Advising of Criminal Charges: Joseph Manuel Kerekes

Advising of Criminal Charges: Joseph Manuel Kerekes - by Cpl. Leo D. HANNON, Jr., Pennsylvania State Police:

SYNOPSIS: On 05/15/07, this Trooper along with Special Agent James GLENN, Federal Bureau of Investigation, Scranton Office, traveled to Virginia Beach, Virginia and met with aforementioned accused to advise him of criminal charges which were brought against him as well as to attempt interview.

DETAILS: As has been previously reported herein, on 05/15/07 at approx 0930 hrs this Trooper along with Tprs. B. MURPHY and S. POLISHAN, Sgt. Douglas HIGGINS, Dallas Twp Police Dept and Det. Daniel YURSHA, Luzerne County District Attorney’s Office, filed criminal charges against aforementioned accused as well as Harlow Raymond CUADRA. Same date, while this Trooper along with Special Agent (SA) GLENN, Det. YURSHA, and Sgt. HIGGINS were traveling to Virginia Beach, Va said officers were notified that both accused had been apprehended within said jurisdiction. Officers continued to the Virginia Beach Police Department, where both accused were being held on Fugitive From Justice warrants. It should be noted that both KEREKES and CUADRA were held separately within interview rooms inside of the Detective Division. Neither accused was handcuffed at the time of this Trooper’s arrival, and restroom facilities were available within said interview rooms. Same date at approx 2012 hrs., this Trooper along with SA GLENN met with aforementioned accused. This Trooper asked KEREKES if he had been advised of his Miranda Warnings, to which he stated that he was. This Trooper was then advised by KEREKES that he wished to speak with his attorney prior to interview, This Trooper then advised KEREKES that other than biographical information, he would be asked no questions related to this investigation. This Trooper also advised KEREKES that a synopsis of the charges and supporting affidavit would be explained to KEREKES and that he may ask any questions he wished regarding same. This Trooper also advised KEREKES that should he require to utilize rest room facilities or request a drink, etc., to advise this Trooper. Biographical information of KEREKES, as offered by KEREKES, is as follows:

Joseph Manuel KEREKES, W/N-M DOB: 12/30/73, 33Y0A
1028 Stratem Court, EMPLOYER: Self; Norfolk Male Companions
Virginia Beach, Va., 23451 -a male escort and pornography business
SSN: xxxxxxxxx -so employed approx 6.5-7 years
HT: 511, WT: 180, HAIR: BRN/GRAY, EYES: BRN
Paramour/co-habitant; Harlow Raymond CUADRA

KEREKES added that he was born within the state of Montana, however he was raised primarily in Virginia Beach, Va., where his parents and sister currently reside. His brother, Daniel KEREKES, currently resides in Kansas City, Kansas. KEREKES attended and matriculated from Green Run High School, Virginia Beach, Va. He also attended three and a half years at the Valley Forge Christian College; an Assembly of God school, located in Phoenixvillè, Pa.. KEREKES studied Theology at said institution however dropped out prior to graduating. Approx “seven years ago”, KEREKES enlisted into the Marine Corps through a local recruiting station. KEREKES stated that his military attendance was for a duration of three days at Paris Island, North Carolina, KEREKES added; I wasn’t cut out for it. They classified me as “unfit for duty”. KEREKES added that he does use the AKAs of “Mark and “Trent” when conducting business with his company.

This Trooper asked KEREKES if officers from Virginia Beach Police advised him of the charges which had been levied against him. KEREKES advised that they had not. This Trooper also asked KEREKES who his attorney of record would be, to which he stated; “Barry TAYLOR is my attorney. I’ve been using Atty. BREWER for these past events, though”. KEREKES added that TAYLOR has been a client of Norfolk Male Companions for approx six years. KEREKES further added that his legal counsel preference would be Atty. BREWER.

This Trooper advised KEREKES that he was under arrest for the murder of Bryan KOCIS, then enumerated, one by one, the charges which had been brought forth against KEREKES. At the completion of same, this Trooper asked KEREKES if he understood what had been explained, to which he answered in the affirmative, and followed up with; “I understand the words, but I don’t understand why I’ve been charges with this. This is sad, but I never knew Bryan KOCIS. All I’ve ever known of him is what I’ve read in the newspapers”. It should be noted that KEREKES’ initial denial of the victim was repeated several times. It should also be noted that KEREKES’ posture at that point was upright. His expressions were direct, and. his speech was lucid and confident,

This Trooper then began to review the affidavit of probably cause with KEREKES. KEREKES was advised that email arrangements had been made between CUADRA, under the aka of Danny MOILIN and the victim, and that the IP addresses of many said emails came back to CUADRA/KEREKES’ residence, KEREKES was also advised that a disposable track style phone utilized to contact the victim was traced to the Virginia Beach Area, specifically to a tower several hundred yards from KEREKES’ residence. This Trooper also illustrated email and phone contact between KEREKES, Sean LOCKHART, and Grant ROY. This Trooper also advised KEREKES that two video cameras believed to be owned by the victim were found at KEREKES’ residence with the serial numbers removed. Additionally, the email address utilized by CUADRA to contact the victim, specifically DMBOTTOMPA came back to KEREKES’ residence, to which computers seized from same proved to contain valuable investigative information. KEREKES stated that would be “impossible” because the computers formerly within his home were “dummies” and “didn’t contain anything”. KEREKES added that he never heard the name “Danny Moilin” before. Additionally, KEREKES stated that CUADRA rarely sent emails for himself, and that KEREKES usually sent emails for him.

KEREKES was also advised of the discovery of USA people search background investigation which was conducted on the victim at the charge to CUADRA, as well as the background that was found regarding contact between KEREKES, CUADRA, LOCKHART, and ROY. KEREKES interjected that the foursome “had a harmless meeting in Vegas once the lawsuit was settled” between the victim and LOCKHART.

KEREKES was also advised about the conversation between CUADRA and LOCKHART the morning after the victim’s murder, whereby CUADRA directed LOCKHART to view the WNEP website and followed up with the statement; “I guess my guy went overboard”, KEREKES denied any knowledge of any such call, and exclaimed; “Are you gonna believe the wards from the lips of that boy? (referring to LOCKHART), it wasn’t about money; we have money". This Trooper advised KEREKES that phone records were ob auie corroborating the information, and also advised KEREKES that no one had made mention about money being the motive for this crime. KEREKES became quiet. This Trooper also informed KEREKES about the information received regarding CUADRA’s accessing a website in an effort to learn how to operate the two cameras with the removed serial numbers believed to be the victim’s. KEREKES was also informed about interviews with confidential informants who corroborated information received about a “million dollar deal” sought by KEREKES and CUADRA.

This Trooper then advised KEREKES about the information gleaned about the Nissan Xterra rented by CUADRA on 01/23/07, to which KEREKES interrupted; “we rented that (vehicle) for the weather. We had some bookings to get to”. It should be noted that KEREKES did not offer any names of said “bookings” or the locations thereof. This Trooper then stated that the mileage on the vehicle was commensurate with traveling from KEREKES’ residence to that of the victim and then returning. This Trooper then advised KEREKES about emails sent from KEREKES to Grant ROY in which KEREKES wrote; “we’ll tell them (police) that you hired us”, KEREKES stated that he did send that email in a “drunken rage”, and that he was “upset that they (ROY and LOCKHART) stopped talking to us’. KEREKES continued; “Barry (TAYLOR) was upset at that”.

KEREKES was advised that both he and CUADRA were observed on surveillance video purchasing a knife and pistol on 01/23/07. KEREKES stated; “we've used that pawn shop for years”. When advised of his selling numerous items at said pawn shop on 02/10/07, the same date of the search warrant service at his residence, he acknowledged same and exclaimed; “This is good, This is exciting!”. KEREKES then went on to again deny ever meeting with or seeing the victim.

This Trooper then advised KEREKES that it was gleaned through investigation that he rented a room at the Fox Ridge Inn the night before the victim’s murder, how he paid for the room, and that the afforded his Virginia Driver’s License in order to secure the room. KEREKES was also reminded that the rented Nissan Xterra was identified by neighbors of the victim as being the vehicle outside the victims residence at the time of his murder. This Trooper also advised KEREKES that both his cell phone and the cell phone utilized by CUADRA to contact the victim was registered as connecting with the tower near the victim’s residence immediately after the victim’s murder. KEREKES began to cry, and swore on his mother’s life that he.was not the one who killed the victim. KEREKES then asked this Trooper; “what are you looking for?”, to which this Trooper stated; “the truth”, KEREKES responded; “I want to tell you the truth”. This Trooper then advised KEREKES to search within himself and discuss his intentions with his legal counsel. This Trooper further stated that all information received from KEREKES, if any, would be thoroughly investigated and corroborated, and advised KEREKES against falsifying any statement(s).

At approx 2155 hrs., KEREKES requested something to eat, to which this Trooper afforded him with a “Snickers” candy bar and a bottle of lemonade.

This Trooper then began to review conversations held between KEREKES, CUADRA, LOCKHART, and ROY while at the “Crabcatchers” restaurant in San Diego, California which were contained within the affidavit of probable cause, KEREKES again began to question the verity of statements he assumed were at the word of LOCKHART, ROY or both. KEREKES again referred to a “drunken meal” attended by aforementioned foursome while in Las Vegas and made no statements regarding statements made by both he and CUADRA regarding the victim “going to Canada” and “Harlow’s client” who would do “anything for him”. This Trooper then advised KEREKES that an electronic intercept was conducted before, during, and after the meal at “Crabcatchers”. With that, KEREKES’ expression turned drawn. This Trooper advised KEREKES that at one point in their conversations, ROY asked KEREKES and CUADRA if the victim “felt any pain”, to which CUADRA leaned toward LOCKHART and stated; “don’t worry, he went quick”. KEREKES acknowledged hearing the question asked by ROY, but offered no further comment. He denied hearing any response by CUADRA. This Trooper then reminded KEREKES of his statement that he and CUADRA would “answer any questions on the nude beach”, to which KEREKES stated; “we did a lot of things to egg them on”, This Trooper then advised KEREKES that another electronic intercept was conducted at “Blacks Beach”, to which KEREKES had no response. This Trooper then began to illustrate some of the conversation intercepted during said intercept, again which was contained within the affidavit of probable cause in which KEREKES and CUADRA spoke of the interior of the victim’s residence as well as the destruction of evidence obtained from the interior of same. KEREKES interjected; “Barry’s (TAYLOR) investigator showed us pictures of the inside and outside of the (victim’s) house”.

This Trooper then advised KEREKES that after consultation with his attorney should he see fit to speak with this Trooper to have his legal counsel contact this Trooper arid a meeting would be scheduled. KEREKES stated that he wished to afford a statement, however he wished to speak with an attorney first. This Trooper then explained to KEREKES the process which would initiate from that pdint and explained the process of extradition. This Trooper then asked KEREKES if he had any additional questions, to which he asked; “Are LOCKHART and ROY in custody?” to which this Trooper answered in the negative.

Same date at approx 2204 hrs., this Trooper and SA GLENN exited interview room to which Detectives with the Virginia Beach Police Department transported KEREKES and CUADRA to the Virginia Beach Prison subsequent to Fugitive from Justice warrants.

Cuadra, Kerekes Mull Similar Alibis

The Citizens' Voice reports that Attorneys for Harlow Cuadra said Wednesday the accused killer might claim he was at a Plains Township motel the night Bryan Kocis was killed in Dallas Township in January 2007 — the same potential alibi defense being considered by co-defendant Joseph Kerekes.

In Cuadra’s notice of alibi defense, filed Wednesday after the conclusion of a multi-part hearing on evidence suppression, and Kerekes’ alibi notice, filed in January, both defendants claim they were in Room 211 at the Fox Ridge Motel, about 12 miles from Kocis’ Midland Drive home.

Neither notice said if Cuadra or Kerekes would claim they were in the room together at the time of the killing, though Kerekes has indicated to Renee Martin, an acquaintance and former neighbor who has been described by prosecutors as their business associate, that he stayed at the motel while Cuadra went to visit Kocis.

The conflicting alibi accounts could bolster a defense argument, made at a previous suppression hearing, that Cuadra and Kerekes should be tried separately. A growing rift between the former lovers and business partners could jeopardize their defense if they are tried together, as prosecutors have advocated, the attorneys said.

Kerekes, 34, and Harlow Cuadra, 26, both of Virginia Beach, Va., are accused of slashing the neck of Kocis, a rival producer of gay pornographic films, to the point of near decapitation, stabbing his torso nearly 30 times and later setting fire to his home. They face the death penalty and are scheduled to stand trial together, beginning Sept. 2.

Kerekes discussed several possible alibis with Martin, including a disproved theory that he was not in Pennsylvania at the time. Kerekes mentioned the Fox Ridge Motel in a hypothetical situation he described for her during one telephone conversation while an inmate at the Virginia Beach Correctional Facility.

“Can I tell you exactly what happened or should I, should I keep my mouth shut?” Kerekes said.

Martin suggested Kerekes tell the story in a hypothetical form.

“OK, once upon a time there was a gay escort couple that, ya know, once upon a time that thought maybe working with this movie producer would be good, where as he, you know, he had access to other young stars that would enhance one of the two’s career, so they set up an appointment to meet.”

Kerekes said one of the men went to meet the producer while the other stayed at a hotel that had been rented. The hypothetical story matches up to Cuadra visiting Kocis and Kerekes staying at the Fox Ridge Inn, prosecutors said.

