1

1 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
2

3 - - -
4 IN RE: WARD 47, : ELECTION MATTER
DIVISIONS 1-14 : APRIL TERM, 2024
5 ILLEGAL LITERATURE : NO. 2889
6 - - -
7 April 23, 2024
8 - - -
9 HEARING
10 - - -
11 Courtroom 1107
12 Juanita Kidd Stout Center for Criminal Justice
13 Philadelphia, Pennsylvania
14 - - -
15 BEFORE: THE HONORABLE ROXANNE E. COVINGTON, J.
16 - - -
17

18

19

20

21

22

23

24 Dana Marie Foschini, RPR

25 Official Court Reporter
 2

1 APPEARANCES:
2 MARNI JO SNYDER, ESQUIRE
Counsel for City Committee
3

4 LINDA A. KERNS, ESQUIRE

Counsel for Republican National Committee
5

6 - - -
7

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
 3

1 - - -
2 INDEX
3 - - -
CITY COMMITTEE'S EVIDENCE
4 - - -
WITNESS: DR CR RDR RCR
5 Doris Bess (Via Zoom) 6
John Brady (Via Zoom) 13
6

8 - - -
EXHIBITS
9 - - -
FOR IN
10 NO. DESCRIPTION IDENT EVD
11

12

13
- - -
14 NATIONAL REPUBLICAN COMMITTEE'S EVIDENCE
- - -
15
WITNESS: DR CR RDR RCR
16

17

18 - - -
EXHIBITS
19 - - -
FOR IN
20 NO. DESCRIPTION IDENT EVD
21

22

23

24

25 - - -
 4

1 - - -
2 THE COURT: Let's begin.

3 MS. SNYDER: Good morning, Your Honor.

4 Marni Snyder for Philadelphia City Committee for

5 purposes of this petition -- or this motion.

6 THE COURT: Yes. Good morning,

7 Ms. Snyder.

8 MS. SNYDER: Good morning.

9 Your Honor, we are alerting the Court to

10 literature that we believe is problematic. And

11 we'll put up our burden for the legality of the

12 literature found in the 47th Ward among all

13 divisions.

14 We also are going to present evidence in

15 regards to actions of Mr. Lewis Nash in the 47th

16 Ward and Division 8.

17 And so in order to do that, I'd like to

18 call Doris Bess first.

19 Ms. Bess?

20 THE WITNESS: Yes?

21 MS. SNYDER: It's going to be your turn,

22 okay?

23 THE WITNESS: Okay. Can you see me?

24 MS. SNYDER: We can see you now.

25 THE WITNESS: Okay. Look.

 5

1 THE COURT CRIER: Wait a minute,

2 Ms. Bess.

3 MS. SNYDER: Ms. Bess, wait one second.

4 We're going to ask you questions.

5 I know what you're trying to show, and I

6 get that. But we're going to ask you some

7 questions so that we can tell the Court what

8 really happens. You have to wait a second.

9 THE COURT CRIER: Good morning,

10 Ms. Bess.

11 Can you please state your full name and

12 spell it for the record, please.

13 THE WITNESS: Okay.

14 MS. SNYDER: Can you spell and state

15 your name?

16 THE WITNESS: Doris Bess, D-O-R-I-S,

17 Bess, B-E-S-S.

18 - - -

19 (Whereupon, the witness was sworn in.)

20 (Whereupon, the witness was appearing
21 via Zoom.)
22 - - -
23 THE COURT CRIER: She's sworn, Your

24 Honor.

25 MS. KERNS: May I put my appearance on

 6

1 the record?

2 THE COURT: Yes, please.

3 MS. KERNS: Linda Kerns, K-E-R-N-S,

4 Supreme Court Number 84495. I'm here on behalf of

5 the Republican National Committee and the

6 Philadelphia GOP City Committee.

7 THE COURT: Good morning, Ms. Kerns.

8 MS. KERNS: Good morning.

9 THE COURT: Thank you for your

10 appearance as well.

11 - - -

12 DIRECT EXAMINATION
13 - - -
14 BY MS. SNYDER:

15 Q Ms. Bess, I'm going to ask you some

16 questions, and then other people are going to get a

17 chance to, okay? Just listen carefully to my question,

18 okay?

19 A Okay.

20 Q Can you tell us where you are today?

21 A 18th and Arch Street, Lea School.

22 Q And is that the 47th Ward?

23 A The 47th, 8th Division.

24 Q The 8th Division. Okay.

25 And can you tell me what you were doing today

 7

1 in regards to the literature?

