.  And Mr. Reilly changed his question so that the two maps were -- who drew the maps, and your answer, ultimately, was well William Lively said that Robert Rivera drew the maps, right?  I'm talking about the two maps, one of Tom and Sissy's place there and the other one of sort of the nearby area of Tom and Sissy's, two hand drawn maps?
A. Yes.
Q. And did William Lively tell you who wrote the words on those maps?
A. I believe he said he indicated he did.
Q. So he said Robert drew the maps but I wrote the words on them?
A. Robert was identifying the locations, I guess, of what different things were.  And he was identifying them, putting the print in.
Q. And Lively was telling you that these maps were Robert said Katelyn's buried -- you'll find her using these maps?
A. That's what he told Lively, but he was [122] referring to Katelyn as the item.
Q. So you and everybody else searched according to those maps, right?
A. As best we could, yes.
Q. Is it fair to say that if Katelyn was buried where those maps said she was, you would have found her?
A. Well I watched the dogs work.  And the dogs appeared to be working.  And they did practice sessions with the dogs with stuff above ground. And they were able to find the bone that was -- that was laid out.  And I was pretty confident in the dogs.  Is it possible that she could be buried there, very possible.  Did we do a good job in looking?  I think we did a fair and a fair job of looking, counting on those dogs to find her.
Q. So you didn't find her.  The dogs didn't find her.  Nobody else found her.  You didn't find anything that suggested there was, you know, fresh diggings somewhere that wasn't checked out, did you?  You went and checked in the -- didn't you tell us you checked in the outhouse pit or something, wasn't it?
A. Yes, sir, we actually had the outhouse pit pumped.  And -- but this area, it's a lot of undergrowth.  There's a lot of leaves.  Could she be [123] there?  Yes, I guess she could be there.  She could be anywhere.  She could be -- anywhere on this property.  She could be -- I mean, you're only talking a small area.  And this is acres and acres of land.  So did we do the best job that we could in searching those areas; yes, we did. That's the best I can say.
Q. The letters from Rose Quinn that you and Agent Kibbie went to get at the Daily Times, there were two of them, right?
A. That's correct.
Q. And they were signed Robert Rivera?
A. Yes, sir.
Q. And you did some digging into whose handwriting that was, didn't you?
A. Yes, I did.
Q. And is it fair to conclude that what you found out was that was his signature on them but he didn't write them?
A. That is correct.
Q. So somebody wrote them for him.  You heard all the talk about him not being able to read at that time, or not be able to write?
A. Yes, they were -- they were, I guess, authored by him but written by someone else.
Q. In your -- in your discussions with [124] Robert, when he kept telling you and wanting you to promise not to turn Katelyn over to her mother, in that first discussion you didn't make that promise, did you?
A. When are you referring to?
Q. You were talking to him about he would be willing to turn Katelyn over -- you said if you're willing to turn Katelyn over if I would promise not to turn her over to her mother.
A. Is this the cellblock incident?
Q. Yes.
A. I don't think I made the promise.  I just said ...
Q. That's what I'm asking, you -- you did not make that promise to him.  You didn't say, Robert, you -- he said I'm willing to turn her over if you promise not to turn her over to her mother.  But you didn't make that promise, did you?
A. Well what I said to him, I didn't say I promised.  I said I will take Katelyn, get her checked out and keep her in our custody until a hearing is held in that matter.
Q. Lieutenant Peifer, you actually have the authority to keep Katelyn in your custody until there's a hearing?  You didn't have any such authority at that time, did you?  [125]
A. I would have done anything, at that point, to get Katelyn.
Q. I'm not asking you that.  Did you have any kind of legal authority to keep Katelyn in your custody at that time?
A. No, sir, I'm sure we could file paperwork but, no, I did not have any legal authority.

Mr. Smith:  May I have just a minute, Your Honor, I believe I'm finished.

The Court:  Certainly.

[Off the record]

By Mr. Smith:
Q. I have to -- one thing I didn't mention to you, when he first took you out to Longwood Gardens that night of the 11th, he told you that there were three big tour buses in the back that night; that he had seen big tour buses back there, is that what he told you?
A. Yes, sir.
Q. And you checked on that, too, didn't you?
A. We interviewed all the people on all [126] three tour buses.  And no one ever saw him or her out there.
Q. No, but my point is that you -- not what they saw.  He said he saw three big tour buses there that night.  You checked and found out that there were big tour buses there that night?
A. Yes, they were.

Mr. Smith:  Thank you, very much, that's all the questions I have.

Mr. Reilly:  Your Honor, one other matter.

REDIRECT EXAMINATION

By Mr. Reilly:
Q. Lieutenant Peifer, Mr. Pickett testified this morning that he received eight leads regarding Katelyn and turned those leads over to law enforcement.  That's not what he does.  You received those.  Did you check those out?
A. Yes, they were forwarded to local agencies in the area where they were discovered and investigated with negative results.  [127]

Mr. Reilly:  That's all, Your Honor.

The Court:  You're excused.  Take a brief recess, ladies and gentlemen.  Don't discuss the case.

[Off the record]

The Court:  All right, we're ready to proceed.

Mr. Reilly:
Thank you, Your Honor; Your Honor, before calling the witness, the Commonwealth submits Commonwealth Exhibit C68.  This is a report of the FBI lab in Washington, DC.  It indicates that the FBI lab tested various items, including items seized from Michelle Lupi's [ph] Ford Escort; the Defendant's clothing; items from the Sunoco rest room in Chadds Ford, Pennsylvania, as well as other items; that all those items were tested and there was nothing of evidentiary value found.

Mr. Smith:  I stipulate to the admission of C68 and all of the contents therein.

The Court:  Okay, satisfactory.  [128]

Mr. Reilly:  Commonwealth calls Officer James Reardon, Your Honor.

James Reardon, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Officer Reardon, you've testified previously in this matter, is that correct?
A. Yes, sir.
Q. Officer Reardon, would you tell the jury what is booking?  What does that mean?
A. When a person is placed under arrest they are transported to the police station for processing.  What is included in processing is we will take fingerprints of the person arrested.  We will take photographs of the person arrested and collect arrest information from the person arrested.
Q. And did you do that in this case?
A. Yes, sir.
Q. Did you prepare or did Upper Chichester Police prepare an arrest report once you had booked the [129] Defendant?
A. Yes, we did.
Q. Let me show you Commonwealth's Exhibit C69 for identification and ask if you recognize that?
A. Yes, sir.
Q. And the information that appears on that arrest report is basically the Defendant's name, phone number, date of birth and other vital information, is that correct?
A. Yes.
Q. Did you obtain from the Defendant, during the booking process, his height and weight?
A. Yes, we did.
Q. And what's the height that you obtained?
A. He was 6'2".
Q. And the weight?
A. Approximately 135 pounds.
Q. I'm sorry?
A. Excuse me, approximately 235 pounds.
Q. Thank you.

Mr. Reilly:  Thank you, that's all, Your Honor.

The Court:  And where do you get that information from?  [130]

The Witness:
That information is collected from the Defendant at the time of the arrest at the police station.

The Court:  Okay, you may cross-examine.

Mr. Smith:  Thank you, Your Honor.

CROSS EXAMINATION

By Mr. Smith:
Q. Detective Reardon, did you -- you personally get this information from Robert Rivera?
A. I don't believe I personally obtained that information.  But I was at the police station at the time it was collected.
Q. But if you personally didn't get it, then do you -- did you actually hear the Defendant give any of this particular information and, if so, to whom did he give it?
A. Officer Mitchell, I believe, was the officer who actually obtained the arrest information.  And he's an officer in our police department.
Q. Did you -- it says on here, for example, that he's 6'2" tall.  Is that something the Defendant [131] said or is that something -- or I mean, were you present and heard him say it?
A. The normal course, the normal procedure is ...
Q. Officer Reardon, I'm not ...
A. It would have been ...
Q. Not the normal course of -- did you hear him say I am 6'2" tall to Officer Mitchell, if that's the person who you say -- you said you're pretty sure Officer Mitchell -- or you're sure Officer Mitchell took this information, right?
A. Yes, sir.
Q. You weren't in the room when it was taken, were you?
A. Yes, I was.
Q. Did you hear him say it, then?
A. Yes, I did.
Q. You heard him say he was 6'2"?
A. Yes.
Q. And he said that to Officer Mitchell?
A. Yes.
Q. And did you hear him say what his weight was?
A. Yes.
Q. What did he say?  [132]
A. Approximately 235 pounds.
Q. He said that?
A. Yes.
Q. You're positive?
A. Yes.

Mr. Smith:  That's all the questions I have.

Mr. Reilly:  That's all, Your Honor.

The Court:  You're excused.

Mr. Reilly:  Dr. Hellmon next, Your Honor.

The Court:  May I see counsel, briefly, at side-bar?

Mr. Reilly:  Yes, sir.

[Side-bar conference]

The Court:
Just as a precaution, do you want to put anything on the record before Dr. Hellmon testifies?

Mr. Smith:
Yes, Your Honor, I object to the [133] Commonwealth presenting Dr. Hellmon as an expert in this case.  I submit that this is an area, first of all, that is not subject to expert opinion.  Secondly, there has not been enough information presented for this doctor to be able to testify to a degree of medical certainty exactly how this child died or if she is dead, and that by allowing him to make this statement now and present this testimony now, it will lead this jury to improperly conclude what is the probative issue for the jury's determination and solely for the jury's determination as to whether or not Katelyn is even dead and, if so, who killed her and how she was killed and -- or did she die by an accidental means or some other means.  And for this doctor to make this statement now will lead this jury to a false conclusion.

The Court:
Well insofar as whether the child is [134] dead or how the child -- if is dead, died, would be subject to a hypothetical question, obviously.  Insofar as the doctor is qualified to give such an opinion depends on the foundation that you lay with him.

[End side-bar conference]

DIRECT EXAMINATION [as to qualifications] By Mr. Reilly:
Q. Dr. Hellmon, you are the medical examiner for Delaware County, is that correct?
A. That is correct.
Q. And what's a medical examiner of Delaware County?
A. Can you please repeat the ...
Q. What is a medical examiner of Delaware County?
A. Well ladies and gentlemen, that is the individual who is responsible for the medical investigation of unexpected, unexplained, mysterious or violent deaths within the confines of Delaware County.
Q. You're a medical doctor, is that correct?
A. I am.  [135]
Q. And do you have a specialty?
A. Yes, I do.
Q. What's your specialty?
A. My specialty is forensic pathology.  I ...
Q. Would you tell us, first, what's pathology?
A. Sure, pathology is the study of disease and forensic pathology is the subspecialty of pathology that particularly addresses the medical/legal investigation of death.  In order to become a forensic pathologist, at the very minimum, they first need to go through training in the field of -- at least anatomic pathology, which characteristically takes four years, to be followed by at least a one-year fellowship in forensic pathology.  My training is both in anatomical pathology and in laboratory medicine, which is microbiology, bloodbanking and the like.  And I did a two-year fellowship in forensic pathology.
Q. Have you testified previously and qualified as an expert in the field of forensic pathology?
A. Yes.
Q. Have you actually previously testified here in the Courts of Common Pleas in Delaware County?
A. Yes.  [136]
Q. How many times have you been qualified as an expert in the field of forensic pathology?
A. Between 170 and 180 times.

Mr. Reilly:  Your Honor, I offer Dr. Hellmon as an expert in the field of forensic pathology.

The Court:  You may cross-examine.

Mr. Smith:  No objections and no cross examination, Your Honor.

The Court:  Deemed qualified.

DIRECT EXAMINATION
By Mr. Reilly:
Q. Dr. Hellmon, in preparation for your testimony today I asked you to review two documents, is that correct?
A. That is correct.
Q. What are the documents I asked you to review?
A. There was a one-page document, which was the Upper Chichester Township Police Department arrest [137] report of a Robert Norman Rivera, dated 11 August, 1999.
Q. And did that arrest report include the Defendant's height and Defendant's weight on August 11, 1999?
A. Yes.
Q. What was the second report I asked you to read?
A. You also provided me with a two-page, basically, portion of medical records from Pediatric Associates for Katelyn Rivera, dated 11 June, 1999.
Q. For what reason was that Pediatric Associates record prepared?  What event does that record?
A. It was actually an 18-month well child visit.
Q. Does that report include Katelyn Rivera's size?  That is, her height and her weight?
A. It does.
Q. Have you reviewed those documents?
A. I have.
Q. Dr. Hellmon, would you please describe for the jury what is smothering?
A. Smothering is the exclusion of air.  And as it is characteristically depicted, it is most often associated with homicidal-type smothering where the [138] exclusion of air from the nose and mouth is done either with the hand, some type of fabric or impervious, inflexible object or the head of a victim could be pressed into an object so that there is blockage of the nose and mouth.  Other forms of smothering can occur accidentally, say, for example, industrial accident where someone becomes trapped within like a grain silo where there's occlusion of the airway, or even where there is exclusion of oxygen from a closed environment.
Q. Well Dr. Hellmon, I'm going to pose you a hypothetical question.  If a man the size of Robert Rivera smothered a child the size of Katelyn Rivera, at 20-months-of-age, will you please describe the physical process that would lead to her death?
A. Sure, well first of all, as is commonly the case in homicidal smothering, there is characteristically great disparity in size between the assailant and the victim.  Characteristically, the victim is much smaller than the assailant and/or is unable to put up a great deal of resistance.  In this particular case, with an individual of much greater size than a 20-month-old, there would likely be some initial struggle as the airways were occluded.  And according to at least one authoritative text, slowing of the heartbeat would occur within about 30 seconds.  This [139] would be followed by gasps for air and ultimately breath would cease.  This would occur somewhere between 30 seconds and say 1 minute to say 75 seconds.  But that can be rather variable.  Ultimately there would be slowing of the electrical activity of the brain, which would then lead to flat-line activity of the brain electrical activity.
Q. Flat-line electrical activity, what do you mean by that?
A. It means that there's no longer any electrical activity occurring in the brain as measured by an instrument called an electroencephalogram, or an EEG.  Now there is some variability with this.  In fact, in cases of struggling where a lot of oxygen already in the body is being utilized in the struggle, the amount of time necessary to get to some of these steps may, in fact, be less.  For those of you who have attempted to hold your breath, you may have actually clocked how long you can hold your breath.  And then -- and you know that with time you get to the point where you get air hungered.  Your lungs start to burn.  Your chest starts to burn.  And you have to take a breath.  For most people this occurs -- for adults, a minute, minute-and-a-half, give or take.  For a child who perhaps is unprepared and doesn't have the oxygen capacity of an [140] adult, it would be a lesser period of time.
Q. Dr. Hellmon, you described that a struggle would begin and that would occur at about 30 seconds, is that correct?
A. I would imagine that there would be a struggle that would ensue more rapidly than that.
Q. What -- what do you mean by struggle?  What would be the physical activity you're describing?
A. Basically an attempt by the victim to clear their airways so they could take a breath of air.  And -- and this would continue until basically the victim started to slip into unconsciousness.
Q. At what point would the victim slip into unconsciousness?
A. I believe ...
Q. At what point in time?
A. I believe it would be in the range, for this child, of somewhere between one minute and ninety seconds, somewhere between the gasping for air and ultimately the slowing of electrical activity of the brain.
Q. And that slowing of the electrical activity in the brain would occur at 90 seconds, is that correct?
A. Give or take according to this one text.  [141]

Mr. Reilly:  Those are all -- I'm sorry ...

By Mr. Reilly:
Q. Dr. Hellmon, the opinion that you've given today, do you offer that to a reasonable degree of medical certainty?
A. Yes.

Mr. Reilly:  That's all, Your Honor.

The Court:  You may cross.

CROSS EXAMINATION

By Mr. Smith:
Q. Mr. Hellmon, what is a hypothetical question?
A. It's based on a possible circumstance but not on a definite situation.
Q. It's a hypothesis, isn't it?
A. That's right.

Mr. Smith:  [142] No further questions.

Mr. Reilly:  That's all, Your Honor.

The Court:  You're excused, Doctor.

Mr. Reilly:  I recall Jennifer Helton.

JENNIFER HELTON, having previously been duly sworn, was called as a witness herein and was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Reilly:
Q. Ms. Helton, you -- on August 11, 1999, you met with the Defendant at the Upper Chichester Police Department, is that correct?
A. Yes, I did.
Q. You met with him alone in the interview room, is that right?
A. Yes.
Q. What did you ask the Defendant?
A. I asked him where Katelyn is.
Q. What did he say?  [143]
A. He said he -- he started to get mad.  Every time I asked him where Katelyn is he started to get mad.  The only reason that I'm here is to find out where Katelyn is.  I don't want to talk to him and he kept going away from the subject of Katelyn every time I asked him.  I asked him several times.
Q. Did you try to bring him back to the question?
A. Yes, and he always redirected me away from it.  Later, at some point, he did start to tell me that ...
Q. What did he tell you?
A. That he had given her to a lady in upstate New York.  And I asked him where was this in upstate New York.  He said that he -- he could remember in his head how to get there, but he couldn't tell me.  That he would take me when he would get out of jail.  He wanted me to marry him.  He asked me to marry him.  And I told him that well I don't want -- I want to be a -- we need to be a family.  I couldn't get married without Katelyn.  And he said that we would get married and he would take me to get Katelyn and we would be a family again.
Q. That meeting went on for quite some time, didn't it?  [144]
A. Yes, it did.
Q. Did you ever get an answer from the Defendant?
A. No, but that's the most -- that's the answer I got in the whole time.
Q. You met with the Defendant again at the prison on August 24, is that right?
A. Yes.
Q. And how were you able to arrange that?
A. Through Donna Kibbie, the FBI.  I told her that the only way -- I wanted to meet with him in hopes to find out where Katelyn was, again.  And the only way I felt comfortable doing that was a setup where I wouldn't have to meet with him and so he was free.  In other words, I couldn't have any physical contact with him.
Q. And did she arrange that?
A. Yes, she did.
Q. You met with him at the prison?
A. Yes.
Q. What did you ask him?
A. I asked him, again, please tell me where Katelyn is.
Q. What did he tell you?
A. He said that the story that he told me [145] about the lady in upstate New York, that was a lie and that the people that have Katelyn now, if I -- I can't tell you because they threatened to go after my family and then they'll go after yours.  Then I said they don't know your family.  And he said they'll find out, they'll find out.  And I said well how -- did you talk to these people?  And he made a motion with his hand, like this, and that's all he said.
Q. Indicating, for the record, like he was writing with his hand?
A. Like he was writing, yes.  And I said, oh, you'll write to them?  And he didn't respond.  And I kept on asking him please to tell me the truth, you know.  And he kept on saying that I'm wearing a wire, that the CO is here, I can't tell you, either a CO is here.  He just had a constant reason why he couldn't say.
Q. Do you remember how long that meeting went on?
A. I think about 45 minutes, after one point I started to get really upset and frustrated.  And I wasn't getting anywhere, so I left.

Mr. Reilly:  May we approach -- see the Court at side-bar, [146] Your Honor?

[Side-bar conference]

Mr. Reilly:  I could swear that Dr. Hellmon's testimony was -- that Dr. Hellmon was sworn in.

The Court:
I was afraid of that.  I was writing at the time.  My Court officer just said she forgot.  She ...

Mr. Reilly:  She's still under oath.  Jennifer is still under oath.  She said you're still under oath.

The Court:  Okay, what are we going to do about it?  Hellmon, has he left?  I'm sure he has.

Mr. Reilly:  We can bring him up to the Bar of the Court.

The Court:
Well let me ask this, when we swear Hellmon in, can we do it in reverse fashion, do you solemnly swear that [147] the testimony you gave is the whole truth, nothing but the truth?

Mr. Reilly:  Just tell him we forgot to swear him in.

The Court:
Right, but I don't want to have to go through the testimony again.  Bring him up.

[End side-bar conference]

The Court:
Get a Bible, Beth, please.  Court officer forgot to swear the doctor in.  For purpose of the record, okay.

[Wherein Dr. Neil Hellmon was sworn in]

The Court:  And also the testimony you already gave the Court?

Dr. Hellmon:  Yes, Your Honor.

The Court: Okay.  [148]

Mr. Reilly:  Did you swear that that was the truth, so help you God?

Dr. Hellmon:  Absolutely.

The Court:  Thank you.

Mr. Reilly:  Ms. Helton, Your Honor, does understand that she's still under oath.

The Court:  Still under oath, yes, okay.

By Mr. Reilly:
Q. Do you recall how long your meeting with the Defendant on August 24 lasted?
A. About the one I was in the prison for?
Q. Forty-five minutes?
A. Oh, roughly.
Q. You didn't have any more information about Katelyn when you left than when you went in, is that right?
A. No, that's right.
Q. Now Ms. Helton, the Defendant has kept in contact with you via the mail since he's been placed [149] under arrest, is that correct?
A. Yes, he has.
Q. Can you estimate for the jury how many cards and letters you've received from the Defendant since he's been arrested for this crime?
A. Probably around 75 to 100, very many.
Q. Get them all the time?
A. Yes.
Q. I'm going to show you three cards here, C70, C71 and C72.  Take a look at C70.  Do you recognize that?
A. Yes, I do.
Q. What is that?
A. This is a card from Robert, addressed to me.
Q. What's the postmark date on there?
A. December 7, 1999.
Q. Would you take the card out from the inside?
A. Yes.
Q. What does it say on the back of the envelope?  Would you hold that up and show it to the jury?
A. It says open this one, first.
Q. Will you open it and take it out?  Will you [150] show the jury what's on the front of that card?  What does it say?
A. Days come and go.
Q. Are there hearts on the front?
A. Hearts.
Q. Okay, would you open it up?  What's inside, the piece of paper inside?
A. It's a cutout from like a magazine, I would imagine.  And it shows two couples under a little hut.
Q. It's one couple.
A. On some island, I think, yes, on a beach.
Q. Would you read that for us?  I'm sorry, read the card for us?
A. Okay,
"Dear Jen, Hi, how are you doing?  I know things aren't doing well.  I know things could be better." Better is underlined, twice.  "And I know Katelyn's birthday," both of them are underlined, "is coming up," underlined, twice.
Q. You can leave out the underlined.

A. Okay, I didn't -- "on December 12.  The reason why I'm writing this letter is because I have a new lawyer.  I want to get this thing over with because the holidays are coming up.  I hope we can get this finished with before Christmas so you and your family [151] can enjoy a good Christmas.  I know no matter what, they will never, ever let me see Katelyn again.  I know how that feels because Jamie will be 16 on December 4.  That is Katelyn's big sister.  I know what you have been going through the last four months because I have been going through it for the past 16 years.

I wish you would send me at least one picture of Katelyn.  I know that I should have been more of a man to tell you how much I missed Jamie instead of keeping how I feel inside.  The last time I saw Jamie was when she was six months old.  Her mother told me she was going to send pictures every six months, but she never did.  When Jamie was seven-years-old, I saw her mother and she told me that even if she sent me pictures, how would I know what -- that it was really Jamie.  I really want to get this resolved before the holidays.

By the way, I don't know if you heard, my sister, Sonya, came to visit me about two-and-a-half-weeks ago and she told me that you might go down to Puerto Rico in December.  You would really like it down there.  You can meet the rest of my family and, most of all, my father, because one of the main reasons is to find out what is going on with Katelyn, because the FBI went to my father's and sister's ...

Q. Then we come to the second card, right?  [152] That's Commonwealth Exhibit C71.  Is that C71 you have in your hand now?
A. Yes, it is.
Q. By the way, Jennifer, on C70, the message on the front says what?
A. Days come and go -- oh, I'm sorry.
Q. No, it says days come and go?
A. Um-hum.
Q. And then what does it say inside?
A. But my feelings for you are forever, I love you.
Q. How about the second card?  What's the postmark date on that?
A. I believe it's December 7, again, 1999.
Q. Same as the first card?
A. Same.
Q. And it's addressed to you?

A. Yes, from Robert.  It says thank you, my love.  There's an insert from the paper of friend's of ours at the time that had gotten married.  "House and told them what was going on and my father had two heart attacks.  Then I found out last night, Thursday, December 2, that my sister, Lisa's, father has a few days to live.  His kidneys are failing and they have to have him on a machine just to keep him alive for the [153] next few days. My mother told me that they are still starting to argue over this house.  Like his sisters and brothers, they don't even ask if his daughter wants anything.

It reminds me of the time that your grandfather died, how strong he was and the things he told me and that he wasn't afraid.  I don't mean to get you upset, even though I know every day when you wake up and Katelyn's not there you get upset.  I go through it every morning.  I wake up and Katelyn and you are not there.  I keep praying that this thing can get resolved because I do not want to spend 20 years in prison.  That would make me an old man.

Did you read the newspaper last week about Paul and his brother getting married on the same day?  Were you invited to the wedding?  If not, I am sending you the news article because it reminds me of the time when we went to the Ukrainian Church in Chester.  Last week when I went to Court I talked with David C. Peifer.  We just talked, trying to get this resolved because there is just a few things that I want.  Have you ever gone and talked with your godparents, yet, because I miss them and I miss going over there and talking to them about our problems and how Aquillio [ph] ..."