“When he approached the home, obviously there had been an intrusion, and the door was open, hypothetically and supposedly then, he found what was there, and he, supposedly and hypothetically, ran and came back to the older one, which was in the hotel and they were scared.”

Cuadra ordered an online background check of Kocis days before the murder, sent e-mail messages and photographs to Kocis, placed telephone calls to him on a cell phone purchased and used only to call Kocis, and rented a vehicle that was seen by witnesses in Kocis’ driveway around the time of the killing, prosecutors said.

In another telephone conversation, Martin alluded to the possibility Grant Roy, a former suspect in the killing who testified at an evidence suppression hearing Thursday, and his business partner and former lover, Sean Lockhart, had been at Kocis’ home.

Lockhart had acted in gay pornographic films produced by Kocis’ company, Cobra Video.

He and Roy had settled a lawsuit with Kocis on Jan. 18, 2007, allowing Lockhart to star in movies not involving Cobra Video, in exchange for a payment of 20 percent of the proceeds to Cobra.

Kerekes said Roy and Lockhart were not directly involved, but had spoken to Cuadra by telephone.

“They were on the phone from San Diego with (Cuadra), like while this was, while that was happening,” Kerekes told Martin.

“While the murder was happening?” Martin said.

“Yes,” Kerekes said. “(Investigators) know that Grant and Brent weren’t there.”

“They were on the phone with him while the murdering was happening?”

“Yes, that’s all knowledge, everyone knows,” Kerekes said.

Prosecutor: Kerekes Threatened to Shift Blame

According to the Times Leader... a Luzerne County prosecutor offered evidence indicating that Joseph Kerekes threatened to blame a pornographic movie producer in the January 2007 slaying of Bryan Kocis in Dallas Township.

Assistant District Attorney Shannon Crake made the reference during a pre-trial hearing for Kerekes, 34, and his partner, Harlow Cuadra, 26, before Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. on Wednesday.

Kerekes and Cuadra, both from Virginia Beach, Va., are charged in the killing of the 44-year-old Kocis, whom they considered their main rival in the gay movie production industry, according to arrest and court records.

Prosecutors claim Kerekes and Cuadra wanted to film movies with Sean Lockhart, who was prevented from working with another company because of a contract with Kocis’ business, Cobra Video.

Three pre-trial hearings have been held in anticipation of the September trial. Prosecutors are seeking the death penalty for Kerekes and Cuadra.

During Wednesday’s hearing, Crake was arguing in support of allowing the jury to hear certain acts Kerekes and Cuadra allegedly committed before and after Kocis was killed on Jan. 24, 2007.

Crake said Kerekes told Lockhart’s business agent, Grant Roy, “If you don’t film with us, we’re going to tell police you hired us.”

She argued that the jury should be permitted to hear the statement, and other conversations Kerekes and Cuadra had with Lockhart and Roy about filming movies together.

At least two conversations were recorded by investigators in San Diego, Calif., where the four men talked about payments “under the table” to avoid paying Cobra Video.

A federal civil lawsuit Kocis filed against Roy, Lockhart and their production company, LSG Media, was settled out of court days before Kocis was killed. The settlement required Cobra Video to receive 20 percent of revenue earned from sales involving Lockhart, according to federal court records.

“It goes to the ultimate motive to the homicide of Bryan Kocis, that they (Kerekes and Cuadra) wanted to recruit Sean Lockhart as a model,” Crake said.

Cuadra’s lawyers, Steven Menn and Michael Senape, said any references about “under the table” payments were made by Roy, not Cuadra.

Menn and Senape, and Kerekes’ attorneys, Shelley Centini and John Pike, are seeking to have separate trials for their clients, claiming their separate defenses may implicate each other in the killing.

Kerekes maintained that he was at a Plains Township motel using a laptop computer to schedule an appointment for their escort business while Cuadra visited Kocis.

Cuadra said he was never at Kocis’ home.

“That puts us in direct confrontation with the co-defendant,” Pike said.

Crake said there are witnesses who will testify during the trial that places both men at Kocis’ home the night Kocis was killed.

Some Unknown Details...

While we await more details about today's hearing (nothing new yet) ... I thought it would be interesting to post something that I stumbled upon while reviewing the Defenses' response to the Virginia Beach Search Warrant issue... the following are excerpts from a document filed by Cpl. Leo Hannon, which was titled "The Material Facts Constituting Probable Cause that the Search Should be Made".

While a good portion of this document is repeated in the later filed Affidavit of Probable Cause... I did find some interesting things that weren't (or at least not to this detail) and will post those 'quotes' now:

"Additionally, a folding-style knife was found to be open and in the area of the origin of said arson fire."

"Investigators interviewed Attorney Sean Macias who represented Bryan Kocis in a lawsuit that was ongoing at the time of Kocis’s death. According to Attorney Macias, the lawsuit was filed in Federal Court under case number 06 CV 0293J. In the lawsuit, Kocis’s company, Cobra Video, was suing Sean Lockhart, Grant Roy and LSG Media; The lawsuit alleged systematic infringement and misappropriation of Kocis’ property rights regarding the distributes Adult Male Gay entertainment via DVD/video sales and provides adult material through its websites, www.cobravideo.com and www.brentcorriganxxx.com. One of the primary models for Kocis’ company was Sean Lockhart AKA Brent Corrigan. In the lawsuit, it is alleged that Sean Lockhart developed a new business relationship with LSG Media; which is a partnership between Sean Lockhart, Grant Roy and Lee Bergeron. A review of court documents reveals that during 2006 there were a number of depositions taken in furtherance of the aforementioned lawsuit. "

"During the week of January 15, 2007, Kocis traveled to California to confer with his Attorney regarding the pending lawsuit and a potential settlement. Attorney Macias advised that on January 19, 2007 a settlement was reached. This settlement allegedly gave Lockhart and his associates only seven days to complete certain agreements or would have to pay an additional settlement cost. The settlement further called for Lockhart to remove all negative “blogs” regarding Kocis. Lockhart additionally agreed to provide and release medical records to Kocis. Additionally, Kocis would retain all rights to the name “Brent Corrigan” for a period of time, and would thereafter receive a percentage of gross proceeds from website and DVD sales. "

"The investigation also revealed that Sean Lockhart, a/k/a Brent Corrigan, created his own website known as “brentcorriganonline.com,” in violation of contractual agreements between the victim and Lockhart. Several biographical entries found on the website as well as other various blog sites illustrate strong feelings of personal animosity on the part of Lockhart toward Brian Kocis. Additionally, subsequent investigation revealed that Lockhart held a desire to be credited as a director, and additionally wished to hold responsibility for his own career decisions, which he believed was impeded by Kocis. Also according to said writings, Lockhart believed that he had been “manipulated” by Kocis, and was taken advantage of due to his young age and naivety with regard to the adult entertainment industry. "

"Sergeant Douglas Higgins, Dallas Township Police Department, Dallas, Pennsylvania, advised Cpl. Leo D. Hannon Jr. that he interviewed Benjamin Gilbert of Palmdale, California. Gilbert advised that he associated with Sean Lockhart and they last had contact in October 2006 Gilbert recalled that Lockhart had spoken about getting rid of Bryan Kocis; that he hated Kocis; and that Kocis had ruined his life. Gilbert also referred to a friend of Lockhart known as Grant who stated he wanted to find a “cleaner” to take care of Kocis. Gilbert overheard Lockhart telling Grant not to talk about that in front of people you don’t know. Gilbert further advised that Grant is in love with Lockhart and would do anything for Lockhart. "

"On February 2, 2007, the Pennsylvania State Police released a photograph attached to the Danny Moilin application to the local and national media outlets. On February 3, 2007, Trooper Lisa A. Brogan spoke to Ryan Anderson of Norfolk, Virginia. Anderson stated that a friend of his once worked for the person in the photo. Anderson stated the unidentified male is Harlow Cuadra from Virginia Beach, Virginia. Anderson stated Cuadra is a gay male model and a paid escort. Anderson stated that one could view Harlow Cuadra via his MySpace profile: www.myspace.com/harlowcuadra. Cuadra is part owner of gay pornography websites: www.boybatter.com and www.boisrus.com. Cuadra operates a male escort service and website referred to as www.norfolkmaleescorts.com. Anderson also forwarded two photos to Trooper Brogan. Anderson advised both photos were posted on Harlow Cuadra's MySpace page. Anderson stated that Harlow Cuadra and Sean Lockhart, aka Brent Corrigan, were in Las Vegas for the Adult Video Convention and the photo was taken at Le Cirque; a restaurant located within the Bellagio Hotel. Anderson did not know who took the photo, but was familiar with Le Cirque; jackets and ties are required. Anderson added that "Trent" (stage name) is partners with Harlow Cuadra in the escort business. Anderson stated Cuadra and Trent were former lovers but Cuadra left Trent for Sean Lockhart. Anderson did not know Trent's real name but thought his first name may be "Joe"."

"On February 3, 2007, Trooper Brogan spoke to one Michael Wahl, who resides in Yorktown, Virginia. Wahl stated he heard about the murder of Bryan Kocis on website, www.gay.com. He was reading about the murder on several other websites and immediately knew the identity of the male subject. Wahl stated that the name of the person in the photo was "Harlow". Wahl was unsure of his last name but thought it was Drake. Wahl stated that Harlow is well known in the gay community where he lives. Wahl stated that a former friend of his used to model with Harlow. Wahl stated Harlow and his business partner, Joseph Kerekes, operate an illegal escort service and produce gay pornography. Kerekes also does some modeling: using stage names of "Trent" or "Travis". Wahl believed Joe and Harlow were involved intimately, but broke up over Sean Lockhart; aka Brent Corrigan. Wahl stated Harlow was going to leave Kerekes for Lockhart. Harlow and Sean Lockhart were supposedly going to make a movie together."

"On 02/09/07 Cpl. Mark Filarsky and Cpl. Gerald Williams interviewed Grant Roy who was in the presence of his counsel, Attorney Ezekiel Cortez. This interview was conducted via teleconference. The following is a synopsis of the interview; I was surfing the internet looking for models in anticipation of the settlement of the lawsuit with Bryan Kocis. That is when I came across Harlow. I sent 1 or 2 emails his web site. I never heard back from him but Sean Lockhart did. I was informed by Sean that Harlow was looking to work with us. I asked Sean if he was coming to Las Vegas for the convention and Sean said he wasn’t. I told Sean to call him and tell him to come to Vegas.

We did meet with Harlow and his friend Joe who goes by the stage name Trent. Harlow was in the Navy and Joe was in the Marines. They have been a couple for about the last 6 years. We were at dinner one night in Vegas when we were discussing the possibility of trading scenes but I informed them that we could not do anything at this point because of the pending litigation with Bryan Kocis. Harlow then asked what if Bryan left the country, Sean said that he would only come back. Joe then said that Harlow knows someone that would do anything for him. Harlow then asked what if Bryan went to Canada. Sean had a few drinks in him and I don’t think he understood what Harlow was saying. I looked at Harlow and knew that he was talking about getting rid of him (killing him) I grabbed Harlow by the knee and told him no, we don’t need Bryan to leave the country. This conversation took place while in Las Vegas for a gay porn convention during the week of January 15 to the 19 2007."

Suppression Hearing Day 2 - Midday Update

Update @ 9:48 PM: Today's hearing lasted for approx. 1.5 hours... there appears to be another attempt at claiming that there is a conflict of interest... the next hearing should be around 08/12/2008... more tomorrow.

Update @ 1:22 PM: Cuadra's attorneys have filed supplemental exhibits to item II of the Omnibus Pretrial motion for change of venure/venire.

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Update @ 12:53 PM: It appears that Harlow Cuadra's attorneys have filed a notice of possible alibi defense. Joe's attorneys already did this months ago.

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The Times Leader is reporting that a Luzerne County prosecutor alluded that Joseph Kerekes threatened to blame Grant Roy and Sean Lockhart in the January 2007 slaying of Bryan Kocis in Dallas Township.

Assistant District Attorney Shannon Crake made the reference during a pre-trial hearing for Kerekes, 34, and his partner, Harlow Cuadra, 26, before Judge Peter Paul Olszewski Jr. earlier today.

Kerekes and Cuadra, both from Virginia Beach, Va., are charged in killing Kocis, whom they believe was their main rival in the gay movie production industry, according to arrest and court records.

Prosecutors claim Kerekes and Cuadra wanted to film movies with Lockhart, who was a contract model for Kocis' company, Cobra Video.

Attorneys have had three pre-trial hearings in anticipation of the September trial.

During Wednesday's hearing, Crake was arguing in support of introducing certain alleged acts Kerekes and Cuadra committed before and after Kocis was killed. Crake said Kerekes told Roy, "If you don't film with us, we're going to tell police you hired us."

Roy is a producer of pornographic movies, and had settled a federal civil lawsuit Kocis had filed against him claiming the misuse of Lockhart's stage name, Brent Corrigan.

Prosecutors are also seeking to introduce Kerekes' and Cuadra's escort business practices, and their attempts to solicit clients in making up false alibis the night Kocis was killed.

Kerekes Offers Possible Motive for Killing During Interview

The Citizens' Voice reports that accused killer Joseph Kerekes began to cry during a police interview hours after his arrest in May 2007, and “swore on his mother’s life that he was not the one” who killed Bryan Kocis in Dallas Township four months earlier, prosecutors said.

