Sunday, July 27, 2008

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus (IV. Habeas/Preliminary Hearing in General)

IV. HABEAS/PRELIMINARY HEARING IN GENERAL

A. DISCUSSION OF THE LAW

A Court Case as defined by Pa. R. Crim. P. 3, is a case which one or more of the offenses charged is a misdemeanor, a felony or murder of the first, second and third degree. Criminal Homicide 18 Pa. C,S.A. 2501.

1. Burden of Proof at the Habeas/Preliminary Hearing Stage of Prosecution

A Habeas Hearing or Preliminary Hearing is not a Trial, Commonwealth v. Harvin 346 Pa. Super 575, 500 A.2d 98 (1985). As stated by the Pennsylvania Superior Court in Commonwealth v. Rick 366 A 302, 306 (Pa. Super. 1976):

The distinction between a preliminary hearing and the trial itself is well settled. While a trial determines guilt or innocence, the “preliminary hearing is held preliminary to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection.”
(Citations Omitted.)

Consequently, the Commonwealth is not required to prove the elements of the crime beyond a reasonable doubt at a Habeas or Preliminary Hearing, Commonwealth v. Austin 394 Pa, Super. 146, 575 A.2d 141 (1990), Commonwealth v. Snyder 335 Pa. Super 19, 483 A.2d 933 (1984), nor is the Commonwealth required to prove that evidence is available that would prove each element of each crime at Trial beyond a reasonable doubt. Instead, at a Habeas or Preliminary Hearing, the Commonwealth merely bears the burden of establishing a prima facie case that a crime has been committed and the accused is probably the one who committed it. Commonwealth v. Woldak 502 Pa. 359, 466 A.2d 991 (1983).

in order to sustain its burden at a Habeas or Preliminary Hearing, the Commonwealth is simply required to produce evidence that, if accepted as true, would warrant the Trial Judge to allow the case to go to the jury. Furthermore, inferences which may be reasonably drawn from the evidence at a Habeas or Preliminary Hearing which would support a verdict of guilty are to be given affect, and the evidence must be read in the light most favorable to the Commonwealth’s case. Snyder 483 A.2d at 935,

Again, the Commonwealth’s burden at this stage of the proceeding is to establish a prima fade case that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Cordero Luzerne County CCP, No. 1550 of 1991; Commonwealth v. Mullen 460 Pa. 336, 333 A.2d 755 (1975). Thus, the Commonwealth must show the presence of each element necessary to constitute each offense charged and the Defendant’s complicity in each offense, Commonwealth v. Cordero supra. As stated earlier, proof beyond a reasonable doubt is not the standard. The quantity and quality of evidence presented at this stage must be such that if presented at a trial in the Luzerne County Court of Common Pleas, and accepted as true, the presiding Judge would be warranted in allowing the case to go to the jury. Commonwealth v. Cordero supra; Commonwealth lix Rd Scolio v. Hess 149 Pa. Super. 371, 27 A 705 (1942).

Additionally, because a Habeas hearing or a Preliminary Hearing is not a trial, Judge Patrick J. Toole, Jr. has made it clear in his decision in Cordero that a defendant can call witnesses at a Habeas or Preliminary Hearing only to negate the elements of a prima facie and not merely for the purpose of discovering the Commonwealth’s case. Cordero supra.

2. Credibility Is Not An Issue At A Habeas or Preliminary Hearing

Credibility is not an issue at a Habeas hearing or a Preliminary Hearing. Commonwealth v. Tyler 402 Pa. Super. 429, 587 A.2d 326 (1991). As stated by the Pennsylvania Supreme Court in Liciaga v. Court Of Common Pleas of Lehigh County 566 A.2d 246, 248 (1989), a “committing magistrate is precluded from considering the credibility of a witness who is called upon to testify during the preliminary hearing.”

As Judge Patrick J. Toole, Jr. reaffirmed in the Cordero opinion, neither this Honorable Court, nor the Court of Common Pleas upon the filing of a Petition for Habeas Corpus, shall consider the credibility of the witness called upon to testify during the preliminary hearing. Commonwealth v. Cordero supra at p.13; Liciaga v. Court of Common Pleas 566 A.2d 246 (1989); Commonwealth v. Wojdak 502 Pa. 359, 466 A.2d 991 (1983). Thus, the Commonwealth at this stage is required only to establish a prima facie case by showing probable cause to believe that a crime has been committed and that the Defendant is the offender, Commonwealth V. Gray, 322 Pa. Super. 37, 469 A 169 (1983).

1 The preliminary hearing has a limited function, and while a defendant has a right to call witnesses under certain circumstances, the defendant has no right to call any witnesses for any purpose. Commonwealth v. Cordero at p. 506. As Judge Toole stated:

We believe and declare that neither a Defendant nor his counsel may call any witness they desire or introduce any testimony they care to offer at a preliminary hearing... too much valuable time is wasted when preliminary hearings are utilized by defense counsel to raise defenses, credibility issues, or conduct discovery proceedings. Those are not appropriate matters at the preliminary stage of the proceedings and those type of tactics cannot and will not be condoned or tolerated... Again, a preliminary hearing is not a trial, it is not a discovery proceeding, it is not a time or place to raise defenses or present creditability issues.


Commonwealth v. Cordero, supra at p. 6-7.

3. Hearsay Evidence Is Admissible At a Habeas or a Preliminary Hearing

Hearsay evidence is admissible at a preliminary hearing. Commonwealth v. Tyler, Pa. Super. 429, 587 A.2d 326 (1991); Commonwealth v. Troop 391 Pa. Super. 613, 571 A.2d 1088 (1990); Commonwealth v. Branch, 292 Pa. Super. 425, 437 A.2d 748 (1981).

Moreover, there is no need for an affirmative showing of witness unavailability or reliability in order to allow hearsay testimony at a Habeas or a Preliminary Hearing. Id. Finally, hearsay evidence, as long as it is not the only evidence, is sufficient to establish a prima facie case at a Preliminary Hearing. Commonwealth v. Tyler 587, A.2d at 328; Commonwealth v. Branch 437 A.2d 749-750.

As a general rule, hearsay evidence is admissible at a habeas hearing or a preliminary hearing. “The question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected to the crime.” Commonwealth v. Rick 366 A.2d 302, 303-304 (Pa. Super. I 976).(emphasis added)

In the case of Commonwealth v. Rick, id, on the evening of April 25, 1974, trooper Barry Kostival investigated a accident in the area of West Hanover Township, Dauphin County. Upon arrival at the scene, he learned that the driver Robert Rick, was already taken to the hospital for medical treatment. When trooper Kostival arrived at the hospital he was riot able to interview Mr. Rick because he was being treated. However, trooper Kostival interviewed the attending physician, Dr. J. Stanley Smith, who provided offered the trooper a copy of a report of the blood test which had been performed on Mr. Rick.

Trooper Kostival reviewed the results of the report and later decided to file criminal charges against the defendant for driving under the influence of an intoxicating liquor. At the defendant’s preliminary hearing, the Commonwealth’s case in chief included testimony from trooper Kostival and a copy of the chemist’s report, which indicated the defendant’s blood alcohol level was .18%. Defendant Rick objected to the copy of the report on the basis that it was hearsay. The defendant was later convicted and he subsequently appealed to the Pennsylvania Superior Court, where one of the appellate issues was that the district justice presiding over the preliminary hearing incorrectly ruled that a prima facie case was established since the chemist report was inadmissible hearsay.

However, the Superior Court held that the district justice correctly admitted the chemist’s report, in determining there may have been a crime and the defendant may have committed the crime The standard of a preliminary hearing is different from that of a trial, in that had the Commonwealth been only able to produce hearsay evidence at trial then the Superior Court stated the result may have been different. However, the Commonwealth stated that the chemist, Dr. Griswold, was out of town for the week and would be available to testify at the time of trial. It is interesting to note that the Superior Court did not state whether any report from a chemist or any expert must be in written form or whether it can be orally testified to.


In the case of Commonwealth v. Branch 437 A,2d 748 (Pa. Super. 1981), defendant Branch was arrested for the murder of Qunizell Carroll which happened on May 11, 1977 in a Philadelphia playground. At the preliminary hearing a commonwealth’s witness, who was a police officer testified the victim’s brother witnessed defendant Branch shoot his brother. The officer further testified that the victim’s brother, though not present for the preliminary hearing, but, would be available to testify at trial. The district justice later determined the Commonwealth established a prima facie case and ordered that Branch be held for Court. The defendant was later convicted and appealed. One of the issues he raised was that the hearsay evidence at a preliminary hearing was improperly admitted. However, the Pennsylvania Superior Court disagreed and ruled that hearsay evidence is admissible at a preliminary hearing. The Superior Court cited Commonwealth v. Rick 366 A.2d 302, 303-304 (Pa. Super. 1976), in support of its decision. Also, in the case of Commonwealth v. Davies, 454 A.2d 92 (Pa. Super. 1982), the Pennsylvania Supreme Court ruled that a laboratory report is admissible at a preliminary hearing to show that a crime occurred, provided of course that the preparer of the autopsy report testify at trial.

