Police Chief Serving Jail Term For Retaliating Against Lieutenant And Sergeant

Gerald Brewer was the Police Chief of the Wilkinsburg Borough, Pennsylvania Police Department. In late 1999, the local district attorney made several requests that the Department surrender money seized during drug arrests. Frustrated with Brewer’s failure to respond to his requests, the DA telephoned a Wilkinsburg sergeant, Robert Tuite, and requested his assistance in obtaining compliance with the outstanding court orders requiring the production of the money.

After looking into the matter, Tuite became concerned about the irregular manner in which seized funds were handled in the Department. Tuite consulted Lieutenant Thomas Kocon, the Department’s professional standards officer and former acting chief, concerning his suspicion that Brewer might be stealing money.

In response, Kocon began a covert investigation, appearing at Brewer’s office and informing him that an attorney representing a defendant, David Mitchell, was waiting on the first floor with a court order directing the surrender of $770 seized from Mitchell’s wallet. Kocon later testified that Brewer appeared flustered, began to shuffle papers, and directed him to return in ten minutes. When Kocon did return ten minutes later, Brewer handed him a plain white envelope marked “wallet” that contained $770 in cash. However, the envelope bore no property voucher and neither the denominations nor the serial numbers of the currency inside matched those of the currency originally seized from David Mitchell. Moreover, Kocon recalled that when he reentered Brewer’s office, he saw several evidence envelopes torn open and a substantial amount of cash lying on Brewer’s desk.

Subsequently, Kocon relayed his suspicion that Brewer might be stealing money to a detective at the DA’s office. The detective obtained and served a warrant to search both the office and the safe. At the completion of the search, the detective determined that more than $6,000 in cash the police seized was missing.

Brewer then submitted a letter of resignation to the Wilkinsburg mayor, and the mayor appointed Interim Chief Harvey Adams to assume command of the Police Department. On his last day in office, Brewer sent an e-mail to a colleague in Tucson, Arizona indicating foreknowledge of disciplinary action to be taken against Kocon and Tuite. The message stated: “Our two lieutenants will be suspended tomorrow and everyone in the criminal investigation division reassigned to patrol. I have picked a new sergeant to head up CID and a new staff for him. I am letting the mayor run with the ball so as not to appear retaliatory. The Department is excited about lowering the boom on these two. They have been threatening and intimidating for years and everyone was scared of them.”

Five days later, the Acting Chief apprised Tuite that he and his entire CID unit were to be transferred to the patrol division. The Acting Chief demoted Kocon, placing him in charge of meter patrol. On the following day, Brewer again wrote his colleague in Tucson, “everything here is back to normal. We cleaned out CID and transferred all back to the road, demoted one lieutenant and it looks like termination for the other (four months short of pension).”

Following these incidents, the DA charged Brewer with theft and the Pennsylvania crime of “retaliation against a witness.” After a jury convicted Brewer of both offenses, the judge sentenced him to one to two years in jail on the retaliation conviction, and to a consecutive sentence of one to five years in jail on the theft conviction.

Brewer challenged his convictions on appeal, focusing on the retaliation conviction. Brewer contended that because his conviction was based on accomplice liability arising from his alleged complicity with Acting Chief Harvey Adams, the fact that Adams was not convicted or even charged with the primary offense defeated the basis for his own conviction.

The Superior Court of Pennsylvania rejected Brewer’s arguments. The Court found that “Brewer’s argument does not reflect the current state of the law in this Commonwealth. In point of fact, the Pennsylvania crimes code specifies that a defendant may be convicted as an accomplice notwithstanding the absence of any corresponding prosecution of the principal.

“In this case, the evidence is more than sufficient to establish Brewer’s complicity in the demotion and/or discharge of Kocon and Tuite in retaliation for their respective roles in reporting and investigating his theft of cash from the Wilkinsburg Police safe. Although Brewer disputes the significance of the e-mails on which the Commonwealth relied, when considered in their temporal context and in view of the adverse consequences that befell the two officers immediately after Brewer wrote them, they are more than sufficient to sustain his conviction.”

Commonwealth of Pennsylvania v. Brewer, 2005 WL 1302826 (Pa.Super. 2005).

This article appears in the July 2005 issue