Kerekes’ burst of emotion, in an interview room at the Virginia Beach Police Department, came after a back and forth with investigators that included several allusions to the killing and conversations between Kerekes, co-defendant Harlow Cuadra and two men who had settled a lawsuit with Kocis a week before his death, Grant Roy and Sean Lockhart.

Kerekes volunteered information about a motive, and hinted at his possible involvement, as he denied knowledge of a telephone conversation between Cuadra and Lockhart on Jan. 25, the day after the killing. Cuadra directed Lockhart to read about Kocis’ death on wnep.com, the Web site of WNEP-TV, and allegedly said, “I guess my guy went overboard.”

“Are you going to believe the words from the lips of that boy?” Kerekes said during the police interview, referring to Lockhart, who starred in gay pornographic films produced by Kocis. “It wasn’t about money, we have money.”

Luzerne County Judge Peter Paul Olszewski Jr. heard testimony and arguments last Thursday on a motion by Kerekes’ attorneys, John Pike and Shelley Centini, to suppress the police interview from being used as evidence at trial.

Kerekes, 34, and Harlow Cuadra, 26, both of Virginia Beach, Va., are accused of slashing Kocis’ neck to the point of near decapitation, stabbing his torso nearly 30 times and later setting fire to his Midland Drive home. They face the death penalty and are scheduled to stand trial together, beginning Sept. 2.

Olszewski also heard defense requests to suppress a myriad of evidence, including items seized from the home where Cuadra and Kerekes lived, and conversations between them, Roy and Lockhart in San Diego in April 2007. The hearing is scheduled to continue today at 9 a.m.

Kerekes testified briefly last Thursday and reiterated his attorneys’ claims that the interview should be suppressed because the investigators, Cpl. Leo Hannon of state police, and Special Agent James J. Glenn of the FBI, violated his right to an attorney.

“They walked into the room and I said, ‘I want a lawyer,’” Kerekes said during brief testimony that was limited to the post-arrest police interview. “It was the first thing out of my mouth.”

Kerkes & Cuadra's Reply to the DA's Brief in Opposition to Suppress Search Warrant & Evidence Seized from the Residence.

DEFENDANTS KEREKES' AND CUADRA'S JOINT REPLY BRIEF TO COMMONWEALTH'S BRIEF IN OPPOSITION TO MOTION TO SUPPRESS SEARCH WARRANT AND EVIDENCE SEIZED FROM 1028 STRATEM COURT, VIRGINIA BEACH, VA

I. Statement of Facts
II. Law and Argument: Virginia Search Warrant Law
III. Law and Argument: Pennsylvania Search Warrant Law
IV. Law and Argument: Pennsylvania Law Controls
V. Warrant Defects Under Pennsylvania Law
VI. Seizure Exceeded the Authorized Scope of Warrant
VII. Nighttime Execution Without Statement of Additional Reasonable Cause
VIII. Warrant Defects Under Virginia Law
IX. Siezure Exceeded the Authorized Scope of Warrant (II)
X. Conclusion
XI. Exhibits

There are more exhibits, but most of it is just copies of case law, nothing really worth posting.

Statement of Facts

On February 10, 2007 at 5:53 a.m., the Virginia Beach Police Department executed a search warrant at the home of defendants Kerekes and Cuadra at 1028 Stratem Court, Virginia Beach, VA 23451. The warrant was obtained under seal on February 9, 2007. The warrant, affidavit of supporting probable cause, and the accompanying inventory and return were certified to the court on February 12, 2007. See Sealing Order. Warrant and Inventory. attached collectively hereto as "Exhibit 1."

The Search Warrant affiant is Sean Coerse of the Virginia Beach Police Department. However, Officer Coerse swears in his warrant that he was advised of the facts set forth in the affidavit of probable cause supporting the warrant by an informer. Officer Coerse identifies this informer in section 6 of the warrant and corresponding section 6 of the affidavit as "Cpl. Leo D. Hannon, Jr , Pennsylvania State Police" and continues on to list Cpl. Hannon’s credentials. Warrant and afidavit Exhibit 1 at section 6.

In fact, Corporal Hannon indicates in a police report he prepared relative to the search warrant at issue that he, along with Pennsylvania State Police Troopers Polishan, Brian Murphy, Michael Gownley, Dale Young, Luzerne County Detective Daniel Yursha and Dallas Township Police Department Sergeant Douglas Higgins traveled to Virginia Beach, VA on February 9, 2007 and assisted in the preparation of the warrant. Hannon Police Report attached hereto as “Exhibit 2.” The warrant indicates that the offense in relation to which the search is to be made is “Murder in violation of Virginia State Code 18.2-32 Warrant and Affidavit Exhibit 1 at section 1.

To support the seizure of evidence, alleged probable cause is outlined in section 4 of the warrant. The probable cause is outlined in six arid one-half pages of the document. in those pages, two paragraphs mention “Joseph Kerekes” and the context is as a business associate of defendant Harlow Cuadra in the operation of “an illegal escort service” and in the production of “gay pornography” and “modeling.” Affidavit Exhibit 1 at section 4.

The search warrant authorizes seizure of the items enumerated in section 3 of the warrant. To summarize, the warrant authorizes seizure of the following five categories of items only: (1) actual computers and hardware, computer software and all information stored on computers or used to access information through computers; (2) blood, fiber, trace or other physical evidence; (3) knives or cutting instruments; (4) credit/debit cards, cash, financial data and receipts; and (5) all documents relating to the victim and the defendant’s residence. Affidavit Exhibit 1 at section 3.

Despite the clear categories authorized above, the inventory return shows that, inter alia, luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation were seized. Inventory Exhibit 1. These items are not encompassed by the warrant nor has their seizure been authorized. Further, these items are not per se illegal or contraband.

Law and Argument: Virginia Search Warrant Law

II. Law and Argument: Virginia Search Warrant Law

Virginia search warrant law requires that search warrants may issue upon reasonable and probable cause. Va.Code §19.2-52. The following things may be seized upon specification in the warrant:

(1) weapons or other objects used in the commission of the crime;

(2) Articles or things the sale or possession of which is unlawlul;

(3) Stolen property or the fruits of any crime; and

(4) Any abject, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime...

Va.Code §19.2-53.

The affidavit supporting the search warrant must:

"... reasonably describ[e] the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense in relation to which such search is to be made and that the object, thing or person searched for constitutes evidence of the commission of such offense.”

Va Code §19.2-54. (Emphasis supplied)

The warrant must, inter alia, describe the property or person to be searched for and “recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committed or is committing a crime.” Va §19.2-56.

“The warrant shall be executed by the search of the place described... and, If property described in the warrant is found there, by the seizure of the property.” Va,Code §19.2-57.

Law and Argument: Pennsylvania Search Warrant Law

III. Law and Argument: Pennsylvania Search Warrant Law

A search warrant in Pennsylvania may be issued to search for and seize:

(1) Contraband, the fruits of a crime, or things otherwise criminally possesssed;

(2) Property that is or has been used as the means of committing a criminal offense; or

(3) Property that constitutes evidence of the commission of a criminal offense. Pa.R.Crim.Pro. 201.

Luzerne County has opted to require submission of search warrant applications to the District Attorney’s Office for approval prior to issuance. See Pa 202; Luzerne County Crim.LR 202. (Emphasis supplied).

“No search warrant shall issue but upon probable cause... “supported by affidavits and no evidence may be considered by the issuing authority”... outside of the affidavits.” Pa.R.Crim.Pro. 203(B).

Further, at a suppression hearing regarding the warrant”.. . no evidence shall be admissible to establish probable cause other than the affidavits.. . “Pa.R.Crim.P. 203(D).

“No search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.” Pa.R.Crim.P. 203(E). “Nighttime” is defined as 10 p.m. until 6:00 am. See Pa.R.Crim.P. 206(7). (Emphasis supplied).

The affidavit establishing the probable cause for the warrant must, inter alia,

...

(2) identify specifically the items or property to be searched for and
seized;

...

(5) specify or describe the crime which has been or is being committed;

(6) set forth specifically the facts and circumstances which form the basis for the affiant’s conclusion that there is probable cause to believe that the items or property identified are evidence or fruit of a crime, or are contraband, or are expected to be otherwise unlawfully possessed or subject to seizure, and that these items or property are or are expected to be located on the particular person or at the particular place described; and

(7) if a “nighttime” search is requested (i.e. 10 p.m. to 6 a.m.), state additional reasonable cause for seeking permission to search in nighttime.

Pa.R.Crim.Pro. 206.

In the instant case, the search warrant for the defendants’ residence at 1028 Stratem Court, Virginia Beach, VA was obtained without approval of an Assistant District Attorney for either Virginia or Pennsylvania. The affidavit indicates only that Joseph Kerekes is an associate of Harlow Cuadra and identifies only that the criminal enterprise in which Joseph Kerekes is allegedly involved is “an illegal escort service” Further, the execution occurred at 5:53 a.m as defined by Pennsylvania—without any statement of additional reasonable cause for a nighttime search as is required by Pennsylvania law. The seizure of evidence exceeded the scope of the warrant in that items were seized from the residence that were not contraband nor were they items specifically authorized for seizure by the warrant.

Here, the Court must determine whether Virginia or Pennsylvania law controls the issuance, authorization, execution, search and seizure pursuant to the warrant. It is defendant Kerekes’ contention that Pennsylvania law controls this situation. Pennsylvania warrant procedure is clearly different from Virginia warrant procedure However, neither Pennsylvania nor Virginia procedure and protocols were followed in this seizure. Therefore, the fruits should be suppressed.

Law and Argument: Pennsylvania Law Controls

IV. Law and Argument: Pennsylvania Law Controls

The law regarding search warrants in Virginia is substantially different in both requirements and execution than the law in Pennsylvania. Therefore, the Court must decide which law applies to the analysis of the warrant in the instant case. Contrary to the Commonwealth’s position, Pennsylvania law controls.

The defendants agree that the Commonwealth has articulated the appropriate standard in its brief regarding analysis of conflict of laws. This matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa.Super 111, 750 A 895 (2000) (holding that a conflict question between New York and Pennsylvania wiretap statutes involved substantive law.)

“In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome. Id. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez eta!, 552 Pa. 570, 576, 716 A 1221, 1224 (1998) (Emphasis supplied).

Therefore, this Court must determine which state, Virginia or Pennsylvania, has the most interest in the outcome and apply that state's law. This analysis compels the result that Pennsylvania law should apply.

The Commonwealth cites primarily to Sanchez, supra, and Commonwealth v. Bennett, 245 Pa.Super 457, 369 A.2d 493 (1976) as support for their position that Virginia law controls. The Commonwealth is wrong. The facts in the cases they cite are distinguishable from the facts in this case in determining which state has the most interest in the outcome. In addition to the cases cited by the Commonwealth, Larrison, supra, is instructive in analyzing the issue of conflict.

In Larrison, a New York resident tape recorded a phone conversation with a Pennsylvania resident which was later admitted into evidence in a custody trial against the Pennsylvania resident. Larrison, 750 A.2d at 897. In New York, a resident who receives a telephone call may tape record the conversation without violating New York’s wiretap law. ld. at 898. Such recording would be a violation of Pennsylvania’s wiretap law. ld.

The Larrison recording was made by a private individual in her own residence in New York using her own recording device, not at the behest of or supervised by another state’s law enforcement officers using a concealed electronic eavesdropping device. The purpose of the Larrison recording was not to seek evidence related to an anticipated homicide prosecution, as is the instant case. Pennsylvania was not involved in the recording. Pennsylvania only came upon the recording after it had already occurred.

These are core differences between the Larrison case and the instant case. In arriving at the conclusion that New York law applied in Larrison, the court stated that in that circumstance, Pennsylvania, “has no power to control the activities that occur within a sister state.” Larrison at 898.

In the instant case, Pennsylvania law enforcement, including but not limited to Corporal Hannon, served as informants who provided all information regarding the death of Bryan Kocis to the Virginia Beach Police which was used for the probable cause affidavit supporting the warrant. Warrant and Affidavit Exhibit 1 at section 6. Pennsylvania law enforcement solicited Virginia Beach Police Department to obtain and execute the warrant anticipating that prosecution would occur in Pennsylvania. No less than seven Pennsylvania law enforcement authorities traveled to Virginia the day the warrant was issued and the day before its execution to assist in obtaining the warrant. See Report Exhibit 2. Upon information and belief, those same seven Pennsylvania law enforcement were present for the execution of the search warrant. Eventually, the fruits of the warrant were used by Pennsylvania authorities to support the charges flied against the defendant in Pennsylvania. It is only because the defendant’s residence is in Virginia that the seizure occurred in that state.

Because Pennsylvania solicited and provided all information relative to obtaining the warrant and was present for the execution of the warrant and because the seizure supported a Pennsylvania prosecution, Pennsylvania has the greatest interest in the outcome.

The Sanchez case makes this distinction even more clear. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. Id. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania. Id. at 1224.

In reaching this conclusion, the Sanchez court reasoned:

No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff.

Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.

Id. at 1224, 1225, (Emphasis supplied).

An analysis of the cases in this context compels the result that Pennsylvania law should be applied to the instant case. If Virginia had initiated the search of its own volition, Virginia law without the involvement and presence of Pennsylvania authorities, Virginia law would apply. The involvement of Pennsylvania authorities from the planning stage of the warrant until its completion demonstrates Pennsylvania’s interest. Therefore, the conflict must be resolved in Pennsylvania’s favor.