Both cases Commonwealth v. Rick 366 A.2d 302 (Pa, Super. 1976) and Commonwealth v. Branch 437 A.2d 748 (Pa. Super. 198!), stand for the proposition that the Commonwealth is not specifically required to show an affirmative showing of unavailability and reliability of the witnesses.

In the case of Commonwealth v. Troop, 71 A.2d 1084 (Pa. Superior Ct. 1990) a district justice allowed a police officer to testify to the statement of an accomplice into the record implicating the defendant. The defendant was arrested with three other men in connection with a series of robberies. At the preliminary hearing, a police officer read into the record, over the defendant’s objection, a transcribed statement taken from another accomplice. The charges were bound over, after which, the defendant filed a writ of habeas corpus, arguing that the defendant’s statement was not properly admitted and without the statement the Commonwealth failed to establish a prima facie case. The writ was denied. The defendant was later convicted of the charges and appealed the decision. However, the Superior Court denied the appeal, stating there was no affirmative duty on the Commonwealth’s part the witness was not available, As in Commonwealth v. Branch, supra, the Commonwealth certified in good faith that the accomplice would be available at trial. The court went on to say that such a certification “minimizes the chances that the primary evil that preliminary hearings are designed to prevent- i.e., the prosecution of persons unconnected with a crime-will occur.” See Commonwealth v. Troop, 571 A 1084, 1089.

In Commonwealth v. Tyler 587 A.2d 26 (Pa. Super. 1991), the district justice allowed a state trooper to testify as to the statement of an informant who witnessed the defendant sell cocaine him.

The Superior Court ruled that there was no need for an affirmative showing of witness unreliability or unavailability in order to allow hearsay testimony.

i. Course of Conduct

As the Superior Court of Pennsylvania has observed that certain out of court statements offered to explain the courser of conduct are admissible as an exception to the hearsay rule as these statements are not offered for the truth of the matters asserted; they are offered to show information upon which the police acted, See Commonwealth v. Dargon 2005 WL 2834246 (J. Nealon Lackawanna Cty. Court of Common Pleas) (See attached copy of case.).

As the Commonwealth indicated earlier, at a preliminary hearing the Commonwealth bears the burden of establishing a prima facie case that (1) a crime has occurred and (2) the accused is probably the one who committed it. Commonwealth v. Kelly, 664 A.2d 123 (1995). The Commonwealth will prove that a crimes have been committed, including but not limited to the crime of Homicide, and the defendants Harlow Cuadra and Joseph Kerekes were probably the ones who committed the criminal homicide and other crimes charged.

ii. Authentication/Hearsay Issues Regarding Web Content and email

The hearsay issues associated with email are essentially the same as those associated with conventional correspondence such as letters. To be admissible, emails and web content must be properly authenticated through the use of direct and/or circumstantial evidence, Also, an email offered for the truth of its contents is hearsay and must satisfy an applicable hearsay exception, See flood O’Hara v. Wills 2005 PA Super 145, 873 A.2d 757 (Pa. Super. 2005).

“Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion,” In re F.P. 2005 PA Super 220, 878 A.2d 91(2005) citing Commonwealth v, Lilliock 740 S.2d 237, 244 (Pa.Super.1999), appeal denied, 568 Pa. 657, 795 A.2d 972 (2000), The requirement of authentication or identification is codified in Pennsylvania Rule of Evidence 901, 42 Pa.C.S.A., which states that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa,R.E. 901. In addition, “testimony of a witness with personal knowledge that a matter is what it is claimed to be may be sufficient to authenticate or identify the evidence,” In re F.P at 94 citing Pa.R.E. 901(b)ld. See also, Commonwealth v. Hudson 489 Pa, 620, 414 A 1381 (1980).

“A document may be authenticated by direct proof and/or by circumstantial evidence.” Commonwealth v. Brooks 352 Pa.Super. 394, 508A 316, 318 (1986). Pennsylvania courts have accepted a wide variety of types of circumstantial evidence that will enable a proponent to authenticate a writing. Id. at 319. “Proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.”

Among the variety of technical means by which email transmissions may be traced is the use of Internet Protocol addresses (hereinafter, “IP addresses”). Major email providers include a coded IP address in the header of every email and each and every email sent can be associated with one specific IP address. “The IP address allows the recipient of an email to identify the sender by contacting the service provider.” “ and Email Evidence”, American Law Institute SM078 ALl-ABA 247, New York, 2007 citing Hood-O’Hara 873 A2d at 760.

Furthermore, “email may be authenticated by reference to its appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”. Pa.R.E. 901(b)(4): Fed 901(b See also, Commonwealth v. Gold 123 Pa.Super 128, 186 A. 208 (1936)(where a phone call was authenticated by evidence of a party’s conduct after the call); Bonavitacola v. Cluver 422 Pa. Super. 556, 619 A 1363 (1993)(where the identity of a speaker was established by the content and circumstances of a conversation).

“If email is produced by a party from the party’s files and on its face purports to have been sent by that party, these circumstances alone may suffice to establish authenticity,” Superhighway Consulting, mv. V. Techwave, Inc. 1999 U.S.Dist.LEXIS 17910, at *6 (N.D.Ill.Nov, 15, 1999). “Authenticity may also be established by testimony of a witness who sent or received the emails, in that the emails are the personal correspondence of the witness.” Tibbetts v. RadioShack Corp. 2004 U.S. Dist. LEXIS 1976, at *14 (N.D. Ill.Sept. 30, 2004). In regards to email generated by a business or other entity and the email address of the sender reflects the business name/mark of origin (after the symbol), the email is self-authenticating under Pa.R.E, 902(7) and Fed.R.E. 907(2). “and Email Evidence” SM078 ALl-ABA 247, p.7.

Independently, circumstantial indicia that has been found to suffice in various state and federal courts throughout the country “to establish that proffered email were sent, or were sent by a specific person include evidence that: (a) a witness or entity received the email; (b) the email bore the customary format of an email, including the addresses of the sender and recipient; (c) the address of the recipient is consistent with the email address on other emails sent by the same sender; (d) the email contained the typewritten name or nickname of the recipient (and, perhaps, the sender) in the body of the email; (e) the email recited matters that would normally be known only to the individual who is alleged to have sent it (or to a discrete number of persons including this individual); or (f) following receipt of the email, the recipient witness had a discussion with the individual who purportedly sent it, and the conversation reflected this individual’s knowledge of the contents of the email” See Ecology Servs. V. GranTurk Equip.. Inc. 443 F.Supp,2d 756, 762 n.1 (D,Md, 2006); Shea v. State 167 S.W.3d 98, 105 (Tex.App,2005); Interest of E.P, 878 A.2d 91 (Pa,Super,2005)(”He referred to himself by first name.”)

In the present case, there is substantial direct and circumstantial evidence to authenticate the emails to be presented. Most importantly, through the use of valid search warrants and seizures of information, it was determined that the emails received by the victim, Bryan Kocis, from the dmbottompa@yahoo.com email account were assigned the following IP addresses: 70.174.54.38, 70.10.127.2, 70.10.229.19, and 68.242.32.189. IP address 70.174.54.38 was found to be owned by Cox Communications Inc. in Atlanta, Georgia. Information provided by Cox Communications was issued/assigned to Harlow R. Cuadra of 1028 Stratem Ct., Virginia Beach, VA, IP addresses 70.10.127.2, 70.10.229.19, and 68.242.32.189 were found to be owned by Sprint Nextel. Information obtained from Sprint Nextel was issued/assigned to Harlow R. Cuadra of 1028 Stratem Ct., Virginia Beach, VA and was issued/assigned by Sprint PCS for a mobile air card used for internet access with a laptop computer. Furthermore, Harlow Cuadra’s picture was attached to email sent from the dmbottompa account to the victim’s Cobra Video account.

In addition to the aforementioned IP addresses being utilized for the sending and receiving of emails from dmbottompa@yahoo.com account, they were also utilized when the following email accounts and websites were accessed: 70.174,54.38 was utilized when an online model application was submitted on the Cobra Video website owned by the victim; Harlow Cuadra’s personal MYSPACE account was accessed; webmaster@boybatter.com with harlowrcuadra ( has the technical contact; www.norfolkmaleescorts.com with Joseph Kerekes list as a contact at stareyes23510@yahoo.com; www.men4rent (owned by the defendants); www.boisrus.com (owned by the defendants); and the email address party757@yahoo which is registered to Harlow Cuadra.