Q. What does it say on that third card?
A. Open this one last.  [154]
Q. That's addressed to you, as well?
A. It's addressed to me, by Robert.
Q. Postmark date?
A. December 7, 1999.
Q. 1999, go ahead.  I'm sorry, once again, what's the message on the front of that card?
A. Thank you, my love.
Q. And then what's the greeting on the inside?
A. "When I'm sad and kind of low you always know what to do.  With your smile and your special touch you make me feel good again."
Q. How about the third card; what's the third card say?
A. Birthday wishes.
Q. Whose birthday is in early December?
A. Katelyn's.
Q. What's the date?
A. December 12.
Q. There's some little pictures inside?
A. Yes, this is a picture of a little Tigger.  She used to have a bouncing Tigger doll similar to that.  And these are pictures of the Tele-Tubbies, which she really enjoyed that show.
Q. And what does that card say?  [155]
A. "Warm are the thoughts of someone like you and warm are the wishes that come with them, too.  Wishes for happiness and special memories, not only today but each day all year through; happy birthday, to Katelyn, love dad, xox."
Q. What does it say on the back?
A. "His wife used to talk to us.  Do you remember how we used to go out and get the Christmas tree?  Remember how we used to have to get a running start to get the tree through the door?  I don't mean to get you upset, but I think of these things to get me by, day by day.  All right, I will let you go now.  I guess all that this is happening because of all the things I have done in the past.  If you need to talk to my lawyer, here is his name and number.  He is really nice and is willing to help me.  No matter what happens, I still love you.  You can call me crazy for still loving you, but I do.  Harris H. Smith, attorney; G. Guy Smith, and there's the number, 565-5300."
Q. I have two more here, Jennifer, from the 75 to 100.  I'm asking you to take a look at these.  The next one is marked as Commonwealth ExhibitC73.  What's the postmark date on that one?
A. April 27, 2000.
Q. To whom is that card addressed?  [156]
A. Katelyn Selina Rivera.
Q. And that's sent to your post office box in Boothwyn?
A. Yes, it is.
Q. Could you take the card out?  What does it say?
A. Wishing Easter happiness to a special friend.
Q. Who's it addressed to inside?
A. To Katelyn and Jennifer.  "When Easter comes I like to stop and think of happy things, the blue skies, flowers and birds -- bird songs that are part of every spring.  The very special people who bring sunshine all year through and make it seem like spring to me, special friends like you. Happy Easter, happiness always, I love you, Robert Rivera."
Q. The last one here is Commonwealth Exhibit C74.  What's the postmark date there?
A. December 27, 2001.
Q. There's a drawing on the front?
A. Yes.
Q. Would you open it up and take out the -- take the card out?  What does it say?
A. When I woke up this morning and remembered we would be apart I almost stayed in bed.  I [157] should have.  Everywhere I go I see lovers hand-in-hand, laughing, cuddling, and I feel sad.  And I'm not in your arms where I belong.  If I never fallen in love with you I'd be fine, lonely but coping.  But you showed me the power of true love and now any day I can't look into your eyes, hear your voice or feel your body next to mine, I feel deprived.  Sometimes it's really hard getting through these times without you, but when I do, beware, because the next time I see you I'm going to make up for a lot of lost time."
Q. And then there's handwriting on the inside of the card, is that right?
A. Yes.
Q. What does it say?
A. "Dear Jennifer, I had you on my mind so I decided to send you this card.  I hope you like it and the envelope, too.  Thinking of you and Katelyn with all my heart."
Q. Now there are a couple of little cutouts that are inside that card.
A. Yes.
Q. What are these cutouts?  What does that cutout say?
A. This says all new Gilmore Girls from the -- I guess from the television ...  [158]
Q. TV Guide?
A. TV Guide.
Q. And what's Gilmore Girls, is that a TV show?
A. Yes.
Q. What does it say just below Gilmore Girls?
A. Who done it.
Q. And what's the drawing next to the woman's face in that ad?
A. It's a shape of a body -- a chalked out body after someone's been murdered, I guess.
Q. What does it say at the top of that ad?
A. No body, no evidence, no one missing.  It's a star's hollow murder mystery.
Q. What else is inside that card?
A. It's a holy picture.  And on the back it's a prayer for families.
Q. And then how about this one here, what's that?
A. This one is Adam Sandler, Big Daddy, another TV Guide cutout.
Q. What's the return address on that card?
A. P.O. Box 20 -- Robert Rivera, #4556, P.O. Box 23-A, Thornton, Pennsylvania, 19373.  [159]
Q. Is that his writing?
A. Yes, that's his writing.
Q. Now Jennifer, did you write to the Defendant, at all, in prison?
A. Never.
Q. Did you ask him to send you any of this?
A. No.
Q. Were the other cards and letters like this?
A. Similar, yes.
Q. In any of these 75 to 100 cards, did the Defendant ever tell you where Katelyn is?
A. No, never.
Q. Jennifer, this is Commonwealth's Exhibit C42.  Do you recognize that?
A. Yes.
Q. Tell us what it is?
A. It's Katelyn's sneaker.
Q. This is Commonwealth's Exhibit C17.  Jennifer, what's this?
A. It's a picture of my Katelyn over at my aunt's house.  She was sitting there playing.  And she had her shorts on her head.
Q. What do you see in the bottom left-hand corner of that picture when you look at it?  [160]
A. My cousin, she was trying to put her sneaker, this sneaker, on his big toe, to be funny.
Q. What's that sneaker that's right there in C17?
A. It's the same sneaker as this one here.  It has the flowers, the same mark in here and the rhinestones and the flowers.

Mr. Reilly:  Your Honor, may these two items be shown to the jury?

The Court:  They're admitted.  They may be displayed to the jury.

[Wherein C42 and C17 were published to the jury]

The Court:  All right, they've been published to the jury.

Mr. Reilly:  No further questions, Your Honor.

The Court:  Cross-examine.

Mr. Smith:  I have just one question, if the Court please.

CROSS EXAMINATION  [161]

By Mr. Smith:
Q. Ms. Helton, do you know approximately when that picture was taken, C17, the photograph?
A. Yes, it was the following week after I had left Rob, the July 30.  I think it was in the beginning -- either that weekend or the beginning of the next week.
Q. The end of July, beginning of August?
A. Yes.

Mr. Smith:  That's all the questions I have.

Mr. Reilly:  Your Honor, I ask, at this time, for the admission of the Commonwealth's exhibits.

Mr. Smith:  No objection.

The Court:  They're admitted.

Mr. Reilly:  Commonwealth rests, Your Honor.

The Court:
All right, we'll recess for the weekend, ladies and gentlemen.  Don't discuss the case.  Don't let anyone discuss it with you, read [162] anything about it.  Don't listen to anything or watch anything pertaining to the case.  Monday is a holiday; therefore, we'll see you back here Tuesday at 9:30.  Enjoy the snow and the ballgame. [163]

[1][2][3]

Proceedings - January 22, 2002

[Robing Room Conference]

The Court:
We're on the record in the robing room behind Courtroom 4, in the matter of Commonwealth vs. Robert Norman Rivera, #411-2000.  Mr. Smith, you had some motions you wanted to make at this time?

Mr. Smith:

Yes, Your Honor, my first motion and I gave a copy to the Commonwealth, copy to Your Honor, handed the original to the clerk and ask it be marked and filed in Court.  It's a motion to strike the testimony of Dr. Helmon.  And it sets forth reasons that I did not state for the Court at the time Dr. Helmon was first called to testify.  And I ask, specifically, Your Honor, in this case I've filed an omnibus pretrial motion.  And I filed other motions, pretrial discovery here, and [4] included in that was an amended omnibus motion filed last September in which I asked the District Attorney's office to provide me with a bill of particulars to include the names of all witnesses, including all expert witnesses, if any were to be called in this case.

The Commonwealth did not, at that time, indicate that they intended to call Dr. Helmon.  Dr. Helmon's testimony was specifically related to the expertise in describing what suffocation -- what would take place during suffocation of a child the size of Katelyn Rivera, if suffocated by a person the size of Robert Rivera.  And that testimony, having been presented, the Commonwealth knew that suffocation was the issue in this case for approximately two years for them presenting Dr. Helmon.  And by not advising me in advance denied me the opportunity to properly prepare a [5] defense to Dr. Helmon's testimony or to properly obtain the services of a defense expert to allow me an opportunity to rebut or refute what Dr. Helmon said.

The Court:  Mr. Reilly?

Mr. Reilly:
Your Honor, the Commonwealth -- Dr. Helmon did not become a witness for the Commonwealth until immediately prior to the trial in this case. Before receiving Dr. Helmon's report, which we received on the Monday before trial began, on that morning, I notified Mr. Smith that I would be calling Dr. Helmon as a witness; that I had solicited a report from him and that I would provide him -- I would provide him with the report upon receipt of it.  When I received the report, I supplied it to Mr. Smith.  In addition, Your Honor, I would point out for the record that Dr. Helmon's [6] testimony, I would suggest, is not inconsistent with what I believe to be the Defendant's theory of the case; that is, that the victim is not dead.

In fact, Mr. Smith provided effective cross examination and pointed out that Dr. Helmon was testifying regarding a hypothetical and not regarding facts that had been proven in the Commonwealth's case.  For those reasons, I ask the Court to deny the Defendant's motion.  One other thing I would say, Your Honor, moreover, Dr. Helmon's testimony is -- was very straightforward, capable of easy verification and not subject to substantive impeachment.  Mr. Smith did, on cross examination, what I would suggest to the Court is appropriate under the circumstances and that it wouldn't have been in the Defendant's interest to bring in another expert to ...  [7] To try to highlight it.

Mr. Reilly:
That's right, to try to impeach Dr. Helmon's testimony because it would have been -- it would not have been in the Defendant's interest.

The Court:
The Court would have, of course, given the defense an opportunity to have an expert to review Dr. Helmon's report.  I think when you indicated -- it was not on the record, that you were going to be calling Dr. Helmon, I think I indicated that at the time.  But whether I did or didn't, I would have certainly given that opportunity if the defense determined that it would be beneficial to the defense to have that report examined.

Mr. Reilly:
Dr. Helmon testified on Friday, as well, Your Honor, after -- on the fourth day of testimony.  And that [8] would have been five days -- four days after we brought the report to the Defendant.

The Court:
Yes, well I'll deny that motion to strike Dr. Helmon's testimony.

Mr. Smith:

My second motion is to request DNA testing on a T-shirt that is in the possession of the Commonwealth, through the evidence custodian.  William Lively testified on Thursday of last week.  Robert Rivera told him that he suffocated Katelyn Rivera, took Katelyn's clothes off of her, put on Katelyn his own T-shirt, which was a T-shirt showing a father and a baby and a dog and a TV.  And there was some description of what was taking place on that shirt and that the history of that shirt is that on November 28 of the year 2000, I went to the office of the District Attorney, went into the law library and met with Steven [9] Leach, whose death penalty counsel, and John F.X. Reilly, prosecutor in this case.

And I believe there were other people there, but I'm not -- I'm not specifically sure how long and who was coming and going, because there's a lot of stuff that was brought into the room.  There were pictures and photograph albums and there was evidence.  I made a specific note for myself that those being dated November 28, 2000, had in evidence showing a T-shirt -- a description by me of a T-shirt, Mr. New Dad with a baby, a dog, a dad and a TV.  And my recollection of those events on that day is that I made a further note to myself about the identity of the owner of the shirt and that I was told that the shirt belonged to Robert Rivera, the shirt in question being the shirt that's the one that's in the possession of the District Attorney's office and the [10] Commonwealth now.  And a shirt was produced this morning by request by Mr. Reilly. That shirt depicts the scene that I've just described.

And in fact, the shirt that I saw on--to the best of my knowledge, on the 28th of November, year 2000, and that my client had always indicated to me that that shirt was the shirt he had taken from the car the day he was arrested, August 11, 1999, and that that was his shirt, the shirt that he was wearing at the time.  Just looking at the shirt this morning, I can see that it has what I'll call sweat stains under the armholes of the T-shirt.  And so I requested if we could get a DNA test done on some expedited basis to determine whether or not that shirt, in fact, matches up with Robert Rivera's DNA, obviously for the purpose of showing that the shirt in question, the shirt now in the possession of the Commonwealth, is, [11] in fact, the shirt Robert Rivera was wearing when he was arrested, the shirt that he was wearing when he took Katelyn from the daycare, the shirt that he was wearing when Katelyn turned up missing, and that that, in fact, is the same shirt -- not a different shirt, and the evidence presented by Mr. Lively and the evidence presented by the Commonwealth does not comport with the actual identity of the shirt, the actual ownership of the shirt.

And the reason that no DNA testing was done in the past or requested by me in the past was simply based on my recollection of the meeting on the 28th of November of the year 2000, that I had been told that, in fact, this was Robert Rivera's shirt.  In support of that, I would offer that the documentation that was provided to me by the Commonwealth in response to my request for discovery, that that [12] documentation included -- that documentation included a report from Detective William Welsh of the Delaware County CID.  And in Detective Welsh's attachment #219 and in that attachment at #4, Mr. Welsh indicates that the T-shirt that he had was not turned over to the evidence custodian and that that T-shirt is, in fact, the very T-shirt that I am now discussing with the Court.

And that T-shirt, item #4 on Detective Welsh's list on attachment 219, is a white T-shirt.  And it says where found, and it is listed as an exemplar, recovered by William Welsh, submitted to evidence custodian.  And that word exemplar is used very specifically by Detective Welsh, graduate of the Police Academy and a trained expert in law enforcement, the word exemplar is defined in Black's Law Dictionary, says non-testimonial identification evidence taken from [13] Defendants, and on the basis of that definition and the basis of attachment #219, my recollection that I was told that the shirt belonged to Robert Rivera, no DNA testing was done.

Now in hearing William Lively's testimony, it is my position that we need to get a DNA test done on the shirt in order to establish the falseness of William Lively's testimony with regard to Robert Rivera burying his daughter in that particular shirt.

The Court:  Mr. Reilly?

Mr. Reilly:

Your Honor, Mr. Smith's memory regarding the November 2000 meeting, fails him.  And there's no basis for the Court to continue this case in order to order DNA testing of that shirt.  His claim is that the Defendant is telling Mr. Smith that that is his shirt that the Defendant had at the time that he [14] was arrested, taken from him by the police.  In fact, the only thing that Upper Chichester Township Police took from the Defendant -- from the Defendant's vehicle when he was placed under arrest was a white envelope containing documents that have been placed into evidence. And that's on the Upper Chichester vehicle inventory report.

There was no T-shirt indicated on that inventory report.  The FBI processed the vehicle.  There was no T-shirt that was seized from the Ford Escort at the time.  In fact, when the Defendant was placed under arrest, the arrest report indicates it's already in evidence, indicates the clothing the Defendant was wearing was T-shirt, jeans, jean shirt/hooded jacket.  In the Defendant's booking photograph, one can very easily see the -- that jean shirt/jacket is, in fact, what the Defendant's wearing and it's [15] unbuttoned far enough that one can see the Defendant had no T-shirt on underneath.

William Lively's testimony was that he indicated to police -- to David Peifer, on September 9, that he said the Defendant had told Lively that he had buried Katelyn either in or with a shirt.  It said new dad on it.  It had a father with a dog and a baby.  And the dog was drinking from the baby's bottle.  And the baby was drinking from the dog's dish.  On a date soon after September 9, Lieutenant Peifer informed Media police officer named Rob Brown of that -- of what the Defendant told William Lively.  Officer Rob Brown would testify that he told Lieutenant Peifer, “I have a shirt just like that.”  Lieutenant Peifer said, “Can you get it for me?”  Officer Brown said, “Yes.”  Officer Brown got that shirt, gave it to Lieutenant Peifer.  Lieutenant Peifer showed it [16] -- he would -- Lieutenant Peifer would testify that he showed that shirt to those who were searching for Katelyn so that if they came upon the shirt they would recognize it.  And then later, Lieutenant Peifer submitted that shirt to Detective Welsh.  And Detective Welsh noted that white T-shirt on his evidence report, to which Mr. Smith has referred.

Detective Welsh indicated on there that the shirt was an exemplar, e-x-e-m-p-l-a-r, and I can make a further offer of proof that Detective Welsh would testify that he did not consult with Black's Law Dictionary prior to using that word.  The word exemplar to Detective Welsh meant that that white T-shirt is an example.  It is not a piece of evidence that was seized from the Defendant or in connection with the investigation, but merely as an example to the rescuers of what they're looking [17] for, Officer Brown's shirt, Your Honor.  That's my offer of proof.  And I suggest to the Court that there's no reason for continuance or for DNA testing.

The Court:
Well it certainly has been the Court's experience that DNA testing takes a substantial period of time.  To delay the trial at this stage for such a purpose I don't think would be prudent nor appropriate.  And therefore, we will deny your request for immediate DNA testing.  And you've preserved the issue for the record, Mr. Smith, so I think that's all we can do.

Mr. Smith:
Thank you; Your Honor, at this point, the Commonwealth having rested, I wish to put on the record a Motion for Judgment of Acquittal on behalf of the Defendant.

The Court:
Before you do that, Mr. Reilly, what [18] charges will you be going with and what charges will you be withdrawing?

Mr. Reilly:  Your Honor ...

The Court:  You don't have the file there; okay.

Mr. Reilly:
We're going forward with Information A, Murder; Information B, Burglary; withdrawing Information C, Criminal Trespassing; going forward on Information D, Kidnapping; withdrawing Information E, Recklessly Endangering; withdrawing F, Unlawful Restraint; withdrawing G, False Imprisonment; and going forward on H, Interference With Custody Of Children.

The Court:  All right, Mr. Smith, you may proceed.

Mr. Smith:
Thank you; Your Honor, with regard to Murder, Burglary charge and [19] Kidnapping charge, and the Interference With Custody Of Children, those are the ones we got, Murder, Burglary, Kidnap and Interference With Custody Of Children?

Mr. Reilly:  Correct.

Mr. Smith:

Your Honor, I believe I have briefed all of those issues in advance in the omnibus motion portion of this case, in the corpus delecti portion of this case, in the Rule 404(b), evidence of other crimes portion and in my motion in limine with regard to the kidnapping charges.  I will stand on those motions as presented to Your Honor and add only this.  With the charge of Murder in the First Degree, just give me one second.  With regard to the charge of Murder in the First Degree, my only additional argument would be that specifically Commonwealth is [20] unable to go forward with that charge because under no circumstances can the jury conclude that this was -- there's no way that the Commonwealth, based on what has been presented, that the Commonwealth could argue or the jury could properly conclude that the -- this was a Murder in the First Degree, which is a wanton, deliberate and willful killing, premeditated, with malice.  There's no specific intent to kill.

There's no -- taking all the evidence in the light most favorable to the Commonwealth for purpose of this motion, that what they are arguing is that he suffocated her, but no one has ever said that he did it deliberately, that he did it in a willfully, intentionally, with malice, nothing, just that it happened in some fashion.  But anything beyond that would be pure speculation, a total guess on the [21] part of the fact finder, so they would not be able to come back with Murder in the First Degree.

The Court:  Mr. Reilly?

Mr. Reilly:
Your Honor, the Commonwealth, too, has supplied substantial written legal argument prior to trial.  I do ask the Court to incorporate that material in making its decision on Motion for Judgment of Acquittal.  Your Honor, Dr. Helmon testified, the other day, Friday, that it would take at least 60 seconds for a man the Defendant's size to smother a child the size of Katelyn's size.  And that is Commonwealth's evidence regarding the Defendant's specific intent to kill, that his killing of Katelyn was necessarily an intentional act.  And for that reason, we ask the Court to deny the Defendant's motion.

The Court:  [22]
The fact finder can rely upon not only direct evidence but also circumstantial evidence, viewing all the testimony as presented.  I believe there is sufficient evidence to go to the jury, the fact finders, and I will, therefore, deny your motion.

Mr. Smith:
Your Honor, at this time I have no further motions.  I would like to put the defense case on, which is going to consist of submitting certain documents, four of which I've already identified on the record.  I simply want them admitted into evidence.  One of which has not been identified on the record.  And then I have to submit that into evidence.  And then I have a stipulation I've reached with Mr. Reilly.  I'd like to put those on the record.

The Court:
We'll bring the Defendant in now and [23] colloquy him with regard to whether or not he's going to testify and, if not, whether he wants the charge that it not be taken as any evidence against him; that he can remain silent under the constitution.  If he determines he's going to testify ...

Mr. Smith:
Your Honor, my understanding is that that charge pretty much is required at this point to be given unless the Defendant says he doesn't want it, right?

The Court:
But it's also required that we ask him if he wants it.  We give it, automatically, but it will be reversible.  I do want it on.

Mr. Smith:  All right.

[End side-bar conference]

The Court:
This is the case of Commonwealth vs. Robert Norman Rivera, #411 of 2000.  We completed -- [24] of course, the Commonwealth has rested. Will you be presenting testimony, Mr. Smith?

Mr. Smith:
No, Your Honor, I have four exhibits that have been marked.  It is my intention to present all four of those into evidence.  I've asked the clerk to mark #5, which has not been presented, which is a copy of a three-page article from the Delaware County Daily Times, August 17, 1999.  Mr. Reilly has indicated that he would have no objection to my submitting that without further testimony.  I then have a stipulation to present to the Court that there were three bus trips to the Longwood Gardens on the night of August 10, 1999, will identify those for the record.  Mr. Reilly has indicated that will be a stipulation that we would present to the jury.  And at that point, I would rest.

The Court:  Is the Defendant going to testify?

Mr. Smith:  I have asked him ...

The Court:  Mr. Rivera, are you going to testify?  [25]

The Defendant:  Under advice of my counsel, he doesn't want me to, but I am testifying.

The Court:  You are?

The Defendant:  Yes, sir.

The Court:  Okay.

Mr. Smith:
Your Honor, I've advised Mr. Rivera not to testify.  And I further advise this Court that I do not intend to ask him any questions.  But if he does testify, it is my position that I will not question him or ask him to say anything on the record at this trial, and that I have told him at least 100 times, 200 times, 300 times, not to testify.

The Court:  Despite that, and it is your final decision, you are going to testify?

The Defendant:  Yes, Your Honor.

The Court:  All right, we'll recess until 2:00 p.m.  [26]

[Off the record]

The Court:
We're back on the record in the matter of Commonwealth vs. Robert Norman Rivera, 411 of 2000.  Mr. Rivera, when we recessed at lunchtime I had asked you if you were or were not going to testify.  You indicated that you were, is that correct?

The Defendant:  Yes, Your Honor.

The Court:
Now I'm going to put on the record some questions just to be sure that you understand what the process is, what the effects may be.  If you don't understand everything, just let me know and I'll repeat it.  You understand you have a right to remain silent and that you do not have to testify and if you did not do so that I would instruct the jury that you have an absolute right founded upon the constitution not to testify, that should not be taken as any evidence against you, do you understand?

The Defendant:  Yes, Your Honor.  [27]

The Court:
The jury would be instructed concerning the presumption of innocence.  That is, if you did not testify they could not draw any conclusions from your decision, do you understand that?

The Defendant:  Yes, Your Honor.

The Court:
That if you do testify, anything you say can be considered by the jury, whether it helps in your defense or not, do you understand that?

The Defendant:  Yes, Your Honor.

The Court:
Should you testify, the Commonwealth's attorney, Mr. Reilly, will have the opportunity to cross-examine you, do you understand that?

The Defendant:  Yes, Your Honor.

The Court:
And if you testify, the Commonwealth may ask questions concerning any prior offense, such as Burglary, which is called a crime of [28] dishonesty.  And this would be brought before the jury.  And they would use that, or they could use that, if they so desired, in assessing your credibility, do you understand that?

The Defendant:  Yes, Your Honor.

The Court:  Mr. Smith has gone over all this with you, I assume?

The Defendant: Yes.

The Court:
There may be questions concerning statements you made during the investigation and pendency of this case, do you understand that?

The Defendant:  Yes.

The Court:
That your attorney might not be able to argue from certain testimony that you present, do you understand that?

The Defendant:  Yes, sir.

The Court:  [29] And of course, you have the absolute right to testify, if you so desire, do you understand that?

The Defendant:  Yes, Your Honor.

The Court:
It's your decision, if you testify, you understand that -- and you are testifying, you're doing this from your own free will?

The Defendant:  Yes, Your Honor.

The Court:  Are you aware that you will be asked, I would assume, where Katelyn is?

The Defendant:  Yes, Your Honor.

The Court:  And Mr. Smith has indicated to you it is his advice that you do not testify?

The Defendant:  Yes, Your Honor.

The Court:
If you testify, you may eliminate factual questions, which might jeopardize certain legal or other issues which may currently be [30] preserved for potential appeal, do you understand that?

The Defendant:  No, I don't.

The Court:
Mr. Smith, I believe you have discussed this with your client, have you not?  In other words, there may be certain factual questions, which you, in your own testimony, might jeopardize by that testimony in any appeal that you might have, do you understand that?

Mr. Smith:
Robert, do you understand that, for example, we have filed a number of motions in advance of trial, right?

The Defendant:  Yes.

Mr. Smith:
And in those motions, the Court made certain rulings about evidence that could come in and evidence that couldn't come in, right?

The Defendant: Yes.

Mr. Smith:
And there are certain things that have not [31] been presented here, based in part on those rulings, and based in part on the District Attorney's decision not to present certain things, do you understand that?

The Defendant:  Yes.

Mr. Smith:
But if you testify, depending on what you say, the District Attorney may decide to either raise some of those things that have not been raised so far; that is, he can either question you about them or he can bring them up in presenting other witnesses in what's called rebuttal.  And after you're done, he might decide to put other witnesses on.  And those people might testify as to things that have not been presented so far, facts that have not already been put in front of the jury.  I don't know what they would be.  I don't know what they might be or might not be, but he would have that right.  He would make that decision, at that time, and say I've decided to put on additional testimony to counter what Mr. Rivera has told us, if there is such testimony, do you understand that?  [32]

The Defendant:  I understand.

Mr. Smith:
And that further, certain things that have already been ruled on by this Court, depending on what you say, might now be found admissible if the District Attorney says well even though you wouldn't let me put it in before, Judge, now I get to put it in not for the purpose that it would have originally come in on, but in order to rebut what Robert said, that if Robert said A, and this is something that says the opposite of A, then I could -- the Commonwealth said I could bring that in to try and show the jury the difference between what Robert is saying now and what might have been said earlier, either by him or by someone else.  Do you understand that?

The Defendant:  Okay.

Mr. Smith:
That's what His Honor, Judge Keeler, is telling you, that if you testify you run a risk that you might be opening the door, so to speak, that things that are not in evidence [33] now because the DA chose not to put them in or they're not in evidence now because they're not relevant to be put in or they're not in evidence now because they have been kept out by ruling of the Court.  And if you testify, I'm not saying this will happen, but I'm saying there is a risk that it will happen.  And the risk is that some of those things that aren't here now could get put in later, do you understand that?

The Defendant:  Yes; yes, Your Honor, I understand.

The Court:
And you have an absolute right not to testify, but once you do testify you don't have the right to refuse to answer the questions, do you understand that?

The Defendant:  I can't plead the Fifth Amendment on certain questions, if I want to?

The Court:  No, not once you begin to testify.

The Defendant:  I understand what you're saying.

The Court:  [34]
You'll follow that?  Considering everything I said to you, everything Mr. Smith has said to you, do you desire to testify?

The Defendant:  Yes, Your Honor.

The Court:  Do you have any questions?

The Defendant:  No, Your Honor.

The Court:  Bring the jury in.

[Off the record]

[Side-bar conference]

Mr. Reilly:
One concern that I have, and just hypothetical, although it may become real very soon, is that the Defendant is going to get up there -- apparently he has a prepared statement that he wants to read.  I can see he brought some papers with him that he's going to read from.  And I also get the impression from his response to the previous question ...  [35]

The Court:  That's he's going to try not to answer.

Mr. Reilly:  That he's going to try not to answer the questions.

Mr. Smith:  I thought his response to your question was that he could follow that.

The Court:
He did, doesn't mean he will, but he said he could.  What he does and what we do if he doesn't, I'm not quite sure.