Warrant Defects Under Pennsylvania Law

V. Warrant Detects Under Pennsylvania Law

The search warrant, affidavit and inventory at issue have several fatal defects when analyzed under Pennsylvania law.

Failure to Obtain District Attorney Approval Prior to issuance

Luzerne County has opted to require submission of search warrant applications to the District Attorney’s Office for approval prior to issuance. See Pa.R.Crim.Pro. 202; Luzerne County Crim.LR 202.

The warrant at issue in this case was not submItted to a District Attorney either in Virginia or Pennsylvania prior to its issuance. The warrant was prepared by a Virginia Beach police officer with the assistance of Pennsylvania State Police. No government attorney prepared, assisted in the preparation of or even reviewed this search warrant before it was presented or executed, although prosecution was expected to occur in Luzerne County, Pennsylvania.

The issuance of this warrant did not fall within the established standards of procedure within the county responsible for the prosecution.

Lack of Probable Cause as to Defendant Kerekes

Search warrants in Pennsylvania must be supported by an affidavit which “sets forth specifically the facts and circumstances which form the basis for the affiant’s conclusion that there is probable cause to believe that the items or property identified are evidence or fruit of a crime, or are contraband” Pa.R.Crim.Pro. 206(6). Pennsylvania has adopted the Gates totality of the circumstances test. In applying a “totality of the circumstances” analysis to a magistrate’s consideration of a warrant application, The Supreme Court has held that “ task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him... there is a fair probability that contraband or evidence of a particular crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,238, 103 S.Ct. 2317,76 L.Ed 527 (1983); See also Commonwealth v Gray, 503 A.2d 921 (Pa. 1985).

In Pennsylvania, “ determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four-corners of the affidavit.” Commonwealth v. Sharp, 453 Pa.Super. 349, 683 A.2d 1219, 1223 (1996).

The warrant indicates that the offense in relation to which the search is to be made is “Murder in violation of Virginia State Code 18.2-32.” See Warrant and Affidavit Exhibit 1 at section 1.

To support the seizure of evidence, alleged probable cause is outlined in section 4 of the warrant. The probable cause is outlined in six and one-half pages of the document. In those pages, two paragraphs mention “Joseph Kerekes” and the context is as a business associate of Harlow Cuadra in the operation of “an illegal escort service” and in the production of “gay pornography” and “modeling.” Affidavit Exhibit 1 at section 4.

No allegation in the affidavit shows that Joseph Kerekes is tied to the murder of Bryan Kocis, The five categories of items authorized for seizure by the warrant are: (1) actual computers and hardware, computer software and all information stored on computers or used to access information through computers; (2) blood, fiber, trace or other physical evidence; (3) knives or cutting instruments; (4) credit/debit cards, cash, financial data and receipts; and (5) all documents relating to the victim and the defendant’s residence, Affidavit Exhibit 1 at section 3. These items are alleged to relate to the homicide of Bryan Kocis, not to “illegal escorting.”

Other facts in the affidavit of probable cause establish that Kerekes’ co-defendant Harlow Cuadra sent e-mails to Bryan Kocis, that Bryan Kocis was expecting Harlow Cuadra to visit him on the evening of his murder because of e-mails sent from Harlow Cuadra, the e-mails from Harlow Cuadra may have originated from Harlow Cuadra’s residence, and that Harlow Cuadra stated to associates during a meeting in Las Vegas, “What if Bryan went to Canada?” in reference to getting rid of or killing him. See Affidavit Exhibit 1 at section 4.

Indeed, in the Commonwealth’s brief, when describing the probable cause supporting the warrant, the Commonwealth itself makes absolutely no reference to Joseph Kerekes. See Commonwealth’s Brief at p. 10, paragraph 1.

The seizure of evidence should therefore be precluded from use against Joseph Kerekes, as the affidavit does not support that Joseph Kerekes was involved in the illegal activity identified on the face of the warrant (murder) and only establishes through a bare allegation that he was involved in any illegal activity at all (illegal escorting) and there is no connection between that illegal activity and the items to be seized established in the warrant.

Siezure Exceeded the Authorized Scope of Warrant

VI. Seizure Exceeded the Authorized Scope of Warrant

It has long been established that a search made pursuant to a warrant may not go beyond the property described in the warrant and must be reasonably conducted to turn up the materials described. See Marron v. United States, 275 U.S. 192 (1927). However, if during the search the police legitimately come upon contraband other than that described in the warrant, they may properly seize it. See Harris v. United States, 331 U.S. 145 (1947); Commonwealth v. Colilni, 398 A.2d 1044 (PaSuper. 1979).

The search warrant authorizes seizure of the items enumerated in section 3 of the warrant. To summarize, the warrant authorizes seizure of the following five categories of items only: (1) actual computers and hardware, computer software and all information stored on computers or used to access information through computers; (2) blood, fiber, trace or other physical evidence; (3) knives or cutting instruments; (4) credit/debit cards, cash, financial data and receipts; and (5) all documents relating to the victim and the defendant’s residence. See Affidavit Exhibit I at section 3.

Despite the clear categories authorized above, the inventory return shows that, inter alia, luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation were seized. Inventory Exhibit 1. These items are not encompassed by the warrant nor has their seizure been authorized. Further, these items are not per se illegal or contraband.

Even though the seizure of these items was not authorized in the warrant, the Commonwealth may rely on the “plain view” exception to the warrant requirement if certain factors are met. Under the Fourth Amendment, police may seize an item without a warrant if it is plain view, its incriminatory character is immediately apparent, and the officer is lawfully in the place where the seizure occurs and has lawful right of access to that object. Horton v. California, 496 U.S. 128 (1990). In the instant case, the incriminatory character of luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation is not immediately apparent.

Therefore, the Commonwealth cannot even avail itself of an exception to the warrant requirement to justify the seizure of these items.

Nighttime Execution Without Statement of Additional Reasonable Cause

VII. Nighttime Execution Without Statement of Additional Reasonable Cause

Under Pa.R.Crim.Pro. 203(E), nighttime searches are prohibited by warrant unless the affidavit shows reasonable cause for a nighttime search. Commonwealth v. Baldwin, 384 A.2d 945 (PaSuper 1978). “Nighttime” is defined as the time period between 10:00 p.m. and 6:00 am. Pa.R.Crim.Pro. 206(7).

In the instant case, the search was conducted at 5:53 am., a time that Pennsylvania would consider “nighttime,” and as such, Pennsylvania requires that the affidavit contain facts which would support the reasonableness of such a search. The affidavit here is devoid of any facts which would support nighthme entry. See Affidavit Exhibit 1.

Because of the aforementioned defects, the issuance of the warrant, the search of the home and the seizure of these items was unreasonable and violative of the Fourth and Fourteenth Amendments of the United States Constitution, Article 1 Section 8 of the Pennsylvania State Constitution and violative of Pennsylvania statutory and case authority.

Any one of the previously mentioned defects would independently give rise to the relief of suppression of evidence, fruits, and argument regarding same, Taken in toto, it is clear that the issuance of the warrant, the search of the home and the seizure of evidence under this warrant did not even approach compliance with Pennsylvania’s warrant requirements. The fact that seven Pennsylvania law enforcement authorities familiar with Pennsylvania law were present during both the issuance and execution of the warrant and failed to require Virginia authorities to take the additional safeguards Pennsylvania would require is inexcusable, especially where a human being’s very life is at stake and the additional requirements were minimal.

Instead, the Commonwealth now asks this Court to remedy its failures in very basic and firmly rooted areas touching on fundamental rights. This Court, for the reasons stated above, should decide the issue under Pennsylvania law and suppress the evidence seized from the defendant’s home and further preclude any references to or argument regarding same during trial.

Warrant Defects Under Virginia Law

VIII. Warrant Defects Under Virginia Law

In the event this Court decides that Virginia law controls the analysis of the question presented, the evidence should still be suppressed because the issuance and execution of the warrant did not comply with Virginia law or federal law.

Lack of Probable Cause and Failure to Establish Nexus as to Defendant Kerekes

Virginia search warrant law requires that search warrants may issue upon reasonable and probable cause. Va.Code §19.2-52. Like Pennsylvania, Virginia applies the Gates totality of the circumstances test discussed infra when determining probable cause for a warrant. Cunningham v. Commonwealth, 49 Va.App. 605, 643 S.E. 2d 514 (2007). Therefore, analysis of this issue is the same under both Virginia and Pennsylvania law.

The seizure of evidence should therefore be precluded from use against Joseph Kerekes, as the affidavit does not support that Joseph Kerekes was involved in the illegal activity identified on the face of the warrant (murder) and only establishes through a bare allegation that he was involved in any illegal activity at all (illegal escorting) and there is no connection between that illegal activity and the items to be seized established in the warrant. Therefore, there is not a sufficient “nexus” between the items sought and defendant Kerekes or the death of Bryan Kocis. See Adams v. Commonwealth, 275 Va. 260, 657 SE. 2d 87 (2008) (Lack of probable cause because of failure to establish nexus where warrant specified details of a shooting but did not specify the residence to be searched.)

Unlike Pennsylvania, Virginia applies the good faith exception to the exclusionary rule set forth in United States V. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 LEd. 2d 677 (1984), which limits the application of the exclusionary rule “so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” The good faith exception is not a per se admissibility rule. It requires analysis of whether “the officer’s reliance on the magistrate’s probable cause determination and the technical sufficiency of the warrant” was objectively reasonable. All of the circumstances may be considered when deciding whether a reasonable officer “would have known that the search was illegal despite the magistrate’s authorization.” Leon at 922 and n. 23.

In the instant case, defendant Kerekes submits that no reasonable officer would have concluded that a nexus was established between the crime subject of the warrant (murder) and Joseph Kerekes by the mere reference included in the affidavit alleging that Joseph Kerekes is an associate of Harlow Cuadra in the operation of an ‘illegal escorting” business.

Virginia follows federal law which permits a court to look beyond the four corners of the warrant affidavit to the totality of the circumstances surrounding the issuance and execution of the warrant in assessing objective reasonableness and the good faith exception. Specifically, Virginia has adopted the Eighth Circuit’s test announced in United States v. Curry, 911 F.2d 72, 78 ( Cir. 1990) which states that those circumstances include “the knowledge that an officer in the searching officer’s position would have possessed.” Adams, 275 Va. 260 at 273 citing Curry 911 F.2d at 78. Here, the officer applying for the warrant was the same officer who conducted the search. Defendant submits that if the officer possessed greater knowledge of Joseph Kerekes’ involvement in the offense, more information regarding same would be contained in the warrant.

Siezure Exceeded the Authorized Scope of Warrant (II)

IX. Seizure Exceeded tbe Authorized Scope of Warrant (II)

It is clear that during the search of defendant’s residence, officers seized items not specifically authorized by the warrant in violation of Va §19.2-57. Specifically, the warrant authorized seizure of five categories of items: (1) actual computers and hardware, computer software and all information stored on computers or used to access information through computers; (2) blood, fiber, trace or other physical evidence; (3) knives or cutting instruments; (4) credit/debit cards, cash, financial data and receipts; and (5) all documents relating to the victim and the defendant’s residence. Affidavit Exhibit I at section 3. During the search, inter alia, luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation were seized. See Inventory Exhibit 1.

Virginia analysis of this issue complies with federal law. “The permissible scope of a search is limited by the terms of the warrant pursuant to which it is conducted.” Dotson v. Commonwealth, 47 Va 237, 243, 623 S.E.2d 414, 417 citing Kearney v. Commonwealth, 4 Va.App. 202, 204, 355 S.E.2d 897, 898 (1987). However, “a search warrant. . is not invalid merely because officers seize items not named in the warrant,” Id. citing Cherry v. Commonwealth, 21 Va.App. 132, 138-39, 462 S.E.2d 574, 577 (1995).

Under Horton and Hicks, supra, police may seize an item without a warrant if it is plain view, its incriminatory character is immediately apparent, and the officer is lawfully in the place where the seizure occurs and has lawful right of access to that object. In the instant case, the incriminatory character of luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs, and insulation is not immediately apparent.

If the officers wanted to seize these items, one officer should have left the scene and applied for an additional warrant.

Under Virginia law, the affidavit lacked specific probable cause to link the crime alleged with the defendant, Joseph Kerekes. The good faith exception should not apply because a reasonable officer should have known this by even a cursory reading of the affidavit. Additionally, the officers exceeded the scope of the warrant during execution by the seizure of items not encompassed by the warrant and not immediately apparent as contraband. Therefore, even if this Court engages in analyzing the warrant, search and seizure under Virginia law suppression
of the evidence seized from the defendants’ home should be granted and the Court should further preclude any references to or argument regarding same during trial.

The Commonwealth relies on Dotson v. Commonwealth, supra, for two and one-half pages of its brief to support its position that the seizure of evidence was appropriate in this case, Dotson is inapposite. In Dotson, the warrant authorized search for ‘illegal drugs, paraphernalia... monies... records, or other information pertinent to the possession, distribution or manufacturing of marijuana or any other drug.” Datson, 47 Va 237, 243, fn. 3. Officers seized a safe they reasonably believed contained items specified in the warrant. Id. at 244. The court upheld the seizure as within the scope of the warrant. id. at 247.

In the instant case, the seized items at issue do not even approach the items sought by the warrant. Therefore, a plain view analysis is more appropriate.