In addition to the direct evidence linking emails with associated IP addresses to Cuadra and Kerekes, the cmails can be authenticated through the use of circumstantial evidence as well. First, emails from the victim at his Cobra Video account, as well as, any emails from the boybatter, men4rent, norfolkmaleescorts, and boisrusaccounts are self-authenticating in that they are sent from a business entity using the trademarks/tradenames of the businesses as set forth above, In addition, Cobra Video’s webmaster, Alex Puente, can verify the content and correspondence from the victim’s website and can also verify the submission of the submission of online model applications.

Next, certain emails were sent, in addition to Cuadra’s logins to his personal MySpace account, in immediate proximity to the time that email correspondence was exchanged between the victim’s email account at Cobra Video and the dmbottompa email account. These emails directly state that they are from Cuadra or Kerekes and also reference events in the recent past that only the defendants and the recipients, ie. Wade***@hotmail.com are aware of, The recipients of such emails can verify/authenticate the email exchange between themselves and the defendants. For all of the aforesaid reasons, the emails that will be proffered as evidence can all be authenticated directly through the use of IP address tracking in addition to circumstantially being able to prove various emails through different circumstantial means.

As stated above, email is hearsay if offered for the truth of its contents unless it satisfies an applicable hearsay exception. Hood-O’llara 873 A.2d at 760. Some of the relevant exceptions to the hearsay rule are the ‘State of Mind’ exception under Pa.R,E. 803(3), the ‘Business Records’ exception under Pa.R.E, 803(6), and the ‘Admission by Party Opponent’ exception under Pa.R,E. 803(25). Emails not presented to prove the truth of the contents contained in the body are not considered hearsay. Several of the emails and logins to be presented will be proffered not to prove their contents rather to authenticate them as being authored by the defendants, as well as, their close proximity emails sent to the victim from the dmbottompa email account.

In addition the Commonwealth is not offering emails from the dmbottompa email account to prove their content in the sense that ‘Danny Moilin’ is going to be in Philadelphia, will travel to Center City to meet his father, and other related content.

Under the ‘State of Mind’ exception, “a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health.” Pa.R.E. 803(2) See Commonwealth v. Marshall 287 Pa. 512, 135 A.301 (1 926)(where declarant’s statement of intent or plan was admissible under the state of mind hearsay exception); Ickes v. Ickes 237 Pa. 582, 85 A. 885 (l912)(where declarant’s statement of motive or design was held admissible under the state of mind hearsay exception).

Presently, certain emails reference both the victim’s, as well as, the defendants’ state of mind. For example, in an email sent to a colleague on the day of his murder, the victim stated his intent to meet with a perspective model that evening. Attached to the email was a picture of the model the victim was to meet and the photo contained Harlow Cuadra’s likeness. Similarly, in another email, Kerekes states the plan of he and Cuadra to be out of the Virginia Beach area on the January 24, 2007, the date the murder took place in Dallas, Pennsylvania. Additionally, the emails to the victim from the dmbottompa account will be proffered to show the state of mind, intent and plan of the author to meet the victim. Bryan Kocis, at his Midland Drive home on the evening of January 24, 2007.

Under the ‘Business Records’ exception to the hearsay rule, “a memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11) , Rule 902(12), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.” Pa.R.E. 803(6 Pa.R 803(6) refers to “data compilation and includes a record in any form. This language encompasses computerized data storage.” Furthermore, “the burden is on an opposing party to show that the sources of information or other circumstances indicate that a business record is untrustworthy, and thus does not qualify for exception to the hearsay rule.” See Comment to Pa.R.E.803(6).

In the present case, both the victim and the defendants owned businesses. Emails and other content maintained in the ordinary course of business should be admissible under this exception to the hearsay rule, for example the model applications submitted and maintained on Cobra Video’s website and the model applications submitted by ‘Danny Moilin’ in particular.

Under the ‘Admission by Party Opponent’ exception to the hearsay rule, a statement is admissible when offered against a party “and is (A) the party’s own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co conspirator of a party during the course and in furtherance of the conspiracy.” Pa.R.R803(25).

In this case, certain emails are admissible under the ‘Admission by Party Opponent’ exception against both parties as co-conspirators. For example, Kerekes’ email stating that he was leaving the Virginia Beach area at the time of the homicide is admissible against both defendants, The email and web content complies with various exceptions to the hearsay rule as set forth above and in some cases, multiple exceptions to the hearsay rule will apply to an individual email. This will be in addition to several emails to be proffered for a purpose other than proving the truth of their contents. These emails cannot be considered hearsay under Pennsylvania Rules of Evidence.

Finally, the Defendants Cuadra and Kerekes admit on the April 2007 San Diego nudist beach consensual wire, that in fact, they were at the Kocis home on January 24, 2007 just like Danny Moulin aka Harlow Cuadra stated he would in the e-mail transmissions. Defendant Cuadra also sent a photo of himself with his penis exposed. This is further evidence of authentication.

III. Adoptive Admission or Tacit Admission Rule
A Firmly Rooted Hearsay Excention

In Commonwealth v. Gribble 580 Pa. 647, 863 A.2d 455, [ (Pa. 2004), Defendant Gribble and his girlfriend and co-defendant, Kelly ODonnell, were staying in the apartment of Ms. McClinchey, Defendant Gribble’s mother. O’Donnell went to a pizza shop owned by the victim, Mr. Eleftheriou, and offered to pawn her jacket to him for cash. Eleftheriou gave O’Donnell cash and the two made arrangements to meet again later that evening. Later, Eleftheriou met ODonnell at a street corner and then accompanied her to the apartment. That evening, Defendants Gribble and O’Donnell murdered Elefiheriou, dismembered his body, and stole from him money and a credit card.

The police were called to a dump in Philadelphia where they recovered several bags of dismembered body parts, later identified as the remains of Eleftheriou, along with a letter addressed to Ms. McClinchey. Later that day, the police responded to a report of a burning ear and recovered from the car two severed legs and a lower torso with the penis missing, later identified as further remains of Eleftheriou.

After MeClinchey returned home to her apartment from out of town, the police interviewed her at a nearby gas station. McClinchey told the police that after she had returned home, ODonnell had told her, in appellant Gribble’s presence, that O’Donnell and appellant were involved in Eleftheriou’s murder. Furthermore, McClinchey had overheard appellant and O’Donnell planning to burn the car that the police had found before they came to interview her,

The Gribble court wrote:

“Gribble claimed counsel was ineffective for failing to object to the admission of hearsay evidence that allegedly violated appellant’s Sixth Amendment right to confrontation. This claim involves a statement made by O’Donnell to McClinchey following the murder, in appellant’s presence and before ODonnell and appellant were arrested. McClinchey testified as follows:”

“Prosecutor: What happened after you got home and got into your house?
McClinchey: . The phone rang and Giny ODonnell had answered it and told — had a conversation that there was a murder committed and they had found a head on Delaware Avenue.

Prosecutor: How did you know what the conversation was about?

McClinchey: Because she had told me that they had found a head on
Delaware Avenue; that they were involved in the murder.”

“Appellant’s trial counsel objected to McClinchey’s testimony but only as to the use of the word ‘murder’ and not on Sixth Amendment grounds. Appellant now argues that O’Donnell’s out-of-court statement, repeated by McClinehey on the stand, violated his right to confront O’Donnell and was therefore inadmissible against him, Appellant claims that the admission of that hearsay statement was unconstitutional because the statement does not satisfy the two-prong test articulated by the United States Supreme Court Ohio v. Roberts 448 U.S. 56, 100 S.Ct. 2531 (1980).”

“In Roberts the Court held that an out-of-court statement by a non-testifying co-defendant, which inculpates the defendant and is admitted against the defendant at trial, is admissible — and hence not violative of Confrontation Clause — only if: (1) the statement falls under a “firmly rooted” hearsay exception; or (2) the statement comes with “particularized guarantees of trustworthiness.” ld. at 66, 100 S.Ct. at 2539. The Commonwealth counters that ODonnell’s statement was admissible against appellant as an implied or “adoptive” admission and, in the alternative, as a statement made by a co-conspirator “during the course and in the furtherance of the conspiracy,”

“In arguing that the underlying confrontation clause claim has merit, appellant relies, in part, upon this Court’s decision Commonwealth v. Young 748 A.2d 166 (Pa, 1999), which was decided six years after appellant’s trial. In Young this Court, on reargument, considered the impact of the United States Supreme Court’s then-recent plurality decision Lilly v. Virginia 527 U.S. 116, 119 S.Ct. 1887 (1999)(plurality). To the extent that appellant’s argument relies on Lilly and Young it necessarily fails.”

