Keeping a Watchful Eye...

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Certifications for Out of State Witnesses

Back when it was expected that Harlow Cuadra and Joseph Kerekes' trial was going to start on September 2, 2008, the Distrtict Attorneys office filed the following certifications for out of state witnesses on 08/08/2008. While the trial date has been postponed to January 5, 2009, it's almost a given that these same people/witnesses will still be attending:

CERTIFICATION

The Commonwealth of Pennsylvania is scheduled to commence criminal prosecution of Joseph Kerekes and Harlow Cuadra at trial which commences September 2, 2008 in the Luzerne County Court of Common Pleas, 200 N. River Street, Wilkes-Barr; Pennsylvania 18711. [Witness name and address] is a material witness for the Commonwealth and his attendance at the aforesaid trial scheduled to commence September 2, 2008 and lasting through the month of September 2008. The Commonwealth of Pennsylvania requests that in the event that the witness is uncooperative, that the witness be taken into immediate custody and delivered to an officer of the Commonwealth of Pennsylvania to ensure his inclusive attendance at the Pennsylvania trial proceedings as per Pennsylvania Rule of Criminal Procedure 522 and all relevant comments thereto and pursuant to 42 Pa.C.S.A. §5964 relating to witnesses from another state summoned to testify in this Commonwealth. The Commonwealth certifies the compulsory attendance of this witness is not for the purpose of serving said witness with process from another civil or criminal proceeding. The Commonwealth hereby waives its right to serve said witness with process, civil or criminal, by virtue of the witness' attendance/presence in Pennsylvania in this matter. The Commonwealth of Pennsylvania shall provide transportation, lodging and meals for this witness.

• Elena Arosemena from Cox Communications
• Michelle Mar from USA People Search
• Harry Strait
• Tony Parrow from Springhill Suites by Marriott
• Phillipino Romano from Springhill Suites by Marriott
• Chris Hurd from DVInfo.net
• Jeffrey Standford from Yahoo!, Inc.
• Angela Evans from ALLTEL
• Heather Ramos from Sprint Nextel
• Donna Plasmere from America Online
• Matthew Brannon
• Thomas Lampman
• Troy Prickett
• Adam Grieber
• Paulette Bartholomew from Cellco Partners, dba Verizon Wireless
• Petra Ungvarson from Rolex Corporation
• Designated Custodian of Records from JR Video
• David Michaels aka David Mitchell
• Nep Malaki

This list does not include those witnesses that have already been summoned, such as Renee Martin, Grant Roy, etc... I'll compile a complete list once we get closer to the trial date, as I fully expect we'll be seeing some additional names added.

Another Piece of the Puzzle

This is an excerpt from a "Certificate of Judge of Requesting State for Attendance of Out of State Witness" dated 08/07/08... originally scheduled for Harlow Cuadra and Joseph Kerekes' September trial, which we all now know has been moved to January 5, 2009. I'm pretty certain these same two witnesses will be in attendance for the new trial date:

"3. The Commonwealth alleges that Philip Romano and Tony Parrow of Marriott Spring Hill Suites, 6350 Newtown Road, Norfolk, Virginia, are necessary and material witnesses for the State of Pennsylvania for the reason that the Commonweatlh asserts the murderers fled to the Marriott and hid from Law Enforcement shortly after the homicide. The Commonwealth further alleges that the murderers stayed at this Marriott until they absconed to Miami Beach, Florida."

If nothing else, this helps to answer the question as to where Harlow and Joe were before heading to South Beach/Miami.

DA's Supplemental Brief in Response to Motions for Severance

COMMONWEALTH’S SUPPLEMENTAL BRIEF IN RESPONSE TO DEFENDANTS CUADRA’S AND KEREKES’ JOINT BRIEF IN SUPPORT OF DEFENDANTS’ MOTIONS FOR SEVERANCE

STATEMENT OF FACTS

Joseph Kerekes duly filed a Notice of Alibi defense indicating that he was at the Fox Ridge Inn the evening of January 24, 2007. Mr. Kerekes had signed in the hotel the evening before, noting that there would be two occupants.

Co-Defendant Harlow Cuadra flIed an untimely Notice of Alibi defense stating be was at the Fox Ridge Inn on January 24, 2007.

In conclusory fashion, Defense Counsel broadly asserts the defenses are antagonistic without reference to any facts.

In Commonwealth. v. Jones 610 A.2d 93 530 Pa 591 (Pa., 1992), the Pennsylvania Supreme Court wrote, “There is nothing inherently antagonistic about alibi defenses being used by multiple defendants.”

ISSUES

1. Whether or not the Defendants have shown actual prejudice from consolidated cases so as to warrant severance?

SUGGESTED ANSWER: NO.

2. Whether or not the Virginia Beach prison intercepts are admissible as adoptive admissions where the Defendant Cuadra, responding to Defendant Kerekes, states:

a. JOSEPH KEREKES: Listen we have to go to Plan B, we went there.
HARLOW CUADRA: Alright, airight. Hey Joe, don’t don’t say anything over the phone, I already need to, I already know.

b. JOSEPH KEREKES: Harlow, it’s pretty, it’s pretty much what we already know, remember what Plan B was, right?
HARLOW CUADRA: Yea, yea.
JOSEPH KEREKES: Okay, and umm...
HARLOW CUADRA: Oh boy.
JOSEPH KEREKES: Because we can’t get any...we have to tell, ya know what I mean?
HARLOW CUADRA: Yea, yea.
JOSEPH KEREKES: Are you good with that?
HARLOW CUADRA: Yea, I’m good, I’m good.

c. JOSEPH KEREKES: Do you remember though what is was, you, you had an appointment, I mean..
HARLOW CUADRA: I know, I know, I know...
JOSEPH KEREKES: Egh, Egh, Egh, Egh.
HARLOW CUADRA: I, I, I know, I know Joe.
JOSEPH KEREKES: And I wasn’t there.
HARLOW CUADRA: Everything, everything’s in my head, just be very calm, alright?

d. JOSEPH KEREKES: Hey Harlow, when I’m off the phone here she’s gonna explain to you the hypothetical okay?
HARLOW CUADRA: Okay.

e. JOSEPH KEREKES: So Harlow pretty much knows the hypothetical story, right?
HARLOW CUADRA: Yea, yea.

SUGGESTED ANSWER: YES.