Conclusion

X. Conclusion

For the reasons stated more fully above, Pennsylvania law controls analysis of the search warrant of the defendant’s residence because Pennsylvania law enforcement was involved in the issuance and execution of the warrant and Pennsylvania has the greater interest in the outcome, Pennsylvania warrant procedure was not followed and therefore the evidence should be suppressed. However, if this Court ultimately concludes that Virginia law controls, suppression is still warranted because Virginia procedure was not followed The defendants request preclusion of any evidence, references to or argument regarding all fruits of the search warrant.

Respectfully Submitted,

Shelly L. Centini, Esq.
Attorney for Defendant Kerekes

John Pike, Esq.
Attorney for Defendant Kerekes

Steven Menn, Esq.
Attorney for Defendant Cuadra

Michael B. Senape, Esq.
Attorney for Defendant Cuadra

Exhibits

Sealing Order:


Search Warrant:

Affidavit for Search Warrant (Page 1)

Affidavit for Search Warrant (Page 2)

List of Things to Search For:

Search Inventory:

Homicide Investigation Action Report:

Harlow Cuadra & Joseph Kerekes: This Week

While we're still a little over a month away from Harlow Cuadra and Joseph Kerekes' trial to commence (jury selection at least)... it looks like we'll have a bit of news to deal with well before-hand:

Here's what I've got planned to post this week:

1. Copies of Harlow and Joe's joint reply brief to the Commonwealth's brief in oppisition to motion to suppress search warrant/evidence taken in Virginia Beach.

2. Copies of Harlow and Joe's joint reply brief in oppisition motion to suppress 4-2007 interceptions at Black's Beach and Crab Catchers.

3. Copies of Joe's reply brief to the Commonwealth's brief in oppisition to motion to suppress statements made after his arrest.

4. Wednesday's Suppression Hearing.

... and I'm sure I'll have some more. :)

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus

COMMONWEALTH'S BRIEF IN OPPOSITION TO DEFENDANT
HARLOW RAYMOND CUADRA'S PETITION FOR WRIT OF HABEAS CORPUS

This Memorandum of Law is written in response to the defendant Harlow Cuadra's Petition for Writ of Habeas Corpus that was filed by defense counsel on May 16, 2008.

I. Factual History
II. Charges Against the Defendant
III. Witness Testimony at the Preliminary Hearing
IV. Habeas/Preliminary Hearing in General
V. Statements Admissible to Show Existence of Conspiratorial Relationship and Criminal Conspiracy
VI. Co-Conspirator Exception
VII. Accomplice Liability
VIII. Defense Arguement that a 3rd Party Committed the Crimes
IX. Wiretap Related to Email
X. Corpus Delecti
XI. Criminal Conspiracy
XII. Commission of Robbery After the Victim is Deceased
XIII. Chain of Custody
XIV. Conclusion

This response was filed by the DA's office on July 7, 2008, but with so much going on, it took me a while to get it posted. I felt that other information received (Crab Catcher Transcripts, etc... ) simply had a higher priority. My apologies for the delay.

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus (I. Factual History)

I. FACTUAL HISTORY

The Defendants in the above-referenced matter are adult individuals currently incarcerated in the Luzerne County Correctional Facility and the Lackawanna County Correctional Facility Defendant Joseph Kerekes is currently lodged in the Luzerne County Correctional Facility. Defendant Harlow Cuadra is currently lodged in the Lackawanna County Correctional Facility. On May 15, 2007, the Defendants were arrested and charged with multiple offenses arising from a criminal homicide which occurred on January 24, 2007 at 60 Midland Drive, Dallas Twp, Luzerne County, Pennsylvania. The victim of the homicide was Bryan Kocis of 60 Midland Drive, Dallas Township, Penna. A preliminary hearing was held on August 20 and 23, 2007 before Honorable James Tupper.

Subsequent to their arrest and during the preliminary hearing, both Defendants were represented by private counsel, Defendant Joseph Kerekes was represented by Frank Nocito, Esq. and Joseph Nocito, Esq. Defendant Harlow Cuadra was represented by William Ruzzo, Esq. and Thomas Cometa, Esq.

At the conclusion of the preliminary hearing, all criminal charges against both Defendants, Joseph Kerekes and Harlow Cuadra, were bound over to the Court of Common Pleas except for the Burglary charges. Those charges were dismissed. Each of the Defendants was arraigned on October 4, 2007 and entered a plea of Not Guilty to the charges of: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson. In addition to the foregoing, Defendant, Harlow R. Cuadra, was charged with Criminal Use of a Communication Facility and that charge was bound over to the Court of Common Pleas. The criminal cases for each defendant were consolidated with each other.

The Commonwealth filed a Notice of Aggravating Circumstances for both defendants on October 1, 2007 indicating its intention to seek the death penalty in the instant matter, Thereafter, the attorneys for each defendant withdrew from their representation of each defendant. At the time of the formal arraignment, Harlow Raymond Cuadra could no longer afford private counsel. The Court then appointed the Luzerne County Public Defender’s Office to represent Harlow Raymond Cuadra. At the time of the formal arraignment, Joseph Manuel Kerekes also could no longer afford private counsel. The Court appointed Luzerne County Conflict Counsel to represent Joseph Manuel Kerekes. Following a pre-trial motion by the Commonwealth, the Public Defender’s Office was removed as defendant Cuadra’s counsel. Cuadra was then assigned court appointed conflict counsel, Attorneys Paul Galante, Michael Senape and Steven
Menn,

Subsequent to this Harlow Cuadra retained Attorney Demetrius Fannick to represent him and the court appointed conflict counsel filed a motion to be removed from the case. The Commonwealth filed a Motion to Disqualify Attorney Demetrius Fannick from the ease due to a conflict of interest issue. A hearing was held and on March 19, 2007, the Court ruled that Attorney Fannick was disqualified from representing Harlow Cuadra. To this date, Harlow Cuadra is represented by court appointed counsel,
Attorneys Senape, Galante, and Menn.

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus (II. Charges Against the Defendant)

II. CHARGES AGAINST THE DEFENDANT

The defendant Harlow Cuadra, as well as his co-defendant Joseph Kerekes, was charged with the following offenses: 18 Pa.C,SA. §2501(a), Criminal-Homicide; 18 Pa,C.S,A §903, Criminal Conspiracy to Commit Homicide; 18 Pa §3301(a) (1) (i), Arson — Danger of Death of Bodily Injury, a felony of the first degree; 18 Pa.C.S,A. §3301(a) (1) (ii), Arson — Inhabited Building or Structure, a felony of the first degree; 18 Pa.CS.A. §3701(a)(1)(i), Robbery — Inflict Serious Bodily Injury, a felony of the first degree; 18 Pa, C (a), Theft by Unlawful Taking — Movable Property, a felony of the third degree; 18 Pa.C.S.A. §4910(1), Tamper With/Fabricate Physical Evidence, a misdemeanor of the second degree; 18 Pa §5510 Abuse of Corpse, a misdemeanor of the second degree; 18 Pa §903, Criminal Conspiracy to Commit Robbery under §3701(a)(I)(i), a felony of the first degree; 18 Pa.C,S.A. §903, Criminal Conspiracy to Commit Tampering With/Fabricating Physical Evidence under §4910(1), a misdemeanor of the second degree and; §903, Criminal Conspiracy to Commit Arson and Related Offenses under §3301(a)(1)(i), a felony of the first degree, and Criminal Use of a Communication Facility, 18 Pa. C.S.A. 7512, a felony of the third degree.

A. ELEMENTS OF THE CHARGED OFFENSES

The elements of 18 Pa.C.S.A. §2501(a), Criminal Homicide, are as follows:

(a) A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

Section 2502 (a) of Title 18, provides as follows:

(a) Murder of the First Degree — Offense Defined, — A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

A first — degree murder begins when a defendant possesses the specific intent to ill and takes some affirmative steps that cause the victim’s death and the defendant’s actions eventually result in the victim’s death. “The period of reflection necessary to constitute premeditation may be very brief: in fact the design to kill can be formulated in a fraction of a second. Premeditation and deliberation exist whenever the assailant possesses the conscious purpose to bring about death. See Commonwealth v. Drumheller 808 A.2d 893 (Pa. 2002)(quoting Commonwealth v. Fisher 769 A.2d 1116 (Pa. 2001)),

Section 2502 (b) of Title 18 provides as follows:

(b) Murder of the Second Degree — Offense Defined. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as principal or an accomplice in the perpetration of a felony. 18 Pa. 2502 (b). ...“ The malice or intent to commit the underlying crime is imputed to the killing to make it second-degree murder, regardless of whether the defendant actually intended to physically harm the victim..” See Commonwealth v. Lambert 795 A 1010 (Pa. Super. 2002)(citing Commonwealth v. Mikell 729 A.2d 566, 569 (Pa, 1999)).

18 Pa.C,S.A. §3301(a)(1)(ii) Arson and Related Offenses, relating to an inhabited buildings or structures, and §3301(a)(i), relating to endangering persons the elements of Arson are as follows:

A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if:

(a)(1)(i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting fire; or

(a)(1)(ii) A person commits the act with the purpose of destroying or damaging inhabited property or occupied structure of another. a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if:

The elements of the Crime of Robbery with the infliction of serious bodily injury under §3701(a)(1)(i) are as follows:

(a)(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another.

The elements of the crime of Theft by Unlawful Taking, 18 Pa.C.S.A. §3921(a), are as follows:

(a) Movable Property.- A person is guilty of theft if her unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

The elements of the crime of Tampering With/Fabricating Physical Evidence, codified at 18 Pa.C.S.A. §4910(1), are as follows:

A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:

(1) alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation.

The elements of the crime of Abuse of Corpse, 18 PLCS.A. §5510, are as follows:

Except as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.

The defendant is charged with four counts of conspiracy, with co-defendant Cuadra, related to the crimes of criminal homicide, arson, robbery and tampering with evidence. The elements of 18 PLC,S.A. §903, Conspiracy, are as follows:

(a) Definition of Conspiracy.- A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

In addition, Harlow Cuadra was charred with Section 7512(a) of the Crimes Code states that “ person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title.” 18 Pa,C.S. . 7512(a)

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus (III. Witness Testimony at the Preliminary Hearing)

III. WITNESS TESTIMONY AT THE PRELIMINARY HEARING

The following witnesses testified as to the aforementioned offenses at the preliminary hearing against the defendants: Luzerne County Deputy Coroner William Lisman, Luzerne County Coroner Dr. John Consalvo, Justin Hensley, Thakor Patel, James Gilbert, Amy Zamerowski, Dallas Township Fire Department Chief Harry Vivian, Pennsylvania State Police Fire Marshall Ronald Jarocha, Thomas Baker, Michael Kocis, Robert Wagner, Grant Roy, Pennsylvania State Police Trooper Brian Murphy, and Cpl. Leo Hannon, The witnesses’ testimony satisfied the elements of the crimes charged as follows:

Deputy Coroner William Lisman testified that he received a telephone call from the 911 Communication Center on the evening in question to respond to Midland Drive in Dallas, PA. See Preliminary 1-Tearing Transcript, Volume I, page 6. lines 21-24 He further testified that he was asked to examine a human body that was badly burned and which was later identified as the deceased Bryan Kocis. See Preliminary Hearing Transcript. Volume I page 7, lines 13-20 Mr. Lisman further described a frothy, bubbly area of fluid common to fire victims due to super heating of the fluid in the body, however, in Mr. Kocis’ case, the frothy, bubbly fluid was occurring around his neck, See Prelim Hrg. Trans.. Vol. I., p 8 Mr. Lisman also testified, at Vol. I. pg. 13-17 that upon a closer view of the deceased, he viewed what he believed to be stab wounds on the victim’s chest and a laceration to the victim’s neck.

Mr. Lisman further testified that the body was badly burned and it was not readily identifiable. He stated that at the autopsy on January 25, 2007, the body was identified through the use of dental records obtained by Kocis’ family members. See Prelim Hrg. Trans., Vol. 1. pg. 18-19.

Dr. John Consalvo testified that he attended the autopsy of the victim which was performed by Dr. Mary Pascucci. Prelim Hrg. Trans., Vol. 1.. pg. 32 He stated that “the cause of death was a near decapitating wound to the neck, And the manner of death was homicide.” ld. Dr. Consalvo also described the condition of the victim’s body. He described second degree burns on the victim’s back, as well as, third degree burning on his legs; his hands and arm were burned and his fingertips were completely burned. Fragments of cloth were burned to the skin. Prelim Hrg. Trans. I.. pg. 37-38 He further indicated that the victim’s genitals were charred and that there was a stab wound to the left side of the groin area. Prelim Hrg. Trans.., Vol. L, pg. 38 Eighty percent (80%) of Mr. Kocis’ body sustained 3 degree burns, at pg. 46.

Dr. Consalvo also testified that the victim’s windpipe was completely severed as was his esophagus. Furthermore, the victim’s carotid artery, one of the main arteries from the heart to the brain, was severed. This was determined to be the probable cause of death. Prelim Hrg. Trans., Vol. I., pg. 39-40 There was also testimony as to several stab wounds to the victim’s sternum. Prelim Hrg. Trans.. Vol. 1., pg. 41-44 It was also determined that at the time the fire started the victim was not alive. Prelim Hrg. Trans., Vol. I.. pg. 56 Twenty-nine (29) post-mortem stab wounds were also present. at pg 43-44 and pg. 49. With regards to the Abuse of Corpse and Tampering with Physical Evidence charges, the body of Bryan Kocis was partially destroyed. j at pg. 46, 60.