Mr. Smith:  Your Honor, the way I thought I would do this ...

The Court:  The jury will observe that, so ...

Mr. Smith:  My intention is to put on my exhibits ...

The Court:  Yes.  [36]

Mr. Smith:
Put on the stipulation and then tell the Court I have no further evidence.  I can't say I rest, because I -- and then I guess somebody could say to Mr. Rivera, do you wish to testify.

The Court:  Okay.

[End side-bar conference]

The Court:
Good afternoon, ladies and gentlemen, we're returning to the matter of Commonwealth vs. Robert Rivera, #411 of 2000.

Mr. Smith:
Good afternoon, Your Honor, on behalf of the Defendant I wish to offer the following.  I wish to move into evidence Defense Exhibit #1, which was identified by Mrs. Sheila Clendening [ph] as her one-page handwritten statement to the police on August 10, 1999.

The Court:  Admitted.

Mr. Smith:  I wish to move into evidence Defense [37] Exhibit #2, which is the -- copy of the seven page handwritten statement identified by Mr. William Lively as his handwritten statement of certain events that were taking place between himself and Mr. Rivera.

The Court:  Admitted.

Mr. Smith:
I wish to offer Defendant's Exhibit #3, which is a photocopy -- a rather bad one, unfortunately, but a photocopy of a two-page typed statement identified by Mr. Lively as the one he typed and signed that was allegedly from his attorney, Mr. Fogar [ph].

The Court:  Admitted.

Mr. Smith:
And Defendant's Exhibit #4, which is -- Mr. Lively had with him on the stand the same two pages that I have marked as Defendant's Exhibit #3, only he had a front page on his.  And he had indicated to us that that was -- this was his original and all that.  Unfortunately his copy, the third page of it is sort of torn off, but I would move [38] Defendant's Exhibit #4, primarily for the establishment of this additional third page, which is on the front.  I also have Defendant's Exhibit #5, which has not been identified before and not presented before.  I understand I'm offering this with the stipulation of the District Attorney that this is pages three and four of the Delaware County Daily Times, dated Tuesday, August 17, 1999, containing a story involving Robert Rivera and the disappearance of Katelyn Rivera.

The Court:  There's also something, I believe, about the buses you wanted to put in?

Mr. Smith:  Yes, I'm going to get to that.  Your Honor, Mr. Reilly, on behalf of the Commonwealth, and myself on behalf of the Defendant, have reached a stipulation.  The stipulation is as follows.  That on the night of August 10, 1999, there were three bus trips that were at the Longwood Gardens.  And that would be the Christian Fellowship bus trip, the University of Delaware bus trip and the Boscov's, B-o-s-c-o-v-'-s, Boscov's Longwood Gardens bus [39] trip.  And that's by way of stipulation.

Mr. Reilly:  Agreed, Your Honor.

The Court:  So stipulated.

Mr. Reilly:  Yes, sir.

Mr. Smith:  With that, Your Honor, I have no additional evidence to present.

The Court:  Mr. Rivera, are you going to testify?

The Defendant:  Yes, Your Honor.

The Court:  Take the witness stand.

DEFENDANT ROBERT RIVERA, having been first duly sworn, was called as a witness herein and was examined and testified as follows:

The Court:  Go ahead.

The Defendant:  [40] I don't know what -- I don't know ...

The Court:  You said you wanted to testify.  Now is your opportunity.

DIRECT EXAMINATION

The Defendant:

Oh, okay; I don't care what they say about me.  They're trying to make me look like a monster, which I'm not.  I'm not saying I'm an angel.  I've done bad things in my past and present.  But I did not kill my daughter.  I don't care what they say.  That shoe and sock is not hers.  So many things they set me up with.  They won't do DNA testing on the shoe and sock.  They did it all on the shovel or the car.  You know, I begged them.  I wrote the three Judge panel back in, I think it was September or November of 2000, to give me a lie detector test, to prove my allegations against her mother.
Everyone looks at her and everybody thinks she's an angel and she's a saint.  You know, I came home, I found pictures of her doing stuff with other men and other women.  I put up with her a long time.  [41] Every time we got into an argument, she would take Katelyn away.  I'd beg her to come back, please come back and you can continue whatever you want to do.  She'd do it.  It would get worse and worse and worse.  First, she's posing -- no, first she was dancing at Nino's Strip Bar.  I begged her to stop, stop.  She found out she was pregnant with Katelyn.  She continued to do that until she was six months pregnant.  She told me other women in there were pregnant and they did it.  I don't care about the other women.  I said, you know, you're having my child.  So she finally stopped, had Katelyn, and then she continually wanted to go back and do it.

Everything she does she gets tired of doing.  So she did it some more.  Then she got tired of doing it.  We got into fights.  Yes, I admit I hit Jen.  I punched Jen.  I slapped her, yes.  Like I said, I'm no angel or saint.  I done bad things.  But I never raised no hands to my daughter in any way, shape or form.  I don't care what anybody says.  I never physically abused my daughter, in any way.  Then after she got tired of doing that, she started [42] working at Penn College, posing nude.  We got in arguments about that.  She stopped.  Then she told me how she could make more money going to motel rooms with the teacher, make more money.  We had arguments about that, physical fights, yes.  She would leave, take Katelyn with her.  After a few days, weeks, whatever, I try again; yes, I would, because that's my daughter.  After that she'd come back. Then she was going -- doing pictures with him.  Then she stopped.

Then she wanted to do adult films over in Philly and Jersey.  Then I found out, she told me she was going to do it by herself, and the main thing is she swore to me she wouldn't bring my daughter on the set.  She ran into problems, couldn't find a baby-sitter or her mother to watch her. She wouldn't do this, though.  Her mother used to call me over, Katelyn's grandmother, and get mad and say well why are yous always dropping her off here, you know, what's going on?  I'm like, I don't know.  So she got tired of doing that.

Then I found out she had a girlfriend.  That didn't bother me.  I don't care.  It got worse and worse.  There were other men, more [43] than one, more than two.  And then July of '99, I'll never forget the day because me and Katelyn were laying in bed watching Monday Night Raw.  She came home from doing her thing.  And there was wrestling on TV.  She told me, oh, that's the guy I just got finished having sex with. And that's when I got mad at her and I left.  I stayed out all night, hanging out with my friends, did a lot of drugs, came home the next day, got in some more arguments.  She said she was leaving.  So she left.  Then she came home the next morning to get her stuff, which I didn't know.  I was packing some of my stuff up.  I found some pictures in her closet.

And then we got into a physical altercation.  I grabbed her.  I cut her hair, like she had extensions on, so I did not take the knife and put it to her throat like the DA said.  I did not do that, at all.  I cut her hair.  I couldn't believe it, you know what I mean?  He said I put it to her neck, if you remember the statements in the beginning.  Didn't happen, at all.  We got into an argument.  She left.  Police came, ambulance came, I thought she went to her [44] parent's house.  So I went to her parent's house to get, you know, see if she was all right.  And she ran somewhere else, so I couldn't find the keys to the Jeep, took her parent's vehicle, followed the ambulance to the hospital to make sure she was all right.  Then down the -- few days later, whatever, I got something in the mail telling me that I had a PFA, which I couldn't read or write back then, so I had my friends tell me what a PFA was, I didn't understand it.  They told me Order of Protection from Abuse.  So they said I had to be there August 5, around 9:00.  So I'm thinking, all right, I'll make sure I don't miss the Court date.  I got here about 7:00 in the morning, took the earliest bus I could find, got here, spoke to the Sheriff.  They explained to me what it was, what the PFA is.

And then they told me, you know, it was custody of Katelyn.  And I didn't know the agreement was custody of Katelyn.  And they explained to me that Katelyn would be living with her mom.  I could see her anytime I want.  I said, all right, then she told me there was all these stipulations.  And I'm like starting [45] to get upset and crying and stuff.  I said no, because her mother was doing things you can't imagine.  I said do you want me to sign any papers?  So to make a long story short, we go back in front of the Judge.  I told Judge that I did not understand.  I cannot read or write.  And the Judge asked her lawyer to go out in the lobby with me, explaining what's going on.

I told her I didn't want Katelyn staying with her mother because of the things she was doing.  So she told me -- that's what she said, I'll pray for your daughter, to make sure she's all right and all this stuff, but I still don't trust or whatever.  She said do you miss your daughter?  I said yes.  She said well -- two things, she said if you don't sign it, I can guarantee you we can get it postponed for six months to a year.  You won't see your daughter at all.  I still hesitated.  I said I don't believe you, somehow she was talking to Jen, and she was like I heard you are very religious.  I said to a certain extent.  I don't push religion on anybody.  So she told me if you believe in God then you'll do the right thing and you can see your [46] daughter.  So I signed it.

So we go back in front of the Judge.  The Judge explained to me what's going on.  There at another table, to my right, when I was talking to the Judge, they're adding stuff onto it.  As I signed it they were writing -- adding stuff onto it, which I had no idea what they're writing onto it.  I just did specifically what the Judge told me, because I haven't seen Katelyn in two weeks.  It's her birthday, and she asked Jen it would be nice if he could see his daughter for her birthday because he hasn't seen his daughter in two weeks.  And they agreed to it.  Then she said supervised visits.  So I asked if she could have a best friend be the supervisor, except she wasn't around.  Then I asked for her aunt.  And she wasn't sure about her aunt.  And the last resort was her mother, which her mother doesn't like me, so I wanted to see my daughter, so I agreed.  I'll do anything, put up with her, so I can see my daughter.  So they agreed to it.

Outside, as I was leaving, I had a warrant out for traffic violations over in Aston.  So they took me over to Aston, made a payment plan, paid some [47] money and go to see my daughter.  I call her up and I said all right, we're going to the park.  It's between our houses.  She told me at 3:00.  I get there at 3:00; she got there about 3:15.  So I'm enjoying myself, playing with Katelyn.  Jennifer's mom was like agitating me, saying all this and that.  She found out what Jen was doing, so she blamed it on me because I didn't stop her from doing that stuff.  And I said what do you want me to do, you know?  Then she told me she -- how her and the grandfather, Katelyn's grandfather, were going to take Katelyn and raise her better than me and Jen.  And I said you're not going to take my daughter from me.  She said, yes, we are.  This is the last time you're going to see her.  I said what are you talking about?  She said the Court said you could only see her for your birthday.

I said no, the Court said I could see her for my birthday and the paper said August -- the next day is when visitation starts.  She said no, this is the last time you're going to see her.  So we had disagreements and stuff like that.  So I did the best thing, I stopped the visit.  We had a [48] visit for about 35 minutes.  And I told Katelyn, I swear to you, I give you my word, I'm going to see you tomorrow.  The paperwork, the Judge signed it.  The Judge said I could see her.  So the Judge -- the next day, I called up.  They said I'm harassing.  I said how am I harassing? The paperwork said I'm allowed to make one personal contact to talk to Katelyn.  And they said I'm allowed to see her.  I forgot something, I'll go back a little bit because I forgot.

So I did a visit.  I told Katelyn I love you and I kiss you.  So I started walking away.  Katelyn started following me.  She's like daddy, daddy.  I'm like you got to go with grandma.  So she still came after me.  That's when Jen's mom grabbed her by the arm, opened the van door and picked her up by one arm and tossed her in the van.  There was nothing I could do.  I didn't want to get in trouble.  So I turned my back and ran, ran back to my apartment.  So the next day I called up and they were saying I was harassing.  I said no, I'm allowed to see her, this and that. They said no, you can't see her.  You'll never see her again.  If you want [49] to see her, you got to go back to Court.

So I called the police officers, Upper Chichester Police Station.  He explained to me what's going on.  An officer came.  He didn't understand what was going on.  So he left.  He told me he'd be back.  So about two hours later, he never came back.  So I started walking up to Chichester Police Station.  I got halfway.  He seen me, pulled over, drove me back to my apartment and told me -- he said this works for her mother and against you.  I said I don't understand, what do you mean, the Judge signed it.  The Judge said I could see my daughter.  I can call her.  He said I don't want to get involved in it, because her family -- they have a police officer related, so he didn't want to get involved.  So he left.  So the next day I called again.  They said I'm harassing.  So now I got -- I guess two harassment charges still pending.

So I told them I'm allowed to call Katelyn.  It says right in the paperwork.  So they let me -- they said I could call back later so you can say goodnight.  So that's when Michelle -- they turned off my phone.  I had Michelle [50] Lupi, she drove me right to the corner, to the pay phone, and I called her up.  And they were giving me a hard time, saying she's sleeping.  I could hear her in the background playing.  So they finally let me say goodnight to her.  And I told her goodnight, I love you and I'll call you tomorrow.  The other times I called they wouldn't let me talk to her.  I never stalked, none of that, just what the paperwork told me to do.

So I got harassment and what happened on July, I had to go to Court date for, to Lower Linwood.  So we go down there.  I'm represented by the public defender's office, Al Gretto [ph].  He's telling me what's going on and said I had to go up to Media to turn myself in.  So he told me, he goes, all right, I'll meet you at the Wawa.  So I said all right, the Wawa up the street.  So he meant some other Wawa.  So I took the shortcut, went to the Wawa, parked the car, waited for him.  And then I went inside and that's when Jennifer was inside.  She told me we can't talk because she has a PFA.  I said I want to know what's going on, why can't I see my daughter?  I never did [51] nothing wrong.  We had our problems and stuff like that.  So she told me you can't see her, you got to go back to Court, this and that.

So we went outside.  She got in the car -- her aunt's truck.  She got in one side, and I was trying to talk to her.  She wouldn't talk to me. And I grabbed her and I told her, you know, what's going on and this and that?  I said I want some answers.  She was going to get back in and I drug her out.  She fell.  And then when I went to pick her back up, her aunt came around the other side.  And then she got up.  Her aunt jumped on top of her, and that's where she got all the bruises and had her by her hair and that's when the hair came out.  People came out from the Wawa, starting yelling and screaming.  And I was like I'm in a lot of trouble.  So I know Katelyn's baby-sitter's -- the daycare is around the corner.  I just wanted to say goodbye to her.  I go to the daycare.  It's been so many times I drop her off, pick her up by myself, never no problems.  The front door is locked.  The side door is always open.  There's a lot of kids, and they all want to go out the front door.  [52]

So she locks the front door.  So I go around the back.  Approximately ten feet away is her husband and some other man and a boat.  He knows who I am.  He said they're inside.  I turned the door, started to go in.  Somebody slammed it back on me.  And that's when I pushed it back.  It was a daycare lady.  And she told me you can't be here, this and that.  And I said I just want to see my daughter.  And she said oh, you can't go near your daughter, this and that, you can't say goodbye to her.  I didn't like the lady, to begin with, that much.  But I was like who are you telling me I can't say goodbye to my daughter?  So that's when I went to try to say goodbye to her.  And everybody started yelling and screaming, so I picked her up, ran out the door.  When I ran out the door, I hit my hand on the door, not my daughter's head, like the guy said yesterday, the kid said.  It was no bruise, bumps, nothing like that.  The people who I seen and visited, they can tell you nothing was wrong with Katelyn.  I just hit my hand, that was it.

I go out to my car, take off.  I didn't know what to do, so we went to [53] McDonald’s, first.  We went to the Wilmington McDonald’s. And after that we went to the zoo in Wilmington for a while.  And all through the day I kept on calling Jen and talking to her, make sure I told her I'm sorry, you know, Katelyn's all right.  I just want to spend the day with her.  And every time I went somewhere, I called her up.  I thought the police were tracing the phone, so they -- 30 minutes -- I mean 30 seconds was the most I would talk on the phone.  Each time I'd make sure she could talk to Katelyn.  Katelyn was all right.  Then the day was done.

I had to go pick up Michelle Lupi because I told her I'd be there earlier, but I didn't because of what happened, picked her up around 5:15, 5:20.  She came out.  She was all mad at me.  She was telling me -- put Katelyn in the back seat, this is her car and she don't want Katelyn in the front seat, because I know didn't have a child seat because I didn't -- you know, I didn't have a child seat but I made sure she had a seatbelt on.  And Michelle can testify the whole time Katelyn is in the seat, she's holding my hand, and I'm holding her hand back [54] so nothing would happen to her, nothing like that.

So I picked her up.  She's yelling and screaming.  She gets back in the seat.  I'm like hurry up, I got to go back.  That's when I went to Leaman Creek -- Leamans Road where there's a Wawa.  I called up Jen, told her I was going to drop her off.  That's why I had Michelle with me, so Jen wouldn't be scared, nothing like that.  And when I pulled up to the house, Michelle said I was facing the house, but no, I wasn't. Katelyn's side was facing her door.  From the end of the step to the passenger door must have been three to four feet, four feet maximum, because the road is real skinny.  If one person was coming down the road, the other car would have to pull over so the other car could come through.  That's how skinny the road is.
I was telling Jen, come out, come out, come get Katelyn.  She's like, hold on, hold on, waiting, waiting.  I told her why can't you tell your brother to come out, send your mother, your father, everybody was home.  So she never--none of them ever came out.  I waited and waited. Four different times she came to the [55] door.

So we left.  Michelle started, you know, I don't want to get involved, they'll think I'm an accessory, this and that.  So I dropped Michelle off two blocks away.  I come back again.  Four other times, I tried again.  She came to the door, waiting, back and forth.  So she took off, went back in the house.  So I took off.  Then I called her, told her, all right, one more time.  You know me, I'm not coming to your house.  I know the police and stuff.  I told her to come to the shopping center near her house, Laundromat.  She knew what I was talking about.  And when you pull in it's like two big curbs.  I faced this way.

When they pulled in, the only person I see is Jen.  She parked all the way by the Chinese restaurant.  I didn't understand why she was parking so far away.  So I turned the car off, opened the door.  I see her sitting in the driver's seat.  And then I seen on the other side, the passenger side door open.  I didn't know what was going on, so I started going back in the car, started it up.  This man came out.  I didn't know who he was.  He came out and started running after me.  So I took off [56] and when I took off, I went to Delaware, went to parks and stuff like that, made a few phone calls, stuff like that, people who I know.  But before that, they knew what was going on, called them up, told them where to meet and stuff.  And that's just -- everybody else knows what I happened.  No, I did not give her to strangers.  I don't know what else to say.

CROSS EXAMINATION

Mr. Reilly:
Q.  You don't know what else to say?  Is that where it ends?  You have a whole menu of choices.  You got Longwood Gardens.  You got New York.  You got Florida.  Do you want to pick from one of those or do you want to make up a new one?
A.  No, every time ...
Q.  Do you remember you said these words, when the trial comes I'll tell everything?  Who said that?
A.  Me, and I told you what happened.
Q.  That's right, you said it to the television stations.  You said that on television.
A.  Yes.
Q.  Where's Katelyn's body?  [57]
A.  I did not kill her.
Q.  Where's Katelyn's body?
A.  Give me a lie detector test.

Mr. Smith:  Objection, Your Honor, asked and answered, and it's argumentative.

By Mr. Reilly:
Q.  We offered you a lie detector test, but you wouldn't take ...

Mr. Smith:  Objection.

The Court:  Sustained, sustained.

Mr. Smith:  Your Honor, I would like a cautionary instruction on that, please?

Mr. Reilly:  Defendant opened the door, Your Honor.

The Court:  No one has an obligation to take a lie detector test.  Everyone has the right under the constitution to remain silent.  The fact [58] that an individual remains silent cannot be used as evidence against him.

The Defendant:  So can I answer it, anyway?

By Mr. Reilly:
Q.  When the trial comes, I'll tell everything.
A.  Yeah, and you can guarantee me -- I don't want to get the Judges mad or anything.  If you can guarantee me -- like Michelle Lupi, you guys didn't believe her, gave her a lie detector test.  She passed the first one, and you still considered she was lying.  She took a second one and passed it.  So why can't I take one?  You have a guarantee, guarantee that I can take one?  And then -- so you know I'm not lying.  I know what you're going to ask me, certain questions.  Then I want you to ask me some questions.
Q.  Longwood Gardens ...
A.  Listen, I didn't physically abuse my daughter, all right?  I would come home from work and Jen would be in the kitchen or something like that ...
Q.  Longwood Gardens -- may I ask a question, Your Honor?

The Court:  Mr. Reilly's asking you a question.  [59]

The Witness:  Sorry, excuse me, all right.

By Mr. Reilly:
Q.  Longwood Gardens, what couple, you met them.  They were in a Dodge Caravan.  They had a Maryland license plate.  You gave Katelyn to them.  That was a lie, wasn't it?
A.  Yes, it was a lie, yes.
Q.  Woman you knew, she had lost a baby, gave the baby -- gave Katelyn to her, that was a lie, too, wasn't it?
A.  I knew a lady who lost a baby.  That was true.  But I did not give her Katelyn, no, okay?
Q.  You didn't give Katelyn to her?
A.  No, I did not.
Q.  So that was a lie?  Detective Reardon told us she's in upstate New York.  That was also a lie, correct?
A.  Yes.
Q.  When you told Lieutenant Peifer that you lied about the Longwood Garden story, you made up another story.  That was Dodge Durango, Florida license [60] plate, Orange County.  That was also a lie, wasn't it?
A.  No, I knew people that lived in Orange County that drove a Dodge Durango.
Q.  You were thinking about Katelyn's death, weren't you?  When you took Katelyn, you were thinking about her death, weren't you?
A.  Excuse me?
Q.  When you took Katelyn, you were thinking about Katelyn's death, weren't you?
A.  What do you mean?  I don't understand what you're talking about.
Q.  Katelyn's going to Heaven and I'm going to Hell.
A.  I made a lot of statements with a lot of anger, because I was mad, because Jen did the same thing to me.  She would tell me I'd never see my daughter, stuff like that.
Q.  Katelyn's going to Heaven and I'm going to Hell.  You said that, didn't you?
A.  I might have, yes, I might have.  I'm not going to sit here and lie like ...
Q.  Like you have in the past; like you have a dozen times before; you're not going to lie?
A.  I'm telling the truth now.  I put my hand on the Bible.  I'm not going to be like these other [61] people and lie.
Q.  Only you and God know where Katelyn is?
A.  Yes, I said that -- the rest of the statement -- they didn't put the rest of it in, because God is everywhere and God knows everything.
Q.  All right.
A.  I did say that, but they didn't say the whole thing.  They just picked what they wanted to pick.
Q.  Only you and God know where Katelyn is?
A.  And God knows everything, because God is everywhere.
Q.  Where's Katelyn's body?
A.  I did not kill her.
Q.  God is not here to tell us.

Mr. Smith:  Objection, Your Honor.  That's not a question.

The Court:  I understand, sustained.

The Defendant:  Like I said, you guarantee me I can have a lie detector test ...

By Mr. Reilly:
Q.  If you tell us where -- if I tell you [62] where she is, I'll spend the rest of my life in jail, you said that, didn't you?
A.  No -- now hold on, listen, it was a news broadcast, live from Delaware County, in the front, Channel 10.  And the lady -- it was a black lady, I don't know her name and stuff like that ...
Q.  No, no, no ...
A.  Well let me finish.  I let you finish, why can't I finish?
Q.  I'm not talking about the news reporter.  I'm talking about Lieutenant Peifer.  If I tell you where she is, I'll spend the rest of my life in jail.
A.  I'm getting there.  I'm telling you, I'm getting there, unless you don't -- you were talking.
Q.  The jury heard it on tape.
A.  Yeah, I know.  We were talking about -- because a number of times he turned the tape recorder off.  And we were talking about all my charges, stuff like I don't want to spend the rest of my life in jail.  And they had a news article -- I mean a broadcast in front of Delaware County, Channel 10, where the lady said that all my charges combined together I'd spend 40 years or the rest of my life in jail.  And I told him, when we were talking about that, I told him I don't want to spend the rest of my life in jail for something I did [63] not do.  That was my exact words. Give me a lie detector test.  You can ask me questions, and I want you to ask me questions, if you don't believe me.

The Court:  Mr. Rivera, lie detector tests are not admissible ...

The Defendant:
I understand that, yes, Your Honor, I understand that, 100 percent.  At least people would know what I'm lying about and what I'm telling the truth about.  So when he asks me questions he wants, and I want him to ask me certain questions about her mother, what her mother was doing to her ...

The Court:  I understand.

The Defendant:  No, you don't understand.  I told her ...

Mr. Reilly:  May I ask a question, Your Honor?

By Mr. Reilly:
Q.  Do you know what the truth is?
A.  Yes.  [64]
Q.  Do you have any idea what the truth is?
A.  To tell the truth.
Q.  There are other murderers on my block, you said that.
A.  Yes, because we were talking about -- he was talking about how I got new murder charges -- I mean, they put murder charges on me.  And he was talking about -- oh, you got charged with Murder now, your classification is going to change and stuff like that.  And I told him, no, other guys have been accused of Murder and they're on my block.
Q.  No, no, no ...
A.  That's what I said.  Whatever.
Q.  You heard Lieutenant Peifer's testimony?
A.  Yes, I heard what he said.
Q.  He said other murderers on my block, what does that mean to you?
A.  You're accusing me of murder.
Q.  Mr. Rivera, you gave Katelyn away to people at Longwood Gardens.  You gave Katelyn away to a woman you knew who lost a baby.  You gave Katelyn away to people in New York, people in Florida, or she was whisked off by little elves.

Mr. Smith:  [65] Objection, Your Honor, objection.

The Court:  Strike the little elves.

Mr. Smith:  Thank you.

By Mr. Reilly:
Q.  Whatever happened to her, Mr. Rivera, you did need a shovel the next day?
A.  I didn't touch ...
Q.  Katelyn was alive, you didn't need that, did you?
A.  No, because I didn't touch it.
Q.  Whose shovel is that?
A.  Whittaker, that's his name, that's who said it's his.
Q.  You've seen this before, haven't you?
A.  Yes.
Q.  Took it from Tom Whittaker?
A.  No, I didn't.  If I took it then why doesn't it have any of my fingerprints or DNA on it?
Q.  Why wouldn't you talk to Lieutenant Peifer about the shovel when he asked you?
A.  Because Lively told me about how they were setting me up, how they were going to set me up [66] with the shovel.  So that's why I said I don't want to talk about it, I don't want to get myself in trouble, because he told me how they was setting me up with it.  You remember the next morning how you had the other officers ...

Mr. Reilly:  Move to strike, unresponsive, Your Honor.

The Defendant:  ... frighten me and try to beat me up?  And you would come to the cell and throw a ...

Mr. Reilly:  Objection, Your Honor.

The Court:  Stop.

The Defendant:  All right, thank you, Your Honor.