ARGUMENT AND LAW

A. The Defendants’ Alibi Defenses Do Not Warrant Severance In Commonwealth. v. Jones 610 A.2d 931, 530 Pa 591 (Pa., 1992), a capital case with thee defendants, the Defendant Jones claimed a severance was warranted because both he and his co defendant presented alibi defenses and it was possible that appellant’s defense might be prejudiced by conflicts with testimony presented by the co-defendants. The Supreme Court wrote:

“Appellant’s first contention is that a motion to sever his trial from that of his codefendants was erroneously denied. The record is silent as to the circumstances surrounding the denial of appellant’s motion for severance. The motion was not denied by the trial court, but rather by another judge. Appellant has not cited anything in the record indicating the grounds on which the motion rested. The trial court, in preparing its opinion for purposes of this appeal, expressed uncertainty as to the grounds asserted for severance. It speculated that appellant presented his motion to a calendar control judge in proceedings not transcribed, but acknowledged that appellant may have at some time during trial presented a renewed oral motion for severance.”

“Nevertheless, appellant claims that severance would have spared him prejudice from testimony given by certain alibi witnesses who appeared on behalf of codefendant Givens. Numerous alibi witnesses testified that Givens was not in the courtyard at the time of the shootings. Three of these testified further, however, that they saw appellant and Robertson commit the shootings. Appellant claims therefore that his own defense, which was one of alibi, was inherently contradictory with Givens’ defense. While the record provides no basis to determine the grounds actually asserted for severance, we believe that if, as appellant infers, the motion for severance was based on the possibility that appellant’s defense might be prejudiced by conflicts with testimony presented by the codefendants, the motion was properly denied.” Id.

“It is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Chester 526 Pa. 578, 589-90, 587 A.2d 1367, 1372-73 (1991), cert. denied, U.S. 112 S.Ct. 152, 442, 116 L.Ed.2d 442 (1991). Where, as was the case here, defendants have been charged with conspiracy, joint rather than separate trials are to be preferred. Id. Commonwealth v. Jackson 451 Pa. 462, 464, 303 A.2d 924, 925 (1973) (joint trials are advisable where multiple defendants are charged with participation in the same criminal acts and much of the same evidence is necessary or applicable to all of the defendants). severance may nevertheless be proper where a defendant can show that he will be prejudiced by a joint trial. Commonwealth v. Chester 526 Pa. at 590, 587 A.2d at 1372-73.” Id.

“Although the possibility of conflicting defenses is a factor to be considered in deciding whether to grant severance, it is clear that more than a bare assertion of conflict is required. Id. at 590, 587 A.2d at 1373. As stated Commonwealth v. Chester 526 Pa. at 590, 587 A.2d at 1373, “ mere fact that there is hostility between defendants, or that one may try to save himself at the ex of another, is in itself not sufficient grounds to require separate trials. Further, “defenses become antagonistic only when the jury, in order to believe the essence of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of his co defendant.” Id.

“Applying these principles to the present case, it is evident that the essence of Givens’ defense was his own non-participation in the crime rather than the involvement of appellant and Robertson. Givens presented many witnesses in support of his defense of alibi, and, of these, only three testified that appellant was involved in the crime. Givens testified in support of his own alibi defense, and he did not, in any way, implicate appellant. Thus, the core of Givens’ defense was one of alibi, as was the core of appellant’s defense. There is nothing inherently antagonistic about alibi defnses being used by multiple defendants”. Id.

“While portions of the testimony provided by a few of Givens’ alibi witnesses indeed proved to be at odds with appellant’s defense that he was not at the scene of the crime, the record does not reveal whether such a conflict was made known to the court when the motion for severance was offered. Even assuming that the conflict was made known, the testimony would not have so affected appellant’s defense as to render the decision not to sever the trials a manifest abuse of discretion.”

“If the severance motion had been granted the Commonwealth would likely have been able, if it desired, to introduce testimony against appellant from the same three witnesses in a separate trial. Hence, granting the motion to sever would not have insulated appellant from the testimony in question.” Id.

“Further, the testimony was of very doubtful significance, since the Commonwealth produced six or more of its own witnesses who testified that they saw appellant commit the shootings. Quite obviously, too, Givens’ alibi witnesses were not believed by the jury. If they had been believed, Givens would not have been found guilty. It is most unlikely, therefore, that their testimony played any role in appellant’s conviction.” Id.

“Thus, the three defendants were charged with conspiracy, making a joint trial advisable. Much of the evidence pertained to all three defendants, rather than to just one. The testimony given by a few of Givens’ alibi witnesses, even if the adverse nature of it had been foreseen at the time the motion for severance was made, was not such as would have necessitated that the defendants be tried separately. Further, the trial was a very lengthy one, consuming more than two months. It was characterized by the trial court as one of the most time-consuming homicide trials ever conducted in Philadelphia. A record in excess of seven thousand pages was produced. To have conducted separate trials for the codefendants in this case would have placed a heavy burden upon the judicial system as well as upon the public. Based upon these considerations, the trial court committed no abuse of discretion in denying the motion for severance.” Id.

In Clark v. O’Dea 257 F.3d 498 (6th Cir. 2001), Clark argued that he was improperly joined for trial with co-defendant Hardin. He alleges that standing trial with Hardin substantially prejudiced him, because most of the evidence of satanism related only to Hardin and not to him. Specifically, the prosecution elicited testimony about a sketch book of sacrilegious drawings, a handwritten book of spells, and a satanic poem. These items, however, were all possessions of Hardin, not Clark Similarly, Clark argues that testimony about the threat that Hardin made to Warford related only to Hardin, and not to himself.

The Clark court wrote: “This court has held, in a Sixth Amendment habeas challenge, that a defendant must show both (1) an abuse of discretion on the part of the trial court and (2) compelling and specific prejudice in order to successfully challenge the joinder of his trial with that of a codefendant. Jenkins v. Bordenkircher 611 F.2d 162, 168 (6th Cir. 1979). Furthermore, we have found no compelling and specific prejudice where a codefendant’s testimony did not expressly implicate the defendant. United States v. Sherlin 67 F.3d 1208, 1215 (6th Cir. 1995) (holding that, in a federal prosecution, the admission of a confession by Sherlin’s codefendant did not violate Sherlin’s confrontation rights where his name was redacted from the codefendant’s confession and the confession did not expressly implicate Sherlin).”

“No compelling and specific prejudice to Clark’s case has been shown here. Clark and Hardin do not even present mutually antagonistic defenses. Instead, both defendants presented essentially the same alibi defense to the jury - that they were with each other at another location on the evening of the murder. At most, testimony about Hardin’s satanism and threats towards Warford only implicate Clark by association, not by direct reference But the fact that there “is a substantial difference in the amount of evidence adduced against each defendant is not grounds to overturn a denial of severance unless there is a substantial risk that the jury could not compartmentalize or distinguish between the evidence against each defendant.” 14. citing United States v. Lloyd 10 F.3d 1197, 1215 (6th Cir. 1993).