“Appellant cannot demonstrate that trial counsel was ineffective on the basis of Sixth Amendment jurisprudence first articulated in later cases. At the time of this trial, Sixth Amendment jurisprudence did not foreclose the possibility that a recognized hearsay exception could permit the admission into evidence of an unavailable co-defendant’s out-of-court statement, offered against and inculpating the defendant, without violating the Confrontation Clause. Roberts 448 U.S. at 66, 100 S.Ct, at 2539; see also Bruton 391 U.S. at 129 n.3, 88 S.Ct. at 1624 n.3 (“We emphasize that the hearsay statement inculpating Bruton was clearly inadmissible against him under traditional rules of evidence ... There is not before us, therefore, any recognized exception to the hearsay rule ... and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.”). As articulated in Roberts at the time of appellant’s trial, the statement of an unavailable hearsay declarant was deemed admissible against the defendant, and not violative of the Confrontation Clause, if it bore adequate “indicia of reliability,” which can be inferred where the statement falls into a “firmly rooted hearsay exception.” ld., at 66, 100 S.Ct. at 2539. Indeed, the statements in Roberts offered and admitted under an Ohio hearsay exception for prior testimony, were found to satisfy the test set forth by the Court,”

“Likewise, at the time this case was tried, both the U.S. Supreme Court and this Court had recognized that statements admitted under the co-conspirator exception to the hearsay rule do not violate the Sixth Amendment. See United States v. Beuriaily 483 U.S. 171, 183-84, 107 S.Ct. 2775, 2783 (1987) (“co-conspirators’ statements ... have a long tradition of being outside the compass of the general hearsay exclusion ... The Confrontation Clause does not require a court to enibark on an independent inquiry into the reliability of such statements.”); Commonwealth v, Coccioletti 425 A.2d 387, 392 (Pa. 1981) (statements of unavailable accomplice admitted against defendant under Pennsylvania hearsay exception for statements of co-conspirator did not violate Sixth Amendment; co conspirator exception applies where accomplice liability is proven and extends to statements made after completion of conspiratorial object in effort to escape or evade detection, even where no conspiracy charged); çf, Dutton v. Evans 400 U.S. 74, 91 S.Ct. 210 (1970) (Georgia rule of evidence permitting admission into evidence of co-conspirator statements made “during the pendency of the criminal project, while certainly not identical to traditional co-conspirator exception, nonetheless satisfied Confrontation Clause).”

The firmly rooted hearsay exceptions which the Commonwealth argues are applicable here are the implied or adoptive admission exception and the co-conspirator exception. Both of these hearsay exceptions are recognized in Pennsylvania Rule of Evidence 803. Rule 803 provides that, “the following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is unavailable.” The twenty-fifth exception listed within Rule 803 is designated, “Admission by Party-Opponent, and it encompasses both of the exceptions urged by the Commonwealth, as follows:

(25) Admission by Party-Opponent

The statement is offered against a party and is ... (B) a statement of which the party has manifested an adoption or belief in its truth, .. or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Both of these party admission exceptions were addressed by this Court in Coccioletti There, co defendants Coccioletti and Garrity, who had been drinking heavily, stood on the side of the road while one or both of them fired gunshots across the road as traffic passed. The victim, who was driving by in a truck, was struck in the back of the head with a bullet and killed. Following the incident, the co defendants and a friend were in a car on their way to a restaurant when they passed the victim’s truck, which had crashed, Coccioletti stated that he felt badly about the truck because he had tossed a firecracker at it, Later, Garrity asked Coccioletti what they were going to do with the guns, and Coccioletti responded that they would concoct a story as to where the guns were at the time of the shooting. At their joint trial, the friend who had overheard these statements testified as to what he had heard, and all of the statements were admitted against both co-defendants, neither of whom testified. Both men were convicted of third degree murder.

On their joint appeal, the co-defendants each raised a Sixth Amendment challenge, alleging that their respective rights of confrontation were violated because neither had the ability to cross-examine the other at trial. In rejecting that argument, this Court first addressed the applicability of the co conspirator exception:

In Pennsylvania, the out-of-court declarations of one co-conspirator can be admitted against another co-conspirator provided that the declarations were made during the conspiracy and in furtherance of the common design. ... This Court has extended the co-conspirator exception to admit declarations by “co-participants” in a crime even where conspiracy has not been charged or proven. Appellants were co-participants in the crime: this has been established. The declarations were made in the course of concealing evidence and in furtherance of the common design of evading capture. Although the co-conspirator exception ,.. has not been applied when the declarations are made after arrest and termination of the conspiracy, the appellant declarations in this case were made prior to their arrest while the conspiracy was still in progress. We conclude that appellants declarations fall within the Pennsylvania co-conspirator exception to the hearsay rule .. . 425 A.2d at 392. We further concluded that the adoptive or implied admission exception also applied.

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,”

“In the Gribble case, as in Coccioletti the co-defendants were in each other’s presence and had not yet been arrested when O'Donnell inculpatory statement was uttered and, according to McClinchey, appellant did not deny the statement. Furthermore, later that day O'Donnell instructed appellant, while within McClinchey’s earshot, to burn a car — later discovered to be the car in which O’Donnell and appellant had put some of the victim’s dismembered body parts. In addition, McClinchey overheard ODonnell expressing relief that appellant had not been caught after returning from burning the car. O’Donnell’s earlier statement to McClinchey that O'Donnell and appellant were “involved” in the murder clearly was “made in the course of concealing evidence and in furtherance of the common design of evading capture and it was the sort of statement which, “if incorrect, would naturally have been denied” by appellant. Coccioletti 425 A.2d at 392, Thus, in light of Coccioletti O'Donnell’s out-of-court statement was admissible under both the co-conspirator exception and the adoptive admission exception. Furthermore, the extension of the co-conspirator exception to cover acts following the completion of the conspiratorial object is far less attenuated here than it was in Coccioletti because here, unlike Coccioletti the joint attempt to evade capture included further crimes, such as arson arid risking a catastrophe. In light of the controlling law in existence at the time of trial, counsel cannot be deemed ineffective for failing to object to O’Donnell’s out-of-court statement to McClinchey.”

“This conclusion is buttressed by appellant’s own argument. Appellant concedes that “regarding the first prong of the Roberts test, hearsay was not given to ‘authorities’ and therefore Agnes McClinchey’s testimony would appear to pass muster, at least under the language of Young. Appellant’s Brief, at 19. Appellant submits that O’Dornell’s out-of-court statement needed to satisfy both prongs of the Roberts test — i.e., that it must fall within a “firmly rooted’ exception to the hearsay rule and must come with “particularized guarantees of trustworthiness.” On the contrary, Roberts articulated a disjunctive rule: it required only that a given statement bear sufficient “indicia of reliability,” as shown either by the fact that the statement falls under a “firmly rooted” hearsay exception or by “particularized guarantees of trustworthiness,” 448 U.S. at 66, 100 S,Ct. at 2539. Thus, appellant’s own argument appears to concede, as we have already concluded, that this case involves an out-of-court statement covered by then-firmly rooted exceptions unlike those statements later found to violate the standards set forth in Lilly and Young.

“It is also notable that the cases relied upon by appellant themselves have been called into question by more recent U.S. Supreme Court authority. Crawford• v. Washington 541 U.S. 36, 124 S.Ct. 1354 (2004), the Court expressly overruled Roberts acknowledging confusion and uncertainty in the law resulting from inconsistent and illogical applications of the Roberts test. The Court adopted the following new standard: where “testimonial hearsay” — which “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations” — is sought to be admitted against a defendant, the only indicium of reliability sufficient to satisfy the Sixth Amendment and permit the admission of the hearsay is “confrontation.” at , 124 S.Ct. at 1374. The question of how the Crawford rule will affect cases involving non- testimonial hearsay, such as is at issue here, is unclear at this time.”

The Supreme Court recently revisited its holding in Crawford in Davis v. Washington 547 U.S. 813, 126 S.Ct, 2266, 165 L.Ed,2d 224 (2006), partially answering the question expressly left unanswered by Crawford namely, what types of hearsay qualify as admissible “nontestimonial hearsay.” Crawford 541 U at 68, 124 S,Ct, 1354. In Davis a 911 emergency operator answered an emergency 911 telephone call from the victim who stated that she was involved in a domestic dispute with the defendant who had been beating her. At defendant Davis’ trial, the court admitted the recording of the nontestifying victim’s conversation with the 911 operator; defendant appealed, claiming a violation of his Sixth Amendment Confrontation Clause rights. The Supreme Court reiterated in Davis that the Confrontation Clause bars the admission of “testimonial” statements of a non-testifying declarant unless the declarant is unavailable and defendant had a prior opportunity to cross-examine him or her, Davis 126 SCt, at 2273, and that a declarant is a ‘witness” within the meaning of the Confrontation Clause only where witness’ out-of-court statements are “testimonial” in nature, j The Supreme Court stated that “statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” ld. at 2273, On the other hand, statements are “testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” ld. at 2273-2274. Given the circumstances under which the police 911 operator questioned the victim in Davis the Supreme Court determined that the victim’s statements were elicited to meet a present emergency. Therefore, they were nontestimonial and admissible under Crawford.

