Friday, April 11, 2008

Motion to Include Former Testimony of Justin Hensley

Justin Hensley

(Note: This motion was filed on 11/06/07 - the trial date and counsel(s) have changed since that time)

Due to Justin Hensley being stationed overseas in Iraq, he must be deemed unavailable at the upcoming trial that is, scheduled to begin on March 28, 2008. The Pennsylvania Rules of Evidence clearly states that "Unavailability of a witness includes a situation where the declarant is unable to be present or to testify at the hearing because the Commonwealth is not able to procure the witnesses testimony by process or other reasonable means. Pennsylvania Rule of Evidence 804(a)(4).

According to 42 Pa. C.S.A. § 5917, "whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards dies... notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue." 42 Pa. C.S.A. § 5917.

The Appellate Courts of Pennsylvania have consistently held that a deceased witness's preliminary hearing testimony is admissible in the subsequent trial at the Common Plea Court level where the defendent was provided with a full and fair opportunity for cross examination. See Commonwealth v. Williams, 460 A.2d 1178, (Pa. Super. 1983), Commonwealth v. Thompson, 648 A.2d 315 (Pa. 1994), Commonwealth v. Scarborough, 421 A.2d 147, (Pa. Super. 1980), Commonwealth v. Werner, 282 A2.d 258, (Pa. Super. 1971).

Justin Hensley was cross examined by Attorney Tom Cometa, defense counsel for Harlow Raymond Cuadra and asked approximately sixty-eight (68) questions and by Attorney Frank Nocito, defense counsel for Joseph Manuel Kerekes, who asked approximately forty-seven (47) questions. Furthermore, Attorney Cometa asked an additional seventeen (17) questions on re-cross-examination of the witness and Attorney Nocito asked and additional twenty (20) questions on re-cross-examination of the witness. Attorney Melnick did not enter any objections during the defense counsel cross examination and re-cross examination.

The Commonwealth at no time attempted to limit areas of inquiry or subject matter of either defense counsel's cross examination. Furthermore, defense counsel was given the witness statement of Justin Hensley prior to his testimony.