The court went on to write, “In the present case, a jury could easily separate the testimony against Hardin from the testimony against Clark, because the testimony about Hardin’s threats and satanic paraphernalia was not particularly complex. See 14. at 1216 (upholding the joint trial of several defendants in a prosecution for drug trafficking because “this case, while lengthy, was not a case of such complexity that the jury could not compartmentalize the evidence”). Indeed, the state court had ample reasons to try Clark and Hardin together, because they both were charged with committing the same crime. Buchanan v. Kentucky 483 U.S. 402, 418 (1987) (recognizing that the state has an interest in proceeding with joint trials where “all of the crimes charged against the joined defendants arise out of one chain of events, where there is a single victim, and where, in fact, the defendants are indicted on several of the same counts”).”

“Nor has Clark demonstrated that the Kentucky Supreme Court, in allowing Clark and Hardin to be jointly tried, based its decision on “an unreasonable application of... clearly established Federal law” as required for habeas relief. 28 U.S.C. § 2254(d). In a prior case, the Kentucky Supreme Court specifically declared that the mere introduction of evidence that is competent as to one defendant and incompetent as to the other is not in and of itself grounds to grant a severance... [O]rdinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e.g., one defendant's admissions directly implicate the other.” Id. citing Compton v. Commonwealth 602 S.W.2d 150, 152-23 (Ky. 1980).

“Here, Clark presented no additional factors. The evidence against Hardin -- his satanic paraphernalia and threats against Warford -- did not directly implicate Clark in Hardin’s actions. Any implication of Clark comes indirectly through Clark’s association with Hardin. Skinner v. Commonwealth 864 S.W.2d 290 (Ky. 1993) (holding that the defendant failed to establish that he should have been tried separately from his codefendants, despite his contention that he was prejudiced by the introduction of evidence about his codefendants’ misdeeds). Because the decision of the Kentucky Supreme Court in Clark’s appeal falls within the realm of plausible and credible results, and is not unreasonable in its analysis of law or fact, we reject Clark’s habeas challenge to the joinder of his trial with that of Hardin.”

In this case, Cuadra’s and Kerekes’ alibi defenses are consistent. Neither defendant is pointing the finger at the other, Neither defendant is saying the other committed any crime whatsoever. The alibi defenses are consistent, compatible, congruent, and commensurate with each other. In fact, Defendant Kerekes, the evening before the homicide, even indicated that TWO people would be in the room on the Fox Ridge Inn registration slip.

B. The Virginia Beach Prison Intercepts are Admissible as Adoptive Admissions

To clarify for Defense Counsel, the Virginia Beach prison tapes are offered as adoptive admissions. The adoptive admission is a separate concept from the co-conspirator exception to the hearsay rule.

The twenty-fifth exception listed within Rule 803 is designated, “Admisison by Party-Opponent,” and it encompasses both of the exceptions urged by the Commonwealth, is as follows:

“(25) Admission by Party-Opponent
The statement is offered against a party and is... (B) a statement of which the party has manifested an adoption or belief in its truth,...” Furthermore, a person is considered to have adopted the conspiracy and can be held liable for the actions of others involved in the conspiracy. “Once there is evidence of the presence of a conspiracy, conspirators are liable for acts of co-conspirators committed in furtherance of this conspiracy.” Commonwealth v. Lambert 795 A.2d 1010 (Super.2002), appeal denied 805 A 521. “Once the trier of fact finds that there was an agreement and the defendant intentionally entered into the agreement, that defendant may be liable under conspiracy theory, for the overt acts committed in furtherance of the conspiracy regardless of which co-conspirator committed the act.” Commonwealth v. Murphy 844 A 1228 (Super.2004).

Kerekes outlines Plan B to Renee Martin. Cuadra is not a participant to that conversation. See conversation #98 of “Transcripts of Intercepted Telephone Calls at the Virginia Beach Correctional Facility” (filed by the Commonwealth as a bound exhibit on July 7, 2008). (Note: The Commonwealth intends to redact the following phrases from that conversation on page 23:

JOSEPH KEREKES: Well, well why isn’t Harlow calling is he with Brice now?
RENEE MARTIN: Yea, yea, he’s with Brice now.
JOSEPH KEREKES: Well how do you know that?
RENEE MARTIN: Umm, because I talked to Jim Brice and he said he was going in to see Harlow, he’d call me back.)

The Commonwealth also intends to redact intercepted call #99 (also in the bound filing), an intercepted conversation between Joseph Kerekes and Renee Martin, as follows:

At page 37, Joseph Kerekes states, “... ya know and even the day of the supposed meeting when I thought that he would do business with this man, I said Harlow, do you really think we need to do this business with man, we have our own company, do we need to do this business with this man, anyways, this is all stuff Harlow will verify I sure, if it ever has to be.” The Commonwealth would seek to delete the italicized portion of Defendant Kerekes’ statement for trial (“I said Harlow” to the end of the statement would be deleted).

At page 38 of the same conversation, Defendant Kerekes states, “Umm, a very small bottle of liquid, that you might use at a picnic. Yes, you know... and umm, I said Harlow.” The Commonwealth would seek to delete the “I said Harlow” portion of the statement for trial. By removing those two references, that particular conversation would not identify Harlow, and the Commonwealth submits the conversation should be admissible at a joint trial.

Thereafter, in conversation #101 at pages 43-45: #101-103 at page 49; and #104 (all contained in the Commonwealth’s bound filing), Cuadra, responding to Kerekes, adopts Plan B as outlined above on page 2. The intercepted conversations from the Virginia Beach prison outlined above, and within the above-referenced Commonwealth filing, are adoptive admissions. Both Defendants are adopting ‘Plan B’ as a common scheme or design. The conversations are also evidence of the Defendants adopting the conspiracy. The Commonwealth submits that the statements are admissible against both parties and their use is not grounds for severance.

RESPECTFULLY SUBMITTED,

JACQUELINE MUSTO CARROLL
DISTRICT ATTORNEY

MICHAEL MELNICK
ASSISTANT DISTRICT ATTORNEY

ALLYSON KACMARSKI
ASSISTANT DISTRICT ATTORNEY

SHANNON CRAKE
ASSISTANT DISTRICT ATTORNEY

Judge's Order for Independant Psychiatric Evaluations

ORDER

AND NOW, this 14th day of August, 2008, at 2:30 o’clock p.m., upon review and consideration of the Commonwealth’s Motion to Compel Independent Psychiatric Evaluations of Defendants Harlow Raymond Cuadra and Joseph Manuel Kerekes, as well as the brief in support of the same, and following argument and subsequent agreement by Counsel, it is ORDERED AND DECREED as follows:

1. Defense Counsel for each Defendant having advised the Commonwealth that both Defendant Cuadra and Defendant Kerekes will present evidence of mental infirmity in an effort to establish mitigating circumstances in any penalty phase proceeding should one be necessary, Defendant Cuadra and Defendant Kerekes shall submit to an Independent Psychiatric Evaluation including any necessary testing to be conducted by the Commonwealth’s expert. Said examination shall be scheduled on a date chosen by the Commonwealth.