Although Crawford and Davis leave the status of the Roberts line of eases “somewhat less clear” insofar as those decisions deal with statements that re “nontestimonial” in nature, the Second Circuit has observed that the Crawford court expressly declined to overrule White v, I1linoi 502 U.S. 346, 112 S.Ct, 736, 1 16 LEd.2d 848 (1992), in which the majority of the Supreme Court considered and rejected a conception of the Confrontation Clause that would restrict the admission of testimonial statements but place no constitutional limits on the admission of out-of-court nontestimonial statements. See Crawford 541 U.S. at 61, 124 S.Ct, at 1370 (“Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether White v. Illinois survives our decision today....”); see also Saget 377 F.3d at 228; United States v. Feliz 467 F.3d 227, 231 (2d Cir.2006). “The Supreme Court, however, in Davis made clear that the right to confrontation only extends to testimonial statements, or, put differently, the Confrontation Clause simply has no application to nontestimonial statements, Feliz 467 F. 3d at 231 (citing Davis v. Washington 547 U.S. 813, 126 S.Ct. at 2274, 165 L.Ed.2d 224 (holding that the limitation with respect to testimonial hearsay is “so clearly reflected in the text” of the Confrontation Clause that it “must ... mark out not merely its ‘core,’ but its perimeter”)).

iv. Crawford v. Washington 541 U.S. 36, 42, 124 S.Ct. 1354. 158 L.Ed.2d 177 (2004) and SurreDtitious Recordings

In Commonwealth. v. Holton 906 A.2d 1246 (Pa. Super. Ct., 2006), Detective Vogel was working as an undercover officer. Det. Vogel was riding with a confidential informant (CI) when he made contact with Fitts, who offered to obtain $40 worth of crack cocaine for him. Fitts entered the vehicle with Det. Vogel and the CI and directed them to a bar, Fitts walked into the bar by herself. She returned to the vehicle and handed Det. Vogel the drugs. in return Detective Vogel handed Ms. Fitts two marked $20 bills. Det. Vogel testified that Defendant Flolton followed Fitts out of the bar, spoke briefly with her, and waited across the street while Fitts delivered the drugs to Det. Vogel. At the time of the delivery to Det. Vogel, Appellant was talking on his cell phone. Ms. Fitts indicated to Det. Vogel that she obtained the drugs from Appellant. Det. Vogel testified that Ms. Fitts described Appellant to him as the man who gave her the drugs inside the bar. Fitts and Appellant Holton were arrested. Appellant was subsequently charged with criminal conspiracy, PWID, delivery of a controlled substance, and possession of drug paraphernalia.

The Holton court wrote:

“Appellant’s second contention is that the statements made by Ms. Fitts were admitted in violation of the Pennsylvania Rules of Evidence and Appellant’s rights under the Confrontation Clause. Specifically, Appellant alleges that the statements made by Ms. Fitts, which were heard on the audio tape admitted into evidence, are hearsay. Appellant objected to the admission of the audio tape because Ms. Fitts was an unavailable witness, and, therefore, Appellant did not have the opportunity to cross-examine her.”

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. See Pa.R.E. 801(c). Detective Vogel was testif to statements made to him by Ms. Fitts, who was not present at the hearing, during the drug transaction, These statements were recorded on an audio tape, which the Commonwealth sought to introduce as evidence. These statements were offered to prove the truth of the matter asserted, i.e., that Appellant sold crack cocaine to Ms. Fitts. The trial court admitted the statements on the audio tape made by Ms. Fitts under Pa.R.E. 803(25), the co-conspirator exception to the hearsay rule. Rule 803(25), the co-conspirator exception is stated, in pertinent part, as follows:

Rule 803, Hearsay exceptions; availability of declarant immaterial

(25) Admission by party-opponent. The statement is offered against a party and is

***

(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement may be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Pa.R.E. 803.

“Under this exception, the out-of-court declarations of a co-conspirator may be introduced against another co-conspirator provided three requirements are satisfied. Commonwealth v. Mayhi 536 Pa. 271, 292-93, 639 A 421, 431 (1994). First, the prosecution must prove the existence of a conspiracy between the declarant and the defendant against whom the evidence is being offered.

Mayhue at 292-93, 639 A.2d at 431. Once this requirement is satisfied, the Commonwealth must show that the statements were made during the course of the conspiracy. Finally, the Commonwealth must show that the statements were made in furtherance of the common design. id., at 293, 639 A.2d at 431. As for the first requirement, we find that the Commonwealth presented enough evidence to prove that a conspiracy to distribute crack cocaine existed between Ms. Fitts and Appellant. The Commonwealth is only required to prove the existence of a conspiracy by a fair preponderance of the evidence. Id., at 293, 639 A.2d at 432. In addition, the Commonwealth need not establish such a preponderance through direct evidence. Id., at 293, 639 A.2d at 432. Rather, a conspiracy, for purposes of the co-conspirator exception, may be established inferentially by showing the relation, conduct, or circumstances of the parties. Id, at 293, 639 A.2d at 432. Detective Vogel testified that he had never met Ms. Fitts before, and that she did not know he was an undercover narcotics officer. Ms. Fills was not working for the police during this buy-bust detail, and, in fact, Detective Vogel testified that Ms. Fitts was an unwitting informant. Ms. Fitts facilitated the drug deal between Appellant and Detective Vogel by obtaining the crack cocaine from Appellant and delivering it to Detective Vogel in exchange for the marked bills that she was going to give to Appellant before she was arrested. We find this sufficient to establish that Ms. Fitts was engaged in a conspiracy to distribute crack cocaine with Appellant. Accordingly, the first element is established. Mayhue at 292-93, 639 A.2d at 431.”

“The second element is that the statements made by the declarant must have been made during the course of the conspiracy. Ms. Fitts, unbeknownst to her, was being recorded during the time she delivered the drugs to Detective Vogel. She made the statement to Detective Vogel regarding the identity of Appellant before she was handed the money and began to walk away from the vehicle. Accordingly, we find this element satisfied as well. Mavhue at 293, 639 A.2d at 431. The last element is that the statements were made in furtherance of the common design. Ms. Fills stated that she got the drugs from Appellant and then proceeded to describe him to Detective Vogel before she took the marked bills and began walking back toward Appellant. Ms. Fitts’ statements furthered the sale of the crack cocaine by informing the buyer, Detective Vogel, as to the identity of the supplier, Appellant. Accordingly, we find the third element to be satisfied. Mavhue at 293, 639 A.2d at 431. As all three of the elements are satisfied, we find that the statements made by Ms. Fills to Detective Vogel, which were recorded on the audio tape, are admissible against Appellant as statements made by a co conspirator pursuant to Pa 803(25). Thus, Appellant’s second contention fails,”

“Appellant’s final argument is that the introduction of the statements made by Ms. Fitts are a violation of his right to confront the witnesses against him. The Sixth Amendment’s Confrontation Clause provides that, “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Crawford v. Washington 541 U.S. 36, 42, 124 S,Ct. 1354. 158 L.Ed.2d 177 (2004), This bedrock procedural guarantee applies to both federal and state prosecutions. Crawford 541 U.S. at 42, 124 S.Ct. 1354. The Confrontation Clause applies to “witnesses’ against the accused—in other words, those who “bear testimony.” j 541 U.S. at 51, 124 S .Ct. 1354.

“The Crawford court declined to lay out a comprehensive definition of “testimonial” but it did provide a few examples. Id., 541 U.S. at 68, 124 S 1354. It stated that various formulations of this core class of “testimonial” statements exist: ex pcirte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used for prosecutorial purposes, extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, and statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, Id, 541 U.S. at 51-52, 124 S.Ct. 1354.”

“Where testimonial statements are involved, the Crawford court noted that it did not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” Id., 541 U.S. at 61, 124 S.Ct. 1354. A trial court’s act of admitting statements deemed reliable by itself is fundamentally at odds with the right of confrontation. j4 541 U.S. at 61, 124 S,Ct. 1354. To be sure, the Confrontation Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. Id, 541 U.S. at 61, 124 S.Ct. 1354. It commands not that evidence be reliable but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. ld., 541 U.S. at 62, 124 S.Ct. 1354. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation, Id., 541 U.S. at 63, 124 S.Ct. 1354.”