At the preliminary hearing, Justin Hensley testified to his personal knowledge of the Defendants’ Harlow Cuadra and Joseph Kerekes business endeavors, namely their escort service and pornographic video production and website. Prelim. Hrg. Trans.. Vol. 1.. p 63 Hensley also testified that both Defendants made statements in his presence that Cobra Video, which was owned and operated by the victim Bryan Kocis, “was one of the big competitions because of its success through the Internet, especially for the gay pornographic world.. .yes, it was a big rival, you know. It was, in their way, of becoming bigger.” Prelim. Hrg. Trans., Vol. I.. g. 65 Furthermore, Hensley testified that he had heard about Sean Lockhart, a.k.a. Brent Corrigan, from the Defendants in January of 2007. He stated that “[the Defendants] wanted [Lockhart] to work for them because that would definitely help boost profit for the company if they had a star like that working under them.” Prelim. Hrg. Trans., Vol. 1., pg. 66-67 “They wanted to try and recruit him to their side, to the Boybatter name so it could help, you know, with the business”, Prelim. Hrg. Trans., Vol. 1., pg. 68 and in terms of money, they were looking to make “as much as possible.” Prelim. Hrg. Trans.. Vol. I., pg. 77 However, “Mr. Lockhart. , ,had a contract through Cobra, so the only thing standing in their way was Mr. Kocis”, Prelim. Hrg. Trans.. Vol. 1., pg. 75 because “nobody would, in that kind of industry with that money and everything, especially if he was under contract. They just would’t let him go like that to work with somebody else,” Prelim. Hrg. Trans., Vol. I.. pg. 87 During his entire testimony, Justin Hensley specifically identified both defendants Harlow Cuadra and Joseph Kerekes as acting together in their business.

Justin Hensley also testified to the Defendants’ extravagant tastes in, among other things, watches. More specifically, Hensley stated that “they had a nice collection of really high end watches as in Rolex, Omega.” Prelim. Hrg. Trans., Vol. I., pg. 71 The relevance of this is that Bryan Kocis’ Rolex watch, which further testimony will show he rarely took off his wrist, was reportedly missing after the murder. Finally, Hensley testified that the Defendants were acting differently after the death of Kocis and it seemed like Harlow Cuadra was acting “kind of like sketchy, like he was trying to push away from answering questions” regarding the Defendants’ involvement in the homicide. Prelim. FIrg. Trans., Vol. L pg. 99 . Hensley’s testimony was offered to show that one of the central objectives of the conspiracy was to secure the services and talent of Sean Lockhart aka Brent Corrigan. which the Defendants later tried to recruit in April 2007 when they traveled to San Diego. California

Thakor Pate1 testified that he is thc owner/manager of the Fox Ridge Inn in Plains Township. He stated that on January 23, 2007, Joe Kerekes checked-in for two nights and the room was registered for two people Kerekes was required to show photo identification at the time of check-in and registered that the vehicle he arrived in was gray in color. Kerekes, on the check-in slip, noted that he was from Virginia and originally started to provide an address of “1028 Stratem Court” before crossing it out and giving a different address. Finally, Mr. Patel noted that the hotel does not have Internet access and that if someone wanted to access the Internet, they would have to use their own wireless Internet. Prelim. Hrg. Trans., Vol. 1., pg. 112-18 Mr. Patel’s testimony provides verification that the Defendants were in Pennsylvania at the time of the murder and were checked into Patel’s motel by Joseph Kerekes.

Next, James Gilbert testified that he resides on Midland Drive in Dallas and was a neighbor of Bryan Kocis. He stated that he walked his dog on Midland Drive, including past the Kocis home, between approximately 7:35 to 7:50 p.m. on January 24, 2007. Prelim. Hrg. Trans., Vol. I., pg. 130-31 He further stated that at that time, he noticed a silver SUV in Kocis’ driveway up towards the garage. He found this somewhat peculiar because vehicles didn’t usually park in the driveway of the Kocis home; they typically parked in a spot in front of the house. Prelim. Hrg. Trans., Vol. 1., pg. 132 Gilbert was then shown Exhibit No. 12 which was a photo of a silver Nissan XTerra. The witness positively identified Exhibit No. 12 as the make and type of vehicle that he had seen on the evening of Wednesday, January 24, 2007 in the Kocis driveway. Prelim. Hrg. Trans., Vol. I., pg. 134 Gilbert recalled seeing flames coming from the Kocis residence at approximately 8:15-8:30 p.m. that evening. Id. at 135

Next, Amy Zamerowski testified that on the evening of January 24, 2007, she was going to pick up her friend Amy Withers at 64 Midland Drive, Dallas, right next door to the Kocis residence. She recalls that she turned onto Midland Drive at precisely 8:26 p.m. When she pulled into the Withers’ driveway, there was a light colored SUV backing out of the Kocis driveway, Ms. Zamerowski was shown exhibits 13 through 25 which were photos taken by the Pennsylvania State Police of a silver Nissan XTerra. She testified that she was previously shown these photos and informed the State Police that the Nissan XTerra could have been the vehicle she had seen backing out of the Kocis driveway on the evening in question. Finally, Ms. Zamerowski testified that after seeing the vehicle leaving the Kocis driveway, she entered the Withers residence, Approximately ten (10) minutes later, someone knocked at the door warning them to get out of the house because there was a fire next door at the Kocis residence. Prelim. I-ha. Trans., Vol. I pg. 145-49.

During the investigation, the PA State Police discovered that the Defendants rented a silver Nissan XTerra SUV from Enterprise Rental Car in Virginia Beach from just before to just after the homicide. This is the same SUV identified by James Gilbert and Amy Zamerowski. This was testified to by Corporal Leo Hannon on day 2 of the preliminary hearing. Prelim. Hrg. Trans., Vol. IL. pg. 162-65.

Next, Dallas Twp. Fire Chief Harry Vivian testified that a fire alarm came into the department for the Kocis home at 8:35 p.m. on January 24, 2007. Prelim, Bra. Trans., Vol. L, pg. 162 It took the fire department approximately 20 minutes to one half hour to suppress the fire and there was heavy fire damage to the front porch and the front of the house, namely the living room. It was in the living room that the body of Bryan Kocis was found. ld. at 167-68. Furthermore, Chief Vivian testified that when he went into the house with the State Police Fire Marshall, they found two smoke detectors which were removed from their mounts, the first floor smoke detector was placed on a table near the wall and the upstairs smoke detector was lying on the bathroom floor off the main hallway. ld. at pg. 170-71. The responding firefighters were endangered. id. at pg. 171-72 and 191-92. This evidence was offered on the Arson for danger of death or bodily injury to other persons.

Trooper Ron Jarocha, Pennsylvania State Police Deputy Fire Marshall, then took the stand, He testified that, based on his knowledge, training and experience, it was his opinion that the fire was an arson, He believed that “an open flame was used to ignite combustible materials which were placed behind the love seat.” Prelim. Hrg. Trans., Vol. I., pg. 221 and 227 He opined that in the area of the love seat, “you could see a burn pattern on the floor, and the charring on the back of the [seat]. If the fire started elsewhere in the room, this would be a protected area, and no reason for the fire to have burned underneath that area.” ld. at 215. He also noted that while removing items from the area of the love seat, the State Police “found remnants of cushioning. . .the foam which is inside the seats. [ also found remnants of like a throw pillow. A small pillow that had like tassels on it. That was actually attached to the back of the house somewhere [ the loveseat]. We also found signs of paper products, like cardboard paper. There were numerous, numerous combustible items being in the [ area].” ld. at 220 He further testified in regards to the origin of fire that he “found no causes for this fire to occur between the couch — directly behind the love seat. There was nothing there to accidentally cause this fire.” ld. at 227 He also testified, at pages 22-26, to finding the smoke detectors removed and placed in other locations, Trooper Jarocha’s testimony confirms without any doubt that the fire was intentionally set.

Michael Kocis was the victim’s father and the executor of the victim’s estate. He testified that his son was a quiet, private person who kept to himself. It was the normal practice for the family to call ahead before visiting the victim; they did not come to the victim’s house unannounced. Prelim. Hrg. Trans., Vol. I pg. 271 He also testified that there were several items of personal property that were missing from Bryan Kocis’ home from the incident of January 24, 2007, namely two high-end expensive camcorders, computer towers, a Rolex watch which the younger Kocis never took off, as well as, business records such as 2257 forms. ld. at 270 These items were reported missing to Thomas Baker, Nationwide Insurance Claims Representative who testified that the replacement value of the fire destroyed home was $208,254.00 and the total personal property loss due to the fire, as well as, items reported missing was $216,000.00. ld. at 262.

Michael Kocis was also going to be questioned relative to the Abuse of Corpse charge, however, there was a stipulation by all defense counsel that an abuse of corpse occurred subject to the caveat that Cuadra and Kerekes were still preserving their right to argue that they did not commit the abuse of corpse crime in question.

The final witness to testify on day one of the Defendants’ preliminary hearing was Robert Wagner, who was one of the victim’s best friends. Robert Wagner described several of the items the victim used for his business including laptop computers, computer towers, and 2257 forms that were necessary in the pornography business and the locations where they were kept. Prelim. Hrg. Trans.. Vol. I., pg. 280-81 Mr. Wagner also described two camcorders owned by the victim which he positively identified in a photo marked as exhibit 45, These are items that Michael Kocis had previously identified as being missing from his son’s home after the incident and were included in the insurance claim submitted to Nationwide Insurance. Wagner also described Bryan Kocis’ Rolex watch that he wore all the time, as well as, a flat screen TV that the victim had just purchased at Christmastime. ld. at 280 and 289 The Rolex watch was missing after January 24, 2007 and the TV was destroyed in the fire. Robert Wagner testified that he had seen all of these items in the victim’s residence as recently as Sunday January 21, 2007. ld. at 279

Robert Wagner also testified that Bryan Kocis was “an intensively private person” and he did not have an open-door policy to visitors; advanced notice was required. Prelim. Hrg. Trans., Vol. I., p 292 Furthermore, he testified that the victim would not let anyone into his residence unless the visitor provided advance notice.

Finally, Robert Wagner testified that Bryan Kocis planned on meeting a new model on Wednesday January 24, 2007 between 7 and 8 p.m. Kocis informed Wagner of this via email and attached photos of the new model. The photos were attached to a file named “Danny” and Wagner testified that he recognized the photos when shown to him again. He recognized the person in the photos emailed to him by the victim as Harlow Cuadra and made an in-court identification of the Defendant. Prelim. Hrg. Trans.. Vol. I.. pg. 285-89 The victim was planning on meeting Cuadra on the evening of his death under the premise that Cuadra was “Danny” a prospective new model.

In Corn, v. Wilson 148 A.2d 234, 394 Pa. 588 (Pa., 1959), the court wrote,

“The basis for the admissibility of any such testimony was well stated Cockcroft v. Metropolitan Life Insurance Company 133 Pa.Super. 598, 600, 601, 3 A.2d 184, 185 (Pa.Super): ‘The proposition has been accepted in this state, that extra-judicial declarations made by a person who cannot be called as a witness, and relied upon solely to show an existing intention or state of mind of the declarant, are admissible in evidence as an exception to the rule of hearsay, provided such declarations appear to have been made in a natural manner, not under circumstances of suspicion, and that they are material and relevant to the issue involved.’

Mrs. Walker’s testimony was clearly admissible. As the late Chief Justice Moschzisker said Commonwealth V. Marshall 287 Pa. 512, 522, 523, 135 A. 301, 304: ‘Intention, viewed as a state of mind, is a fact, and the commonest way for such a fact to evince itself is through spoken or written declarations. It is therefore because of the impossibility, in many cases, of proving intention apart from personal declarations, that they are admitted, The true basis of their admission, then, is necessity, because of which an exception to the hearsay rule is recognized, rather than that they are part of the res gestae. Ickes v. Ickes, 237 Pa. 582, 593, 594, [ A. 885, 44 L.R.A., N.S., 1118]; Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, 24 L.R.A. 235; Mutual Life Ins. Co. [ New York] V. Hillmon, 145 U.s. 285, 295, 12 S.Ct. 909, 36 LEd. 706; State v. Hayward, 62 Mirin. 474, 65 N.W. 63, 70; Wigmore, supra, § 1725, 1726. On this basis it is immaterial whether or not the declaration accompanied and was part of a relevant act. State v. Flayward, supra; Wigmore, supra.

We no not mean to say that evidence of the kind here in question is admissible under all circumstances. Ordinarily, it should not stand alone; it ought to be accompanied by other, not inconsistent, evidence, and to the trial judge must be left the discretion of rejecting it in proper cases.

See Commonwealth v. Trefethen supra, at page 184, ; Wigmore, supra. Under the circumstances of the present case, no error was committed by admitting the testimony here in controversy.