2. Defense Counsel and/or a psychiatric expert engaged by the each Defendant shall have the right to be present for said evaluation, and shall have the right to orally record said evaluation.

3. The Commonwealth shall provide the Court with an expert report regarding each evaluation on or before December 1, 2008. Said reports shall be held under seal until the conclusion of the guilt phase of the within proceedings.

4. The Commonwealth’s expert shall not discuss his examination or the results thereof with anyone, including the Commonwealth, unless and until the results are released by the Court.

BY THE COURT:

OLSZEWSKI, JR.

Copies:

Assistant District Attorney Michael S. Melnick
Assistant District Attorney Timothy M. Doherty
Assistant District Attorney Shannon Crake
Assistant District Attorney William Dunn
John B. Pike, Esquire
Shelley L. Centini, Esquire
Stephen Menn, Esquire
Michael Senape, Esquire

PPO Expected to Rule this Week on Motions Related to Cuadra/Kerekes Trial

The Citizens' Voice asks... will accused killers Harlow Cuadra and Joseph Kerekes be tried together or separately for the murder of Bryan Kocis in Dallas Township in January 2007?

Can their history of working as male escorts and producers of gay pornographic films, referred to in court filings as, “alleged prior bad acts,” be used by prosecutors to undermine their character?

And will prosecutors be permitted to introduce a number of pieces of potentially incriminating evidence, including recordings and transcripts of conversations in which Cuadra and Kerekes told acquaintances intimate details about the murder?

Luzerne County Judge Peter Paul Olszewski Jr. could answer those questions and more this week, when he is expected to rule on more than a dozen of the pre-trial motions filed by attorneys for Cuadra and Kerekes within the last four months.

Cuadra, 27, and Kerekes, 34, both of Virginia Beach, Va., are accused of killing Kocis, a rival producer of gay pornographic films, and later setting fire to his Midland Drive home.

They face the death penalty and are scheduled to be tried together beginning Jan. 5, following the postponement of an original Sept. 2 start date.

Attorneys for Cuadra and Kerekes have argued the one-time lovers and business partners have developed an “adversarial” relationship, with conflicting defense strategies, and should be tried separately.

According to notices of possible alibi defense filed by both defendants, Cuadra and Kerekes could claim they were in Room 211 of the Fox Ridge Motel in Plains Township at the time Kocis was killed, 12 miles away.

However, Kerekes has stated in conversations with acquaintance Renee Martin that he was in the room alone while Cuadra visited Kocis.

“The jury will have no choice but to disbelieve the testimony offered on behalf of one of the defendants in order to believe the testimony offered on behalf of the other defendant,” attorneys for Cuadra and Kerekes said in a brief filed Aug. 6.

In addition to the request for separate trials, attorneys for Cuadra and Kerekes have asked Olszewski to prohibit prosecutors from using statements Kerekes made to police immediately after his arrest in May 2007, conversations Cuadra and Kerekes had with Sean Lockhart and Grant Roy in San Diego in April 2007, e-mail messages Cuadra sent to Kocis in the days before the killing, and evidence seized from the home where Cuadra and Kerekes lived in Viriginia Beach that linked them to Kocis.

Kerekes testified at a pre-trial hearing last month that the police interview, conducted May 15, 2007, at the headquarters of the Viriginia Beach Police Department, should be suppressed because the investigators, Cpl. Leo Hannon of state police and Special Agent James J. Glenn of the FBI, violated his right to an attorney.

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

The investigators continued to ask questions about Kerekes’ employment history, military history, personal relationships and other background, the attorneys said.

Kerekes began to cry during the interview and “swore on his mother’s life that he was not the one” who killed Kocis.

Kerekes volunteered information about a motive, and hinted at his possible involvement, as he denied knowledge of a telephone conversation between Cuadra and Lockhart on Jan. 25, the day after the killing.

According to prosecutors, Cuadra directed Lockhart to read about Kocis’ death on wnep.com, the Web site of WNEP-TV, and allegedly said, “I guess my guy went overboard.”

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

The attorneys questioned the validity of the San Diego conversations because of conflicts in California and Pennsylvania law governing the use of hidden recording devices by investigators and because Roy, who volunteered to wear such a device, had originally been identified as a suspect in Kocis’ death.

Kocis had, until days before his death, been locked in a lawsuit with Roy and Lockhart over Lockhart’s ability to work for other companies using his stage name, Brent Corrigan.

“It was quick. He never saw it coming,” Cuadra said, according to transcripts of the San Diego conversations.

“Actually seeing that (expletive) go down,” Cuadra said later in the transcript, allegedly referring to Kocis. “It’s actually sick, but it made me feel better inside.”

The e-mail messages, obtained by prosecutors through six search warrants from Jan. 30, 2007, to Aug. 27, 2007, show Cuadra established communication with Kocis on Jan. 22, two days before his death.

Cuadra wrote to Kocis posing as an inexperienced pornographic film actor named “Danny Moilin.” He created an e-mail address on Jan. 22, 2007, solely to contact Kocis, prosecutors said.

Prosecutors said Cuadra created the Moilin character as a ruse to gain a private meeting with Kocis, 46, who led a nearly reclusive life.

Cuadra sent Kocis photographs of himself, tying him to the Moilin character, and ordered an online background check of Kocis days before the murder, prosecutors said.

Cuadra also called Kocis on a cell phone purchased and used to call only Kocis, and rented a vehicle that was seen by witnesses in Kocis’ driveway around the time of the killing, prosecutors said.

Attorneys for Cuadra said the search warrants used to obtain the e-mail messages, from Yahoo, Excite and MySpace, were granted without sufficient probable cause.

PPO Issues Trial Management Order

Judge Peter Paul Olzewski issued a trial management order on 08/14/2008 to Harlow Cuadra and Joseph Kerekes' defense counsel, as well as counsel for the Commonwealth:

TRIAL MANAGEMENT ORDER

AND NOW, this 14th day of August, 2008, at 1:10 o’clock p.m.,it is ORDERED AND DECREED as follows:

1. PRE-TRIAL CONFERENCE.

The Defendant and Counsel for both parties are hereby ATTACHED and shall attend a Pre-Trial Conference with the Court in Courtroom No. 2, Luzerne County Courthouse, 200 North River Street, Wilkes-Barre, Pennsylvania, which Pre-Trial Conference shall take place on Thursday, November 20, 2008 at 1:00 p.m.