“Where “non-testimonial” hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Crawforcl 541 U.S. at 68, 124 S.Ct. 1354. Accordingly, we must determine whether the statements made by Ms. Fitts, recorded on the audio tape, and testified to by Detective Vogel were “testimonial” or “non-testimonial” statements,”

The distinction between “testimonial” and “non-testimonial” statements was addressed United States v. Hendricic 395 F.3d 173 (3rd Cir.2005). The issue in Hendricks was whether multiple conversations between the various defendants and other third parties surreptitiously intercepted by law enforcement through Title III wiretaps were testimonial statements. Hendricks 395 F.3d at 181. The United States Court of Appeals held that these conversations should be characterized as “non-testimonial” statements because they do not fit within the framework given by Crawford to define “testimonial” statements. Id., 395 F.3d at 181; see also Crawford 541 U.S. at 51-52, 124 S.Ct. 1354.

The Hendricks court stated:

“First and foremost, the recorded conversations here at issue neither fall within nor are analogous to any of the specific examples of testimonial statements mentioned by the Crawford Court. Crawford 541 U.S. at 5 1-52, 124 S.Ct. at 1374 (listing “prior testimony given at a preliminary hearing, before a grand jury, or at a former trial and ... police interrogations” as examples of obviously testimonial statements). Second, the recorded conversations do not qualify as “testimonial” under any of the three definitions mentioned by the Crawford Court. They are not “ex parte in-court testimony or its functional equivalent,” nor are they “extrajudicial statements ... contained in formalized ... materials, such as affidavits, depositions, prior testimony, or confessions,” 541 U. S. at 51-52, 124 S .Ct. at 1364. Each of the examples referred to by the Crawford Court or the definitions it considered entails a formality to the statement absent from the recorded statements at issue here. Even considered in perspective of the broad definition offered by the NACDL, the Title III recordings cannot be deemed “testimonial” as the speakers certainly did not make the statements thinking that they “would be available for use at a later triaL” Crawford 541 U.S. at 51-52, 124 S.Ct. at 1364 (quoting Brief of NACDL).” Hendricks 395 F.3d at 181.

“The Crawford court stated that “a witness who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford 541 U.S. at 51, 124 S.Ct. 1354. The Hendricks court remarked that the surreptitiously monitored conversations and statements contained in the wiretap recordings are more akin to a casual remark made to an acquaintance and, therefore, are not “testimonial” for the purposes of Crawford, Hendricks 395 F.3d at 182. The Hendricks court also determined that statements made between the C and various other defendants were “non-testimonial” because the defendants and co-conspirators did not realize that their statements were going to be used for prosecutorial purposes. ld. 395 F.3d at 183. Additionally, the Hendricks court determined that these statements constituted admissions unwittingly made, and, therefore, were not subject to the Crawford rule. Id., 395 F.3d at 183; United States v, Saget 377 F.3d 223, 229 (2d Cir.2004) (holding that the defendants statements to a CI were “non-testimonial" because he had no knowledge of the CPs connection to investigators and helieved that he was having a casual conversation with a friend and potential co-conspirator).”

First, we note that the recorded conversations on the audio tape do not fall within any of the three specific examples of “testimonial” evidence given by the Crawford court. Ms. Fitts’ statements are not “ex parte in-court testimony or its functional equivalent, nor are they “extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Crawford 541 U.S. at 51, 124 S.Ct. 1354. Finally, they are not statcments that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id., 541 U.S. at 51, 124 S.Ct. 1354. Ms. Fitts made the statements to Detective Vogel without knowledge that he was a police officer, She assumed that she was having a conversation with a co-conspirator, for whom she was attempting to obtain cocaine, Ms. Fitts’ admissions were unwittingly made, without any indication that these statements may be used at a later time for prosecutorial purposes. Hendricks 395 F.3d at 183; see also get 377 F.3d at 229 (types of statements considered as “testimonial” share certain characteristics; all involve a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings); Davis v. Washington 547 U.S. 813, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224, 237 (2006) (Statements are “non-testimonial” when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are “testimonial” when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.),”

“Additionally, Ms. Fitts had no indication that Detective Vogel as “surreptitiously” recording the conversation onto an audio tape that he would subsequently attempt to use for prosecutorial purposes. Further, the statements made by Ms. Fitts lacked the formality that is present in the three examples of “testimonial” statements set forth by the Crawford court. Saget, 377 F,3d at 229. Eased upon the distinctions set forth in Crawford and elaborated upon by the Hendricks court, we find that the statements made by Ms. Fitts were “non-testimonial” in nature. Accordingly, as the rule announced in Crawford is only applicable to “testimonial” evidence, it does not apply to bar the admission of Ms. Fitts statements.”

“The Saget court stated that “while the continued viability of Roberts with respect to nontestimonial statements is somewhat in doubt, the United States Court of Appeals will assume for purposes of their opinion that its reliability analysis continues to apply to control nontestimonial hearsay, and that the precedents applying the Roberts analysis to such statements retain their force.” &iget 377 F.3d at 230. Accordingly, we apply the two-prong test enunciated Ohio v. Roberts 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to determine the admissibility of Ms. Fitts’ “non- testimonial” statements. Because Ms. Fitts’ statements were “non-testimonial,” the Confrontation Clause does not bar their admission so long as the statements fall within a firmly rooted hearsay exception or contain particularized guarantees of trustworthiness. Sage! 377 F.3d at 230; see also Roberts 448 U.S. 56, 100 S.Ct. 2531. As discussed at length above, we find that Ms. Fitts’ statements were properly admitted under the co-conspirator exception to the hearsay rule pursuant to Pa.R.E. 803(25)(E). Accordingly, as the statements fall within a firmly rooted hearsay exception, we find that the Confrontation Clause does not bar their admission. Id., 377 F.3d at 230; see also Roberts 448 U.S. 56,100 S.Ct. 2531.”

“The trial court correctly denied Appellant's motion to suppress because the evidence was obtained as the result of a lawfl arrest. The statements made by Ms. Fitts were admissible under the co-conspirator exception to the hearsay rule pursuant to Pa.R,E, 803(25)(E). Additionally, admission of these statements is not a violation of Appellant’s Sixth Amendment right to confront the witnesses against him because the statements were “non-testimonial,” and, therefore, not subject to the rule announced in Crawford Further, these “non-testimonial” statements fall within a firmly rooted exception to the hearsay rule, and, therefore, are not barred by the Confrontation Clause, Sa2et 377 F.3d at 230; see also Roberts, 448 U.S. 56, 100 S.Ct. 2531. Therefore, we affirm the judgment of sentence.”

Given the reliance by the Holton court on United States v. Hendricks 395 F.3d 173 (3rd Cir.2005), an examination of that case is warranted. In Hendricks The Third Circuit interpreted for the first time for this court the meaning of “testimonial evidence” as used in the Supreme Court’s recent decision Crawfbrd v. Washing 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and determine its application to legally obtained wiretap evidence. The United States filed a motion in urn seeking pretrial rulings on the admissibility of, inter al/a: (1) electronic surveillance tapes obtained pursuant to a wiretap (hereinafter the “Title III recordings”); and (2) recordings of conversations between confidential informant “C Riverau and various of the Defendants The United States maintained that the recordings and conversations at issue qualified either as admissions of a party opponent, see Fed.R.Evid, 801(d)(2)(A), coconspirator statements, see Fed.R.Evid. 801(d)(2)(E), statements against interest, see Fed 804(b)(3), or as statements covered by the residual hearsay exception, see Fed.R.Evid. 807, and thus were admissible.”

In United States v. Hendricks 395 F.3d 173 (3rd Cir.2005), the court wrote:

“As noted by the United States Court of Appeals for the First Circuit, the recent decision in Crawford has “changed the legal landscape for determining whether the admission of ... hearsay statements violates the accused’s right s” under the Confrontation Clause, Horton v. Allem 370 F.3d 75, 83 (1st Cir.2004); United States v. McClain 377 F.3d 219, 221 (2d Cir.2004) (“Crawford redefines the Court’s Sixth Amendment jurisprudence....”). A somewhat detailed recounting of that case, therefore, is useful for resolution of the case at bar.”

“The State of Washington charged Michael D. Crawford with assault and attempted murder for stabbing Kenneth Lee, a man Crawford believed had tried to rape his wife. During the police investigation, both Crawford and his wife gave formal statements to law enforcement officials. In her statement, Mrs. Crawford generally corroborated her husband’s version of the events leading up to the fight; however, her account of the fight itself was arguably different from that of her husband with respect to whether Lee had drawn a weapon before Crawford struck him. Crawford 541 U.S. at 813, 124 S.Ct. at 1357.”