2 A I was hanging up flyers, and Nash came along

3 and took them down, and told me the -- he gave me his

4 stack of flyers and said, These are the ones that

5 should be posted because Malcolm is not -- what did he

6 tell me? I want to use his exact words. It's not

7 going to do anything for anybody. He gave $50,000 to

8 Beckett Garden and not a dime to any of the divisions.

9 Q Ms. Bess, though, I want you to go back for a

10 second.

11 Mr. Nash is the one that came up to you; is

12 that right?

13 A Yes.

14 Q How did you know it was Mr. Nash?

15 A He used to be the ward leader.

16 Q And when he came up to you, you were holding

17 some literature?

18 A I was holding Malcolm's literature.

19 Q And when he came up to you, did he touch you

20 or the literature that was in your hand?

21 A He said, Get rid of this literature, and gave

22 me his literature.

23 MS. KERNS: Objection.

24 - - -

25 (Zoom connection unstable.)

 8

1 - - -
2 THE WITNESS: He said, Get rid of this

3 literature, and gave me his literature --

4 MS. SNYDER: Doris, you're breaking

5 up --

6 THE WITNESS: -- and took the poster

7 down.

8 Can you hear me now?

9 MS. SNYDER: No.

10 THE WITNESS: Can you hear me now? Can

11 you hear me now? Can you hear me now?

12 MS. SNYDER: A little bit better. Yeah,

13 a little bit better.

14 BY MS. SNYDER:

15 Q So go back. We have to rule on an objection.

16 So you have to tell us what he said again. Slowly and

17 just what he said to you.

18 A Okay.

19 He says -- he took the -- you can't put these

20 posters out. And he says, Pass out -- you got to pass

21 out my literature because Malcolm is not doing anything

22 for the district. He gave $50,000 to Beckett Gardens.

23 He went to Beckett Garden and took everybody's

24 literature and gave them his literature.

25 Q And you said he is not doing anything for the

 9

1 district, whose name did he say? Because you broke up

2 a little.

3 A Malcolm.

4 Q Malcolm; is that right?

5 A Malcolm Kenyatta. He said he's not doing

6 anything for the...

7 Q You said he took your literature.

8 Did he take it out of your hand --

9 A Yes.

10 Q -- or did he ask for it, or something else?

11 A He took (unintelligible) -- took my husband's

12 and gave me his.

13 Q Is that out of your hand or something else?

14 A No. No. No. He took my husband's; he

15 didn't take mine.

16 Q Oh, he took your husband's out of his hand?

17 A Yes.

18 Q And then he gave you his literature; is that

19 right?

20 A That's right. He gave up his literature.

21 Q Were you able to get your literature, meaning

22 Malcolm's, back?

23 A I got my literature.

24 Q Did anything else happen in the polling

25 location with Mr. Nash and Malcolm's campaign

 10

1 literature?

2 A The only thing he did was on top of Malcolm's

3 pictures, his posters, he put his posters on top of

4 them.

5 Q He put his posters on top of Malcolm's

6 posters?

7 A Yes.

8 Q Ms. Bess, are you somewhere you can step

9 outside and see if you have a better signal?

10 A All right. Let me -- can you hear me?

11 Q Yeah. We can hear you better.

12 A All right.

13 Q Did anything else happen with Mr. Nash, or

14 did you tell us everything?

15 A I told you everything I knew at the time with

16 me.

17 Q Okay.

18 A Anything else I would say would be hearsay.

19 Q I understand.

20 I'm going to allow anyone else who has

21 questions for you to ask you, so you have to listen

22 very carefully, okay?

23 A All right.

24 Q Thank you

25 THE COURT: Can you see if she can come

 11

1 back on camera, please?

2 MS. SNYDER: Ms. Bess, can you make sure

3 that your face is in the camera while you testify?

4 THE WITNESS: Okay.

5 MS. SNYDER: Thank you so much. There

6 you go. We see you now.

7 THE WITNESS: Can you see me?

8 MS. SNYDER: Yes, we can. Thank you.

9 THE WITNESS: Okay.

10 MS. SNYDER: Some other people might

11 have questions for you, okay?

12 THE WITNESS: Say that again.

13 MS. SNYDER: There might be some other

14 questions for you. Just hold on one second and

15 listen carefully.

16 THE WITNESS: Okay.

17 MS. SNYDER: I'll offer for cross.

18 MS. KERNS: Nothing. No questions.

19 MS. SNYDER: Thank you, Ms. Bess.

20 You're allowed to sign off.

21 THE COURT: Was there some literature or

22 something she was going to show us?

23 MS. SNYDER: I'm going to do that

24 through the next witness. I think it might be

25 easier.
 12

1 THE COURT: Okay.

2 MS. SNYDER: Thank you, Ms. Bess.

3 THE WITNESS: We're finished?

4 MS. SNYDER: Yes. You may go. Thank

5 you so much. Have a good one.