By Mr. Reilly:
Q.  Can you move your arms?  What's that?
A.  Shoe and a sock.
Q.  Whose sneaker is that?
A.  It's supposed to be Katelyn's, but it's not.
Q.  So it is Katelyn's?  [67]
A.  It is not Katelyn's.
Q.  You said it was Katelyn's.
A.  At the time, she was wearing a size 5.  The photograph of me holding her in the picture, you can
see what size she was wearing, size 5.
Q.  You said it was Katelyn's.
A.  Yes, it used to be Katelyn's when she was smaller, yes.
Q.  Katelyn's sneaker?
A.  At the time, she was wearing a size 5, not that summer.
Q.  You lead us right to it.
A.  I didn't lead you nothing to her.
Q.  You told Lieutenant Peifer about Katelyn.
A.  No, I didn't -- yes, the first -- when she was smaller she wore a size 4.  But the time when I had her and stuff like that, she wore a size 5.
Q.  First you told Lieutenant ...
A.  She bought two sizes.  Her aunt and her mom, they went to Payless and, yes, they bought her a size four, and then when we moved to Booths Corners, we went to the later in Booths Corner where they sell sneakers, right across from Annie's Pretzels, and Katelyn's toe was bending and stuff like that.  And she told us the shoe was ...  [68]

Mr. Reilly:  Move to strike, unresponsive, Your Honor.

The Court:  Ask your next question.

By Mr. Reilly:
Q.  Mr. Rivera, when Lieutenant Peifer questioned you on Katelyn, he asked you about the sneaker.  First you said the sneaker wasn't Katelyn's, isn't that right?
A.  Yes, but they didn't have a size 5 at the time.
Q.  Then Lieutenant Peifer said, no, no; no, Mr. Rivera, three people have identified that sneaker, that sock, as belonging to Katelyn.  And you changed your story, didn't you?
A.  At the time she was wearing size 5.  Before that she was wearing size 4.  Jen knew we bought two sizes.
Q.  And that's when you told Lieutenant Peifer that you undressed Katelyn?
A.  Yes, I undressed her and put other clothes on her.
Q.  You undressed her and you put other [69] clothes on her?
A.  Yes.
Q.  You didn't take any clothes with you that day?
A.  No, I didn't.  Like I said, I didn't plan this.
Q.  You didn't take a bottle or a diaper bag, you didn't take anything?
A.  No, like I said, I didn't ...
Q.  You didn't have any money, either?
A.  No, I didn't.  I stole some of the stuff, yeah, I did.
Q.  You took her clothing off, Mr. Rivera?
A.  Yes.
Q.  Just like Bill Lively said, so you could bury her?
A.  No, I did not.
Q.  That's Katelyn's sneaker, isn't it?
A.  Are we going to keep going around in circles, circles?
Q.  Is that Katelyn's sneaker?
A.  At the time she was wearing size 5.  This is a size 4.  When she was younger, yes.
Q.  Whose that?
A.  That's my daughter, Katelyn -- no, I made [70] a mistake, our daughter, me and Jennifer's daughter.
Q.  What's that right there?
A.  A sneaker, on her big toe, yes.  I remember when I was home, Jen told me about that.
Q.  Which sneaker is that in the picture?
A.  I guess this one here, I didn't see, I couldn't see it.
Q.  Mr. Rivera, you led us right to that shovel.  You led us right to that sneaker and that sock, didn't you?
A.  No, I did not.
Q.  That's how we found them, because you led us to them?
A.  No, I didn't lead anybody.  I told Lively where I was on 202 and I told my lawyer and other people right across the street from Pep Boys, the Children's Store, and I changed her clothes, put them in a bag and threw them in the back seat.  When I left Longwood Gardens to go down to Maryland, I realized I had them in the back seat, so I went to the Child's Store and next to it is a bagel store or an ice cream shop or something. There was a bunch of kids outside.  I was busy paying attention to them.  I don't know if I tied the bag to the door or put it next to the door.
Q.  You told Detective Peifer that you tied [71] the bag on the door.  That was your explanation of how that sneaker wound up on 202?
A.  No, I tied it to the business door, yes.
Q.  Mr. Rivera, you led us right to that shovel.  You led us right to that sneaker.  I want you to ...

Mr. Smith:  Objection, Your Honor, objection, that's not a question, that's a statement.

The Court:  Part of a question.

By Mr. Reilly:
Q.  You led us right to the shovel.  You led us right to the sneaker.  I want you to lead me right to Katelyn's body.
A.  She's not dead.  Give me a lie detector test.  How many times do I got to tell you?  Like I said, I'm not a saint.  I done things bad in the past.
Q.  What's that?
A.  A card.
Q.  An Easter card?
A.  Um-hum, yes.
Q.  Whose name is that on the front?  [72]
A.  Katelyn's, Katelyn Rivera.
Q.  P.O. Box 1867, Boothwyn, PA?
A.  Yes.
Q.  That's you, that's you that sent this card to Katelyn?
A.  Yes.
Q.  Because you don't know where to send the card right now, right?
A.  They go through all my mail, take all my mail.
Q.  Post Office ...
A.  You think I'm going to write to these people or the other people?
Q.  The post office doesn't deliver to a hole in a ground in the woods, does it?
A.  That's not true.  I don't know what you want me to say, just want to keep badgering me and badgering me.
Q.  I want to know where you put Katelyn.
A.  Give me a lie detector test.  But you won't give me one, because you want to make her mother look like a saint.
Q.  December 27, 2001, what's that say?
A.  Jennifer Helton, see, now you're going to twist it.  Okay, there you go.  [73]
Q.  No body, no evidence, no one missing.  It's a star's hollow murder mystery.
A.  That's what's on the inside.
Q.  Is that how it works?  Is that how it works, Mr. Rivera, no body, no evidence ...

Mr. Smith:  Objection, Your Honor, he's not letting the witness answer the question.

Mr. Reilly:  Witness won't answer.

Mr. Smith:  Objection, Your Honor.

The Court:  Settle down, everybody.

The Defendant:  I'll answer the question if you'll give me an answer.

Mr. Reilly:  Wasting my time, Your Honor, that's all.

Mr. Smith:
Objection, objection, Your Honor, that's a gratuitous comment that's not called for and it's not part of the objection that's before the Court.  [74]

Mr. Reilly:  I have no further questions, Your Honor.

The Defendant:  Can I answer that question, Your Honor?

The Court:  Yes.

The Defendant:
On the other side of that was the article talking about Jennifer Lopez.  Now if Jennifer says I sent 75 to 100 letters to you and the only thing you can find something bad is that piece right there, look on the other side.  You see Jennifer Lopez.  She did a concert, right?  Hold on a second, and there was another article in there about Celina.  That's who we named our daughter after.  If we were having a boy, I got to name the boy, first. Jennifer would pick the second -- middle name.  If it's a girl, Jen gets the first name, I get the second name.  And that's what we're talking about, Jennifer Lopez and Celina.  That's how my daughter's named after.

Mr. Reilly:
Your life is really hard, isn't it?  It's really tough being you, isn't it, [75] misunderstood this way?

The Defendant:  I guess so.

Mr. Reilly:
Just a mistake, just happened to be that you sent a card to Jennifer where the inside says no body, no evidence ...

The Defendant:  Look at the other side.  I wasn't reading the other side.

Mr. Reilly:
That's a coincidence like the shovel and the sneaker, I suppose?  Nothing further, Your Honor.

The Court:  Anything else?

The Defendant:
Just give me a lie detector test.  That's the only thing I can say, Your Honor, I'm sorry.  What, you think her mother is a saint?

The Court:  You may step down.

The Defendant:  Can I say two more things?

Mr. Reilly:  [76] Your Honor, there's no more questions.

The Defendant:  I can't testify no more?  I'm done?

The Court:  You can testify, yes.

The Defendant:
Can I -- all right, talk about two incidents?  Like I come home from work, right, there's two incidents ...

Mr. Reilly:  Objection, objection, Your Honor.

The Defendant:
Two questions; I come home from work, right, Jennifer would be in the bathtub playing with -- you know, in the bathtub, playing with Katelyn all the time.  And I said why do you always have to take a bath with her and do this stuff?  You know, I came home ...

Mr. Reilly: Objection.

The Court: Sustained.

The Defendant:  All right.

Mr. Smith:  [77] The defense rests, Your Honor.

The Court:  Mr. Reilly?

Mr. Reilly:  Approach, please, Your Honor?

[Side-bar conference]

The Court:  As far as rebuttal is concerned?  Okay.

[End side-bar conference]

The Court:  We'll take a brief recess, ladies and gentlemen.  Don't discuss the case.

[Off the record]

The Court:
Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000, Commonwealth's rebuttal, Mr. Reilly?

Mr. Reilly:
Yes, Your Honor, there's a stipulation between Mr. Smith and myself that Defendant has two prior convictions that are admissible on rebuttal. Those are convictions for Receiving Stolen Property in October of 1989, in Suffolk County, New York; and a conviction for [78] Attempted Burglary in August of 1992, once again, in Suffolk County, New York.

Mr. Smith:  So stipulated, Your Honor.

The Court:
Ladies and gentlemen, that concludes the testimony.  What remains is that counsel will be addressing closing arguments to you.  I'll then give you my final instructions in the law.  I'll be meeting with counsel now to go over those instructions.  So as far as you're concerned, we'll recess for the evening and start tomorrow morning at 9:30.  Don't discuss the case, don't let anyone discuss it with you, don't read anything about it, anything concerning the case, or look at anything concerning the case.  We'll see you back here tomorrow morning. [79]

[1][2][3]

Proceedings - January 23, 2002

[Robing Room Discussion:]

The Court:
This is the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  We have gone over the proposed instructions.  Counsel, are there any motions, objections, with respect to the proposed instructions?

Mr. Smith:
Your Honor, there was one point that I raised yesterday which has just slipped my mind at the moment, that I wanted to mention as an exception to the charge.  It had to do with kidnapping, Your Honor, and the statement of the Court that, in the charge that kidnapping would be accomplished if Robert Rivera took Katelyn from her custodial parent and my objection to that is based on all of the legal writings that I [4] have presented to Your Honor as well as the previous motion with regard to kidnapping and my contention that a parent cannot kidnap his or her own child regardless of whether that is the custodian or not, they're still the parent.  I just need that objection on the record.

The Court:

It's on the record.  I will instruct as I indicated but at the same time I also recognize that there is a legal issue there that's going to have to be resolved.  Anything else?

Mr. Smith:

Your Honor, there was one point at the end of the day yesterday.  Mr. Rivera had taken the witness stand and he made certain statements and then at the end of that there was an objection by the Commonwealth to some statements being made by Mr. Rivera and Your Honor sustained the objection and told him to stop talking.

Mr. Rivera wanted me to [5] let the Court know that he wanted to -- he wanted to make statements in his testimony that Katelyn and her mother Jennifer, would get in the bathtub together and as delicately as I can say this, would become sexually involved with each other; and number two, he wanted me to produce for him a series of photographs that he had given to me that were sexually explicit photographs involving Jennifer with other people, objects and so forth, and he wanted to exhibit those to the jury.

I told him that I thought those were not relevant, nor would they be beneficial to our case and that my belief was that the Court had stopped him from making those statements on the grounds that they were not relevant statements and that they were obviously inflammatory and highly prejudicial statements.  [6]

The Court:  That was the basis for my having stopped him because I saw where he was going.

Mr. Smith:
He -- he is adamant that he wants me to turn those photographs over to him immediately prior to the conclusion of the trial and I have told him that I will not do so.

The Court:  I so instruct you.

Mr. Smith:  And I just needed to make sure the record was complete.

The Court:

Okay, so far as exhibits are concerned, there are a lot of exhibits.  Do you just want to wait and see if the jury asks and then we can deal with it? I mean obviously ...

Mr. Smith:  I think that's the best way to handle it, Your Honor.  [7]

The Court:
Obviously, they don't get statements, they don't get reports, I guess all the photographs are fair enough.  Can we agree that any of the photographs or no?

Mr. Reilly:  Maps and photographs.

The Court:  Maps and photographs we don't have to meet.

Mr. Smith:  Just give them to them if they want maps and photographs.

The Court:  Yes.  Anything else?  If there's a question ...

Mr. Reilly:  Yes, sir.

The Court:  ... but I won't give them anything up front.  Okay?

Mr. Reilly:  Yes, sir.

The Court:  [8] Ready to go?

[End Robing Room Discussion]

[Court called to order]

Everyone:  Good morning, Your Honor.

The Court:
Good morning, ladies and gentlemen of the jury.  Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000. Counsel, we're now ready to proceed with closing arguments.  Mr. Smith.

Mr. Smith:

Yes, Your Honor, thank you.  With the Court's permission, Judge Keeler, Mr. Reilly, ladies and gentlemen, this is my final opportunity to speak with you.  This is the closing argument by counsel.  When I'm done, Mr. Reilly will argue for the Commonwealth, His Honor Judge Keeler will then give you the law.  It's an unusual situation in which you all find yourselves, because you don't get to hear the law that you have to apply to the facts until the very end.

When the Judge gives you that law he will tell you that that is the law of the land, the law of this Commonwealth.  That [9] is the law that you must follow.  Not what you thought you knew about the law.  Not what you believed the law to be.  Not what you hoped the law would be, but what His Honor Judge Keeler will tell you, this is the law, and my father used to say he was the law.  This is the law and you have to follow that.

But the facts, the application of those facts to that law is the sole and exclusive province of you, the ladies and gentlemen of this jury.  And so, what I say to you now, what I said to you in my opening, what the Commonwealth said to you in its opening, those are not the facts.  Those are the index, what we believe will be the facts, what I want you to see in the case, what Mr. Reilly wants you to see in his case.  But you have to make that decision.

And this is a very difficult case.  I think I said that in my opening.  You will find this is difficult, maybe complex, maybe the kind of case that you never thought you'd find yourself in this position having to make this kind of decision about somebody.

There are really three times in our lives when we are called to the highest duty in service [10] of our country.  One is when you serve in the armed forces.  One is when you vote, and the other is when you serve as jurors.  When you sit in judgment of your fellow man, you sit in judgment of your fellow man.  And the jury system's been around for more than 200 years in this country, and so you're effectively the last jury of that more than 200 years, and you're the first jury of the next 100 or 200 years, and so what you say, what you do, and how you apply that law to these facts is important.  And it's important to the Commonwealth.  It's important to the Defense.

It's important to all of us.  It's certainly important to Robert Rivera because he sits here in front of you, as you've heard and will hear again, cloaked in that mantel of innocence, that same mantel of innocence that cloaks everyone in this Commonwealth.  And you're going to hear certain requirements and certain rules that are going to seem odd or difficult or hard to apply in a case like this.

Now, when you hear those, a lot of people tend to shirk from that, it's like responsibility, [11] it's a heavy weight, but you don't get to shirk from any of that.  You know that.  You've sat there for more than a week now and you've seen a very difficult case unfold in front of you. You've seen a very difficult situation unfold in front of you.

Now, when we get to the end of the case when the Judge tells you what's in this case, he's going to tell you that there are 4 charges, 4 separate Informations against this Defendant.  The first one charges the Defendant with Murder in the First Degree, Murder in the Second Degree, Murder in the Third Degree, the three in the one charge.  The second charges him with Burglary.  The third charges him with Kidnapping, and the fourth charges him with Interference of Custody of Children.  Any other reference to any other charges that may have been made in the openings, those are removed, not to be considered.  These are the ones to be considered.  These four.

And what you have to do here, as the Judge will tell you, by the way, I'm going to try to cover the things that I think are important in my case, in the Defense, to explain the facts [12] and ask you to apply those highlights to this law that I give you.  If I state it badly, if I make a mistake, if I say something that you don't recollect, it's your recollection that controls.  Mr. Reilly will tell you the same thing I'm sure, it's not the purpose of counsel in telling you what we believe you heard, to correct what you believe you heard, but to draw attention to it so that you can pay attention and think, did I hear what I thought I heard?  Is it what he said?  Is he right?  Am I right?

And then you have to weigh that when you make that decision so that your judgment, you know, you're told to disregard what you may have heard in a party, a cocktail party, a barroom, a baseball game, or whatever about the law, but you're not told to disregard your common sense.  You're not told to throw that out.  In fact, you should keep that, because you're going to need it as you sort through these things.

Now, at the end when the Judge tells you the law, compare what you heard from counsel, from both counsel, compare that to what -- what you believe you heard to be the facts and compare [13] that to what you know to be your duty, what you know to be your obligation here. And I'll try to cover the things that are important.

If I miss something, if there's something you believe is important, and gee, the lawyer didn't mention that, that's up to you as the ladies and gentlemen of the jury to discuss and figure out for yourselves, if I tell you everything, then we're going to be here for another 6 days while I give you the real time review of the trial and you don't need that.  You certainly don't want that, because you've already heard a great deal.  So, if I miss something, if I misstate something, don't -- don't take that out on my client.  Don't conclude that I've given you some erroneous report of the facts.  Compare it.  Maybe I heard it one way, maybe you heard it another.  That's why there's twelve of you.

And this isn't like television.  I'm sure your experience as jurors now doesn't compare to what you've seen on the TV where a few minutes before the show ends, Perry Mason wheels around and points to the guy in the fourth row and says it was so and so that did it, and the [14] guy jumps up and says, I'm glad I did it and I've hated my cousin Shirley, whatever, and then they break to a commercial.  Doesn't happen like that.

The reality is this is one that you have to decide on the basis of what you heard, on the basis of the facts, on the basis of the law, and that means you have to do it without passion and prejudice.  That means you have to do it in a way that when you hear all of this you have to decide to be the kind of juror that you would want someone else to be if you were not in the jury box, if you were in a different place in the courtroom.

You have to look at the witnesses and you have to say, is this the kind of witness that I would accept in a matter of the highest importance to myself or to my family or to my close friends, to my best buddy.  If my best buddy was on trial, he was the Defendant, if it was me, if it was my family, and this witness testifies, you have to listen to what that witness says.

The evidence is going to come to you three ways as you've heard, it's going to come from the witness stand, it's going to come from the stipulations of [15] counsel, and it's going to come to you in the form of exhibits, things that have been presented.

It's not going to come to you from the newspapers or the TV or -- or, well, you know, I don't know, that Defense lawyer he's kind of old and fat, I don't know about -- I don't like that kind of people.  If you don't like me, I'm sorry.  That's not in the evidence.  That's not the facts. That's not what you make the decision on.  If you don't like Robert Rivera, he's not up for citizen of the year.  Nobody's put him up for a medal. Nobody's asking you to like him.  Nobody's saying, you know what he did with Jen is wonderful.  It's not.

You can see there's two big parts to this case.  Part one is that the Commonwealth has put in evidence that says Robert Rivera had a terrible relationship with Jen and he was abusive to her.  He was terrible to her.  You heard her.  You know, I can -- I can do this two ways, one is I can put the blinders on and we can only discuss the little things that aren't hard for us to discuss, you know, that Robert told Sherry Lancinese [ph], the social [16] worker in prison, that he didn't kill Katelyn, he loved Katelyn.  I can say those things.  They're from the evidence, so I can tell you about that and you can say, yeah, he didn't do that.

Then I could ignore the part where we say well, you know, what, what he did to Jen was awful, but you see there's two parts to this, and those two parts are very important to you, because part one is his relationship with Jen, and the Judge allowed that in for limited purpose.  The law permits that in for a limited purpose.

The fact that he did that with Jen is so that the Commonwealth says we can show motive transferring to part two.  He must have killed Katelyn.  He hated her mother so much that he killed his daughter.  Is that the hard part?  Is that the part that, am I not supposed to mention that? I don't know that.  Should you pretend that you don't have to think about it?  None of us have that luxury, not you, not me.  That's the hard part. They want you to conclude that because he was awful to Jen, he killed his daughter, premeditated, willful, deliberate killing of  [17] his daughter. That's what First Degree Murder is.  First Degree Murder, unlawfully, intentionally, knowingly.  The Judge will give you the law about that.

Listen to that law.  Listen to that law about that charge of First Degree Murder.  That's the biggie.  That's the biggie.  That's the big one. That's the one that they say because he was mean to Jen, he was horrible to Jen, that's his motive for killing his daughter.  That evidence about his relationship with Jennifer is not offered for any other purpose, it is not to be considered by you for any other purpose.  That's its limitation, and you have -- you have to take that limitation.  You're stuck with it so to speak.

The second part is you have to take the evidence that you heard in the trial about Katelyn Rivera and her absence.  We started off and the jury was picked, everybody was told she was missing.  She is still missing.  You have to decide from that and from the evidence that you heard, does that mean that Robert Rivera committed Murder in the First [18] Degree or Murder in the Second Degree or Murder in the Third Degree as to Katelyn?  So, now we get to the real hard stuff.

Is Katelyn Rivera dead?  You can hate Robert Rivera, but is Katelyn Rivera dead?  Is Katelyn dead?  Now, if I put the blinders on that's still the question.  If I don't ask that question, you're going to ask yourself that question.  That's still the question.  Now what you have to say to yourselves is how do I know that she's dead?  Because the burdens not on the Defendant.

Remember I said in the beginning the table for the Commonwealth sits here because they're closest to the jury, because they have the burden of proof, and the burden of proof, the Judge will tell you, is the burden of proof beyond a reasonable doubt, and proof beyond a reasonable doubt is a doubt that would cause a reasonable person to hesitate in a matter of importance to themselves, hesitate.  That means you have reached a state of mental reluctance to go forward.  Not that you ultimately don't make a conclusion, but that you hesitate.  [19]

You're driving in a strange part of the state, or you're out in Ohio looking for a friend, and you're driving along and you get to a fork in the road, and you know the guy lives pretty much ahead of you but one fork sort of goes left and one sort of goes right, and you look at it and you look at it and you think, oh, man, I got to be there.  It's like an anniversary party and I'm already late.  I stopped and ate when I shouldn't have.  I got to get there.  Do I go left or do I go right, and so you hesitate.

Under the law, when you hesitate at that point because you've considered all the information you know about how to get to your friend's house, you considered everything that you heard, all the information about where he lives and where his house is and what kind of road it's on, and you look at those two roads and you hesitate because you're not sure, that's a reasonable doubt.

Now, the guy in the car, he's going to drive on because he's still got to get to that party somehow so he's going to go, he's going to pick one of those roads and go.

The law is [20] that you don't get to pick one of those roads at that point because that hesitation means that you have a reasonable doubt about what you're doing when you go forward, and that person even though he drives down that road, still has that reasonable doubt about where he's going.  If you have that hesitation, hesitation, not that it makes you stop dead in your tracks like a tree and you can't move, if you have that hesitation, then the law says that hesitation is a reasonable doubt and the law requires you to give Robert Rivera the benefit of that reasonable doubt.

The same Robert Rivera that you may not like very much, that you may downright despise, that you may hate for the way he's treated Jennifer.  But if you hesitate because you don't have proof beyond a reasonable doubt that he committed Murder in the First, Second or Third Degree, then you have to vote not guilty, that's the law.  I didn't make it up.  I follow it.  You follow it.  The Judge will tell you to follow it.

Is Katelyn Rivera dead?  Where was she killed?  How was she killed?  Who killed her?  What was [21] the means?  You heard the Commonwealth's witness start off by telling you, anticipation they were going to bring three inmates, the three wise men in, and they brought in one so you get to consider what the one said.  Oh, by the way, any doubt in anybody's mind that Robert Rivera's been in jail since he got arrested? Got arrested August the 11th, 1999, and he's been in jail.  That's how these inmates had access to him.

You see, when you're put in jail, it's like when I was in the Army, you eat when they tell you, you go to bed when they tell you, you turn off the lights when they tell you, you come out of the cell, hey, you go back in the cell when they tell you, and you don't get to vote like, excuse me, can I get a new roommate here?  I'm having a little trouble with this one.  They give you your cellie as they call them in prison, your roomy, you don't get to say, no, I -- we don't get along.  He likes to watch Oprah and I like to watch Wheel of Fortune and so, not like that.  They put people in.  They control your life.  And what did you hear about that?  What did you hear about that?  [22]

You heard the one letter that Robert Rivera sent he said, hey, they put 10 different people in with me.  That letter was written in October. That means from August to October of 1999 he's had 10 different cell mates and what does he say about those cell mates?  They're calling the FBI, they're calling the law, they're saying things about me, so what you have is you have people controlled by the Commonwealth trying to get information out of Robert Rivera.

And here's the guy who comes forward and says, I got the information.  I got it right here.  Me.  William Lively.  Do you trust William Lively?  Would you buy a used car from William Lively?  Would you buy a diamond ring from him?  Psst, hey, I'm Bill Lively and my grandmother just died and I got this diamond from her and I'm looking to make a few bucks.  Would you buy that diamond ring from him?  Would you say, you know what?  Yeah, I -- I have confidence in what Mr. Lively said so I'll spend a couple thousand dollars and buy that diamond.  Sure.  Um-hum, your grandmother, yeah, looks good.  Oh, 2 carats, okay.  [23]

The Commonwealth says that William Lively said that Robert Rivera says, I suffocated her.  Did you say I suffocated her deliberately?  It was an accident?  It was a mistake?  It was a -- no, here's what you have.  You have William Lively who says he's got that 7-page statement, that handwritten, 7-page statement, hold on one second please, I know I have it in here.  Here we go.  Handwritten statement.  All this stuff, I agree in the above caption matter, free representation of the following conditions: One, that I'll get all the publicity in the case, done the way I feel its appropriate, goes on page 3, there can be absolutely no foul language, in response to said surrender you will receive $80,000 per pay day with other interviews to follow.  Remember when I was questioning him about this and I stopped and I said, caught up on these little headphones here, get those out of the way.

William Lively says that he wrote this up and I said, well, Bill, I think I called him Bill, I said, Bill, is it fair to say that these 7 pages are pretty much a pack of lies?  [24] Remember his answer?  Pretty much, yeah, yeah.  He's have said or done anything.  Why?  Because he wanted the reward.  He still wants the reward, as a matter of fact, but I said to him, you didn't get the reward, he said, yeah, well, so far, like not over yet.  I'm still trying.

So, Bill Lively prepares a 7-page pack of lies.  I produce what I think is the 2-page handwritten pack of lies, in which he has forged his attorney's signature and guess what?  It turns out that he's -- he's got one better.  He's got the same 2 pages, plus a third page with another forged signature of his attorney on it and he -- he made that up, too.  And then Bill Lively says, out of the hundreds and hundreds and hundreds of people who are prisoners in this prison, Robert Rivera decides to trust me.  Me, the guy who's snitching on him.  The guy who's ratting him out.  The guy who's telling the Commonwealth everything.