“At trial, Crawford claimed self-defense. Under a Washington statute regarding marital privilege, Mrs. Crawford was “unavailable” to testify. 124 S.Ct. at 1357-58. The prosecution sought to have Mrs. Crawford’s statements to the police admitted through a codified hearsay exception. In response, Crawford argued that, notwithstanding the hearsay exception, the admission of his wife’s statements would violate the Confrontation Clause. The trial court, relying on Ohio v. Roberts 448 U.S. 56, 100 S,Ct. 2531,65 L.Ed.2d 597 (1980), found Mrs. Crawford’s statements “trustworthy” and thus admitted them. Crawford 124 S.Ct. at 1358.”

“In Roberts the Supreme Court had held that the Confrontation Clause does not preclude the admission of an unavailable witness’s hearsay statement if it bears “adequate indicia of reliability.” Roberts 448 U.S. at 66, 100 S.Ct. 2531 (internal quotations and citations omitted). Under Roberts a hearsay statement contains “adequate indicia of reliability” if it falls within a “firmly rooted hearsay exception” or if it bears “particularized guarantees of trustworthiness.” Id. Applying this test, the trial court found Mrs. Crawford’s statements trustworthy and therefore admissible. Although the Washington Court of Appeals reversed that decision, citing reasons why Mrs. Crawford’s statements were not trustworthy, the Washington Supreme Court agreed with the trial court that Mrs. Crawford’s statements showed sufficient evidence of trustworthiness to be admitted. 124 S.Ct. at 1358. The United States Supreme Court granted Crawford’s petition for certiorari .“

“Justice Scalia, writing for the Court, began by highlighting the differences between the common law practice of receiving evidence through live testimony in court subject to adversarial testing with the civil law practice of receiving evidence through ex parte private examinations of witnesses by government officials. Although the Court noted that common law systems had occasionafly adopted and utilized elements of the civil law practice (referring at some length to the notorious English trial of Sir Walter Raleigh), it recognized that, as illustrated by various state constitutional provisions circa 1776, the introduction of government-sponsored cx parte examinations against an accused has long been considered an anathema in common law systems in general and in the American system in particular. 124 S.Ct. at 1359-63.”

“After surveying various founding-era sources, the Court stated that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of exparte examinations as evidence against the accused.” 541 U.S. at 813, 124 S,Ct. at 1363; United States v. L 374 F.3d 637, 644 (8th Cir.2004) (discussing Crawford noting: “The central function of this right of confrontation is to protect individuals from the use of ex parte statements as evidence against them in a criminal trial”). With the principal focus of the Confrontation Clause thus established, the Court proceeded to uncouple the rationale undergirding the prohibition against hearsay from the impetus behind the Confrontation Clause, suggesting “that not all hearsay implicates the Sixth Amendment’s core concerns.” 541 U.S. at , 124 S.Ct. at 1364; see also Thomas J. Reed, Crawford v. Washington & the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S.C. L.Rev. 185 (2004). It continued:”

“An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modem hearsay rules, but the Framers certainly would not have condoned them.” Crawford 541 U.S. at 813, 124 S.Ct, at 1364.

“The Crawford Court noted that the text of the Confrontation Clause is supportive of this distinction. The Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him,’ U.S. CONST. amend. VI. Thus, the Clause applies to “‘witnesses’ against the accused — in other words, those who ‘bear testimony,’ “124 S.Ct. at 1364 (emphasis added) (quoting I N. Webster, An American Dictionary of the English Language (1 828)). As recognized by the Crawford Court:” ‘Testimony,’ is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” 124 S.Ct. at 1364 (quoting 1 N. Webster, An American Dictionary of the English Language (1828). Thus, a person “who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford 124 S.Ct. at 1364.”

“After engaging in this historical and textual analysis, the Court concluded that, even if the Confrontation Clause “is not solely concerned with testimonial hearsay, that is its primary object.” Crawford 124 S.Ct. at 1365. The Court further opined that, “testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’” 124 S.Ct. at 1370.”

“Therefore, the Court, partially abrogating Roberts held that “testimonial” hearsay statements may not be introduced against a defendant unless the declarant is unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. 124 S.Ct. at 1374, Importantly, this outcome obtains regardless of whether the statement at issue faIls within a firmly rooted hearsay exception or has a particularized guarantee of trustworthiness. d. In sum, insofar as “testimonial” evidence is concerned, Crawford replaced the malleable judicial inquiry mandated by Roberts with a virtually per se rule of exclusion. See United States v. S 377 F.3d 223, 226-27 (2d Cir.2004) (“It is clear that a court faced with an out-of-court testimonial statement need not perform the Roberts reliability analysis, as Crawford replaces that analysis with a bright-line rule drawn from the historical origins of the Confrontation Clause.”).”

“The lynchpin of the Crawford decision thus is its distinction between testimonial and nontestimonial hearsay; simply put, the rule announced in Crawford applies only to the former category of statements. Crawford 541 U.S. at 813, 124 S.Ct. at 1374. As the Court explained: “Where nontestirnonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford flexibility in the development of hearsay law — as does Roberts and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” ld. Thus, unless a particular hearsay statement qualifies as “testimonial,” Crawford is inapplicable and Roberts still controls.”

“Notwithstanding the centrality of the term to its decision, the Crawford Court expressly declined to provide a comprehensive definition of “testimonial statements.” Crawford 124 S.Ct. at 1374; id. at 124 S at 1378. It did, however, reference several “formulations of the core class of ‘testimonial’ statements” and further provided some concrete examples of evidence that is obviously testimonial. Crawford 124 S.Ct. at 1364; United States v. Manfre 368 F.3d 832, 838 n. 1 (8th Cir.2004) (“The Court in Crawford specifically left ambiguous the definition of ‘testimonial’ but did not leave us without some bench marks.”).

“ Crawford had suggested defining testimonial statements as “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.’” 124 S.Ct. at 1364 (quoting Brief for Petitioner Crawford). In its opinion, the Court adopted Crawford’s suggestion as examples of testimonial statements to which its opinion would apply. The Court also referred to Justice Thomas’ earlier definition of “testimonial statements” as “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” 541 U.S. at 813, 124 S.Ct. at 1364 (quoting White v. Illinois 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). The third and broadest formulation, offered to the Court by amicus curiae the National Association of Criminal Defense Lawyers (“NACDL”), would define testimonial statements as those ‘“made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial.” 124 S.Ct. at 1364 (quoting Brief of NACDL). Finally, the Court provided several concrete examples of obviously testimonial statements, referencing “prior testimony given at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 124 S.Ct. at 1374.”

“As we noted above, the Court declined to adopt any specific definition of “testimonial statements.” Instead, it resolved the case by noting that formal “statements taken by police officers in the course of interrogations are ... testimonial under even a narrow standard.” Crawford 124 S.Ct. at 1364. The Court therefore held that the trial court’s admission of Mrs. Crawford’s statements to the police as evidence against Crawford violated his rights under the Sixth Amendment.”

With this summary in place, it is now appropriate to consider how the Confrontation Clause analysis in Crawford applies to the case at bar,

A. The Title II Recordings

Following the decision in Crawford the courts of appeals have struggled with the definition of “testimonial hearsay.” See, e.g., United States v. Rodriguez-Marrero 390 F.3d 1, 17 (1st Cir.2004)( conclude that Llaurador’s signed confession, presented under oath to the prosecutor in Puerto Rico, is testimonial hearsay within the meaning given by the Supreme Court in Crawford.”); United States v. Cromer 389 F.3d 662, 674 (6th Cir.2004) (stating that “a statement made knowingly to the authorities that describes criminal activity is almost always testimonial” and thus concluding that CT’s statement to police wherein CI implicated defendant in criminal activity constituted testimonial hearsay); Pane v. Runnels 387 F.3d 1030, 1037 (9th Cir (suggesting, in dictum, that statements contained in diary constituted nontestimonial hearsay); United States v. Bru 383 F.3d 65, 78 (2d Cir.2004) (stating that plea allocution transcript and grand jury testimony of unavailable witnesses constituted testimonial hearsay); see generally Robert P. Mosteller, Crawford v. Washington. Encouraging & Securing the Confrontation of Witnesses, 39 U. Rich. L.Rev. 511, 533-615 (2005).

As recounted in Section I, the District Court ruled that multiple conversations between the various Defendants and other third parties surreptitiously intercepted by law enforcement through Title III wiretaps were testimonial statements and thus inadmissible unless the particular speakers in any given conversation were to testify at trial. The District Court’s decision to exclude the Title 111 recordings on the basis of Crawford—under any conceivable definition of “testimonial”—was error. Indeed, at oral argument, counsel for the defense was unable to argue to the contrary.