6 THE WITNESS: All right. You're

7 welcome.

8 - - -

9 (Witness excused.)

10 - - -
11 MS. SNYDER: Next, we would call John

12 Brady.

13 THE WITNESS: Good morning.

14 MS. SNYDER: John, you're going to get

15 sworn in. Hold on one second.

16 THE WITNESS: Okay.

17 THE COURT CRIER: Good morning, sir.

18 Can you please state your full name and spell it

19 for the record, please.

20 THE WITNESS: John, J-O-H-N, P, as in

21 Patrick, Brady, B-R-A-D-Y.

22 - - -

23 (Whereupon, the witness was sworn in.)

24 (Whereupon, the witness was appearing
25 via Zoom.)
 13

1 - - -
2 THE COURT CRIER: He's sworn, Your

3 Honor.

4 Counsel.

5 MS. SNYDER: Mr. Brady, I'm going to ask

6 you some questions, and then other people might

7 have questions next, okay?

8 THE WITNESS: Certainly. Sounds good.

9 - - -

10 DIRECT EXAMINATION
11 - - -
12 BY MS. SNYDER:

13 Q Did you send me some -- or a picture of

14 literature that you saw in the 47th Ward?

15 A Indeed. Yes.

16 Q I'm going to show you -- well, I'm going to

17 hand up to the Court -- the Court has a copy and

18 they're going to, like, put it in front of the camera

19 really quick to make sure --

20 A Right.

21 Q -- that we're all looking at the same thing.

22 Okay?

23 A Okay. Understood.

24 THE COURT: Is there something to hand

25 up to me?
 14

1 MS. SNYDER: I already handed it up. It

2 should be attached to the proposed order.

3 THE COURT: Is it this?

4 THE COURT CRIER: Yes. The second one I

5 handed you.

6 THE COURT: Okay. Thank you.

7 BY MS. SNYDER:

8 Q Mr. Brady, at the top of the ballot that you

9 sent to me, it says, 47th Ward Democratic Candidate; is

10 that correct?

11 A Indeed. Yes.

12 Q And primary election, and Tuesday, April 23,

13 2024; is that right?

14 A Right.

15 Q And on the -- there's then a chart

16 underneath; is that correct?

17 A Yes.

18 Q On the left-hand side it says "Offices"; is

19 that right?

20 A Yes.

21 Q I see where it says "Representative in the

22 general assembly, 181st District, vote for one."

23 Do you see that?

24 A Yes.

25 Q And whose name is here?

 15

1 A On that ballot, Lewis Nash.

2 Q I want to take you to the very bottom of this

3 piece of paper. It says in a box "Paid for by."

4 Do you see that?

5 A Hold on. My video went off.

6 Yes, I do see the "Paid for by," yes.

7 Q Then what does it say for "Paid for by," on

8 this piece of paper, the one with Lewis Nash?

9 A Right.

10 Democratic County Executive Committee,

11 Jonathan Saidel, Treasurer.

12 Q And can you tell us what you noticed is wrong

13 or incorrect about the information that we just pointed

14 to on this ballot -- on this sample ballot?

15 A Right. Yes.

16 So we, the Democratic City Committee,

17 endorsed Malcolm Kenyatta for that seat and printed

18 ballots with his name on it. That is our PAC, and that

19 is our treasurer, former City Controller Jonathan

20 Saidel.

21 We -- so that ballot is not -- it has the

22 wrong candidate on it. So we did not print it, or

23 authorization it, or pay for it; and, frankly, don't

24 know, you know, where it came from or why somebody

25 would have created it.

 16

1 But are certainly concerned about a ballot

2 that's out there with the wrong endorsed candidate on

3 it or not the endorsed candidate on it, especially when

4 it has our organization name and our treasurer listed

5 at the bottom as having paid for it.

6 Q And is the organization name as it appears on

7 this particular ballot the exact printing of the name

8 of your organization?

9 A No.

10 So our PAC is Democratic Campaign Committee

11 of Philadelphia. The organization is called

12 Philadelphia Democratic City Committee, but -- so no.

13 Also no.

14 Q And did you have an opportunity to go on

15 the -- yourself, if you did, go on the Secretary of

16 State website and look up this PAC that's listed on

17 here?

18 A I did not today.

19 Q That's okay. That's okay. I withdraw that

20 question.

21 I don't have any further questions.

22 A I'm sorry. I'm just a frequent visitor of

23 the website. It's not the name of our PAC. This, I

24 know.

25 Q All right. Thank you.

 17

1 MS. SNYDER: I don't have any further

2 questions. I offer for cross.

3 MS. KERNS: No questions.

4 THE COURT: Anything further?

5 MS. SNYDER: No. Nothing further, Your

6 Honor. Thank you.

7 THE COURT: Thank you, Mr. Brady.

8 THE WITNESS: Thank you, Your Honor.

9 Thank you.

10 - - -

11 (Witness excused.)