In fact, he says that after the guy finds out that I'm snitching on him, he still works out a plan with me for me to get the reward and him -- you know the part about your common sense?  How lucky can the [25] Commonwealth be that Bill Lively, the guy who's interested in the reward, who's trying to be the guy, that's the only guy that they come forward with who says out of the hundreds and hundreds of people, out of the 10 cellies that he says have been running here and running there and doing all this stuff, William Lively's the guy who says, Robert draws me 2 maps.

Now, let's talk about hyperbole here for a minute.  Hyperbole, that's where you take something that's basically true but you kind of pump it up, like telling folk stories so they sound better.  Lively says, these are the 2 maps.  He gives me the first map and then he gives me the second map.  First map on one date, the second map a couple days later, and these are the maps and he gives me the specific instructions where Katelyn is buried.  And guess what?  Katelyn's not buried there.  So, I say to Detective Peifer, you guys searched there.  Well, we relied on the dogs.  We relied on the -- did they search there or didn't they?  Did they put in 5,000 man-hours searching?

If there was a chance that those [26] maps were accurate, that that was true, they'd have turned over every rock.  They'd, according to Lively, she's buried in a little round hole with rocks and sticks and several -- so, the maps aren't true.  Is William Lively lying to you?  Is William Lively lying to the Commonwealth?  Is Robert Rivera lying to William Lively?  Because he knows that Lively is this snitch, that he's surrounded with snitches, that he's surrounded with people asking him questions.  So, he gives Lively a crock.  Here, I'll tell you stuff.  It's not true, I'll tell you stuff.  It's off my back.  Lively says, gee, I don't know, I -- I don't read the paper.  I don't know -- by the time I ever got the paper it was like weeks and weeks later.

Lively says he first goes to the police on the 17th of August, 1999.  I asked to have this admitted to show you that on the 17th of August, 1999, there's a local paper, the "Delaware County Daily Times," there's a little map in here showing, Tuesday morning, Rivera scheduled for Preliminary Hearing, Lynwood #1; #2, shows confrontation at Wawa [27] parking lot; #3, shows Rivera took Katelyn from the baby-sitter's home; #4 shows he bought the gas at the station; #5 says there's Longwood Gardens, he gave her to a couple at Longwood Gardens.  Well, Bill Lively doesn't know anything about that.  No, no, I'm getting the straight skinny here from Rob because I can't stand him but he trusts me.

So, William Lively says Robert Rivera says that the baby's buried in one of these two places, and that's -- that's to support his claim that Robert's admitted that the baby's dead.  Well, the maps don't work.  The maps are not accurate.  The maps don't lie.  So, that means if Lively's telling the truth, then Rivera's lying to Lively.  Is he onto him?  Is he just spoon feeding junk to Lively to make Lively go away?  Is Lively getting stuff out of the newspapers that's helping him with what he's trying to do here?  Would you buy a diamond ring from Bill Lively?  In your own, in a matter of importance to yourself, do you think that William Lively's testimony is so credible, so trustworthy, that you can believe that because Robert was abusive to Jen, that [28] he willfully, deliberately, premeditatedly killed Katelyn?

Name a person who on this witness stand said that.  Name a person who said I planned to kill her.  I premeditatedly killed her.  I willfully killed her.  Name the person who said that.  Show me the evidence.  Show yourselves the evidence, and the fact that Robert Rivera makes statements, wild statements sometimes, wild statements, only me and God know where Katelyn is.  And then he says, well, you know, you take that out of context it really sounds bad but what I'm saying is God's everywhere and he knows everything and I know where she is.

Does that mean that nobody else knows?  You know the Irish, the Irish have a saying where, you know, she's dead to me.  I had a family fight, she's dead to me.  Does that mean she's dead?  No.  Robert Rivera says, only God and me know where she is, and then what they want you to do is extrapolate that and say, well, see if he says stuff like this, that means it's a willful, premeditated, planned killing.  Or that she's even dead.

Now, you hear from Sheila Clendening, the [29] baby-sitter lady.  And she describes how Robert Rivera bangs the side of the baby's head on the door.  She says, excuse me, I have a lot of paper here.  She says, "With Katelyn hitting the side of her head on the doorframe ..." She says it on the witness stand.  You know that hyperbole stuff?  Mrs. Clendening, did you see that happen?  She had turned to get the phone and found out her daughter took the phone and she didn't see it, what she heard was, she heard a noise and then there was some confusion.

Mr. Reilly and I were not the people who were at that first hearing, so the second hearing was no such statement, but at the first hearing she says, and she says it here, oh, her head.  Oh, her head.  And that's what Robert is supposed to have said, "Oh, her head." He's taking his baby away from this woman, away from this place to be with him.  She hits her head and he doesn't say, you hit your head, oh, did you hurt yourself?  Are you all right?  I'm sorry, he says, "Oh, her head."

Does that have the ring of truth to it?  Does that have the ring of truth?  Is that what a person says, oh, her [30] head?  No.  That's what any -- that's what anybody would say when a 20-month old that they're carrying were to hit her head.  Instead, you have all the rest of the people, first of all, you have this lady, Sheila Clendening admitting that she didn't actually see it.  And then you have Robert Rivera complaining to William Lively that they say that Katelyn hit her head and that's not true at all.  I actually hit my thumb.

So, if William Lively is telling you the truth about the map, is he telling you the truth about Robert Rivera saying I hit my thumb, not Katelyn's head, or is he sorting through those and so you can say, well, you know the part about hitting his thumb, that's the lie part that we don't want you to believe, but the other part, because we need you to believe the part about her hitting her head.  Why?  Because that makes him out to be a bigger monster.  That makes him out to be a baby killer.  A guy that would hit her head and just say, oh, her head.  So, don't believe when William Lively says that Robert Rivera says, she didn't hit her head.  Believe when [31] William Lively says that this is the map of the baby's grave even though 5,000 man-hours of searching couldn't find that baby where they said she's buried or he said she's buried or Lively said he said she's buried.  Don't worry about that.

Believe the part where he says, I suffocated her.  Don't believe those other parts, oh, wait a minute, do believe some parts, but don't believe those parts.  Would you buy a diamond ring from William Lively?  Which part of it, how do you differentiate?  How do you say, well, you don't want to believe him on this part, you want to believe him on this part, because I really don't like Robert Rivera much.  He's a no-good bum. Well, there you go, that's a fact.  No, the fact is that Lively says all these things and you have to figure out, is Lively lying?  Is Rivera lying to Lively?  If Rivera's lying to Lively about some things but not other things or Lively's lying to the Court about some things but not other things, oh, and they're going to tell you that William Lively, forgive me if I digress, William Lively has a criminal record [32] that you will hear from this Court contains a crime of falseness.  Hello.

And the Judge will tell you what that means to you when considering William Lively's testimony, and his truthfulness.  Puts him in a special category.  Listen carefully for that.  See what the Judge tells you about it.  Now, I'll give you a hint, this special category is not going to be one where they say, you know what?  William Lively's the kind of people that his word is his bond, his handshake is good, man.  No, I think you're going to hear about the other category.  I think you're going to hear about the category that says, scrutinize carefully the William Livelys at this trial.

Okay, now, William Lively says he had all these cases against him, and he's not looking to get out of jail.  No, no, he's just in the reward. He doesn't want -- he's not the one who's trying to get out of jail.  Let's see what happens.  William Lively, well, he does get out of jail, he makes bail, but he's on the electronic home monitor, but then he comes up with a plea agreement with the DA's office.  [33]

A plea agreement, and what does that plea agreement say?  Well, here's what we're going to do, old Bill.  We're going to postpone your sentencing until after the Rivera trial, you know, keep the heat off here, see how you do.  And then afterwards, you're going to get sentenced and Bill says, well, my lawyer says I can get this and I can get that, but you know what he could get?  He could get nothing because they've already let him go.

They took him off as part of the plea bargain, they took him off the electronic home monitor.  He was on the electronic home monitor, in other words, somebody was watching.  He got out on bail but they were watching.  He couldn't go anyplace without being electronically monitored, but as part of the plea bargain they took it off and he's been free to roam the streets for 2 years but that's -- no, that's not important, no, that's not part of it, no, see that's -- I certainly wouldn't color my testimony on account of that.  Does that fly in the face of your common sense?  Does that fly in the case of what you know your experience of people?

You know that if [34] somebody thinks they're going to get a benefit out of it, they're going to get a benefit out of it, so they're going to do what's necessary to get the benefit.  Does that make sense to you?  Or does Bill Lively's version make more sense that, no, really, I was happy in jail.  I was doing okay.  The electronic home monitor didn't bother me.  I'm not asking them to do anything for me.  Okay, they're going to come in and sentencing is scheduled for March now, after the trial's over and after you people are all gone.  After this is all shut down, Bill Lively's going to go in and the District Attorney's office is going to say, Bill Lively, he helped us.  They need Bill Lively, and they need you to believe Bill Lively. True?  You decide.  You decide.

And you decide, is Bill Lively telling you the truth when he says, you know, those other charges where I was threatening people and they said I was pointing a gun at that guy and finger gun thing, no, those people were lying.  They're liars, those people.  Bill Lively gives you his word on that.  The people that were filing charges against him, oh, that [35] would be the police, that would be the police filing those charges.  That would have been the charges that he pled guilty to.  Those are fake.  Those people were lying.  Would you buy a diamond ring from that guy?  Bill Lively says that two of those charges are a fake, those people are lying.  That didn't happen.  It's phony.  Of course, I'm pleading guilty to it.  I'm taking my deal, and I'm getting the DA to help me out here at sentencing.  Do you think Bill Lively doesn't care if they put him back in jail?  Or do you think Bill Lively wants the DA to say, Your Honor, don't put this guy in jail, he helped us big time?  Is that what your common sense tells you?

And here's the hard part -- here's the hard part, the hard part is that I'm telling you, I'm asking you, the law requires of you that you make those considerations on behalf of Robert Rivera.  It's the law.  Stupid?  You pick whatever, angry, wife beater, wife abuser.  I'm asking you, because the law says you have to, because your oath as a juror says that I will listen to the evidence in this [36] case and I will render a true verdict thereto, a true verdict.  That's the hard part.  It's easy to do what's popular.  Remember, I said in the beginning of this case, there's an easy way and a hard way?  You have to decide if the hard way is the right way.

My grandfather, my grandfather was a cop up in Bay Head, New Jersey, he's a tough old bird, and he had a saying for everything, a homily about anything, and I was a kid those homilies were tough sometimes to swallow but one of them he always said was nobody ever promised it was going to be fair or easy.  We're not asking you to apply this law to the Bishop of Boston.  We're not asking you to apply this law to Mother Theresa.  We're not asking you to apply these facts to somebody involved in works of charity.  We're asking you to apply the law to somebody that you probably can't stand in your own personal lives.  Somebody that you wouldn't shake hands with if you saw him on the street. Somebody you wouldn't want to sit next to you [37] on a bus.  But apply those facts and apply that law you must, because it doesn't matter whether you'd sit next to him on a bus.

If the Commonwealth didn't prove its case, William Lively's statements of incrimination are what I characterized and he agreed with as a pack of lies, if William Lively is not to be trusted, then you don't have the evidence, you don't have the facts.  When you apply that law, you have to apply it not in the abstract of somebody that you like, but you have to apply it as though you would want it to be applied to somebody that you liked or loved or cared about, but you have to apply it the same.

You heard about the Miranda warnings, that they had to have Mirandized Robert Rivera.  I bet you Miranda was no cream puff, but the rule of law, probably wouldn't want to sit next to Mr. Miranda either, but the rule of law prevails.  Isn't that the hard part?  Isn't that the disgusting part?  Isn't that the part that you want to put the pillow over your head and not think about?  Isn't that the part that you want to say, you know what?  It's so much easier if I apply sort of the popular opinion here that, you know, I don't like this guy and he beats his girlfriend, he [38] did this, he did that, he cut her hair, he did -- it's so easy to just say, let's make the transfer here.  If he did this to Jen, the motive is there, let's just say he -- let's say he killed her and get it over with because he's some kind of scummy bum person here and that, you know, nobody's going to fall fault you for doing that are they?  Except maybe the law.  Except maybe justice.  Except maybe reality.  Except maybe truth.  That's the hard part.

Now, I talked about hyperbole.  You heard the part where Sheila Clendening creates the baby hitting her head and being hurt.  Let's take a look at the people who saw the baby later on during the day.  Michele Lupi who came in here on two occasions and testified.  Did you hear Michele Lupi saying the baby was doing anything other than sitting in the front seat where she thought she shouldn't be.  She thought she should be in the back seat because Robert was driving like a jerk, speeding, doing that stuff.  Katelyn's in the front seat.  He's hold Katelyn's hand.  He says he's -- Katelyn's got her seatbelt on but she's not [39] in the child seat and did she say Katelyn was hurt?  She was bleeding?  She had a bump, she had a lump, there was something wrong with her?  No.

Let's take Mr. McCabe, the curly-haired guy from the gas station.  Mr. McCabe, he curlyhaired guy from the gas station says, I'm pumping the gas, man.  It's a, we pump your gas station, one of those few, I guess.  And he's pumping the gas and he can see that the seat's down and the little girl's crawling around and she's looking right at him, face to face, eyeball to eyeball.  Three feet, four feet he says, he's not sure exactly but he's looking through the window.  He's pumping the gas.  He's on the driver's side.  He's looking right across at her, and it's a little car. You saw the picture of it.  It's a little car.  Did she appear hurt?  Injured?  Head bump?  Bruise?  Blood?  Nothing.  Nothing.

Let's take the testimony of Jennifer Helton.  Is there anybody on this planet who would have a better reason to loathe Robert Rivera than Jennifer Helton, because he's taken her child away and didn't bring her back and she, [40] through the Commonwealth, is expressing to you, she must be dead.  She's not -- he's not bringing her back.  This is the Jennifer Helton who says to you from the witness stand that Robert was excited about being Katelyn's father.  Robert was in the delivery room taking the pictures and, in fact, he was taking so many pictures I think she said he got in the way.  I asked her about that.

Didn't he get in the way?  Yeah, he got in the way and they had to tell him to sort of, you know, back off there.  He cut the umbilical cord.  He was the first person to put a little outfit on her and she said, well, yeah, I was kind of indisposed at the time and Jennifer, this is Jennifer's opportunity to tell you about the transference of Robert's motive, because that's the whole stuff, I've beaten up Jen, transfer that motive to beating up -- to beating up Katelyn, to beating her, to abusing her.

Well, if there's anybody who loathes Robert more than Jennifer, what is she saying?  The one time he smacked her on the diaper.  She was crying and doing something he wanted to her stop so he smacked her on the diaper [41] and I told him about that.  Interestingly enough, that's the very same act that she admits that she did herself one time, that she smacked her on the diaper when she was down at Tom and Sissy's with her, and she smacked her because she was doing bad things to Tom and Sissy's little girl and she gave her a smack.

Tell me now how that, ladies and gentlemen, allows you the freedom to make that transference of motive from his abuse of Jennifer, and conclude that he willfully, deliberately, with premeditation, with malice, he killed his daughter Katelyn.  Because that's what they're telling you to do on the basis of what you heard from the witness stand.  Did Jennifer say, ever, once, that Robert Rivera abused Katelyn?  If you consider that smack on the diaper abuse, any of you parents?  Got your common sense with you?  Eighteen month old wouldn't listen.  Did you ever see somebody in a store, give the kid a smack on the diaper and say -- come with daddy.  Is that abuse?

They say to you that you have to transfer his abuse of Jen to his abuse of Katelyn, because if you don't make [42] the transfer then all this stuff, the motive, the stuff about Jen doesn't apply.  You see that?  So, you have to make that transfer and you have to put that over here and say, he did that to Jen, and then all of a sudden, 20 months of never once being abusive to Katelyn, all goes out the window and he willfully, deliberately, premeditates, intentionally, suffocates, strangles, chokes, whatever they're saying, this girl.

Now, you heard from -- you heard from Dr. Hellman [ph], Frederick Hellman, a medical examiner, and you have to keep in mind there's a hypothesis to what he says.  The hypothesis is, before you get to what I say, you have to conclude the hypothetical facts that A, she's dead; B, he suffocated her; and C, it was intentional.  It was homicidal suffocation.  And then you get to apply what he wants.  Is that sad that you hear this?  Is it tough to listen to that?  Somebody talking about that?  Yes, but the hard part there is you have to apply the facts before you get to this. It's like -- it's like the shoe.  It's like the District Attorney in his opening, standing [43] here calling that sweet little shoe.  You heard that.

Should I pretend I didn't hear that or should I ask you to pretend that you didn't hear that so we don't -- we don't raise that?  Is that something that strikes an emotional response in any human being?  But you see, it's kind of like -- it's kind of like when the DA says to Robert, where's Katelyn's body?  Where's Katelyn's body?  Where's Katelyn's body?  Is that evidence because he asked the question that way?  Is it evidence to call it a sweet little shoe?  No.  Is it evidence to say, where's Katelyn's body?  No.  See, because the Judge will tell you the part about the law again, the evidence comes from the answers, not from the questions.

You know the old stop beating your wife joke?  Everybody did it, you can't answer it, where's Katelyn's body, that means he gets you thinking that Katelyn's dead and that Robert killed her but that's -- that's not the evidence because the evidence is what the witness says, and Robert says, I can't answer that question.  Why?  Why can't I answer that question?  I can't answer that.  And he told [44] you why he couldn't. He said, because it presupposes something doesn't it?  Yeah.  So, when you hear from Dr. Hellman it presupposes something and before you get to what Dr. Hellman says, before you jump on that bandwagon, you have to say to yourself, is the hypothesis proof to me beyond a reasonable doubt?

It's like the corpus delicti rule.  The Judge is going to talk to you about that.  Corpus delicti is the body of the crime.  The corpus delicti, if I go to the police and I say to them, I robbed the PNC Bank.  They arrest me.  They bring me to trial.  Policeman gets on the stand and says, Your Honor, Mr. Smith robbed the PNC Bank.  He said so.  Corpus delicti problem is first, you got to have somebody prove the bank was robbed.  You can't just use that statement to make a robbery out of it.  So, if the corpus delicti rule says here is that before -- before, underline before, before you decide to accept any of the so-called statements made by Robert Rivera, allegedly made by Robert Rivera, made by Robert Rivera, allegedly made, you pick it, before you accept any of those statements, [45] before you apply any of those statements to anything, corpus delicti rule says first, they have to prove to you beyond a reasonable doubt that the crime occurred, before you can conclude that he did it.

In other words, they can't pull themselves up by their own bootstraps here.  They can't say, well, he says he did it so that means it happened and he did it.  They first have to prove it happened, totally without those statements.  That's your burden.

Told you this was going to get ugly.  Told you it was going to get hard.  Told you it was going to be difficult.  That's your burden.  You have to separate those.  The law says so.  The Judge will tell you so.  You have to first say, they have proved beyond a reasonable doubt, First Degree Murder, before you can apply that to the First Degree Murder, before you can say, well, his statements can now come in on that.  You have to prove beyond a reasonable doubt the corpus delicti.  Second Degree Murder, you have to prove the corpus delicti.  Third Degree Murder, it goes on like that.  That's what the law says.  Guy [46] Smith says, I'm nobody in this.  I'm just a vehicle explaining, but I think you have to listen and watch carefully because that's what the law says and that's what you have to do.  Is it easy to do that?  Why isn't it easy to do that?  It's hard to do that when you look at Robert Rivera.

You heard him on the stand yesterday.  What--what did you learn from his testimony yesterday that you didn't already know in this case? That he gets angry?  Well, the DA got angry.  If everybody who gets angry is guilty, then he -- he got angry.  Who's the guy yelling the most here? Who's the guy putting elves into the story?  The DA.  So, Robert, you made up stories about this and you made up stories about that and you made up stories about elves.  I object.  No elves.  So, are the DA's righteous anger?  Anger, that's the issue you have to look at here.  What did you learn from all of that other than you heard Robert tell you what he told you.  You heard Sherry Lancinese say that Robert said repeatedly, I wouldn't hurt her.  Yeah, I wouldn't hurt Katelyn.  You heard from Donna [47] Marie Davis, the lawyer for Jennifer at the PFA hearing, you heard her say that Robert's overriding concern was for his daughter, her well-being, her safety.  He didn't want her to be with the mother.

Now, is he right or wrong about that Jennifer's not a fit mother?  How many people did Robert say, Jennifer's an unfit mother.  I don't want her to be with her and all that stuff he said about what she was doing or not doing, but he never said, so, I'm going to hurt Katelyn.  He said, I'm worried about Katelyn.  I want to protect Katelyn.  I want her kept from harm.  I'm not taking her to do harm.  Even if his belief is dead wrong, even if his belief is that Jennifer's an unfit mother when in fact, he's the unfit father, and that she's the fit mother, the question you have to ask yourselves is look at his purpose and his motive because the DA is going to say to you, take that motive and transfer it to Katelyn and I'm saying to you when you look at the facts, the facts belie that.  The facts say to the contrary that all of the things that he was saying and doing were to [48] protect and preserve and love his daughter.

He said it to the Judge, even after they said, if you believe in God, you'll sign this agreement, so he signed it.  Then they get in front of the Judge and then he starts telling the Judge he's worried about Katelyn.  The Judge makes them go outside and promise that he can talk to Katelyn every day on the phone.  Michele Lupi.  Michele Lupi gets on the stand and Michele Lupi says that in the week or two before this happened, that she knew Robert on several occasions because Robert had the ability to call his daughter at night and speak to her once a day, that she drove him to a pay phone so that he could call Katelyn and she heard him say, what?  Katelyn, I'm going to get you because I'm mad at your mother?  I'm going to hurt you because your mother and I don't get along and I abuse your mother so I'm, no, no.  He says, good night, Katelyn, I love you.

Is that hard to take from all the relationship that he has with Jen?  It may be hard to take but it's the fact.  Is that what they presented? They presented these people.  I didn't call those people to the stand.  I [49] didn't call any of those people to the stand.  Now, Robert Rivera took the stand and the Judge will tell you, by the way, this isn't television and I'm sure new to all your experience, that the Defendant has the right to make his statement in what's called a narrative form, which is what Robert chose to do.  So, he did that.  That's just one of the ways that you get the evidence.  Don't think anything about the narrative versus the question and answer part.  That's -- that's an option that he chose.

What did you learn from the Commonwealth's witnesses, the Commonwealth's witnesses?  The people that they put on the stand?  You even heard it from Donna Kibby [ph], the FBI agent, that he was concerned about his daughter.  The CID tape that you listened to.  Oh, let's talk just for a second, I'll talk, you listen, sorry, about Lieutenant Peifer of the CID, interacting with Robert.  Now, Robert's arrested.  He's in jail.  He doesn't get to vote on who his driver is.  Don't send a lieutenant out.  Send out the sergeant.  The lieutenant gets to drive him?  The guy who's [50] trying to crack the case.  The guy who's trying to get Robert Rivera convicted gets to drive him to and from the hearing and to and from the prison and things, and then he says, so, Robert says, well, there's other murderers on that block.

Whoa, that's it.  Shut things down.  Guilty.  No problem here.  There's other murderers on that block.  They're talking about the fact that they start the conversation.  They start this between themselves, they're talking.  Peifer and FBI Agent Kibby, but we're not talking to Robert, no, we're just saying to ourselves.  Well, gosh, do you think they're going to have to move Robert to a different block now where life might get tougher or things might get different or whatever?  What a serendipity that Robert overhears that.  What a serendipity that the lieutenant happens to be the guy driving.  Why don't they send a constable or a sheriff or a low-level minion sort of a driver guy?  No, they send the lieutenant so he gets to start the conversation and then Robert says, no, there's other murderers on the block that I'm on now.  [51]

Well, that's it, you're a murderer.  Or is that just sort of one of those, I'm charged with murder, you guys are saying I'm a murderer.  Or is that a true admission of guilt that they want you to believe because that's what they want you to believe that.  They're pulling themselves up by their bootstraps here and saying, well, you know, we don't have the direct evidence, we don't have a body, we don't have blood, we don't have eyewitnesses, we don't have the means of death, the method of death, the how, but what we got is we got, we got William Lively saying that we suffocated her, let's go with that one; and we got him saying there's other murderers on my block, let's make him a murderer because of that.

If you want that to be the evidence that makes anybody important to you a murderer, that's the question.  Not the guy you don't like here. Same rules, people you like, people you don't like.  It's that the hard part?  Now, he lies, lies, lies, Robert Rivera.  He tells you a story, the DA says.  Well, let's see what he told them.  He tells them he's at [52] the gas station and they check, he's at the gas station.  He tells them Katelyn's fine.  Katelyn's fine.

He tells them he's at Longwood Gardens.  They take him to Longwood Gardens and they say, you're a liar.  Longwood Gardens closes at seven o'clock or whatever and you said you were here at 8:30, that's -- you're a liar, it didn't happen.  He says, I was in the back.  There were 3 buses back here.  I was -- I was there, I'm telling you, I was there.  I did this.  Oh, it doesn't add up.  The time's wrong.

Oops.  Guess what?  On the 10th of August, the night he said he was there?  You heard the stipulation, there were 3 bus trips.  Let's see, how many buses minimum must you have from each trip?  Oh, that would be one.  So, you have 3 bus trips, you have 3 buses.  Hey, he says there's 3 buses, University of Delaware, Boscov's and the Christian Fellowship.  They don't come on the same bus I'm going to suggest, from the evidence so therefore, they got 3 buses.

If they got 3 buses and the 3 buses are parked in the back, and the place is open because they're having a [53] special show that night, how does he know that if he's not there?  Because they got him in custody the next day.  He doesn't get to go back and check it-out.  We already know he couldn't read back then.  It's not like he's reading the thing, oh, it says here they're going to have a special bus trip to Longwood Gardens tonight so I think I'll use that.  Was he there?  Was he at Longwood Gardens?  Are there 3 buses?  Did they stipulate to it?  Anybody come here and say it's not true?  It's closed?  No.

And Peifer says, yeah, we checked, it was open that night.  Special event.  Three buses in the back.  They were there.  But, Lieutenant Peifer says, but none of those people say they saw Robert.  Well, let's see, did any of the people from Boscov's tell you, hey, the people from University of Delaware that they saw or were they looking for Robert or were they not looking for Robert or were they looking to go to Longwood Gardens?  I mean the question isn't whether they saw Robert.  The question is whether Robert saw them, and Robert saw them because they were there, and we know [54] Robert was there because Robert saw them, and we know that he was there and saw them because he didn't have time to like scope this out.  He -- he wasn't at Longwood Gardens checking it out earlier in the day.  He wasn't at Longwood Gardens the next day.  They had him.  They've had him ever since.

