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COMMONWEALTH PENNSYLVANIA v. JERALD SKLAR (03/10/82)

decided: March 10, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JERALD SKLAR, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. JERALD SKLAR, APPELLANT



NO. 12 January Term, 1979, An Appeal from the Judgment of Sentence of the Court of Common Pleas, First Judicial District, Trial Division, Criminal Section, No. 984, August Term, 1977. NO. 238 January Term, 1979, An Appeal from the Judgment of Sentence of the Court of Common Pleas, First Judicial District, Trial Division, Criminal Section, No. 987, August Term, 1977

COUNSEL

Marilyn J. Gelb, Philadelphia, court-appointed, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Alan J. Sacks, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Flaherty

[ 497 Pa. Page 407]

OPINION OF THE COURT

This case is a consolidation of two appeals from two separate convictions of murder of the first degree. In no. 984, on March 15, 1978, Jerald Sklar was convicted of murder of the first degree by a jury sitting in the Court of Common Pleas of the First Judicial District and now appeals from the judgment of sentence of life imprisonment for the murder of Edward Rauer. On April 8, 1978, Jerald Sklar

[ 497 Pa. Page 408]

    was convicted, in no. 987, of murder of the first degree by a jury sitting in the Court of Common Pleas of the First Judicial District and now appeals from the judgment of sentence of life imprisonment for the murder of Abraham Fishman. Post trial motions were denied in both cases. These appeals followed.

Appellant raises four issues relating to the admissibility of his confession and the propriety of the prosecution. Because the issues raised are identical in each case and are controlled by the same operative facts, our discussion of the issues here is dispositive of those issues in both appeals. The four issues raised are: (1) his statements to police should be suppressed because both the prosecution and the confessions were the fruits of a violation of federal immunity; (2) the lower court improperly denied Sklar's motion to suppress because he was questioned for an unreasonable time, rendering his confessions involuntary; (3) his statements to police should have been suppressed because he did not voluntarily waive his right to remain silent; (4) his statements to police should have been suppressed because police obtained the statements by deceit. After a thorough review of the record, we find these allegations without merit and affirm.

In no. 984, the evidence indicated that on June 23, 1972, shortly after midnight, police found the dead body of Edward Rauer in his taxicab on the corner of Ardleigh Street and Vernon Road in Philadelphia. He had been killed by a blast from a shotgun at close range. For approximately four years, this murder went unsolved.

Sklar's statement to police indicated that Edward Rauer was murdered by a contract killer whom Sklar hired on behalf of one Michael Selko. Selko was the beneficiary of a life insurance policy which Selko and Rauer had on each other as partners in a taxicab business, and Selko indicated to Sklar that it would be beneficial to him if Rauer were dead. Accordingly, Sklar contacted one James Brown and arranged for Brown to kill Rauer in exchange for $1,500.00. Selko agreed to the price. Sklar also told Brown where he might find Rauer's cab late at night and suggested that

[ 497 Pa. Page 409]

Brown make it look like a robbery. Within two weeks of the formation of the murder agreement, Rauer was killed. Afterwards, Brown told Sklar that he "did the job" and made it look like a robbery. He got away by running to the house of a girlfriend or his mother, Sklar was not sure which. Sklar contacted Brown several times to reassure him that he would be paid, and ultimately Sklar received money from Selko, hundred dollar bills wrapped in foil, and paid Brown. Selko paid Sklar $400.00 and, as Sklar put it, his relationship with Selko was "solidified."

Relating to no. 987, the evidence showed that in the early morning hours of March 5, 1973 Abraham Fishman was found wounded on North Delaware Street in Philadelphia, shot twice in the back with a shotgun, lying face down beside the dead body of his German Shepherd dog. Fishman died from these wounds in January of 1974, and for more than three years police were unable to find the persons responsible for his death.

Sklar told police that Abraham Fishman was murdered by the same contract killer, James Brown, whom Sklar hired previously at Selko's request, to kill Selko's business partner, Edward Rauer. Later, Selko asked Sklar to hire Brown to kill Fishman because Fishman was pressuring Selko to repay a loan for at least $7,000 which Fishman had made to Selko at exorbitant rates. In response to Selko's request, Sklar contacted Brown and showed him where the killing might be done. After Fishman had been shot, Brown told Sklar that he had shot Fishman in the back with a shotgun and that he had killed Fishman's dog, but he had not had time to rifle Fishman's pockets for money because Fishman was still conscious and the sound of the shots had attracted attention. When Fishman was discovered, he had $5156.00 in cash on his person.

In June of 1976, Sklar, through his attorney, Daniel Preminger, approached the United States Attorney requesting that he be entered into the federal witness protection program in return for information concerning organized crime. Sklar had read that persons in the witness protection program

[ 497 Pa. Page 410]

    were given new identities and a fresh start in a new location. His plan, as he testified at trial, was to furnish bogus information to the United States Attorney with the expectation that the government would set him up in a small business in the West and would not discover that the information was false until Sklar was already established. In response to Sklar's overtures, J. Clayton Undercoffler, III, United States Attorney, wrote to Sklar's attorney, Daniel M. Preminger, as follows:

Daniel M. Preminger, Esquire

242 S. 13th Street

Philadelphia, Pennsylvania 19107

Dear Mr. Preminger:

Confirming our telephone conversation and our personal discussion concerning the potential federal witness whom you represent, I understand that you agree to have your client meet with Assistant Special Agent in Charge, Lee F. Laster of the Philadelphia Office of the Federal Bureau of Investigation. It is further understood that any statements made by your client to Assistant Special Agent In Charge Laster in the course of that interview will not be used against him in any criminal case. Rather, the purpose for this interview is to permit the Federal Bureau of Investigation to make an in depth evaluation of the preliminary information you have related to me. An evaluation is necessary in order to determine whether further action is required by the Government and whether your client's request for inclusion in the Witness Protection Program is appropriate.

Sincerely,

J. Clayton Under coffler, III

United States Attorney

In the discussions which followed, Sklar volunteered information concerning two homicides, for which he was subsequently prosecuted and which convictions are the subject of these appeals, the victims of which were Edward Rauer and Abraham Fishman. He also volunteered ...


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