12 - - -
13 MS. SNYDER: So, Your Honor, my argument

14 in regards to having this literature, which is

15 inaccurate in both its "paid for" and its

16 purported endorsement, is that it should be taken

17 away because that is not the name of the

18 committee.

19 In fact, as an officer of the court --

20 or I can call co-counsel, although that's a little

21 strange for this one -- we cannot find that

22 particular PAC at all listed and registered with

23 the Secretary of State.

24 But what's more is even if that PAC was

25 registered, Mr. Saidel is not the treasurer for

 18

1 that PAC, nor has Mr. Saidel endorsed these listed

2 candidates.

3 In addition, we would ask Your Honor to

4 consider having this sheriff's department warn

5 and/or prohibit Mr. Nash from said behavior at the

6 polling locations.

7 As part of the exhibit, I thought it

8 would be easier for the sheriff's department to, I

9 just attached the literature that we would like to

10 be removed and the locations of all the polling

11 places to the proposed order.

12 I also still have the order up if

13 there's any language that anyone would suggest

14 should be changed. And I can also do the typing

15 for Your Honor if you'd like me to change the

16 language.

17 THE COURT: Prepare the order.

18 MS. SNYDER: Thank you.

19 MS. KERNS: Your Honor, may I be heard?

20 THE COURT: Yes.

21 MS. KERNS: Your Honor, the First

22 Amendment does not allow government to restrict

23 speech of any kind. There's nothing illegal about

24 this.

25 United States vs. Alvarez even permits

 19

1 falsity in political speech. And I don't believe

2 that the government has the right to restrict this

3 speech, censor, or use the sheriff's office to do

4 it.

5 Maybe this candidate is a little bit

6 aggressive, but he's allowed to campaign for

7 himself.

8 And Citizens United vs. FEC was

9 particular about not limiting what a certain group

10 says about political speech. And this -- the one

11 witness testified that Democratic County Executive

12 Committee is not the same as his committee. So we

13 don't even know who that committee is.

14 Maybe this person is violating campaign

15 finance laws and someone should file a complaint

16 there.

17 But the answer to falsity in speech is

18 more speech. So the remedy here is the candidates

19 that are offended by this is to put out more

20 advertisements, not ask a judge to censor it.

21 So that's my position. Thanks.

22 THE COURT: Your response?

23 MS. SNYDER: Yes.

24 Your Honor, our response is that while

25 falsity within speech is allow in certain

 20

1 circumstances, our law and our Pennsylvania

2 election code requires that the speech be accurate

3 in a number of ways -- one of them being paid for,

4 who the endorsements are made by, and that that

5 election-nearing speech takes it out of the realm

6 of just free political speech and puts it back in

7 that which can be regulated.

8 It shouldn't be regulated lightly. But

9 with those witnesses having testified that this is

10 not, in fact, paid for by these people,

11 endorsements made by this ward and these ward

12 leaders, this is, in fact, what is illegal speech.

13 MS. KERNS: But, Judge, that wasn't the

14 testimony. The testimony was that this is not the

15 name that the Democratic City Committee uses.

16 So maybe this person is violating some

17 type of Pennsylvania campaign finance law. The

18 remedy isn't for a judge to order the sheriff to

19 go out and do a candidate's job.

20 THE COURT: Prepare the order for my

21 review.

22 MS. KERNS: And the only thing is

23 there's no -- any limitations on speech require a

24 really strict scrutiny analysis, and I don't think

25 this rises to the level of it at all or is an

 21

1 exception in any case law.

2 THE COURT: I understand the argument;

3 but, however, it is misleading to the voters into

4 this is the local Democratic City Committee. The

5 Court finds it to be intentionally misleading.

6 Anything further?

7 Also, it appears the candidate is

8 engaging in voter intimidation.

9 Are there any other issues at this time?

10 MS. SNYDER: No, Your Honor. That

11 concludes this motion for our purposes.

12 THE COURT: Okay.

13 - - -

14 (The hearing was concluded.)

15 - - -
16

17

18

19

20

21

22

23

24

25
 22

1 CERTIFICATE
2

4 I HEREBY CERTIFY that the proceedings are

5 contained fully and accurately in the stenographic
6 notes taken by me on April 23, 2024, and that this is a
7 true and correct transcript of same.
8

10
___________________________
11 Dana Marie Foschini, RPR
Official Court Reporter
12

13

14

15

16

17

18

19

20

21 (The foregoing certification of this

22 transcript does not apply to any reproduction
23 of the same by any means, unless under the
24 direct control and/or supervision of the
25 certifying reporter.)