“First and foremost, the recorded conversations here at issue neither fall within nor are analogous to any of the specific examples of testimonial statements mentioned by the Court. Crawford 541 U.S. at 813, 124 S.Ct. at 1374 (listing “prior testimony given at a preliminary hearing, before a grand jury, or at a fonner trial, and ... police interrogations” as examples of obviously testimonial statements). Second, the recorded conversations do not qualify as “testimonial” under any of the three definitions mentioned by the Court. They are not ‘ parte in-court testimony or its functional equivalent,” nor are they “extrajudicial statements ... contained in formalized ... materials, such as affidavits, depositions, prior testimony, or confessions,” 124 S.Ct. at 1364). Each of the examples referred to by the Court or the definitions it considered entails a formality to the statement absent from the recorded statements at issue here. Even considered in perspective of the broad definition offered by the NACDL, the Title III recordings cannot be deemed “testimonial” as the speakers certainly did not make the statements thinking that they “would be available for use at a later trial.” Crawford 124 S.Ct. at 1364 (quoting Brief of NACDL). Rather, the very purpose of Title 111 intercepts is to capture conversations that the participants believe are not being heard by the authorities and will not be available for use in a prosecution.”

“A witness “who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not,” Crawford 124 S.Ct. at 1364, The Title III recordings here at issue are much more similar to the latter than the former. Therefore, as recognized by other courts that have addressed similar issues, we find that the surreptitiously monitored conversations and statements contained in the Title II recordings are not “testimonial” for purposes of Crawford. Horton v. Allen 370 F.3d 75, 84 (1st Cir.2004) (finding “statements ... made during a private conversation” nontestimonial); state v. Rivera 268 Conn. 351, 844 A.2d 191, 202 (2004) (“Glanville made the statement in confidence and on his own initiative to a close family member..., It clearly does not fall within the core category of ex parte testimonial statements that the court was concerned with in Crawford. United States v. Robinson 367 F.3d 278, 292 n. 20 (5th Cir.2004) (“The statement challenged as hearsay was made during the course of the conspiracy and is non-testimonial in nature.”); United States v. Reyes 362 F.3d 536, 541 n. 4 (8th Cir.2004) (“Co conspirator statements are nontestimoniai Peqple v. Cook 352 IlLApp.3d 108, 287 Ill.Dec. 235, 815 N 879, 893 (2004) (“If the statements in question qualify as co-conspirator statements, the rule announced in Crawford does not apply to bar their admission.”).”

“Inasmuch as the District Court erroneously interpreted the Crawford ruling as requiring the rejection of the Title HI recordings, we will reverse its order denying the United States’ motion in limine. As we concluded above, the Title III recordings are not testimonial. Because of the District Court’s reliance on Crawford it never considered whether the Title III conversations were admissible under the proper standards set forth in the Federal Rules of Evidence and, to the extent it is applicable, the reliability standard under Robers, 448 U.S. at 66, 100 S.Ct. 2531. Bourlaily v. United States 483 U.S. 171, 183-84, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (“We hold that the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Fed R Evid 801(d)(2)(E) “) United States v Inadi 475 U S 387, 399-400, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (holding that Confrontation Clause does not require the prosecution to show that 801(d)(2)(E) declarant is unavailable). Therefore, on remand the District Court is directed to determine on an individualized basis whether each of the Title III recordings is admissible (and, if admissible, against whom and for what purpose).”

B. The Conversations Involving CI Rivera

“The District Court also ruled that the United States could not introduce conversations between Cl Rivera and various of the Defendants, Although occasionally a telephone conversation between Rivera and one of the Defendants was caught in a Title III wiretap, the conversations that fall within this heading are face-to-face conversations that were recorded by Rivera wearing a taping device provided by the Government. It cannot be disputed that CI Rivera knew of the Government’s surreptitious recording and documentation of these conversations. The District Court noted that, “in discussing the ‘core’ class of statements that are considered testimonial, the ... Crawford Court specifically included pretrial statements that declarants would reasonably expect to be used prosecutorially.” J.A. at 68 (quoting Crawford 124 S , Ct. at 1364). The District Court reasoned that because CI Rivera was working with the Government for the very reason of obtaining evidence against the Defendants for use in the Government’s investigation and prosecution, the conversations fell within the rule of Crawford.

“The District Court’s analysis is not without some appeal. Insofar as they contain the statements of CI Rivera, the conversations reasonably could be categorized as involving statements that Rivera expected to be used prosecutorially; obtaining evidence for the prosecution is, after all, the raison d’être of being a confidential informant. However, the Crawford decision cites with approval Bourjaily v. United States 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), a case in which the Court rejected a Confrontation Clause objection to the admission of a conversation between a co-defendant and a confidential police informant. Indeed, the Crawford Court referenced Bourjaily as an example of a case in which nontestimonial statements were correctly admitted against the defendant despite the lack of a prior opportunity for cross-examination. See Crawford 541 U.S. at 813, 124 S.Ct. at 1368 (citing Bourjaily 483 U.S. at 18 1-84, 107 S.Ct, 2775).”

“In Bourjaily the Court addressed the admissibility of admissions made unwittingly by William Bourjaily’s co-defendant (and purported coconspirator) to an informant. The Court held that even though Bourjaily had not had a prior opportunity to cross-examine his co-defendant regarding the statements, if the statements were admissible under Fed.R.Evid. 801 (d)(2)(E) their introduction as evidence against Bourjaily did not run afoul of the Confrontation Clause. Bourjaily 483 U.S. at 183, 107 S.Ct. 2775. The Court reached this outcome despite the fact that the co-defendant was, due to his invocation of the privilege against self-incrimination, ‘unavailable” to testify at trial. Bourjaily 483 U.S. at 182, 107 S,Ct. 2775. As mentioned, Crawford approved of this holding, citing it as an example of a case that is “consistent with the principle that the Sixth Amendment permits the admission of nontestimonial statements in the absence of a prior opportunity for cross-examination. Crawford 124 S.Ct. at 1367.”

“To be sure, there is a difference between the analysis undertaken by the Court in Bourjaily and the analysis urged by the Defendants here. Specifically, in Bourjaily the Court focused on the unavailability of the coconspirator whose conversation with a confidential informant the Government sought to introduce. In contrast, the Defendants here emphasize the unavailability of the confidential informant. Stated otherwise, although the Bourjaily Court addressed the Confrontation Clause implications of the admission of conversations with a government informant, it focused on the non- informant half of the conversation.”

“During oral argument before us, the United States conceded that it was not seeking to introduce the statements of Cl Rivera for their truth and thus correctly argued that the introduction of his statements would present no hearsay problem. See Fed 801(c). As recognized by the Crawford Court, the Confrontation Clause likewise “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford 124 S.Ct. at 1369 n. 9; United States v. Trala 386 F.3d 536, 544-45 (3d Cir.2004) (finding no Confrontation Clause violation where reliability of out-of-court statements was not at issue and where the statements were not introduced for their truth). Therefore, even if we were to hold that CI Rivera’s statements within the conversations are themselves testimonial, an issue we need not reach, such an outcome would not preclude the United States from introducing CI Rivera’s statements for a purpose other than establishing the truth of the matters contained therein.”

“Due to the Crawford Court’s reaffirmation of Bourjaily we conclude that the party admission and coconspirator portions of the disputed CI Rivera conversations are nontestimonial and thus, assuming compliance with the Federal Rules of Evidence, are admissible. See also Sa 377 F.3d at 229-30. Stated otherwise, Crawford presents no bar to the admission of the statements of Defendants or their coconspirators made in the conversations with CI Rivera that he surreptitiously recorded.”

“Under these circumstances, we conclude that the Government should be permitted to introduce the balance of the conversations, i.e., the statements of CI Rivera which, as the Government argues, put the statements of the other parties to the conversations “into perspective and make them intelligible to the jury and recognizable as admissions. United States v. McDowelL 918 F.2d 1004, 1007 (1st Cir.1990); United States v. Stelten 867 F.2d 453, 454 (8th Cir.1988); United States v. Gutierrez Chavez 842 F.2d 77, 81(5th Cir.1988); United States v. Murray 618 F.2d 892, 900 (2d Cir.1980); United States v. Lemonakis 485 F.2d 941, 948-49 (D.C.Cir.1973)."

“We thus hold that if a Defendant or his or her coconspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the Confrontation Clause does not bar the introduction of the informant’s portions of the conversation as are reasonably required to place the defendant or coconspirator’s nontestimonial statements into context.”