2. DOCUMENTS TO BE PROVIDED TO COURT AT PRE-TRIAL CONFERENCE.

Counsel for the Commonwealth and Defendant shall provide the Court with the following material at the Pre-Trial Conference:

A. An Exhibit List identifying and describing each item that may be offered into evidence.

B. A Witness List identifying all witnesses who will or might be called to testify at any stage of the proceeding. The identity shall include full name, address and if known, telephone number. If any individual is to be offered as an “expert” witness, counsel shall so identify the individual and, in addition to the aforesaid information, shall also identify the area of expertise.

C. A Trial Brief specifying all the factual and legal issues that might arise prior to or during the course of trial in this matter, together with a summary of all legal arguments on the cited issues, and appropriate citations of authority.

D. Proposed Voir Dire Questions to be asked to jurors regarding their qualifications on voir dire examination with an appropriate citation of authority to support any inquiry which is not routine.

E. Verdict Slip Counsel for both parties shall provide the Court with proposed Verdict Slips for both the Guilty Phase and potential Penalty Phase of the within Trial.

3. DISCOVERY TO BE PROVIDED BY THE COMMONWEALTH

Counsel for the Commonwealth shall be prepared to provide Defense Counsel with all of the following if it has not been done prior to the Pre-Trial Conference:

A. Any evidence favorable to the accused which is material to either guilt or to punishment, and is within the possession or control of the Attorney for the Commonwealth.

B. Copies of any and all statements with the substance of any oral statement or statements made by the Defendant, and, in addition, the identity of the person to whom the statement or statements were made.

C. The results or reports of any scientific tests conducted by or on behalf of the Commonwealth, and any reports received relating to the opinion of any expert whether said person is to be called as a witness or not.

D. An exhibit of all photographs and other tangible objects or evidence that may conveniently be exhibited at the Pre-Trial Conference.

E. The names and addresses of any and all eyewitnesses to the offense.

F. Copies of all written or recorded statements and substantially verbatim oral statements of eyewitnesses the Commonwealth intends to call at trial.

4. DISCOVERY TO BE PROVIDED BY THE DEFENDANT

The Defendant, subject to his rights against compulsory self incrimination, shall be prepared to provide the Attorney for the Commonwealth with the results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession and control of the Defendant, which the Defendant intends to offer as evidence-in-chief, or which were prepared by a witness whom the Defendant intends to call at trial.

5. ISSUES TO BE DISCUSSED AT PRE-TRIAL CONFERENCE.

Counsel for the Commonwealth and the Defendant shall be prepared to address themselves at the Pre-Trial Conference to the following questions or issues:

A. Disposition of any and all pending Pro-Trial Motions presented in timely compliance with the Rules of Criminal Procedure.

B. Jury sequestration during voir dire examination and/or trial.

C. The number of preemptory challenges applicable to this trial.

D. The simplification of factual issues, including admissibility of evidence.

E. The time schedule of the trial which shall commence on Monday, January 5, 2009.

F. The qualification of Exhibits as evidence to avoid unnecessary delay.

G. Any particular or special problems involving the attendance of the witnesses. (NOTE: Counsel for the Commonwealth and the Defendant shall ensure that no such problems arise.)

H. Any and all objections, proffers and Motions in Limine which are capable of presentation and determination before trial.
---

Note from PC: I know this is a little late, and I've got several other documents to post as well. I broke a finger on my left hand the other day (I also happen to be left handed), but things should begin to return to near-normal thanks to meds. :)

An Interesting Twist of Fate?

After attorneys for Harlow Cuadra and Joseph Kerekes argued their preparation had been hampered by the dismissal of two colleagues last month... Judge Peter Paul Olszewski Jr. reluctantly postponed the trial until January 5, 2009.

Here's the interesting/odd thing... back on April 17, 2008... Assistant District Attorney Mike Melnick said that he expects his case to last about two weeks. Defense attorneys for both suspects said they expect their cases to last two to three days.

Without knowing how long it's going to take a jury to reach a decision... wouldn't it be just a little ironic if it's done around January 24th*, the second-year anniversary of the brutal slaying of Bryan Kocis?

It's certainly possible... and a little eerie.

* Note: 01/24/09 is on a Saturday, so a jury ruling is not likely to happen on the exact same date.

Judge PPO Allows More Time...

Back on August 14, 2008... Judge Peter Paul Olszewski filed an order that briefs be filed on the motion to suppress. Today... PPO once again allows defendant Joseph Kerekes' attorneys an enlargement of time to file:

08/14/2008 Order of Court filed. Briefs to be filed on Motion to Suppress - Olszewski, Peter Paul Jr.

08/19/2008 Motion for Enlargement of Time to File Def's Brief In Support of Motion to Suppress & Order-Granted - Olszewski, Peter Paul Jr.

Guess there's still a few motions of suppression that PPO hasn't decided upon yet... here's hoping he can at least rule on a few of the other previously filed motions this week, including the one's filed by Harlow Cuadra's attorneys. Though to quote PPO from the last hearing: “No sense in rushing it at this point”... so who knows.

In PPO's defense however... he was a former district attorney who has dealt with most/if not all of these attorneys previously both as a judge and/or as a foe, and I still honestly believe he has complete control over this case.

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Update @ 08/21/2008: The Times Leader is saying that attorneys for homicide suspect Joseph Kerekes have asked a judge for more time to file court papers stating Kerekes’ stance on a motion to suppress evidence seized from his vehicle.

Kerekes, 34, and his partner, Harlow Cuadra, 27, both from Virginia Beach, Va., were stopped and arrested by Virginia Beach authorities while driving on Virginia Beach Boulevard, according to court records, shortly after investigators in Pennsylvania filed criminal homicide charges in the January 2007 slaying of Bryan Kocis, 44, in Dallas Township.

In court papers filed Tuesday, Kerekes’ attorneys, John Pike and Shelley Centini, asked for a two-week extension on filing their response because they have not yet received a police report concerning the arrest of Kerekes and the search of his vehicle in Virginia Beach.

“Counsel is unable to author any meaningful brief without possessing information relative to Mr. Kerekes’ arrest and search of his vehicle,” court papers say. “Such extension would not delay the hearing presently scheduled in the matter, nor would such extension prejudice the Commonwealth.”