And on the 23rd of November, Robert's just coming out of Court, getting a new lawyer and before he gets that new lawyer, fortuitously, Lieutenant Peifer happens to be in a position that he gets to talk with Robert, and so he takes him downstairs and makes this tape.  And Robert says, I'm tired of hearing the stuff on the TV, the newspapers, and I have 9 different cellies, well, 10 different cellies.  You know, they, you know, what I mean, one of them, some of them or one of them, the main one had got in my drawer underneath my bed.  Got my paperwork out, photocopied my paperwork, made up stuff.

Would that be William Lively?  Then he says, "I want to know, like what's going on, you know?  I know from -- I know from the beginning, the first story I told you [55] about, you know, in Longwood Gardens, and which I was really there, so the people from Maryland or whatever I said, you know what I mean, I did lie about that." And then he says, on page 6 here of the typewritten copy, "She doesn't go back to her mother because, you know, what I mean, her mother looks so innocent and you don't understand."

And then he says, "Okay, you indicated only God and you know where Katelyn is.  Yeah, so they blew that out of proportion, you know, what I mean?  I meant, they know where, you know what I mean?  God knows, God is everywhere.  You know what I mean?  Okay.  That's what, you know what I mean, they blew up, you know what I mean, that reporter, she blew everything out of context so much and then when I told the guys, like I told the guy who helped me write the letter in jail, you know, I can tell them one thing and he can write the other.  You know what I mean?"

Then he talks about, Lieutenant Peifer says, "I will take you to go," and Robert interrupts and says, "'When you find her, you know what I mean? You got to promise, you're not [56] answering the question because I don't want her going back to her mother for what her mother was doing to her.  You know what I mean?  You don't know her."

And then he says, "I will make that promise ..." This is Lieutenant Peifer, "I will make that promise right now, but you need to tell us where Katelyn is." And he says, "Then she goes back to her mother.  I mean back to her."  The DA said in his opening that the evidence would show that Robert took Katelyn's clothes and tied them on the handle of his car and that's how they got on 202.  In fact, the statement that he gave to Lieutenant Peifer and the statement he gave yesterday and the statement he told you from that witness stand was, "I didn't plan this.  I boosted new clothes for her."

Boosted, they gave us, they read into the record in rebuttal, that Robert has a conviction for stolen property from 1026-98, and a conviction for Attempted Burglary from 8-19-92.  Robbery?  Burglary?  Boosting?  He stole clothes.  He stole clothes for her and put the clothes on her, and then he took those clothes that were on her and he took [57] them to a store and put them on the handle of the store or at the door. He says he doesn't remember which because there were kids there.  He says to Lieutenant Peifer.  "It wasn't a Goodwill store like the newspaper lady said, but I put her clothes, I got her other clothes and ..." he tells you, boosted them, "... and I put them in the bag and I put them outside, you know, I tied them on the door, but them right by the door." I got her other new clothes, I boosted them.  I took these clothes and I put them by the store.  I didn't tie them to the handle of my car door.  And he says, "I didn't plan this.  I didn't plan this."

Now, let's talk about the shovel.  See, the evidence, what -- oh, Jennifer says that all the stuff, about that one incident, is in this bag, all the clothes that he was cutting up for over an hour.  Well, if you look in the bag you're going to find there's a bunch of shoes, bunch of trash, and about two things in here that are clothes.  This, if you call this clothes, I guess, and she says he was cutting them up for an hour to an hour and a half.  I [58] don't want to sound fresh about this, but did it take an hour and a half to do this or is that the hyperbole that makes it out to be worse?

The shovel.  They tested all of this stuff.  They didn't test the shoe and the sock for DNA.  Big deal about Katelyn's shoe, it's not Katelyn's shoe.  It's Katelyn's sock, it's not Katelyn's sock.  The didn't test it for DNA.  It was her sock, her shoe, and she was wearing them.  They didn't test it.  There's no -- no evidence of that.  They didn't bring in a book.  Why didn't they?  Don't get to know that now.  What you get to know is they didn't do it.  What you get to know is they don't have it.  The shovel.  They tested that shovel.  They tested soil samples.

We've got the report from Agent Kibby about all the various things that they've tested, Commonwealth's Exhibit "68" it is.  "Q4", they even took the rug mat from the trunk of the car, Michele Lupi's car, that he was driving.  Why?  Well, I guess, you see, well, you know, he killed her and she's bleeding or something, maybe there's evidence in the trunk or [59] something, here's what they found.  Report will tell you, no blood, no evidence from the trunk mat in the car, nothing.

They took debris from the passenger side front fender.  Debris from the driver's side front fender.  A portion of the rug from the interior. The rug mat from the trunk.  They took the seatbelt.  They took a piece of the passenger seat cover.  They took the passenger's side seatbelt housing; the housing from the center console; a portion of the weather stripping; the plastic from the passenger side front floor; the plastic from between the front and rear passenger seats.  They took Robert Rivera's pants and shirt and shoes.  What they found on Robert's pant, shirt and shoes, it says so on the FBI report, they did a DNA test.  Katelyn is specifically excluded from anything they found.  No blood from Katelyn, on anything.

The items from the Sunoco restroom where Robert bought the gas, they took the sink trap, the debris from the sink trap; carpet samples from the floor of the car, the trunk of the car, the seat cover sample, they took debris from the shovel.  They took the waste [60] can and it's contents from the gas station.  Remember, he came back to the gas station.  They made a big deal about him coming back to the gas station and washing his hands and spending 3 to 5 minutes, Mr. McCabe said, 3 to 5 minutes.  Here's what they found in the waste can and its contents. Katelyn is specifically excluded so there's nothing in there.  Like he went and what?  Killed her, cut her up, put her in there, blood on his hands, washed his hands, wiped his hands, did something.  No.

They took items from the Williams' construction site at Delancy Road in Elkton.  They took soil.  Did you hear anybody say to you on this shovel we have Robert Rivera's fingerprints, skin, hair, Katelyn Rivera's skin, hair, samples?  We have soil samples showing that this shovel, has a little dirt on it now, showing that that soil sample came from someplace other than Tom Whittaker's house.  That came from someplace else because we've tested the soil in all those places.  No, you didn't.  So, when they bang the shovel around and hold it up in front of you, and [61] hold up a sweet shoe and sock and a big shovel, they still have to get the evidence, they still have to get the facts, they still have to get the part where William Lively is believed, that he suffocated her.  That he did it willfully, deliberately, intentionally, with malice, intent to kill.

Did he kidnap his own daughter or did he take her away from people that he wanted to get to her, and then after he got to her and tried to give her back to her mother the police got involved, does a person who intends to kill his daughter try that many times to give her back?  Does that person, does that person call his social worker and say, oh, I really screwed up, what do I do?  How do I solve this?  And she said, try to give her back.  Try to give her back.  So, he tried to give her back.  Does that show you the wickedness of disposition, the hardness of heart, the evil intent with regard to Katelyn?  I'm not talking about how much he didn't like Jen or how he abused Jen.  That's -- that's what the Commonwealth says is the motive, but I'm asking you to look at the facts.  Not [62] those other parts.  Look at the facts and apply those facts. Not the wishful thinking part but the factual part.  Apply the plea agreement from William Lively.

Excuse me while I just check my notes for a minute.  Ladies and gentlemen, you've been most patient.  If I've talked too long, I apologize. There's a lot on my mind and a lot I felt was important to express to you.  If I took too long, don't hold that against my client.  If I didn't say something that you felt was important, then you apply that.  You see, I'm going to sit down in another 30 seconds or so, and then my part is done. The District Attorney's going to tell you what he's going to tell you and then his part is done.  The Judge is going to tell you the law and then his part is done.  And then it's in your hands.

And so, if we don't remind you of the hard questions, you have to remind yourself.  Did one person ever get on this stand and say that in any way, at any time ever they saw Robert Rivera abuse Katelyn?  That they saw a bruise on her that he put on her, that they saw a mark on her that he put [63] her on her, that they saw him hurt her?  They heard him say an unkind word about her?  They heard him say I hate her.  I can't stand her.  I don't love her.  Did anybody ever take that stand and tell you even once that Robert Rivera harbored any ill will, bad motive or intent to commit harm to his daughter?  Or did you hear to the opposite?

Robert Rivera, whatever else he was, whatever kind of a bad person he is, he loved his daughter.  He loved her so much that he wanted to protect her from what he thought was harm from others.  You see, when this is all done you're going to go home, case will be over, your decision, popular or unpopular, will be a decision.

And there will come a time you'll be in the silence of your own room, your own house, know that moment when you turn out the light, fix the alarm and put your head on the pillow and you're about to go to sleep?  This is going to pop into your head and you're going to know then, you're going to know then whether you followed the law, whether you followed the facts, and whether you were true to your verdict as a juror, and whether you did what [64] you had to do because it was right, and under the facts and under the law, what's right is to say that Robert Rivera is not guilty of the crimes charged, because the Commonwealth, as much as they hate him, as much as he was mean to Jen, as much as he was not a loving husband, has failed in its burden to prove beyond a reasonable doubt that he did anything other than take his child away and won't give her back because he doesn't like those people, he doesn't trust those people, and whether that's being mean to the mother is not the issue.  We know it's being mean to the mother, and we know it's being awful to the mother, but that's a far cry from saying we're going to make a leap of faith and say that he killed her.

So, I suggest to you from the facts, that the hardest part of what's left to do here now is follow that law, follow those facts, and find the Defendant not guilty because that's what it calls upon you to do.  Thank you all here today.

The Court:  Mr. Reilly?  [65]

Mr. Reilly:

Thank you, Your Honor.  No, daddy.  No, daddy.  Agent Kibby, testified that the Defendant told her, those were Katelyn's last words to him.  No, daddy.  Those words echo in the walls of this courtroom today.  Of all the things that Robert Rivera has said, so many of those words have been false.  Those two words, testified to by Agent Kibby, ring true, no, daddy.  The Defendant, I said in my opening statement, killed Katelyn, kidnapped and killed Katelyn, in an act of revenge against Katelyn's mother, Jennifer.  The evidence that you heard demonstrated that the Defendant controlled Jennifer with violence and destruction and it was with that same violence and destruction that Robert Rivera got his revenge against Jennifer.

You heard the testimony about that violence, abut that destruction.  Destroying the car seat because Jennifer didn't pull the strap the right way; telling her that he could kill her, he could kill Jennifer and bury her with lime; destroying Katelyn's furniture; destroying Jennifer's clothing; putting the [66] knife to her throat; cutting her hair; forcing her to undress; the humiliation of it all.  That was how the Defendant controlled Jennifer, and the Defendant controlled Jennifer to this very day, for so long as Katelyn lies undiscovered in some God forsaken hole, the Defendant still controls Jennifer.

You heard that the Defendant, in the days leading up to August the 10th, and on August the 10th itself, that the Defendant was preoccupied with death.  I could kill you, and bury you with lime.  You heard Sherry Lancinese, the welfare worker, testify that the Defendant was crying, the Defendant was despondent, the Defendant was suicidal.  You heard Jennifer's testimony about August the l1th, those phone calls that she received from the Defendant all day.  Remember Jennifer testifying that the Defendant said that he and Katelyn were going to be with Bill, and she told you who Bill was.  Bill was her ex-boyfriend who had died in a boating accident.

The Defendant asked Jennifer in one of those phone calls, did she want to say goodbye to Katelyn?  And then the Defendant spoke those [67] words that still -- that still haunt Jennifer, and that haunt all of us, "Katelyn's going to heaven and I'm going to hell." Those words from the Defendant's mouth were an ominous foreshadowing of what would happen later that day, August the l1th.

The Defendant has told Lieutenant Peifer previously, and told you yesterday, and Mr. Smith repeated today that this was something that the Defendant didn't plan.  This is something that just happened.  Well, ladies and gentlemen, I suggest to you that the evidence proves to the contrary.  You heard Michele Lupi testify about how the Defendant wound up with her car.  She testified that the Defendant asked her for a ride, he needed a ride to Court.  She also testified that the Defendant could walk to Court.  I believe she said it was a 5-minute walk down the road, but the Defendant told Michele Lupi that he needed a ride, and then once Michele Lupi came to pick him up, the Defendant was able to convince Michele Lupi to give him the car.

Michele Lupi wanted to drop the Defendant off and take the car to work and then come back [68] and pick the Defendant up on his lunch hour, on her lunch hour, but that's not what the Defendant wanted.  The Defendant wanted Michele Lupi's car.  Why did he need a car?  He wasn't working.  He was going to a place that was 5 minutes away from his apartment.  But he was going to have that car, and he started to plan to have that car the night before when he called Michele Lupi and asked for the ride.

Then, once he got that car, immediately upon leaving the courtroom in Lynwood he took that car to the Wawa and he found Jennifer and he assaulted Jennifer and you saw the photographs and you saw the hair missing from the top of her head, and you saw the rip in her pantyhose and her bloody leg, and you heard the testimony about what he did.  And as soon as he finished that he didn't miss a beat.  He went directly to Sheila Clendening's house and he kicked the door down.  And he rushed in and grabbed Katelyn and he rushed right out, and he would have you believe that he didn't plan to do what he did.

The rest of the day he spent cruelly manipulating Jennifer. [69]  Terrorizing Jennifer.  Calling her on the phone.  Talking about Bill. Talking about Katelyn going to heaven and I'm going to hell.  You want to say goodbye to Katelyn.  And the Defendant, testified yesterday and he would have you believe that he was trying to return Katelyn.  Even Mr. Smith this morning asked you to believe that one.  The Defendant was desperately trying to return Katelyn to Jennifer.  If only Jennifer would have come out of the house and gotten Katelyn, well then he would have returned Katelyn.  Ladies and gentlemen, the evidence shows, the evidence proves again to the contrary.  Katelyn was the bait.  The Defendant was using his own daughter to lure Jennifer to the car.  Every time the Defendant said he wanted to meet with Jennifer, he told her, just you, no police.  He avoided meeting her at the Kmart when they went to Carpenter Plaza.

You heard the testimony about Brian Logue, her cousin's husband, hiding in the car.  The Defendant wanted Jennifer.  He wanted Jennifer alone, and when he found that Jennifer had brought someone to protect her, he was gone like a [70] shot.  This is the great guy who cares so much about his child that he's using Katelyn as bait to lure Jennifer.

Any time during that day, at any time he pulled up out in front of the house on August the 10th, he could have popped open that door and let Katelyn scamper right up the steps.  He could have gotten out of the car.  He could have picked Katelyn up and plopped her down on the steps and drove away.  But he didn't because she was the bait and Jennifer was his prize.

The Defendant has told lots and lots of stories since then.  You heard about Longwood Gardens and giving to the Maryland couple and the Dodge Caravan, and then there was the lady who he knew who was -- who had lost a child, and then there was upstate New York and then a couple from Longwood Gardens, weren't in a Caravan, they were in a Durango and that was a Florida license plate with an orange on it.  And yesterday, he admitted that all of those stories were false.

Now, the law says that a Defendant doesn't have to offer any evidence in his own behalf, [71] but when he does, when the Defendant takes the witness stand, judge his credibility the same way you judge the credibility of any other witness.  The Defendant admitted that every story told before was false.  And what made the testimony laughable, I suggest, was he said, well, what I said was partially true because I did know a lady who had lost a baby but I didn't give Katelyn to her.  I did know somebody in Orange County, like that -- like that makes the Defendant credible.  The Defendant has told so many untrue and conflicting stories but there is one story that is corroborated by the evidence that you heard at this trial and that's what the Defendant told William Lively.

I'm not asking you to take William Lively's word for it.  I haven't asked you to do that.  I'm not saying believe William Lively because he's William Lively.  You know from the testimony that when Lieutenant Peifer first talked to William Lively, Lieutenant Peifer testified he thought William Lively was full of crap.  That he was telling him things to try to work out a deal for himself.  However, William Lively was [72] able to corroborate what the Defendant was telling him, and that's what convinced Lieutenant Peifer.

William Lively drew the map that Mr. Smith, actually drew 2 maps.  Drew the first map of Tom Whittaker's property.  Now, the testimony that you heard is that William Lively didn't know Tom Whittaker from a bag of hammers.  Tom Whittaker lived in Elkton, Maryland. William Lively lived in Upper Darby.  William Lively has no connection to this case other than the fact that he was on the block with, cell mates with, the Defendant.  William Lively testified that the Defendant drew that map of Tom Whittaker's property.  You saw the pictures of Tom Whittaker's property.  You heard Lieutenant Peifer's testimony.  That map corresponds precisely to the cottage, to the outhouse, to the boathouse, the neighbor's property, the fire pit.

There's a newspaper article about the fact that the Defendant had been arrested, indicated some of the facts of the case.  There's no diagram of Tom Whittaker's property.  Lieutenant Peifer testified, we actually showed you the photographs from up above in [73] the helicopter.  Tom Whittaker's property is covered with trees.  Lieutenant Peifer showed you where it was.  William Lively couldn't draw that map himself.  That map demonstrates that the Defendant was talking to William Lively.

The second map is the same thing.  Lieutenant Peifer testified that the map is a diagram of an area up the road.  Then we come to the shovel.  William Lively testifies that the Defendant told him that he killed Katelyn, smothered her.  Said that he had taken the shovel from Tom Whittaker's property.  He disposed of it at a construction site, so within hours, within hours of getting that information from William Lively, police search the construction sites and they found that shovel.

Tom Whittaker had described that shovel in detail to the FBI.  Long handle, spade shovel, the tip worn down, painted blue.  You heard his testimony in the courtroom.  I inherited that from my father.  My father spray painted all the tools blue.  That's my shovel.  When we showed the shovel to William Lively, again, they had -- you heard the [74] testimony.  We also had William Lively describe the shovel before the Officer took that shovel out of the trunk, and William Lively described that shovel.  He sat on the witness stand and he said, that's my shovel.

Now, recall William Lively's testimony of how he discovers that the shovel is missing.  The Defendant shows up unexpectedly, out of nowhere.  Pulls his car around behind the cottage so it can't be seen from the street, and remember specifically, the testimony about what happened that morning.  William -- Tom Whittaker goes out, he goes out to take a shower, comes back in, goes out to the outhouse.  He notices that the doors of that shed or boathouse, as he called it, are ajar.  He notices that they weren't that way when he had been out previously.

So, he goes over and he fixes the doors.  It is between the time that the doors are fixed in their right place and the doors become ajar, that the Defendant leaves without saying goodbye.  And then when the FBI comes by and they ask him, take a look around your property, is there anything missing?  Tom Whittaker thinks of the shed, [75] thinks of those doors.  He goes over there and he realizes that the shovel's been missing, and he knows that that shovel was there because he, Tom Whittaker, had used it that very same say, the very say the Defendant arrived. He used it because he was digging up roots, digging post holes and he put that shovel back.

There's no fingerprint on that shovel.  That shovel laid on the William's Chevrolet construction site for a week.  There's no fingerprints on that shovel, but consider the circumstantial evidence.  Do you folks have any doubt as to whose shovel that is and how that shovel got there?  We got that shovel because Robert Rivera led us right to it.  Don't take William Lively at his word.  Don't believe it just because William Lively said it. Believe William Lively because it's corroborated.  Then William Lively lets Lieutenant Peifer know that the Defendant told him about Katelyn's clothing.  Defendant said that he undressed Katelyn before he buried her so that her body would decompose faster.

William Lively gave Lieutenant [76] Peifer specific information.  Defendant said he threw the clothing out the window on 202 south and if you get to the Pep Boys in Talleyville, Delaware, you've gone too far.  That, didn't come out of the newspaper.  There's only one place that that information could have come from, and that's from the Defendant.  We send the police down there, the Delaware State trooper.  She goes down and what does she find?  She finds a sock.  She finds the sneaker.  The sock, the sneaker are identified by Mrs. Baxter, by Mrs. Helton and by Jennifer herself.  In fact, in one of the Defendant's letters to the "Daily Times", Defendant describes precisely the clothing that Katelyn was wearing the day that he kidnapped her.  And he describes the sneakers, the sneaker with the 3 rhinestones.  Then the Defendant, as I -- as you heard in the taped statement he gave to Lieutenant Peifer, he first says it's not Katelyn's sneaker, and then he says, well, I did have to undress her.  I undressed her before I gave her away.  And that's his explanation for how that clothing winds up on 202.  [77]

Do you have any doubt that that sneaker belonged to Katelyn?  That that sock belonged to Katelyn?  Don't take William Lively's word for it.  The evidence corroborates it.  The evidence doesn't only corroborate the fact that William Lively's telling the truth.  The evidence corroborates that Katelyn is dead because you don't need to undress a child whom you've given away, you don't need to throw her clothing out on the street like it's trash and you sure don't need a shovel the next day.  The Defendant is still, to this day, controlling Jennifer.  He controlled Jennifer during the time that they were together, and now while Jennifer mourns, so long as Jennifer can't give Katelyn the burial she deserves, Defendant controls Jennifer.  Controlling Jennifer, I suggest to you, ladies and gentlemen, makes the Defendant happy.

You heard the testimony that he gave.  You heard the vile things that he said about Jennifer on that witness stand yesterday.  And you know that the same man who gets in the -- gets on that witness stand and says all of those horrible things about Jennifer, is the same [78] guy who's writing those cards, professing his love and devotion and his wanting to be reconciled and if we can only work this out.  And at the same time he tells -- he says these horrible things about Jennifer and he writes these flowery letters to her, at the same time he's telling Michele Lupi that he's out at the prison watching Bay Watch on television and dreaming of the hot oil massage that Michele Lupi's going to give him when he gets out.  He's so torn up about this.

Ladies and gentlemen, the evidence shows that he's enjoying this.

Commonwealth's Exhibit C73, Robert Rivera, P.O. Box 23A, York, Pennsylvania, to Katelyn Selina Rivera, 27th of April, 2000, To Katelyn Rivera at Jennifer's post office box.

"Wishing Easter happiness to a special friend, to Katelyn and Jennifer.  When Easter comes I like to stop and think of happy things, the very special people who bring sunshine all year through, and that makes it seems to spring like me.  Special friends like you.  Happy Easter.  Happiness always, I love you.  Robert Rivera."  What a sweet guy.  [79]

27 December, 2001, two days after Christmas.  Jennifer Helton.  "When I woke up this morning and remembered we'd be apart I almost stated that I should have.  Everywhere I go I see lovers hand in hand, laughing, cuddling, and I feel sad that I'm not in your arms where I belong." This is the same guy who got up there and said all those things yesterday.  And then inside this card, No body.  No evidence.  No one missing. It's a star's hollow murder mystery.  What a guy.  Oh, no, no, no, you're wrong, Mr. Reilly, it's Jennifer Lopez.  I was sending her a picture of Jennifer Lopez.  This is -- this is all a coincidence.  I always tell the truth so you should believe me about that.  No body.  No evidence.  No crime.  That's how the Defendant thinks that this works.

Jesus, Mary and Joseph, what's that all about?  Do these cards give you any doubt, do they leave you with any doubt about what was in the Defendant's heart when he arranged for that car from Michele Lupi?  About what was in his heart when he assaulted Jennifer?  When he kicked the door down?  Took Katelyn out of [80] there?  When he tried to use Katelyn as bait?  When he wouldn't return Katelyn?  When he demanded that Jennifer get in the car?  When even the following day just before he was going to be arrested on August the 11th, when he comes up, Katelyn's already gone, and he's honking the horn and Officer Reardon's standing behind the door and he's ordering Jennifer, get in the car. Get in the car.  Do you have any doubt about what was in his heart?

The Judge will instruct you on the charges in this case, Interference with the Custody of a Child; Burglary, that is breaking into Sheila Clendening's with the intent of committing a crime inside that is, kidnapping Katelyn; and then the crime of Kidnapping, and then finally, the crime of Murder.  The Judge will instruct you on three different kinds of murder.  Third Degree Murder, the Judge will tell you is a killing with malice.  I suggest to you that this case certainly is a killing with malice, but it's more than that.  Second Degree Murder.  Second Degree Murder is a killing that's committed during the course of [81] a Felony, and this most certainly is, ladies and gentlemen, I suggest to you, a killing committed during the course of a Felony, namely, Kidnapping.  Once again, it's more than that.  First Degree Murder is a murder committed with the specific intent to kill.  It's a murder that is willful, deliberate, and premeditated.

When the Defendant tried to lure Jennifer into his car by herself, he was unsuccessful and realizing that he would be unsuccessful, I suggest to you that he vowed to punish Jennifer in a way that she would feel for the rest of her life.  He did that willfully, deliberately, and with premeditation.  You heard Dr. Hellman's testimony about how a man the Defendant's size smothers a 20 month old child Katelyn's size.  How he would cut off her airway.  How she would struggle and how 60 seconds would go buy, perhaps up to 90.  Sixty to 90 seconds would go by before she was dead.  Sixty to 90 seconds before she was dead.  Fifteen seconds, willful, deliberate, premeditated.  Thirty seconds, willful, deliberate, premeditated.  Forty-five seconds, willful, deliberate, [82] premeditated.  Sixty seconds, that, ladies and gentlemen, is First Degree Murder.

No, daddy.  No, daddy.  The words that the Defendant reports as being the last words that he heard from Katelyn, no, daddy.  The words -- the words of that tiny victim who looked at her own father and said, no, daddy.  That was all Katelyn could say, but you, ladies and gentlemen, you can look into his face and you can say one word, guilty.  Guilty of interfering with custody; guilty of Burglary; guilty of Kidnapping; and guilty of First Degree Murder.  Thank you.

The Court:
Ladies and gentlemen, we'll take a brief recess so your luncheon orders can be taken, and then we'll come back, I'll give you my final instructions and by the time I'm done your lunches will be ready for you.  So, don't discuss the case yet.

[Recess]

The Court:

Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  Ladies and gentlemen of the jury, the object [83] of the Court's charge is to give you the law which his or may be applicable to the case, to assist you as much as possible in finding the true facts in the case.

Keep in mind that you must decide this case upon the facts as you find them, from the testimony and evidence produced here in the courtroom and on the witness stand, and the law as I give it to you, not from any other source.  It's your recollection of the testimony, which is to guide you in reaching a verdict.  It's not my recollection and it's not the recollection of respective counsel, which will guide you in this regard.  It's your recollection of the facts, it's your determination of credibility which is controlling.  It's for you to find the facts, apply the applicable law to the facts as you find them.

Take the case as it is.  Don't speculate or guess why this or that was not asked, was not done, not brought out.  If the evidence is sufficient, so be it.  If it's not sufficient, so be that.

Sympathy or prejudice of any kind must not be [84] permitted to sway you in your path from fairly, justly and impartially finding the true facts and reaching a just and proper verdict.

Now, a fundamental principle of our system of criminal law is that the Defendant is presumed to be innocent.  The mere fact that he was arrested and is accused of a crime or crimes is not any evidence against him.  Furthermore, the Defendant is presumed innocent throughout the trial, and unless and until you conclude, based on careful and impartial consideration of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt.