On day two of the Defendants’ preliminary hearing, August 23, 2007, the first witness to testify on behalf of the Commonwealth was Grant Roy. Grant Roy, an adult film producer, testified concerning conversations that occurred on Saturday, April 28, 2007 on Blacks Beach, San Diego, California. See Prelim. Hr’g. Trans. Vol. II pg. 5-6, 46. Grant Roy testified in depth about his interaction with the Defendants on Saturday April 28, 2007 at Black’s Beach, Torrey Pines, California. Mr. Roy described that there were four participants to the nudist beach conversations, ld. at pg. 8-9; ld. at pg 26, lines 21-22. Mr. Roy testified that Joseph Kerekes was to his immediate left and was within earshot, ld. at pg 8-9. Mr. Roy also testified that Mr. Kerekes participated in the conversations. at pg 9. Mr. Roy further testified that Mr. Cuadra and Mr. Kerekes concurred with each other statements throughout the conversations. Id. at pg 19. He testified that at no time did Mr. Kerekes correct any of Mr. Cuadra’s statements, at pg. 21-22. At no time did Mr. Cuadra correct any of Mr. Kerekes’ statements. ld. at pg. 22.

At the preliminary hearing, Grant Roy testified that Harlow Cuadra described that he was inside the Kocis home on the night of the murder, Wednesday, January 24, 2007. Prelim. Hrg. Tran Vol. IL, g. 6 Cuadra had admitted that he was at the victim’s home on the night of the murder “under the guidance or posed to be a model for Bryan Kocis” and prior to Cuadra’s arrival at the home, “he and Kerekes had done recon on the house.” ld. at pg. 7-8 Defendant Cuadra stated that when he arrived, the victim, Bryan Kocis, was involved in various phone conversations with three individuals Sean Macias, Lee Bergeron and an unknown, female. Prelim. Hrg. Trans., Vol. IL Page 6 - 7

Grant Roy further testified that Mr. Cuadra stated that he and Mr. Kerekes had done reconnaissance on the victim’s home prior to Mr. Cuadra’s arrival. See Prelim. Hrg. Trans. Vol. II pg. 8. Cuadra described that Kocis’ “front door had two panes of glass that were in the upper portion of the front door, the very upper portion of the front door, And they also made the observation [ there was no peephole in the front door so the only way Bryan could see who was at the front door was to actually open the front door.” Cuadra also described the victim’s 65-inch plasma Sony TV and twenty thousand dollar sound system, as well as, “an upstairs bedroom,. .1 think it was a refinished or finished attic with a concave ceiling, and a twin or a small full-size bed.” Id. at 9-12

Defendant Cuadra also stated the victim told him he lust received the Plasma TV, by just purchasing it or receiving it a couple of days prior and that he wasn’t sure how to operate the equipment. Prelim. Hrg. Trans., Vol. II., pg. 10.

Cuadra described how the homicide occurred in calculating detail, First, defendant Cuadra told Grant Roy that he controlled the pouring of alcohol on the bottle of wine that he and the victim were sharing so that the victim drank a majority of the bottle. “He said the doorbell had rang, and at that time Bryan got up, stumbled to the door, and that was it. He said it went quick and [ victim] never saw it coming.” Prelim. Hrg, Trans.. Vol. II pg. 11 Specifically, the victim did not fight back, because the victim “never saw it coming”. Prelim, Hrg. Trans., Vol IL pg. 11

Mr. Roy testified that Mr. Cuadra related that there was a point just prior to the murder that he was claiming to be. It was at that time when the doorbell rang and it got crazy. Id. at pg 16. Mr. Cuadra related that once the doorbell rang, "that's when his dude arrived... and it was over." ld. at pg. 16.

Grant Roy, testified that defendant Cuadra told him he felt sick after the homicide, but he felt like he had gotten even, furthermore, the homicide made him feel good. Prelim. Hrg. Trans., Vol II, pages 11. Roy further testified that the motive behind the homicide was money. "It's all about making a buck." ld. at 12. In addition, Cuadra also dedcribed the upstairs bedrooms that he said Sean Lockhart stayed in the previous summer. The bedrooms were located in refinished or finished attic with a concave ceiling and twin or small full size bed. Prelim. Hrg. Trans., Vol. II pg. 12.

Grant Roy also testified that Cuadra and Kerekes admitted that after themurder, they took three computer towers, two laptops, 2257 business forms, other Cobra Video business records, master tapes and DVD's, business equipment and a Rolex watch with the initial BCK on the back of it from the Kocis residence, Prelim. Hrg, Trans.. Vol. II., pg. 12-13. Cuadra said that there came a time when he and Kerekes incinerated the stolen property because “it was too hot.” Id. at 13 Cuadra admitted thathe and Kerekes viewed the master tapes they had taken from Kocis at their Virginia Beach home. Cuadra was going to give a tape to Sean Lockhart as a gift but did not want to connect himself to the murder, so they incinerated the tapes, as well as, the 2257’s and the Rolex watch. ld. at 14-15 Mr. Roy testified that Mr. Cuadra further related, using the plural “they”, that after the homicide, “they took three computer towers, two laptops from the residence; they took 2257 records for allthe records for COBRA videos business operation; they took the mastertapes and master DVDs” See Prelim. Hr'g. Trans. Vol. II pg. 12.

Grant Roy also testified to statements that the Defendant Joseph Kerekes made on April 28, 2007. Kerekes admitted seeing the victim’s 65-inch TV and his Maserati in the garage. Prelim. Hrg. Trans., Vol. II., pg. 18. Roy testified that the Defendant Kerekes indicated that he was in the Kocis home on Wednesday January 24, 2007 and the Kerekes described both the first and second floor of the house. ld. at 22-23 Kerekes also made mention of the stolen property and the destruction of it. ld. at pg. 24 Finally, there came a time when the Defendants became more at ease. “They felt that because the nature of the individual, Mr. Kocis, that he was gay, that the Dallas Police Department and the State of Pennsylvania had put it on the back burner, they weren’t really concerned, they went on vacation,” ld. at pg. 24 Defendant Cuadra also noted that the victim’s efforts to make money had “gone up in smoke,” ld, at pg. 25.

Grant Roy’s testimony of his conversation with the Defendants on April 28, 2007 goes straight to their culpability of all the crimes charged. The Defendants’ admissions to Grant Roy place them at the scene of murder at the time of death, however, they also admit to having taken the aforementioned missing items from the victim’s home and later destroying them essentially in order to destroy evidence of their involvement in the murder, Mr. Roy’s testimony demonstrates multiple conspiracies committed by each Defendant: arson, robbery, abuse of corpse, homicide.

Trooper Brian Murphy from the Pennsylvania State Police Computer Crimes Unit testified at length to his part in the investigation. He obtained computer information about the victim using his website and email addresses, as well as, the webmaster for the victim’s website to trace emails sent to the victim, This was due in large part to the information received that a prospective model scheduled to meet the victim on the night of his murder had emailed photos of himself to the victim. Prelim. Hrg. Trans., Vol. IL, pg. 63 There were also “two model applications sent in by an individual identifying himself as Danny Moilin with an associated email address of dmbottompa@yahoo.com. ld. at pg. 67.

Trooper Murphy described that an IP address gives a specific geographical site. “It gives us a specific internet connection location. There’s over four billion possible IP addresses, and no two IP addresses can be connected to the internet at the same time,” Prelim. Hrg. Trans., Vol. II pg. 68 He determined that the model application that was completed and submitted on the victim’s website came from an IP address registered to Harlow Cuadra at 1028 Stratem Court, Virginia Beach Virginia Trooper Murphy also testified to a chain of email correspondence between the victim and the dmbottompa@yahoo.com email account. Each of the emails originating from the dmbottompa email account were associated with IP addresses registered to Harlow Cuadra at the 1028 Stratem Court, Virginia Beach, VA address and/or a Sprint Nextel Wireless air card registered to Cuadra. ld. at ng. 76 and ngs. 92-100 Attached to several of these emails were pictures of Harlow Cuadra, who was operating under the ruse that he was a ‘Danny Moilin’ who was interested in becoming a model for the victim. The last email confirmed a meeting time between the victim and Cuadra aka Danny Moilin of between 7-8 p.m. on January 24, 2007. ld. at 100-01.

Trooper Murphy also noted that “Danny Moilin” was going to call the victim at 7:30 p.m. on Monday January 22, 2007. ld. at pg. 86 At 7:26 p.m. on said date, “Danny Moilin” called the victim Bryan Kocis. Id, at p. 86. 180, 182 That call bounced off of the Belles Road cell tower, three-tenths (3/10) of a mile from the Cuadra/Kerekes residence at 1028 Stratem Court, Virginia Beach, Virginia. Id. at pg. 180 Trooper Murphy then noted that in a January 22, 2007 11p.m. email, the victim confirmed the earlier conversation, Prelim. Hrg. Trans., Vol. IL. pg. 87.

Also, Trooper Murphy testified that he determined that on January 20, 2007, that USA People Search was contacted and a background investigation on the victim, Bryan Kocis was ordered from an IP address associated with Harlow Cuadra at 1028 Stratem Court. The purchase was made on a credit card registered to Harlow Cuadra. Prelim. Hrg. Trans.. Vol. IL pg. 100-01. This was four days prior to the homicide.

Corporal Leo Hannon of the Pennsylvania State Police was the last witness to testify during the two day preliminary hearing of the Defendants. Cpl. Hannon first testified that he obtained the cell phone records of the Defendant Joseph Kerekes. In reviewing the records for Kerekes’ multiple cell phones, it was determined that one cell phone registered to Kerekes placed a call to another cell phone registered to Kerekes at 8:34 p.m. January 24, 2007. The signal from this call bounced off a cell tower located at Country Club Road, Dallas, Pennsylvania which can be seen from the Kocis residence, Prelim. Hrg. Trans.. Vol. IL. pg. 161 The fire at the Kocis residence was called in at approximately the same time as Kerekes’ cell phone signal bounced off the aforementioned tower. ld.

Next, Cpl. Hannon testified that he contacted the Enterprise Rental Agency on Virginia Beach Boulevard, Virginia Beach, He was able to obtain a rental agreement showing that Harlow Cuadra rented a silver Nissan XTerra on January 23, 2007 and returned the vehicle on January 25, 2007. CpI. Hannon also analyzed the mileage parameters. It was determined that approximately a little over 1,000 miles was put on the vehicle during the rental period; it was determined that the roundtrip from Virginia Beach, VA to Dallas, Pennsylvania and back was approximately 770-900 miles depending on which route was taken. The vehicle could clearly have made the round trip. Prelim. Hrg. Trans., Vol. II.. pg. 163-64.

Next, CpI. Hannon testified that he had obtained information from Superior Pawn Shop in Virginia Beach, Virginia related to the Defendants. It was determined that the Defendants had purchased weapons with which the Kocis homicide could have been carried out on January 23, 2007. Prelim. Hrg. Trans., Vol. II.. pg. 166-67 During Cpl. Hannon’s testimony, a surveillance video from the Superior Pawn Shop from the morning of January 23, 2007 was shown. The video showed, and Cpl. Harmon identified, the Defendants making purchases. Cpl. Hannon then testified to a receipt that he obtained from Superior Pawn Shop for the purchases made by the Defendants. They purchased a Smith & Wesson revolver, ammunition for that firearm and a Sig Arms Model No. FX1 80 folding knife which had approximately a 5” blade, Id. at 171-72 A weapon taken from the defendant's possession may be admissible even where there is no proof that it is the murder weapon. Commonwealth v. Yount 455 Pa. 303, 314 A.2d 242 (1974). Commonwealth v. Bederka 459 Pa. 653, 331 A.2d 181(1975), we explained that seized weapons are relevant because they tend to prove that the defendant possessed the necessary means to commit the murder, The lack of proof that the weapon is the murder weapon goes to the weight of the evidence but not its admissibility. Commonwealth v. Royster 472 Pa. 581, 372 A.2d 1194 (1977).

Cpl. Hannon also testified to obtaining information on a Trac Phone which was purchased, activated and only utilized to contact the victim. The only calls took place from January 22, 2007 up and until the victim’s death. Particular phone calls placed from the Trac Phone occurred in close conjunction with emails between the dmbottompa or Danny Moilin email account and the victim’s email account. For example, through email correspondence a time was scheduled for “Danny Moilin” to contact the victim as noted previously (7:30 p.m. on January 22, 2007). The victim’s phone records show that the scheduled phone call came in from the Trac Phone. Prelim. Hrg. Trans., Vol. IL. pg. 177-80.

Next, Cpl. Hannon was responsible for transporting the Defendant Kerekes back to Pennsylvania after he waived extradition. During that trip, they took the Chesapeake Bay route; route 13 through Delaware, Maryland and subsequently through routes 95 and 476. While they were commencing this trip in Virginia Beach, Kerekes asked Cpl. Hannon why they “weren’t taking the Route 264 West route” as he had taken that route prior to when he had made trips to Pennsylvania. Prelim. Hrg. Trans,. Vol. II., pg. 182-83

Cpl. Hannon also testified to his interview with Grant Roy following the encounter on Black’s Beach between Roy, Lockhart, Cuadra and Kerekes on April 28, 2007. The Defendants made admissions to Grant Roy about several things, but in particular, they had information “regarding the architecture and contents of the victim’s residence, as it related to an entertainment system, plasma TV.. ,that were found in the residence,” Prelim, Hrg. Trans., Vol. IL pg. 185 Also, Cpl. Hannon was able to confirm that “information regarding the victim’s watch having been stolen” or information regarding the ingestion of alcohol had not been released to the public, yet the Defendants were aware of those pieces of evidence.

Finally, Cpl. Hannon testified about the execution of a search warrant upon the Defendants’ Virginia Beach residence which was conducted by the Virginia Beach Police Department in conjunction with the PA State Police Investigative Task Force, At that time, the police seized two video recorders which had matched the description previously given by witnesses identified as being missing from Bryan Kocis’ residence after his death. The serial numbers on the cameras had been obliterated. Prelim. Hr Trans.. Vol. II pg. 185-86.