Centini and Pike claim that “Virginia authorities possessed no warrant for (Kerekes’) arrest, nor did (Kerekes) commit any motor vehicle offense which would authorize a traffic stop,” according to their court filing.

After Kerekes and Cuadra were arrested, their vehicle was searched by Virginia authorities and certain items were seized, Centini and Pike said. One of the items taken from their vehicle, according to court records, was a knife.

Luzerne County assistant district attorneys Michael Melnick, Shannon Crake and Allyson Kacmarski are seeking the death penalty for Kerekes and Cuadra if they are convicted. Prosecutors claim in court records that Kerekes and Cuadra killed Kocis, whom they considered their main rival in the gay pornographic film industry.

A hearing on the issue is still scheduled for Sept. 22.

PPO Expected to Rule on Several Motions this Week...

Judge Peter Paul Olszewski is expected to file some rulings this week on a myriad of motions that have been filed by the defense... most notably are... if Harlow Cuadra and Joseph Kerekes can have separate trials, if the trial(s) is held in Luzerne County or a jury from another county is brought in, and if prosecutors can use recorded conversations from Black's Beach and the Crab Catcher Restaurant.

Other motions PPO could rule on include: Cuadra's Writ of Habeas Corpus, and just about anything else Harlow's attorneys filed in his lengthy omnibus pre-trial motion.

I personally think Cuadra and Kerekes will lose almost every motion, if not all. The only two I can think of that I'd consider 'iffy' are the severance motion, and Kerekes' motion to suppress statements made after arrest... and even with those two question marks... I'm leaning towards PPO saying no.

What do you think the rulings will be?

Update @ 08/22/2008: Sources are now telling me that he will likely announce his rulings next Tuesday or Wednesday.

Deputy DA Moving up to AG’s Office

According to the Times Leader... one of the DA's assigned to Harlow Cuadra and Joseph Kerekes' murder trial will be leaving office...

Tim Doherty will prosecute drug cases in eight-county area for attorney general.

Doherty, 52, who spent nine years as a Luzerne County assistant district attorney, has accepted the position as deputy state attorney general assigned to the state Office of Attorney General’s Bureau of Narcotics Investigation and Drug Control.

The former Scranton police officer will prosecute narcotics offenses that occur in eight Northeastern Pennsylvania counties.

“I saw this as an opportunity to be a good stepping stone, moving up the ladder in the criminal justice system,” Doherty said Friday during a gathering of co-workers. “This will allow me to focus on one area of the law, narcotics.”

Doherty was hired by then-District Attorney Peter Paul Olszewski Jr. in February 1999. He stayed during District Attorney David Lupas’ eight-year tenure, moving through the ranks to become a special assistant United States attorney for the Middle District of Pennsylvania.

Soon after Jacqueline Musto Carroll became district attorney in January, she appointed Doherty as the office’s deputy district attorney, giving him more authority over thousands of cases.

Musto Carroll said she will miss Doherty’s energetic work ethic.

“An opportunity like this doesn’t come around often,” Musto Carroll said. “I’m very proud one of our own has been chosen.”

She described Doherty as a tireless “prosecutor’s prosecutor,” who will be missed in the office.

Although he will miss the “daily grind” of handling multiple cases on a variety of crimes, Doherty said he is looking forward to focusing on prosecuting drug dealers.

“With the district attorney’s office, you’re handling everything, and you really don’t have the time that you really want to put in on a case,” Doherty said.

One crime Doherty took special interest in was arson.

Doherty explained he saw an opportunity early in his career to gather experience when he noticed arson cases were being assigned among different assistant district attorneys. He said arson cases are difficult to prosecute because evidence is destroyed and there are usually no eye witnesses.

It wasn’t unusual to see Doherty, wearing a suit and dress shoes, inside a smoldering building holding a flashlight, a note pad and talking to firefighters and fire inspectors.

Doherty said he became a prosecutor because he wanted more control over how cases are settled.

“As a police officer, you can only do so much as cases progress through the system,” Doherty said.

Kocis Case May See Infirmity Defense

The Times Leader reports that attorneys for homicide suspects Harlow Cuadra and Joseph Kerekes are expected to mount a mental-infirmity defense if they are convicted in the January 2007 slaying of gay pornographic film producer Bryan Kocis.

Prosecutors are seeking the death penalty for the two Virginia Beach, Va., men because Kocis, 44, was killed during the commission of a felony -- robbery, one of 18 aggravating factors required for capital punishment, according to the state’s crimes code.

A mental-infirmity defense during the death penalty phase is one of several mitigating circumstances that counters the aggravating factors.

Attorneys for the two men, as required by law, advised prosecutors that they intend to present evidence of mental infirmity.

In turn, prosecutors were permitted by Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. on Thursday to have Cuadra, 27, and Kerekes, 34, submit to an independent psychiatric evaluation.

Prosecutors were instructed to submit their mental evaluations that are to be sealed by Dec. 1.

If a jury convicts the two men, the trial moves to the death penalty phase where prosecutors can present their mental evaluation findings.

Their trial is scheduled to begin with jury selection on Jan. 5.

Prosecutors claim in court records that Cuadra and Kerekes killed Kocis, whom they considered their main rival in the gay movie industry.

Kocis’ body was found inside his Dallas Township home on Jan. 24, 2007, by firefighters who responded to a fire at his Midland Drive residence.

Olszewski is expected to file his rulings next week that determines if Cuadra and Kerekes will have separate trials, if the trials are held in Luzerne County or a jury from another county is brought in, and if prosecutors can use recorded conversations that allegedly implicates the two men in Kocis’ killing.
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Note from PC: Additional information about an infirmity defense can be found in 234 Pa. Code Rule 568 and 569.

Attorneys: Kerekes’ Rights Violated

The Times Leader is reporting that attorneys for homicide suspect Joseph Kerekes believe his arrest in May 2007 violated his civil rights.

In court records filed on Wednesday by attorneys Shelley Centini and John Pike, they claim authorities in Virginia didn’t have an arrest warrant when Kerekes was taken into custody on May 15, 2007.

Kerekes, 34, and his partner, Harlow Cuadra, 27, both from Virginia Beach, were stopped and arrested by Virginia Beach authorities while driving on Virginia Beach Boulevard.

They were arrested, according to court records, shortly after investigators in Pennsylvania filed criminal homicide charges with District Judge James E. Tupper in Trucksville for the January 2007 slaying of Bryan Kocis, 44, in Dallas Township.

Centini and Pike claim that, “Virginia authorities possessed no warrant for (Kerekes’) arrest, nor did (Kerekes) commit any motor vehicle offense which would authorize a traffic stop,” according to their court filing.