It is not the Defendant's burden to prove that he is not guilty.  Instead, it is the Commonwealth that always has the burden of proving each and every element of the crime or crimes charged and the Defendant is guilty of such crime or crimes beyond a reasonable doubt.

The person accused of a crime is not required to present evidence or prove anything in his own defense.

If the Commonwealth's evidence fails to meet its burden, then your verdict [85] must be not guilty.  On the other hand, if the Commonwealth's evidence does prove beyond a reasonable doubt that the Defendant is guilty, then your verdict should be guilty.  Although the Commonwealth has the burden of proving that the Defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt and to a mathematical certainty.  Nor must it demonstrate the complete impossibility of innocence.

A reasonable doubt is a doubt that would case a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs.  A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime or crimes charged.  A reasonable doubt must be a real doubt.  It may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.

So summarize, you may not find the Defendant guilty based on a mere suspicion of guilt.

The Commonwealth has the burden of proving the [86] Defendant guilty beyond a reasonable doubt.  If the Commonwealth meets that burden, then the Defendant is no longer presumed innocent, and you should find him guilty of such crime or crimes.  On the other than, if the Commonwealth does not meet its burden, then you must find him not guilty of such crime or crimes.

Now, evidence comes from the witness stand or by stipulation.  Statements or questions of counsel are not evidence.  Rather, evidence comes only from the witness' testimony whether in response to questions from counsel, the Court, or in narrative form.  Defendant took the stand as a witness.  You should consider his testimony and apply the same standards I've already described as you would apply to any witness.  I indicated to you previously that statements of counsel are not evidence.  I said, however, there is an exception to that and that is stipulations of fact.  When the District Attorney and Counsel for the Defendant stipulate, that is when they agree that a certain fact is true or that this is how a [87] witness would testify, that stipulation becomes part of the evidence and you should regard the stipulated or agreed facts as proven.

With respect to credibility of witnesses: As I indicated at the outset of the trial, you're the sole judges of the credibility of each witness' testimony and the weight you will give to that testimony.  By credibility I mean not only the truthfulness but also the accuracy of each witness' testimony.  You have the sole responsibility of deciding whether the testimony of each witness in this case is truthful and accurate, and is to be believed or disbelieved in whole or in part.  Among the factors you may and should consider in deciding whether a witness' testimony is worthy of belief are the following.

Consider the witness' manner of testifying, how did the witness look, conduct himself or herself and speak while on the witness stand? Consider the witness' intelligence and his or her ability to observe and be informed about the matters to which the witness testified.  Consider the witness' failure of recollection [88] and his or her ability to remember the events about which he or she testified.  And what if anything stimulated or hampered the recollection to which the witness testified?  Consider whether the witness was positive and certain or hesitant and doubtful about the matters to which the witness testified, as well as the reasons, if any, for the positive and certain or hesitant and doubtful manner of testifying.

Consider whether the witness testified frankly and fairly, or whether favoritism or bias was shown in any way.  Consider the reasonableness or unreasonableness of the testimony in light of all of the evidence in the case.  Consider whether the witness contradicted himself or herself on a material issue while testifying in this trial, as well as whether the witness made a prior statement on a material issue, which was inconsistent with his or her testimony at trial.  Consider whether and to what extent the witness' testimony is either supported by or contradicted by other evidence in the case, which you believe.  And use your own good common sense and human experience in [89] determining the credibility of a witness' testimony.

After scrutinizing all of the testimony, after considering all the factors you may chose to be guided by in your deliberations including those I've just described, you and you alone as the sole and exclusive judges of the facts, will give the testimony of each witness such credibility, if any, as you think it deserves.

Now, there is a certain category of witness we call an expert witness.  As a general rule, a witness can only testify about what that witness saw or heard.  May not give an opinion or draw conclusions.  An exception to this rule is the so-called expert witness such as a witness who by training, education or experience has acquired a special level of skill or knowledge in some art, science, profession or calling.  By virtue of that special skill or knowledge, an expert is permitted to give explanations and draw inferences not within the range of ordinary knowledge, intelligence, and experience, and to give an opinion and state his reasons for it.  In this case, Dr. Frederick Hellman gave [90] testimony as to his qualifications as a forensic pathologist.

In deciding whether or not to accept the expert's opinion consider the evidence as to his training, education or experience, as well as the reasons and facts upon which the opinion was based.  Also, in deciding whether or not to accept an expert's opinion, bear in mind that you're not bound to accept it merely because it is the testimony of someone having some special skill or knowledge.

Expert witnesses may be asked to answer what we call hypothetical questions.  An expert may be told by counsel to assume that certain facts or testimony are true, and be asked to express an opinion based on that assumption.  A hypothetical question was asked in this case.  The value of an opinion given in response to a hypothetical question depends on various things including how close the assumptions made are to the true facts.  One of your tasks as jurors is to determine from all the evidence whether or not the facts or testimony assumed for a hypothetical question have been proven to be true.  If you find that [91] any of the assumed facts or testimony have not been proven you should determine how that affects the value and weight of the expert's opinion.

Now, the Defendant took the stand as a witness.  The Defendant -- in considering the Defendant's testimony follow the general instructions as I indicated I gave you for judging the credibility of any witness.  You should not believe the -- disbelieve, rather, the Defendant's testimony merely because he is the Defendant.  In weighing his testimony, however, you may consider the fact that he has a vital interest in the outcome of the trial.  You may take that interest into account just as you would the interest of any other witness, along with all the other facts and circumstances bearing on credibility in making up your minds what weight his testimony deserves.

There was evidence tending to prove that the Defendant has prior criminal convictions.  I am speaking of the record introduced by the Commonwealth that the Defendant has previously been convicted of the crime of Theft by [92] Receiving Stolen Property and the crime of Attempted Burglary.  The District Attorney introduced by stipulation with Defense Counsel evidence regarding these convictions.  This evidence is not evidence of Defendant's guilt.  You must not infer guilt from the evidence of a prior conviction.  This evidence may be considered by you for one purpose only, that is to help you judge the credibility and weight of the testimony given by the Defendant as a witness in the trial.  In considering the evidence of prior conviction you may consider the type of crime committed, how long ago it was committed and how long it may affect the likelihood the Defendant has testified truthfully in this case.

You have also heard evidence that one of the witnesses, William Lively, has been convicted of crimes, Theft by Receiving Stolen Property.  The only purpose for which you may consider this evidence of prior convictions is in deciding whether or not to believe all or part of William Lively's testimony.  In doing so you may consider the type of crime committed, how long ago it was committed, how it may [93] affect the likelihood that William Lively has testified truthfully in this trial.  If you decide that a witness deliberately testified falsely about a material point, that is about a matter which could affect the outcome of the trial, you may for that reason alone, choose to disbelieve the rest of that witness' testimony, but you're not required to do so.  You should consider not only the deliberate falsehood, but also all other factors bearing on the witness' credibility in deciding whether to believe other parts of that witness' testimony.

Now, you recall that after Detective James Reardon testified I gave you a certain cautionary instruction, which I will repeat.  He did testify that in response to certain questions asked there was no response from the Defendant.  As I stated previously, a person that is arrested who is charged with anything has no duty to make a statement.  He's not obligated to respond at all and in any way, shape or form.  Response -- the response of the Defendant made no statement is not evidence.  It may not be considered by you as [94] being any evidence whatsoever against the Defendant with respect to this matter.  As noted previously, every charged individual has a Constitutional right not to say anything.  The fact the right is exercised cannot be held against that person.

Now, there was testimony or evidence tending to show the Defendant has made false or contradictory statements when questioned by authorities.  If you believe this evidence, you may consider it as tending to prove the Defendant's consciousness of guilt.  You're not required to do so.  You should consider and weigh this evidence along with all other evidence in the case.  However, you cannot find the Defendant guilty based upon the false or contradictory statements alone.

As I indicated previously, you've heard evidence tending to prove the Defendant was guilty of improper conduct for which he is not on trial.  I'm speaking to the testimony to the effect that he punched Jennifer Helton on occasion, pulled her hair, cut her hair.  This evidence is before you for a limited purpose.  That is for the purpose of tending to show [95] motive.  This evidence must not be considered by you in any way other than for the purpose I have just stated.  You must regard this evidence as showing the Defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt in this case.  If you find the Defendant guilty it must be because you're convinced by the evidence that he committed the crime or crimes charged, not because you believe he has committed other improper conduct.

Now, where there's a conflict in the testimony you the jury have the duty of deciding which testimony to believe.  But you should first try to reconcile, that is fit together any conflicts in the testimony if you can fairly do so.  Discrepancies and conflicts between the testimony of different witnesses may or may not cause you to disbelieve some of their testimony or all of their testimony.  Remember that two or more persons witnessing an incident may see or hear it happen differently.  Also, it's not uncommon for a witness to be innocently mistaken in his or her recollection as to how something happened.  [96]

If you cannot reconcile a conflict in the testimony, it's up to you to decide which testimony of any to believe, which to reject as untrue or inaccurate.  In making this decision, consider whether the conflict involves a matter of importance or merely some detail; whether the conflict is brought about by an innocent mistake or by an intentional falsehood.  Also keep in mind the other factors already discussed which go into deciding whether or not to believe a witness.

Now, in a trial evidence is generally of two different types.  On the one hand, there's what we call direct evidence.  That's evidence by a witness as to something that witness actually saw or heard.  On the other hand, there's what we call circumstantial evidence which is testimony about facts which point to the existence of other facts which are in question.  Whether or not circumstantial evidence is proof of the other facts in question depends in part on the application of common sense and human experience.  You should recognize that it's sometimes necessary to rely upon circumstantial evidence in criminal [97] cases.

In deciding whether or not to accept circumstantial evidence as proof of the facts in question you must be satisfied first, that the testimony of the witness is truthful and accurate; second, the existence of the facts the witness testifies to leads to the conclusion that the facts in question also happened.

Now, before I define the elements of the respective crimes to you, let me tell you that the Commonwealth has introduced evidence of statements, which it claims have been made by the Defendant.  Before you can consider the statements as evidence against the Defendant you must find that a crime was, in fact, committed, or that the -- and that the Defendant, in fact, made the statements, and the statements were voluntary.  Otherwise, you must disregard the statements and each juror should ultimately decide these questions for himself or her self, and thereby individually accept or reject the Defendant's statements as evidence.  You must not allow the fact that I admitted the statements in evidence [98] to influence you in any way during your deliberations.

With respect to the charge of Criminal Homicide, that is Murder of the First Degree, Murder of the Second Degree, and Murder of the Third Degree, before you may consider the statements of the Defendant as evidence against the Defendant you must find beyond a reasonable doubt that the crime of Criminal Homicide was committed.  In making this determination you may consider any direct or circumstantial evidence apart from the statements themselves, tending to prove or disprove crime.

You must disregard the Defendant's out of Court statements unless you are satisfied beyond a reasonable doubt by the other evidence, the non-statement evidence that Katelyn Helton Rivera is dead and that her death occurred under circumstances more consistent with a crime than an accident or other cause.  The other evidence need not rule out all possibility of accident or other cause, however, you must be satisfied beyond a reasonable doubt that the circumstances are [99] more consistent with death having been caused by a crime than in some other way.  The object of these rules is to guard against convicting a person of a crime that never really happened even though he confessed to it.

Now, I have specifically instructed you how to consider the Defendant's statements regarding the crime of homicide of Katelyn.  Now, with regard to the charges of Kidnapping, Burglary, Interference with Custody, before you may consider the statements of the Defendant as evidence against the Defendant with respect to these crimes you must find beyond a reasonable doubt by the other evidence presented that with respect to Kidnapping, that Katelyn was kidnapped.  That with respect to Burglary, that a burglary occurred, and with respect to the charge of Interference with Custody of a child, that custody was interfered with and that these events occurred under circumstances more consistent with a crime than another cause.

In other words, before you may consider the Defendant's statements with respect to a particular crime, you must be satisfied beyond [100] a reasonable doubt that the particular crime occurred.  The other evidence need not rule out all possibility of accident, justification or excuse, other non-criminal means or that there might be a defense to the crime.  However, you just be satisfied beyond a reasonable doubt that the circumstances are more consistent with a crime than with the non-commission of a crime or the existence of a defense.

As indicated to you prior to the playing of the taped statement of the Defendant taken by Detective Peifer, I said that I was instructing you and I again instruct you that Detective Peifer's testimony concerning statements allegedly made by Mr. Rivera to Detective Peifer with respect to the conversation of November 23, 1999, as well as the recorded statement made that day, may not be considered for any purpose in deciding whether or not the Defendant is guilty of the charges of Kidnapping, Interference with Custody of a Child, or Burglary.  In contrast, you may consider these alleged statements and the recording in the context of deciding the [101] charges of Murder on the First Degree, Murder of the Second Degree, and Murder of the Third Degree.

Now, I'm going to define for you the respective crimes.  First, with respect to Criminal Homicide.  Defendant is charged with taking the life of Katelyn Helton Rivera by Criminal Homicide.  As a result the Defendant is charged with the following crimes: Murder of the First Degree, Murder of the Second Degree, and Murder of the Third Degree.

Before defining each of these crimes I'll tell you about malice, which is an element of Murder.  A person who kills must act with malice to be guilty of any degree of murder.  The word "malice" as I am using it as a special legal meaning.  It does not mean simply hatred, spite or ill will. Malice is a short-hand way of referring to any of three different mental states that the law regards as being bad enough to make a killing murder.

Thus, a killing is with malice if the killer acts with, first, an intent to kill; or second, an intent to inflict serious bodily harm; or third, a wickedness of disposition, [102] hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and extreme indifference to the value of human life or a conscious disregard of an unjustified and extremely -- extreme indifference to the value of -- the extremely high risk rather, that his actions might cause death or serious bodily harm.  There's a special rule for how malice can be proven for Second Degree Murder.  I'll tell you about that when I define Second Degree Murder.

First Degree Murder.  First Degree Murder is a murder in which the killer has the specific intent to kill.  You may find the Defendant guilty of First Degree Murder if you're satisfied the following three elements have been proven beyond a reasonable doubt: First, that Katelyn Helton Rivera is dead.  Second, that the Defendant killed her.  Third, that the Defendant did so with the specific intent to kill and with malice as I have defined malice.  [103]

A person has the specific intent to kill if he has a fully formed intent to kill and is conscious of his own intention.  As my earlier definition of malice indicates, the killing by a person who has a specific intent to kill is a killing with malice.  Stated differently, a killing is with specific intent to kill if it is willful, deliberate, and premeditated.  The specific intent to kill including the premeditation needed for First Degree Murder does not require planning or previous thought for any particular length of time.  It may occur quickly.  What is necessary is that there is time enough so that the Defendant can and does fully form an intent to kill and is conscious of that intention.

If after considering all of the evidence you're satisfied that these three elements of this crime of First Degree Murder have been proven beyond a reasonable doubt, you should find the Defendant guilty of this crime.  Otherwise, you must find him not guilty of this crime.  Now, with respect to Second Degree Murder, it's what we call Felony Murder.  Second Degree Murder, as I indicated, is often called [104] Felony Murder because it involves a killing incidental to a Felony.

You may find the Defendant guilty of Second Degree Murder if you're satisfied the following 5 elements have been proven beyond a reasonable doubt: First, Katelyn is dead.  Second, the Defendant killed her.  Third, the killing was committed while the Defendant was engaged in the commission of the Felony of Kidnapping, and I'll define Kidnapping for you further in my instructions; fourth, that the act of the Defendant was done, that is the -- that killed Katelyn was done in furtherance of the Felony of Kidnapping; fifth, the killing was with malice on the part of the Defendant.

Like all murders, Second Degree Murder requires malice, but malice for Second Degree Murder is presumed or may be inferred if a Defendant engaged -- engages in the commission or attempted commission of a felony dangerous to human life such as Kidnapping.  No other proof of malice is necessary.  If after considering all of the evidence you're satisfied that the following 5 elements or the 5 elements as I explained them to you have been proven beyond [105] a reasonable doubt, you should find the Defendant guilty of Second Degree Murder.  Otherwise, you must find him not guilty of Second Degree Murder.

Third Degree Murder.  Third Degree Murder is any killing with malice that is not First or Second Degree Murder.  You may find the Defendant guilty of Third Degree Murder if you're satisfied that the following 3 elements have been proven beyond a reasonable doubt: First, that Katelyn is dead; second, that the Defendant killed her; third, that the Defendant did so with malice, and again, as I indicated, malice has a special legal meaning.

It does not mean simply hatred, spite or ill will.  It's a shorthand way of referring to three different mental states that the law regards as being bad enough to make a killing murder.  A killing is with malice if the killer acts with an intent to kill; second, intent to inflict serious bodily harm; or third, the wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating an unjustified disregard for the [106] probability of death or great bodily harm, and an extreme indifference to the value of human life or a conscious disregard of an unjustified, extremely high risk that the actions might cause death or serious bodily harm.

If after considering all the evidence you're satisfied the Commonwealth has proven these 3 elements of Third Degree Murder beyond a reasonable doubt, you should find the Defendant guilty of this crime.  Otherwise, you must find him not guilty of Third Degree Murder.

Now, you cannot find that the Defendant killed or caused the death of Katelyn unless you're satisfied beyond a reasonable doubt that the Defendant's conduct was a direct cause of her death.  In order to be a direct cause of death, a person's conduct must be a direct and substantial factor in bringing about the death.

Now, when you deliberate I've already defined for you the elements of Murder of the First Degree, Murder of the Second Degree, Murder of the Third Degree.  When you begin to deliberate you begin with the most serious [107] which, of course, in the order of seriousness is Murder in the First Degree; next most serious, Murder of the Second Degree; next most serious, Murder of the Third Degree.

You have a right to bring in a verdict finding the Defendant not guilty or finding him guilty of one of these types of Criminal Homicide.  In this regard, you begin with the most serious type of Criminal Homicide, Murder of the First Degree.  As you proceed down the types of Criminal Homicide, if you find the Defendant guilty, for example, of Murder of the First Degree, then you don't proceed to Murder of the Second Degree or Murder of the Third Degree.  If you find him not guilt of Murder of the First Degree, then you proceed to Murder of the Second Degree.  If you find him guilty of Murder of the Second Degree, then you don't proceed to Murder of the Third Degree.  If you find him not guilt of Murder of the First Degree and Murder of the Second Degree, then you proceed to Murder of the Third Degree.

It may help you remember each type of Criminal Homicide if I review some highlights.  Murder [108] requires malice as I defined malice. First Degree Murder requires a specific intent to kill, willful, wanton, premeditated, deliberate.  Second Degree Murder is Felony Murder.  Third Degree Murder is any other murder.

Next I'll go to the crime of Burglary.  In order to find the Defendant guilty of Burglary you must be satisfied the following 4 elements have been proven beyond a reasonable doubt: First, the Defendant entered a certain place, that is 2429 Second Avenue, Boothwyn, the Clendening household; second, the place was an occupied structure; third, the Defendant entered with the intent to commit the crime of Kidnapping and/or interfering with the custody of a child as I -- will define those crimes, in that place; fourth, that the place was neither open to the public at the time, nor a place the Defendant was licensed or privileged to enter.

If after considering all the evidence you find the Commonwealth has established these 4 elements of this crime of Burglary beyond a reasonable doubt, you should find the Defendant guilty of this crime, [109] otherwise, you must find him not guilty of this crime.

Next, the Defendant is charged with the crime of Kidnapping.  In order to find the Defendant guilty of the crime of Kidnapping, you must be satisfied the following 2 elements have been proven beyond a reasonable doubt: First, the Defendant removed Katelyn Helton Rivera from the place where he found her and moved her for a distance which was, under the circumstances, a substantial distance; second, the Defendant did so with the intention of terrorizing Jennifer Helton.

As I just indicated, you cannot find the Defendant guilty unless you find that he removed the alleged victim unlawfully.  For purposes of Kidnap law, a removal is unlawful if the Defendant accomplishes it by force or if the alleged victim is a child under the age of 14, and the Defendant accomplishes the move without the consent of the custodial parent.  While you're determining whether the Defendant moved the alleged victim a substantial distance, consider not only the actual distance, but all the other relevant circumstances that you [110] believe have been presented during the course of the trial.

If after considering all of the evidence you find the Commonwealth has established these 2 elements of this crime of Kidnapping beyond a reasonable doubt, you should find the Defendant guilty of this crime, otherwise, you must find him not guilty of this crime.

Finally, the Defendant is charged with the crime of Interfering with Custody of Child, a Third Degree Felony.  In order to find the Defendant guilty of the Third Degree Felony of Interfering with the Custody of a Child, you must be satisfied that the following 4 elements have been proven beyond a reasonable doubt: First, the Defendant took Katelyn from the lawful custody of his mother; second, that Katelyn was a child under the age of 18; third, Defendant did not have a legal privilege to take the child at the time; fourth, the Defendant either knew he was doing these things or acted recklessly in doing them.

A Defendant acts recklessly if he consciously disregards a substantial and justifiable risk [111] that he's taking a child from someone else's custody.  That is in this case the mother's custody and the child is under 18, and that he has no legal privilege to take the child.  It must be grossly unreasonable for the Defendant to disregard the risk that what he is doing amounts to these things.  If after considering all the evidence you find the Commonwealth has established these 4 elements of this crime of Interfering with Custody of a Child beyond a reasonable doubt, you should find the Defendant guilty of this crime, otherwise, you must find him not guilty.

May I see counsel at side-bar?

[Off record]

[On record]

[Side-Bar Discussion]

Mr. Smith:
Your Honor, I think just to keep -- since we're back on the record, with regard to William Lively there was a plea agreement entered into between the Commonwealth and Mr. Lively, and I would ask the Court simply to [112] address that as one of the factors to be considered in the jury's deliberations when they weigh Mr. Lively's testimony before the -- in the trial.

The Court:
I will do so.  You've both reviewed the testimony.  I assume there is no need for me to do so.  Any request that I do so?

Mr. Reilly: No.

Mr. Smith:  No, sir.

The Court:
Any corrections, additions, admissions, exceptions insofar as the instructions are concerned?

Mr. Smith:  I made my objection before we ...

The Court:
Insofar as exhibits, we agree photographs they can have, maps they can have, statements they can't have.  Anything else we will meet [113] and discuss.

Mr. Smith:  Yes, sir.

[End Side-Bar Discussion]

The Court:

One additional instruction I'll give you, ladies and gentlemen.  With respect to the testimony of William Lively, you should examine his testimony carefully and closely and because it was testified to that he had entered into a previous plea agreement with the Commonwealth and therefore, you should examine his testimony closely and carefully, receive it with caution.  If you find that he had an agreement either explicit or implicit in nature with law enforcement authorities that he would receive [114] favorable treatment in any criminal matters in which he was or is involved, in return for his cooperation and/or testimony in this case.

In addition, you should examine his testimony closely and carefully, receive it with caution if you find that he believed in his own mind, regardless of any agreement with law enforcement authorities, that he would receive favorable treatment in any criminal matters in which he was or is involved in return for his cooperation and testimony in this case.  In making this determination consider the testimony presented concerning this issue, the instructions which I've already given with respect to this issue of credibility, utilize your own common sense and experience in life as well as whatever factors you may deem relevant from the evidence presented on this issue.  Satisfactory, counsel?

Mr. Smith:  Satisfactory, Your Honor.

The Court:

Now, ladies and gentlemen, before you retire to decide this case I'd like to provide you with some final guidelines for the way in which you conduct your deliberations, how you may properly arrive at a verdict.  It's my responsibility to decide all question of the law.  Therefore, you must accept and follow my rulings and instructions on matters of law.  I am now, however, the Judge of the facts.  It's not for me to decide what are the true facts concerning the charges against the Defendant.  [115]

You the jurors are the sole judges of the facts.  It will be your responsibility to consider the evidence, find the facts and applying the law to the facts as you find them, to decide whether the Defendant has been proven guilty beyond a reasonable doubt.  Your decision in this case as in every case you hear is a matter of considerable importance.  Remember that it is your responsibility as jurors to perform your duties, reach a verdict based on the evidence as it was presented during the trial.

However, in deciding the facts you may properly apply common sense, draw upon your own everyday, practical knowledge of life as each of you has experienced it.  Keep your deliberations free of any bias or prejudice.  Both the Commonwealth and the Defendant have a right to expect you to consider the evidence conscientiously, apply the law as I've outlined it to you.  Upon retiring to deliberate your first order of business should be to select one of your number to be foreperson.  That can be any one of you.  That person's vote has no greater [116] weight than that of any other juror.  It'll be the responsibility of the foreperson to complete the verdict slips when you have arrived at a verdict and deliver the verdict in the courtroom.  I'll review the verdict slips with you.

When you deliberate on your verdict, as I indicated at the outset of the trial, your verdict must be unanimous.  That means in order to return a verdict each of you must agree to it.

You have a duty to consult with each other, to deliberate with a view to reaching an agreement if it can be done without doing any violence to your individual judgment.  Each of you must decide the case for him or her self, but only after there has been impartial consideration with your fellow jurors.

In the course of deliberations each juror should not hesitate to reexamine his or her own views, change his or her opinion if convinced it's erroneous.  However, no juror should surrender an honest conviction as to the weight or affect of the evidence, solely because of the opinion of his or her fellow jurors, or for [117] the mere purpose of returning a verdict.

In closing, I'd like to suggest you'll be able to deliberate more easily, in a way that will be better for all concerned if you treat your fellow jurors and their views with the same courtesy and respect as you would others in your everyday affairs.

Now, as I indicated, you will have verdict slips.  The first verdict slip is Murder, First Degree, Second Degree, Third Degree.  As I indicated to you, you begin with the order of most seriousness, Murder of the First Degree.  If all twelve of you agree that the Defendant has been proven guilty of Murder of the First Degree the foreperson will so indicate, date the verdict slip and sign it.  You will not proceed to Murder of the Second or Murder of the Third Degree.  If you determine that the verdict for Murder of the First Degree is not guilty, then you proceed to Murder of the Second Degree.  Again, if all twelve of you agree the Defendant is guilty of Murder of the Second Degree, the foreperson will so indicate, date and sign the verdict slip.  If you determine [118] that Defendant is not guilty of Murder of the First Degree, Murder of the Second Degree, then you proceed to Murder of the Third Degree.

The next verdict slip is for the crime of Burglary as I've indicated.  When all twelve of you agree on a verdict, the foreperson will indicate whether that verdict is guilty or not guilty, date and sign the verdict slip.  Next, Kidnapping.  When all twelve agree, foreperson will indicate whether the verdict is guilty or not guilty, date and sign the verdict slip.

