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.
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.