Cpl. Hannon’s testimony regarding various phases of the investigation clearly tie both the Defendants to the homicide and related crimes. The Defendants had information that only parties involved in the homicide could know, cameras identical to those missing from the Kocis home were found at the Defendants’ home, Kerekes made an inculpatory statement during transport, there is video and a receipt for the Defendants’ purchase of a consistent murder weapon, documentation evidencing the rental of a vehicle matching the description of an SUV seen at the crime scene, and various telecommunications, both through email and telephone, tie the Defendants to the crimes.

Thc Commonwealth is introducing the actual transcript of the San Diego April 2007 intereccpts. These are some of the key points from the Blacks Beach wire:

Harlow says that when he was at Bryan ‘s, Bryan was on the phone with a lawyer. (p.29)

Harlow Cuadra says “It ‘s all gone. All of his records. He had a big box of master tapes. That ‘s all gone.” This references the destruction of Kocis’ business records, le. 2257 forms, as well as, master video tapes. (p.31)

Harlow Cuadra: “Unless he had a copy of it somewhere, it’s all gone.
“(p.32)

Harlow Guadra: “We watched them (the master tapes).”
Joe Kerekes: “We watched them all at their house.”
Harlow: “Yeah. Yeah. Yeah.”
Kerekes: “There gone. Gone. Gone.”
Harlow: “They re disintegrated. They were proof of everything. “ (p.32)

Harlow admits that he observed an original DVD tape of Sean and Everett stolen from Kocis house. He also recites lines from this stolen DVD.
Harlow. “It (the tape with Sean and Everett stayed in our house for a couple of days.” The defendants skimmed through approximately 55 tapes taken from the victim’s home. (p.33,)

Harlow was going to give the stolen tape of Sean and Everett to Sean as a gift but “it’s too hot now. 1 had to get rid of it.” (p.33)

Harlow references the Bryan ‘s Rolex watch “BCK. Well that's gone. Disintegrated.” (p.33)

Harlow references the “paperwork. The 2257’s; their gone.” (p.33)

Kerekes says “Tell them what's up with the computers.” (p.33-3 4)
Harlow: “All his computers. All his editing shit (Harlow said A VID but Grant corrected him that it was Adobe (Premier). Harlow concurred that Bryan had Adobe for his video editing needs)... that’s gone too.”(p. 33-34)

Harlow: “There wasn ‘t a computer in the place. ..it’s all gone, all computers. Everything.” The state police did not reassemble computers because Harlow got rid of it all.

Kerekes: “Three towers. Two laptops.” (p.34)

Harlow — “We did some recon work & the door does not have a peep hole on U. It has 2 square blocks of windows way on the top & Brian is not tall enough to see through that. It was quick, he never saw it coming.” (p.36)

Grant Roy asks “You were in there with him?”
Harlow responds “Yeah.” (p.36-37)

Harlow states that Bryan said “he ‘ my little bitch, will be in a condo away from Grant soon” referencing Bryan’s comments about Sean Lockhart. (p.37)

Harlow says “We’re all about making a buck. “(p.38)

Kerekes: “He (Kocis) had a contract prepared for Harlow. He (Kocis) had planned on instantly planned on writing a contract for Harlow” (p.43)

Kerekes: “I think he may have slipped something in there but he only took a sip.”

Harlow: “No. No. I only have a sip or two while I keep pouring it and pouring it for them. So by the time the doorbell rang, he got up and he was stumbling and that was it.” (p. 43-44)

Kerekes references Kocis’ Maserati and Harlow references his Austin Martin. (Mazeratti is in the garage behind the house, Austin Martin was in a garage in New Jersey) (p.44)

Kerekes makes reference to Kocis’ brand new 65” plasma TV, as well as, a $20K sound system

Harlow: “It was all there,” (p.44)

Harlow makes references Kocis telephone conversation... “Here's all this money you are supposed to make and it all goes up in smoke. (p.45)

Kerekes makes the statement that “he (Kocis) wanted him (Harlow) to move in. He (Kocis) got him (Harlow) a room.” (p. 48)

Harlow relays that Bryan Kocis may know his real I denri “At one point I thought he knew who the fuck I was. “ Then that's “my dude came around. It was crazy,” (p. 48-49)

Harlow says “It’s what made the decision kind of easy, almost a little too easy.” (p.56)

Harlow says “Actually seeing that fucker going down....it’s actually sick but it made me feel better inside.” (p. 58)

Harlow says “Kocis brought it out (the paperwork).” (p.62)

Kerekes: “Yeah, He was ready to get his signature real quick. Harlow has all his little documents he told him to bring and he didn’t even ask for them.”
Harlow: “Yeah. He didn ‘t askfor my ID.”

Harlow describes the room in Bryan Kocis’ house: “The walls were concave and coming in like an attic type room.” (p. 66)

In Commonwealth v Coccioletti 425 A.2d 387 (Pa. 1981), the Court wrote that there is an additional basis for admitting the hearsay testimony. Appellants’ inculpatory declarations were made in each other’s presence, and if incorrect, would naturally have been denied. Pennsylvania follows a traditional exception to the hearsay rule which admits such declarations as implied admissions by the silent and acquiescing accused. Commonwealth v. Vallone 347 Pa. 419, 32 A.2d 889 (1943). Vallone was overruled in part by Commonwealth v. Dravecz 424 Pa. 582, 227 A.2d 904 (1967) which excluded implied admissions because of the Fifth Amendment protection against self-incriminating statements. However, the scope of Dravecz was limited to implied admissions made while in custody or in the presence of police officers. Commonwealth V. Schmidt 452 Pa. 185, 299 A.2d 254 (1973), this Court held that implied admissions made while free from custody, with no police present, are still admissible. The appellants in this case were not in custody and no police were present when the inculpatory statements were made. Therefore, we conclude appellants’ declarations faIl within the implied admissions exception to the hearsay rule.

In Commonwealth v. O’Kicki 597 A.2d 152, 408 Pa.Super. 518 (Pa. Super., 1991), the court wrote:

“O’Kicki complains that the court erred in permitting evidence of a so-called tacit admission. The evidence from James McNulty, Clerk of Courts, was that he reported to appellant that George Koban had publicly stated that he had paid Judge O’Kicki $500 for a job, but that the judge reneged on the deal, As Clerk of Courts, McNulty felt that he should report this to Judge O’Kicki and therefore he made an appointment to see him and after telling him of Koban’s statement, he observed “no reaction whatsoever from Judge O’Kieki.”

The court permitted the evidence. This is a proper application of the rule of evidence stated Commonwealth v. Bolish 381 Pa. 500, 113 A.2d 464 (1955):

“The rule of evidence is well established that, when a statement made in the presence and hearing of a person if incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made. The justification of this rule is to be sought in the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt” , at 523, 113 A 2d at 476 (quoting Commonwealth v Vallone 347 Pa. 419, 42 1-422, 32 A.2d 889, 890
(1943).

The fact that the accusation report was not made to a law enforcement agent is inconsequential. Commonwealth v. Faraci 319 Pa.Super. 416, 466 A.2d 228 (1983). Finally, we observe that in his charge Judge Grifo left it to the jury to decide, “If you find that the silence ... occurred under circumstances that would have brought a denial from an innocent person,” (the jury could then consider the failure to respond as an admission) In re County Investigating Grand Tury--Petition of Stout 501 Pa. 118, 119-120, 460 A.2d 249, 250 (1983).

In addition, the statements are offered to show the existence of a conspiratorial relationship. In Commonwealth v. Whitaker 878 A.2d 914,(Pa. Super, 2005) the court wrote, “The motion also sought to preclude trial testimony from Mr. Cenevivia regarding the substance of a conversation between Appellant and Shakuur regarding the ease that Mr. Cenevivia overheard while he was incarcerated in the Philadelphia County Prison with Appellant and Shakuur. Appellant contends that Mr. Cenevivia testimony regarding Shakuur’s statements was inadmissible because the statements did not fall under one of the enumerated exceptions to the hearsay rule. A review of Mr. Cenevivia’s testimony regarding the conversation indicates that Shakuur told Appellant that he did not wish to implicate Appellant as part of the robbery and murder but that Mr. Cenevivia was brought up from Florida to testify against Shakuur and, possibly, Appellant. Appellant responded to these statements by repeatedly stating to Shakuur that Shakuur had to say that Appellant was not involved with the crime.

As explained by the Commonwealth at the motion in tim hearing, Shakuur’s statements were not hearsay because they were not offered for the truth of the matter, but, instead, they were offered as circumstantial evidence of the existence of the conspiracy between Appellant, Shakuur, and Stewart which had existed prior to the robbery of the bar, Commonwealth v. Cas 315 Pa.Super. 429, 462 A.2d 270, 272 (1983). Although these statements were made after the completion of the conspiracy to rob the bar, they were still relevant to demonstrate that a conspiratioral relationship existed between Appellant, Shakuur, and Stewart. Id, 462 A.2d at 272. As the statements were not hearsay, they were admissible. See also Corn. v. Tumminello 437 A.2d 435, 292 Pa.Super. 381 (Pa. Super., 1981).

Finally, a central objective of the conspiracy between Defendant Cuadra and Defendant Kerekes was to hire Sean Lockhart aka Brent Corrigan.

In Commonwealth v. Lam 684 A.2d 153, 453 PaSuper. 497 (Pa. Super., 1996), the court wrote,” An exception to the hearsay rule permits an out-of-court declaration of one co-conspirator to be admitted against another co-conspirator provided that the declaration was made during the conspiracy and in furtherance of it. Commonwealth v. Lambert 529 Pa. 320, 334-35, 603 A.2d 568, 575 (l992)(citing Commonwealth v. Coccioleni 493 Pa. 103, 111, 425 A.2d 387, 391 (1981)). In addition, the fact that a declaration of a co-conspirator was made to undercover law enforcement officers or non conspirators does not take the declaration out of the co-conspirator exception. Commonwealth v. Moyers 391 Pa.Super. 262, 269, 570 A.2d 1323, 1326-27 (1990).

The conspiracy, for purposes of the hearsay exception, may be inferentially established by showing the relation, conduct, or circumstances of the parties. Commonwealth v. Chester 526 Pa. 578, 593-94, 587 A 2d 1367, 1374-75 (1991), cert denied, 502 U S 849, 112 S.Ct 152, 116 L Ed 2d 117 (1991). With respect to the introduction of evidence under the co-conspirator exception, the Commonwealth is only required to show by a fair preponderance of the evidence that a conspiracy existed. Commonwealth v. Mayhue 536 Pa. 271, 293, 639 A.2d 421, 432 (1994). The duration of a conspiracy depends upon the individual facts of each case. Chester, 526 Pa. at 593, 587 A at 1374, Additionally, the fact that the ‘central objective’ of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy. Where there is evidence that the conspirators origin a to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such an agreement may reasonably be inferred, the conspiracy may be found to continue The crucial factor is the necessity for some showing that the later activities were part of the original plan. Commonwealth v. Evans 489 Pa, 85, 90-93, 413 A.2d 1025, 1029 (1980).

At issue is whether the conspiracy was still on-going when Xie spoke with Agent Lee almost two years after the murder Appellant alleges that once the murder occurred, the conspiracy ended, The Commonwealth contends that the parties had originally agreed that Yeung would be paid $30,000 in two installments, and since he had not yet been paid in full, the conspiracy was still continuing.

An examination of the record indicates sufficient evidence from which it may be inferred that the conspiracy had not ended with Xu’s murder...”

Where there is evidence that the conspirators originally agreed to take certain steps (the recruitment of Sean Lockhart/aka Brent Corrigan) after the principal or major objective of the conspiracy was reached (the murder of Bryan Kocis, the annilation of his 2257’s. the destruction of his computer business records), or evidence from which such an agreement may reasonably be inferred, the conspiracy may be found to continue. Such is the case here,

In Commonwealth v Coccioletti 425 A.2d 387 (Pa. 1981). the court also noted, “The least degree of concert of collusion is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Mobley 467 Pa. 460, 359 A,2d 367 (1976). In this case the record shows that the appellants were together prior to and during the homicide. Coccioletti stated that both appellants had been shooting across the roadway. Furthermore, appellants acted in concert to conceal their firearms and fabricate statements concerning the whereabouts of their firearms. It is unnecessary for the Commonwealth to show which appellant actually fired the fatal shot, because whichever appellant was not the actor would be equally responsible as an accomplice. Commonwealth v. Bradley 481 Pa. 223, 392 A.2d 688 (1978), 18a.C.S.A. § 306. We conclude that the evidence was sufficient to sustain a conviction of murder of the third degree as to both appellants.”

In this case, the Defendants were together before, during and after the homicide. They discussed their grandiose plans with Justin Hensley, bought the suspected murder weapon together, traveled hundreds of miles together, stayed in the same room together, had each of their respective cell phones bouncing off the County Club Road Tower in Dallas, Pennsylvania near the time of the murder, destroyed the evidence together and finally were attempting to reach a major objective of the conspiracy- the recruitment of Sean Lockhart—together. Defendant Kerekes also registered the hotel room at the Fox Ridge Inn for two people. Defendant Cuadra actually buys a Sig Sauer knife and pistol prior to travelling to Pennsylvania. See Superior Pawn Shop tape.