Finally, with respect to Interference With Custody of Children, when all twelve agree the verdict is guilty, foreperson will so indicate; if it's not guilty, so indicate, date and sign the verdict slip.  Now, because of the length of the trial, I'm going to ask our alternate jurors to remain.  You still are serving as alternate jurors.  You will, however, be in a separate room from the jurors who are deliberating, and you are not permitted to discuss anything pertaining to the case while you are waiting.  Okay?  Did [119] you order lunch for the alternate jurors?  Or did we?  Okay, that's good.  All right, ladies and gentlemen, you may begin your deliberations.

[Whereupon jurors retire to begin to deliberate]

The Court:
Okay, all right, returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000, the jury has submitted the following: "Could the jury please see the following: 1) clipping enclosed with Easter card.  "Is it just the clipping you want, not the card?

The Juror:  Yes, Your Honor.

The Court:
Okay, would you get the clipping, please?  All right, that can go back out with them unless we're going to do the other thing then we'll do it here. Photos of where the sock and shoe were found.  They're there.

Mr. Smith:  They're right on the board, yes.

The Court:
And, #2 was CID transcript of November 1999 [120] statement.  That's the tape you listened to?

The Juror:  Yes.

The Court:
Because of a rule of our State Supreme Court, we're not allowed to send statements out with the jury.  We can play it over for you and let you read the transcript again if you want to do that.  It's up to you.

The Juror:  Okay, yes, Your Honor.

The Court:  You want to play it over again?

The Juror:  Yes, sir.

The Court:  Okay, we're getting the transcripts now and someone's ...

Mr. Smith:  They're here.

The Court:
They're here?  Okay.  All right.  Anything you hear, take into context with the entire instructions as I gave them to you.

[Whereupon tape of November 1999 statement is played for [121] the jurors]

The Court:
All right, just have the -- just take the photos and that clipping back.  Ladies and gentlemen, you may resume your deliberations.  That's all the questions for now?  I say, that's all the questions for now?

The Juror:  Yes, sir.

The Court:  You may resume your deliberations and you'll have those exhibits with you.

[Whereupon jurors retire to resume deliberations]

[Court called to order]

The Court:

Let me grab the question, ladies and gentlemen.  Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  Ladies and gentlemen, you submitted, it is now 4:13, you've submitted the following question: "Element of the Murder.  May the jury please see the elements of Murder, First, Second and Third Degree in written form?"  Very logical request, but again, according to our Supreme Court, we can't send out the [122] written instructions.  What I'll do is repeat it for you, once, twice, as many times as you want.  Just pay close attention and consider it in conjunction with all of the other instructions you've already heard, okay?

Defendant is charged with taking the life of Katelyn Helton Rivera by Criminal Homicide.  As a result, the Defendant is charged with the following crimes: Murder of the First Degree, Murder of the Second Degree, and Murder of the Third Degree.  Before defining each of these crimes I'll tell you about malice, which is an element of Murder.

A person who kills must act with malice to be guilty of any degree of Murder.  The word "malice" as I've using it has a special legal meaning.  It does not simply mean hatred, spite or ill will.  Malice is a shorthand way of referring to any of three different mental states that the law regards as being bad enough to make a killing murder.  Thus, a killing is with malice if the killer acts with first, an intent to kill; or second, an intent to inflict serious bodily harm; or third, a wickedness of disposition, hardness of heart, [123] cruelty, recklessness of consequences and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and extreme indifference to the value of human life or a conscious disregard of unjustified and extremely high risk that his actions might cause death or serious bodily harm.  There's a special rule for how malice can be proven for Second Degree Murder and I'll tell you about that when I define Second Degree Murder.

First, I'll define First Degree Murder.  First Degree Murder is a murder in which the killer has the specific intent to kill.  You may find the Defendant guilty of First Degree Murder if you're satisfied the following 3 elements have been proven beyond a reasonable doubt: First, that Katelyn is dead.  Second, that the Defendant killed her.  Third, that the Defendant did so with the specific intent to kill and with malice.

A person has the specific intent to kill if he has a fully formed intent to kill and is conscious of his own intention.  As my earlier definition of malice indicates, a killing by a [124] person who has a specific intent to kill is a killing with malice.  Stated differently, a killing is with specific intent to kill if it is willful, deliberate, and premeditated.  The specific intent to kill including premeditation needed for First Degree Murder does not require planning or previous thought for any particular length of time.  It can occur quickly.  What is necessary is that there be time enough so that the Defendant can and does fully form an intent to kill and is conscious of that intention.

As I previously instructed you, if after considering all of the evidence you're satisfied that these 3 elements of First Degree Murder have been proven beyond a reasonable doubt, you should find the Defendant guilty of that crime.  Otherwise, you must find him not guilty of that crime.

Defendant is charged with Second Degree Murder.  Second Degree Murder is often called Felony Murder because it involves a killing incidental to a Felony.

You may find the Defendant guilty of Second Degree Murder if you're satisfied the following 5 elements have [125] been proven beyond a reasonable doubt: First, that Katelyn is dead.  Second, that the Defendant killed her.  Third, that the killing was committed while the Defendant was engaged in the commission of the Felony of Kidnapping.

As I've previously defined for you, in order to find the Defendant guilty of Kidnapping you must be satisfied the following 2 elements have been proven beyond a reasonable doubt: First, that the Defendant removed Katelyn from the place where he found her, and he moved her for a distance which was, under the circumstances, a substantial distance.  Second, the Defendant did so with the intention of terrorizing Jennifer Helton.

As I indicated, you can't find the Defendant guilty unless you find that he removed the victim unlawfully.  For purposes of Kidnap, the removal is unlawful if a Defendant accomplishes it by force or if the alleged victim is a child under the age of 14 and the Defendant accomplishes the move without the consent of the custodial parent.  So, as I indicated, first element, Katelyn is dead.  Second, Defendant killed her.  Third, [126] the killing was committed while the Defendant was engaged in the commission of the Felony of Kidnapping.  Fourth, that the act of the Defendant that killed Katelyn was done in furtherance of that Felony, Kidnapping.  Fifth, that the killing was with malice on the part of the Defendant.

Like all murders, Second Degree Murder requires malice, but malice is presumed or may be inferred, with respect to Second Degree Murder, if a Defendant engages in the commission or attempted commission of a felony dangerous to human life such as Kidnapping.  No other proof of malice is necessary.  If after considering all of the evidence you find the Commonwealth has established these 5 elements of Second Degree Murder beyond a reasonable doubt, you should find the Defendant guilty of this crime.  Otherwise, you must find him not guilty of this crime.

Third Degree Murder is any killing with malice that is not First Degree or Second Degree Murder.  You may find the Defendant guilty of Third Degree Murder if you're satisfied the following 3 elements have been proven beyond a [127] reasonable doubt: First, that Katelyn is dead; second, the Defendant killed her; third, that Defendant did so with malice as I've already defined malice for you at the beginning of the instruction I was just giving you.  If you find, after considering all the evidence the Commonwealth has established these 3 elements of the crime of Third Degree Murder beyond a reasonable doubt, you should find him guilty of such crime.  Otherwise, you must find him not guilty of such crime.

You cannot find that the Defendant killed or caused the death of Katelyn unless you're satisfied beyond a reasonable doubt that the Defendant's conduct was a direct result of her death.  In order to be a direct cause of death, a person's conduct must be a direct and substantial factor in bringing about the death.

Finally, I explained to you before that you're to begin with the most serious, First Degree Murder, and work your way down.  That is finding lesser type.  I defined the three or defined the various elements of the three types of Criminal Homicide you might possibly [128] find in this case beginning with the most serious, in the order of seriousness, First Degree Murder, Second Degree Murder, and Third Degree Murder.  You have the right to bring in a verdict finding the Defendant not guilty or finding him guilty of one of these types of criminal homicide.  In this regard you should begin with the most serious type of Criminal Homicide.

As you proceed down the types of Criminal Homicide, if you find the Defendant guilty, you should not proceed further with respect to the lesser types of Criminal Homicide, and proceed to the other charges, Burglary, Kidnapping and Interference with Custody.

First Degree Murder requires specific intent to kill that is willful, deliberate and premeditated.  Second Degree Murder is Felony Murder. Third Degree Murder is any other Murder.  Satisfactory, ladies and gentlemen?

The Juror:  Yes, Your Honor.

The Court:  Okay, you may resume your deliberations.

[Whereupon jurors retire to resume deliberations] [129]

[Court called to order]

The Court:

Again, returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  It's now 7 minutes after 5.  You've asked the following questions, ladies and gentlemen of the jury: "Could the jury please hear the elements of Murder, First Degree only?  With particular emphasis on premeditation and intent." First, let me again tell you about malice, which is an element of Murder.  A person who kills must act with malice to be guilty of any degree of Murder.

The word "malice" as I'm using it has a special legal meaning.  It does not simply mean hatred, spite or ill will.  Malice is a shorthand way of referring to any of three different mental states that the law regards as being bad enough to make a killing murder.  Thus, a killing is with malice if the killer acts with first, an intent to kill; second, an intent to inflict serious bodily harm; or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a [130] mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life, or a conscious disregard and unjustified and extremely high risk that his actions might cause death or serious bodily harm.  And I indicated there's a special rule for how malice can be proven for Second Degree Murder and I did explain that to you.

First Degree Murder.  First Degree Murder is a murder in which the killer has the specific intent to kill.  You may find the Defendant guilty of First Degree Murder if you are satisfied the following 3 elements have been proven beyond a reasonable doubt: First, that Katelyn Helton Rivera is dead.  Second, that the Defendant killed her.  Third, that the Defendant did so with the specific intent to kill and with malice.

A person has the specific intent to kill if he has a fully formed intent to kill and is conscious of his own intention.  As my earlier definition of malice indicates, a killing by a person who has a specific intent to kill is a [131] killing with malice.  So, a person has the specific intent to kill if he has a fully formed intent to kill and is conscious of his own intention.  Stated differently, a killing is with specific intent to kill if it is willful, deliberate, and premeditated.  The specific intent to kill including the premeditation needed for First Degree Murder does not require planning or previous thought or any particular length of time.  It can occur quickly.  What is necessary is that there be time enough so that the Defendant can and does fully form an intent to kill and is conscious of that intention.

Do you understand now the elements of the crime of Murder, ladies and gentlemen?  First Degree Murder?  Take again that in conjunction with all of the other instructions, which I have given to you.  You may resume your deliberations.  Satisfactory, counsel?

Mr. Reilly:  Yes, sir.

Mr. Smith:  Satisfactory.

[Whereupon jurors retire to resume deliberations] [132]

[Court called to order]

The Court:

Returning to the matter of the Commonwealth vs. Robert Norman Rivera, ladies and gentlemen, it's now 20 to 6.  You've asked the following questions, question rather: "Could the jury please hear the elements of Kidnapping?"  As I indicated earlier, take these individual instructions in conjunction with all of the other instructions I have given you.

In order to find the Defendant guilty of Kidnapping you must be satisfied the following 2 elements have been proven beyond a reasonable doubt.  First, that the Defendant removed Katelyn Helton Rivera from the place where he found her, and moved her for a distance, which was, under the circumstances, a substantial distance.  Second, that the Defendant did so with the intention of terrorizing Jennifer Helton, the mother of Katelyn.  As I indicated, you cannot find the Defendant guilty unless you find that he removed the alleged victim unlawfully.

For purposes of Kidnap law, a removal is unlawful [133] if a Defendant accomplishes it by force or if the alleged victim is a child under the age of 14, and the Defendant accomplishes the move without the consent of the custodial parent.  While you are determining whether the Defendant moved the alleged victim a substantial distance, consider not only the actual distance but all the other relevant circumstances you believe have been presented during the course of the trial.  Satisfactory, counsel?

Mr. Reilly:  Yes, sir.

Mr. Smith:  Satisfactory, Your Honor.

The Court:
Now, ladies and gentlemen, do you understand now the elements of Kidnapping?  We're getting towards six o'clock.  You have a choice, you can deliberate for as long as you'd like.  You can indicate that you'd like to go home for the evening and come back tomorrow morning, or you can request that we send out for something that doesn't take long to get like pizza which we would do also.  So, if you would let me [134] know what you want to do in that score, let me know that, too.  Okay?  You may resume your deliberations.

[Whereupon jurors return to resume deliberations]

[Court called to order]

The Court:
Returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  Mr. Smith, your client is not present.

Mr. Smith:
Yes, Your Honor, with the Court's permission, I was advised by the Clerk that the jury has reached verdicts in the charges.  The Sheriffs were asked to have Robert come into the courtroom.  Sgt. Bailey of the Sheriff's Department then approached to tell me that Mr. Rivera would not come out.  I went back and had a discussion with Mr. Rivera.  He refused to come out.  He said he's not going to participate any further.  He's not participating in the verdicts and he's not going to participate in anything else.  I explained to him in detail the consequences of not appearing, explained to him that if he were to be found guilty that there are other [135] phases to the trial that need his attendance and cooperation and participation, that it's in his best interests.  To paraphrase his response, he doesn't care.  He's not coming out.  He wants nothing further to do with me or the proceedings or the Court or the jury.

The Court:
Of course, I'll note for the record the jury is not present during this colloquy.  We can be heard in that room can we?  Where he is?

Mr. Smith:
Yes, I asked Donna from audio/visual.  She said it's on and he can be heard.  He told me he's not going to listen.  He's not going to watch.  He doesn't want to participate in that.

The Court:  He's in a cell?

Mr. Smith:  He's in the holding cell ...

The Court:  Outside of that cell is a camera, TV?

Mr. Smith:  Right, right.

The Court:  [136] Which, and a microphone, which enables him to hear ...

Mr. Smith:  Yes.

The Court:  ... what's being said here in the courtroom.

Mr. Smith:  He should be able to hear everything I'm saying to Your Honor right now.

The Court:  But he cannot respond to me.

Mr. Smith:  No.

The Court:  So, what I'm going to do is put on the record certain basic matters that we will do and the waiver of presence colloquy and then I will ask you to go back one more time and see if he wants to change his mind, if he has any questions.

Mr. Smith:  Yes, Your Honor, I will do that.

The Court:

Okay, Mr. Rivera, I'm speaking to you now and I understand that you've advised your counsel [137] that you're not going to participate when the verdict is received in the courtroom.  You understand that your absence would prevent you from participating during the taking of the verdict.  You also know that if the verdict includes a finding of guilt on the charge of First Degree Murder, if there is such a determination there will be additional proceedings before this same jury.  Now, even though I will instruct the jury that they cannot draw any adverse inference from your absence or speculate in that regard, it may have an impact on their future deliberations.  You know that this jury, which is deciding these issues, will also be deciding whether you'll be subject to the death penalty or life in prison.  This hearing will be critical and will include an opportunity for both sides to prevent [sic] witnesses and any other relevant evidence.  You would also have the opportunity to testify if you so desired and had relevant testimony to produce.

I want you to understand you have an absolute right, Constitutional right to be present during these proceedings wherein we will [138] receive the verdict from the jury but if you choose not to be present, we cannot force you to be present, and the trial or the taking of the verdict will proceed in an orderly fashion.

Now I've informed you with regard to your absolute right to be present.  I will be asking Mr. Smith shortly to go back and see if you have any questions concerning anything I have said and whether you have changed your mind with respect to being present during the taking of the verdict.

Mr. Smith has indicated he has discussed this with you at length about your being present during the taking of the verdict and the impact that could have during the penalty phase of the proceeding, if there is one, which there would be if the jury does return a verdict of Murder of the First Degree.  You should understand that if at some future time you should claim you really wanted to be present during the taking of the verdict, your responses to the questions I've just asked will serve as proof of the fact that you knew of your right to be present at the taking of the verdict and [139] that you knowingly, intelligently, and voluntarily gave up the right to be present.

All right, would you advise Mr. Rivera or request of him if he heard this, if he has any questions and if he desires to change his mind and now be present during the taking of the verdict, Mr. Smith?

Mr. Smith:
Yes, I will.  Your Honor, I just wanted to clarify one thing.  When Robert said that he wouldn't come out to hear the verdicts, I went back and spoke to him by myself, then I went back and spoke to him with Sgt. Bailey who's present in the courtroom, Denies Bailey, from the Sheriff's Department, and I went back and spoke to him again with Mr. Leach, and on all of those occasions we got the same answer, that he wasn't coming out, but I'll go back and discuss with him now and report back to Your Honor ...

The Court:
Tell him this will be the last time that he will be given that opportunity.

[Off record] [140]

[On record]

The Court:  Mr. Smith, you have returned to the courtroom.  Have you spoken with Mr. Rivera?

Mr. Smith:
I have, Your Honor.  I regret to inform the Court that Robert will not come out to attend these proceedings or any further proceedings in the Court.  I asked him if he would at least answer my questions, did he hear what was said by Your Honor.  He said he heard it.  I asked if he heard what was said by myself to Your Honor.  He said he heard it.  I asked if it was any message I could convey to the Court on his behalf that would indicate his participation in the proceedings, he said no.  Sgt. Bailey went back and tried to talk with him and Sgt. Bailey has had a good rapport with him and he's been able to talk to him and Rob has always treated him ...

The Court:  And Sgt. Justi [ph] as well.

Mr. Smith:  ... and treated him respectfully.

The Court:  [141] Yes, both.

Mr. Smith:

He told Sgt. Bailey to stop asking him to come out.  Sgt. Bailey asked him repeatedly to please just, you know, get his civilian clothes on and come out and that we wouldn't put him in restraints.  He could simply come out and deal with it the way he's dealt with it before.  Sgt. Bailey asked him repeatedly.  He said no.  I asked him if there was something he wanted to tell me.  We made everybody else leave so that nobody was there.  I asked him if he would talk to me if Sgt. Bailey left, he said no.  I asked him if there was any message he wanted me to convey with regard to these proceedings.  He did have one message that had nothing to do with these proceedings.  Had to do with his status back at the prison and how unhappy he was about what would happen to him at the prison which has nothing to do with this, but he indicated that he will not attend.  He will not be part of it.  He is able to see it on the television.  He's able to hear it on the television.  I asked him repeatedly to please [142] come out and participate, that this was not the time to do it.

I explained to him that if there's a finding of guilty on the First Degree Murder, that obviously, there's a second phase to this and that his -- his attendance here is important.  His lack of attendance could be prejudicial to him in ways that I can't even begin to fathom.  That the jury may take a negative connotation from his failure to appear.  They may resent it.  He told he doesn't care.  He's not coming.  He doesn't care what they do to him is the answer, he doesn't care what you do to him, and he doesn't care what I do.  That was his answer.

The Court:
Counsel, do you believe anything else should be placed on the record with respect to this?

Mr. Reilly:  No, sir.

The Court:
All right, I accept the waiver.  Direct that the jury be brought to the courtroom to render the verdict without the Defendant until I hear that Mr. Rivera desires to be present if he [143] changes his mind.  Will there be somebody back there in case he changes his mind?

Mr. Smith:  There are sheriffs with him now.

The Court:
Indicate to them that if he changes his mind, we will stop the proceedings immediately and return him to the courtroom.

Mr. Smith:  Thank you.

[Off record]

[On record]

The Court:
Again, returning to the matter of the Commonwealth vs. Robert Norman Rivera, #411 of 2000.  Ladies and gentlemen of the jury, have you arrived at your verdicts?

The Juror:  Yes, Your Honor.

The Court:  May I see the verdict slips, please?

[Whereupon verdict slips are handed up to the Court]

The Court:
Just for the record, ladies and gentlemen, you note the Defendant is not present.  You must [144] not draw any adverse inference from that. That's his right if he so desires so just strike that from your mind.  All right, we may-now proceed to take the verdicts.

Court Clerk:
Will the foreperson please stand?  In the issue joined between the Commonwealth of Pennsylvania and Robert Rivera, the Defendant, do you find him guilty in the manner and form in which he stands charge, or not guilty as to Information 411 of 2000 charging him with, as to Murder in the First Degree?

The Juror:  Not guilty.

Court Clerk:  Murder in the Second Degree?

The Juror:  Guilty.

Court Clerk:  Burglary?

The Juror:  Guilty.

Court Clerk:  Kidnapping?  [145]

The Juror:  Guilty.

Court Clerk:  Interference with Custody of a Child?

The Juror:  Guilty.

The Court:  Any motions or requests at this time, counsel?

Mr. Smith:  I'd ask that the jury be polled, Your Honor.

The Court:  Please poll the jury.

Court Clerk:  Members of the jury, as I call your seat number would you please respond whether you agree or disagree with the verdict? Juror #1?

The Juror:  Agree.

Court Clerk:  Juror #2?

The Juror:  Agree.

Court Clerk:  #3?

The Juror:  [146] Agree.

Court Clerk: #4?

The Juror:  Agree.

Court Clerk: #5?

The Juror:  Agree.

Court Clerk: #6?

The Juror:  Agree.

Court Clerk: #7?

The Juror:  Agree.

Court Clerk: #8?

The Juror:  Agree.

Court Clerk: #9?

The Juror:  Agree.  [147]

Court Clerk:  #10?

The Juror:  Agree.

Court Clerk:  #11?

The Juror:  Agree.

Court Clerk:  #12?

The Juror:  Agree.

The Court:  Record the verdict.

Court Clerk:
Members of the jury, hearken to your verdict has the Court has its record, you say in the issue joined between the Commonwealth of Pennsylvania and Robert Rivera, 411-2000, that you find, that you do find as to Information, Murder in the First Degree, not guilty; Murder in the Second Degree, guilty; Murder in the Third Degree, not guilty; Burglary, guilty; Kidnapping, guilty; Interference with the Custody of Children, guilty; so say you all?  [148]

The Jurors:  Yes.

The Court:  All right, the verdicts have been rendered and recorded.  It is now -- yes?

Mr. Reilly:  Your Honor, may Mr. Smith and I approach, please?

The Court:  Yes, you may.

[Side-Bar Discussion]

Mr. Reilly:
Your Honor, the Clerk is recording a verdict of not guilty as to Third Degree Murder ...

The Court:  No ...

Mr. Smith:  Yeah, she said that.

The Court:  Oh, okay.

[End Side-Bar Discussion]

The Court:
Back on the record.  I was writing and did not [149] hear, I had instructed the jury at the time that I gave them my instructions that they were to proceed with the most serious First Degree, having found the Defendant guilty -- not guilty of First Degree, they proceeded and found the Defendant guilty of Second Degree.  As I noted the verdict slip, there was no verdict with respect to Murder of the Third Degree, is that correct?

The Juror:  Correct.

The Court:
So that the record should be corrected, although you were asked as to whether you agreed with respect to Murder of the Third Degree, not guilty, is that what the question was?

Mr. Reilly:  Yes, Your Honor, and it should have been asked of Third Degree, no verdict.

The Court:  Correct, and that is so indicated and so reflected on the verdict slip.

Mr. Reilly:  Yes, Your Honor.  [150]

The Court:
The verdict of the Court, were they requested if they agreed with not guilty on Murder of the Third Degree?

Mr. Reilly:  Yes.

Mr. Smith:  Yes.

The Court:  All right, let's do it over again.

Court Clerk:
In the issue joined between the Commonwealth of Pennsylvania and Robert Rivera, the Defendant, do you find him guilty in the manner and form in which he stands charged or not guilty to Information 41100 charging him with Murder of the First Degree?

The Juror:  Not guilty.

Court Clerk:  Murder of the Second Degree?

The Juror:  Guilty.

Court Clerk:  Burglary?  [151]

The Juror:  Guilty.

Court Clerk:  Kidnapping?

The Juror:  Guilty.

Court Clerk:  Interference with the Custody of Children?

The Juror:  Guilty.

Court Clerk:
Members of the jury, hearken to your verdict as the Court has it record, you say in the issue joined between the Commonwealth of Pennsylvania and Robert Rivera, the Defendant, that you find him as to Murder in the First Degree, not guilty; Murder in the Second Degree, guilty; Burglary, guilty; Kidnapping, guilty; Inference with Custody of Children, guilty, so say you all?

The Jurors: Yes.

The Court:
Thank you, ladies and gentlemen, for bringing that to my attention.  It's now an appropriate [152] time to set a time and date for sentencing.  We will order a County Presentence Investigation.  Set a date of March 11, 2002, at 2 p.m.  Satisfactory, counsel?

Mr. Reilly:  Yes, sir.

Mr. Smith:  Yes, Your Honor.

The Court:
All right, could we please clear the courtroom so I can speak with the -- at this time I'm also discharging the alternate jurors.  I will bring them back to the courtroom so they may participate in any discussions.

[End of Proceeding] [153]

Commonwealth (C) and Defense (D) Exhibits

C1       Photos of Michelle Lupi’s car, Linwood District Court, & Chichester Intersection
C2       Photos of Chichester Wawa
C3       Photos of Chadd’s Ford Sunoco
C4       Photos of Whittaker Residence in Elkton, MD
C6       Aerial Photos of Elkton, MD Area
C9       Photos of Route 202 in Tallyville, Del.
C10     Photos of sock location
C11     Photos of shoe location
C12     Map of Upper Chichester Township
C13     Map of Pennsylvania, Delaware, & Maryland (portions)
C14     Chart of Searched Areas
C16     NCM&EC Katelyn Poster
C17     Photo of Katelyn with sneaker
C19 – C26       Photos of Jennifer Helton
C27     Photo of Trashbag
C27A   Trashbag
C28     Photo of utility knife
C28A   Utility knife
C29 – C32       Photos of Jane Baxter
C33     Temporary order for protection from abuse
C34     Items from Katelyn’s diaper bag
C35     Donna Kibbie’s interview with Jennifer Helton
C36 – C37       Letters to Delaware County Daily Times
C38 – C40       Photos of Day Care Center Door
C41     Sock
C42     Shoe
C43     Gas Pump Register Tape
C44     Watch
C45     Shovel
C46 – C51       Photos of Found Shovel
C52     Maryland State Police Crime Lab Request for Shovel
C53     Miranda Warning Card
C54 – C55       Lively Maps
C56     Lively Plea Agreement
C57     Photocopy of Rose Quinn Newspaper Story
C58 – C60       Letters to Michelle Lupi
C61     Donna Kibbie Report on Robert Rivera
C62 – C63       Memo and Flyer Distributed by Agent Kibbie
C64     Two-Page Document
C65     Nov. 1999 Tape
C66     Procedure Before Questioning Form
C67     Nov. 1999 Tape Transcript
C68     FBI Lab Report
C69     Arrest Report
C70 – C74       Cards Sent to Jennifer Helton
D1       Clendening Statement to Police
D2       Handwritten Lively Document
D3       Printed Lively Document
D4       Final Draft Lively Document