Delaware County Daily Times - Apr 18, 2000 Article

Rivera : No body, no crime

Delaware County Daily Times (Primos - Upper Darby, PA) - Tuesday, April 18, 2000

Author: MARLENE DiGIACOMO ; Of the Times Staff

MEDIA COURTHOUSE -- The defense is seeking to have murder charges tossed against Robert Rivera , alleging there is no evidence his 20-month-old daughter is dead -- let alone any evidence about how she died.

Rivera , 33, of the 2800 block of Chichester Avenue, Boothwyn, was held for trial on murder charges last month in the death of his daughter Katelyn . He's charged with abducting the toddler from her baby-sitter's home Aug. 10. Katelyn has not been seen since.

The prosecution says the case is a homicide.

During a preliminary hearing March 28, Assistant District Attorney John Reilly Jr. presented testimony about extensive searches for the girl conducted in several states over the past nine months, as well as statements from Rivera , in which he is quoted as admitting she is dead.

In a motion filed with the court, Defense Attorney G. Guy Smith says the prosecution doesn't have enough evidence to charge or convict Rivera in the slaying of his daughter.

Smith wants the Common Pleas Court to overturn the decision of District Justice Rocco Gaspari, who ruled there was sufficient evidence presented at that preliminary hearing to have the case go forward.

Smith -- who made similar arguments before Gaspari during the preliminary hearing -- says the case against his client is "factually and legally flawed."

"The commonwealth failed to establish even prima facie evidence that the alleged victim was deceased, much less the cause of the victim's alleged death, the means by which the victim was alleged to have died, the method, the intent or the premeditation," Smith stated in his motion.

The defense attorney also says in his three-page petition, that the prosecution failed to establish jurisdiction in the case: "Since there was no evidence that any of the crimes charged against the defendant were committed in Pennsylvania, much less the Chichester magisterial district."

Smith also charges that Gaspari "improperly, in violation of the law," permitted the commonwealth to base its case on hearsay and statements by the defendant, before the commonwealth could establish that a slaying had been committed.

Reilly said yesterday that he has not seen the motion, but he expected that it would be filed.

"Given the posture he (Smith) took at the preliminary hearing, this is nothing more than a logical motion for him to file. We expected it and we're prepared to address it in court," Reilly said.

Judge Charles C. Keeler, who has been assigned to handle the case, has not yet set a hearing date. But Rivera will be in court April 28 when he will be officially arraigned on the murder charges and the motion could be addressed at that time.

The district attorney's office will also notify Rivera and his attorney April 28 whether the D.A. will seek the death penalty in the case.

There are at least two aggravating circumstances that could be cited in pursuing the death penalty in Rivera 's case -- the death of a child and the commission of a murder during a kidnapping.

Under Pennsylvania law capital punishment can only be sought in a murder case when special delineated circumstances are present.

Authorities said the child was last seen in a car, driven by Rivera , when he stopped for gas at a Sunoco Station around 7:15 p.m. Aug 10.

About two hours later he returned without Katelyn , used the restroom at the same station, and bartered his watch for $10 worth of gas.

Rivera has given police conflicting stories about the child's disappearance. At the time of his arrest, he maintained she was alive.

Reilly said yesterday that searches are continuing in an attempt to find evidence in the case and that one was conducted April 13 at Brandywine Creek, Route 100 south, at the dividing line between Chester and Delaware counties.

"We expect to do other areas adjacent to and near that site," said Reilly.

Rivera was first charged with kidnapping the toddler last summer, after he barged into the babysitter's home and carried the child away in violation of a protection from abuse order obtained by the child's mother, Jennifer Helton.

The case was upgraded to murder March 22.

District Attorney Patrick Meehan concluded that after extensive and comprehensive searches by authorities including the FBI, there was not "one single bit of credible information to come to the conclusion that Katelyn - Rivera -Helton is alive."

Pennsylvania law does not require a body for a homicide conviction.