After Kerekes and Cuadra were arrested, their vehicle was searched by Virginia authorities and certain items were seized, Centini and Pike said. One of the items taken from their vehicle, according to court records, was a knife. Centini and Pike are seeking to prohibit prosecutors from using evidence taken from their vehicle.

Luzerne County Assistant District Attorneys Michael Melnick, Shannon Crake and Allyson Kacmarski are seeking the death penalty for Kerekes and Cuadra. Prosecutors claim in court records that Kerekes and Cuadra killed Kocis, whom they considered their main rival in the gay pornography movie industry.

Responding to a request by Cuadra’s and Kerekes’ attorneys on Tuesday, Court of Common Pleas Judge Peter Paul Olszewski Jr. delayed the September trial until January 2009. Their attorneys requested that a third attorney be appointed to each defense team that would replace attorneys Mark Bufalino and Paul Galante, who withdrew from the case in July citing a conflict of interest.

The Defense Delay Game?

With more twists and turns than San Fransico's famed Lombard Street... Harlow Cuadra and Joseph Kerekes' defense teams have created more excuses for delays than the airlines do... and while not every one of these incidents can be solely blamed on the defense (though they were always the cause of it), I've gone ahead and compiled a list of actions, or mis-actions that have caused this trial to be delayed several times... with the most recent being yesterday:

November 23, 2007: 'Blum said a conflict existed with public defenders representing both men because the men, at trial, could accuse the other as the principal killer. Also, Blum and attorney Al Flora Jr., the county’s first assistant public defender, had represented Kocis in the past and might be witnesses at the homicide trial'.

December 4, 2007: 'Cuadra's attorneys want the trial delayed. They said they need more time to prepare'.

January 4, 2008: 'Homicide suspect Harlow Cuadra will get new attorneys and a new trial date'.

January 28, 2008 'Attorney Demetrius Fannick on Monday filed court papers indicating he will be representing Cuadra in his homicide case'.

March 19, 2008: 'Attorney Demetrius Fannick’s decision not to testify about his meetings with homicide suspect Joseph Kerekes led to the attorney being ousted from representing Cuadra.'

April 17, 2008: 'Harlow Cuadra has appealed a judge's ruling that forbid attorney Demetrius Fannick from representing him.'

July 9, 2008: 'Bufalino, one of three attorneys representing Kerekes, told the judge he and Paul Galante are associates in the same firm. Galante is one of three attorneys representing Cuadra. And, attorney John Pike, co-representing Kerekes, announced he had represented Robert Rodden, a prosecution witness'.

July 10, 2008: 'The two defense attorneys dismissed Wednesday from the capital murder case against Harlow Cuadra and Joseph Kerekes were aware of their potential conflict of interest since May and should have moved to remove themselves sooner, Luzerne County Judge Peter Paul Olszewski Jr. said'.

August 12, 2008: 'Kerekes' attorney, Shelley Centini, asked to continue the trial because she had not received Bufalino's file on the case. In addition, Cuadra's attorney, Michael Senape, said he has not yet been certified in defending capital murder trials.'

... all of which leads me to the poll question: "Do You Think Defense Attorneys are Deliberatley Delaying the Trial?"... I say yes... what are your thoughts?

New Trial Date: January 5, 2009

According the Citizens' Voice... the start of the trial for accused killers Harlow Cuadra and Joseph Kerekes will be postponed until January, Luzerne County Judge Peter Paul Olszewski Jr. said Tuesday, after attorneys for both defendants argued their preparation had been hampered by the dismissal of two colleagues last month.

Olszewski, who had reiterated his commitment to the scheduled Sept. 2 start date at nearly every pre-trial hearing since he set the court calendar in April, said the trial will now begin Jan. 5.

“I obviously have no control over it at this point,” Olszewski said, glaring at the defense attorneys seated on the left side of his courtroom. “I’m telling everybody right now, there will be no additional continuances.”

Shelley Centini, an attorney for Kerekes, asked for the postponement after meeting with Olszewski and the other attorneys on the case for more than an hour in the judge’s chambers.

Centini said the removal last month of Mark Bufalino from Kerekes’ defense team left the remaining attorneys unprepared. Centini said she had not received important case files from Bufalino and could not be sure her files contained all of the material he had previously collected.

“Without the documents from Mr. Bufalino, it makes it difficult if not impossible to prepare for trial,” Centini said.

Olszewski said Bufalino told him by telephone Tuesday that Kerekes’ attorneys never requested the file.

Cuadra, 27, and Kerekes, 34, both of Virginia Beach, Va., are accused of killing Bryan Kocis, a rival producer of gay pornographic films and later setting fire to his Midland Drive home.

They face the death penalty.

Olszewski ruled last month that Bufalino and Paul Galante, an attorney for Cuadra, could no longer serve on the case because the two attorneys work for the same law firm — the Wilkes-Barre office of Elliott Greenleaf.

Bufalino, Shelley Centini and John Pike were appointed last October to represent Kerekes. Galante, Stephen Menn and Michael Senape were assigned in January to represent Cuadra.

They are all members of the county’s conflict counsel pool, a separate group of publicly funded attorneys assigned to cases when a defendant is unable to retain a private attorney and a public defender cannot be used because of a conflict of interest.

Of the remaining attorneys on the case, only Pike and Menn are certified by the state Supreme Court to handle death penalty cases. Under state law, each defense team must have at least one attorney who is death penalty certified. Senape told Olszewski he is working toward receiving death penalty certification.

Olszewski asked President Judge Mark A. Ciavarella last month to appoint attorneys to fill the vacancies created by the removal of Bufalino and Galante.

Possible replacements include the five attorneys left in the conflict counsel pool: Brian Corcoran, Joseph Cosgrove, Samuel Falcone Jr., Matthew Kelly and Gerald Wassil.

Ciavarella has yet to act, Olszewski said.

Attorneys in the case are under a court-imposed gag order and are not permitted to publicly comment on any developments.

Centini’s request came at what had been scheduled as a pre-trial conference and Olszewski was expected to rule on a number of defense motions, including requests to suppress evidence and hold separate trials for Cuadra and Kerekes.

Olszewski said he has completed nearly all of his rulings on the motions and would issue a set of opinions next week. Olszewski said he would reschedule the pre-trial conference for mid-November.

“No sense in rushing it at this point,” Olszewski said.
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Meanwhile, the Times Leader says... cancel the September murder trial for double homicide suspects Harlow Cuadra and Joseph Kerekes.

Attorneys for the two Virginia men on Tuesday requested to delay the trial until a third attorney for each man is appointed by the court.

Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. granted the request, rescheduling the trial to begin Jan. 5 with jury selection. The trial had been scheduled to start Sept. 2.

The two are accused in the January 2007 slaying of Dallas Township gay film producer Bryan Kocis, 44, at Kocis’ Midland Drive home.

Luzerne County Assistant District Attorneys Michael Melnick, Shannon Crake and Allyson Kacmarski are seeking the death penalty for Cuadra, 27, and Kerekes, 34, both of Virginia Beach.

Kerekes’ attorneys, Shelley Centini and John Pike, and Cuadra’s attorneys, Michael Senape and Stephen Menn, requested to delay the trial until a third attorney is appointed to assist them in defending their clients.

The yet-to-be appointed attorneys will replace attorney Mark Bufalino, who co-represented Kerekes, and attorney Paul Galante, who co-represented Cuadra.

Bufalino and Galante withdrew from the case on July 10 citing a conflict of interest because they work in the same private law firm. After Bufalino and Galante were permitted to withdraw last month, Olszewski said he would appoint attorneys to replace them.

At Tuesday’s pre-trial hearing, Olszewski said attempts are still being made to find attorneys who are qualified in defending death penalty cases.

Centini said in her request to delay the trial that she hadn’t received Bufalino’s file. Without Bufalino’s file, Centini said, “It would make it entirely difficult but not impossible” to defend Cuadra.

In a telephone conversation on Tuesday, Olszewski said Bufalino related that Cuadra’s attorneys have all necessary court records.

Olszewski said he expects to file his rulings next week on requests by attorneys for Cuadra and Kerekes for separate trials and to prohibit prosecutors from using conversations that were recorded in San Diego, Calif., in April 2007.

Investigators recorded conversations between Cuadra and Kerekes and Grant Roy, a pornographic film producer, and actor Sean Lockhart. During the conversations, Cuadra and Kerekes allegedly admitted to being involved in the killing, according to court records.

Prosecutors claim in court records that Cuadra and Kerekes killed Kocis because they wanted to film movies with Lockhart, who was a contract model for Kocis’ company Cobra Video.

Harlow and Joe's Trial Delayed

The Citizens' Voice is reporting that the capital murder trial of accused killers Harlow Cuadra and Joseph Kerekes has been delayed until Jan. 5, 2009.

Judge Peter Paul Olszewski Jr. made the scheduling change Tuesday, from an original start date of Sept. 2, after attorneys for both defendants requested a continuance.

Shelley Centini, an attorney for Kerekes, said the dismissal last month of Mark Bufalino, an attorney for Kerekes, and Paul Galante, an attorney for Cuadra, left both defense teams unprepared for trial.

Cuadra, 27, and Kerekes, 34, both of Virginia Beach, Va., are accused of killing Bryan Kocis, a rival producer of gay pornographic films and later setting fire to his Midland Drive home.
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Update @ 2:50 PM: The Times Leader is also reporting that the capital murder trial for Harlow Cuadra and Joseph Kerekes has been postponed until January 2009.

Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. postponed the trial after attorneys for the two Virginia Beach, Va., men argued attorneys Mark Bufalino and Paul Galante have not been replaced.

Bufalino represented Kerekes, and Galante represented Cuadra. The two attorneys withdrew from the case in July due to a conflict that they both work in the same private law firm.

Kerekes' attorney, Shelley Centini, asked to continue the trial because she had not received Bufalino's file on the case.

In addition, Cuadra's attorney, Michael Senape, said he has not yet been certified in defending capital murder trials.

Olszewski postponed the trial that was initially scheduled to begin on Sept. 2 to Jan. 5.

Cuadra, 27, and Kerekes, 34, are charged in the slaying of Bryan Kocis, 44, at Kocis' Dallas Township home in January 2007. Prosecutors claim in court records that they killed Kocis, whom they considered their rival in the gay pornographic movie industry.
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Update @ 3:49 PM: Harlow Cuadra signs documents waiving his right to a speedy trial... Joseph Kerekes already did this several months ago.

A Couple of Docket Updates

Over the past week there's been a few updates on Harlow Cuadra and Joseph Kerekes' court dockets. I guess the most interesting one is a filing of 17 certifications of subpoenas for out of state witnesses.

08/07/2008 (17) Certification of Subpoenas Out of State filed. Luzerne County District Attorney's Office

08/08/2008 (2) Supoena Certifications filed by DA's Office Luzerne County District Attorney's Office

08/08/2008 Certificate of Judge requesting State for Attendance of Out of State Witness filed. Olszewski, Peter Paul Jr.

08/08/2008 Comm's request for Attendance of Out of State Witness filed. Luzerne County District Attorney's Office

08/12/2008 Certificate of Clerk for Attendance of Out of State Witness filed to Robert Reilly-Clerk of Courts Luzerne County District Attorney's Office

08/12/2008 Certificate of Clerk for Attendance of Out of State Witness to Tom Pizan-Deputy Clerk of Courts Luzerne County District Attorney's Office

08/12/2008 Certification from DA's Office filed. Olszewski, Peter Paul Jr.

I'm hoping to get a copy of the filings later today, and will update this post with a list of who these 17 witnesses are. Also, we should be hearing from PPO sometime this week (possibly today) in regards to answers to some, if not all of the motions that have been filed.

DA's Brief in Response to Defendants Motion to Suppress Evidence

COMMONWEALTH'S BRIEF IN RESPONSE TO DEFENDANTS CUADRA AND KEREKES' MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED PURSUANT TO SEARCH WARRANTS/EVIDENCE SIEZED FROM THE DEFENDANTS' E-MAIL ACCOUNTS

I. Statement of Relevant Facts
II. Issues: A
III. Issues: B
IV. Issues: C
V. Issues: D

Statement of Relevant Facts

I. Statement of Relevant Facts

On February 10, 2007, the Virginia Beach Police Department executed a search warrant on 1028 Stratem Court, Virginia Beach, Virginia. The warrant had been sworn out before a Judge from of the Virginia Beach Circuit Court, the equivalent of the Pennsylvania Court of Common Pleas. Detective Sean Coerse of the Homicide Division, Virginia Beach Police Department had applied and sworn out this search warrant.

The search warrant states the offense committed was murder, and gives a specific description of 1028 Stratem Court, Virginia Beach, Virginia, the Defendants’ residence as the home to be searched. A detailed description of items to be searched for included recording devices, digital cameras, various types of computer equipment (modems, fixed discs, external hard drives etc), software, documents, etc. The warrant requests the ability to search for information stored within a computer system or storage media. See Rosa v. Commonwealth 48 Va. App. 93, 628 S.E.2d 92 (2006), relying upon the Pennsylvania case Commonwealth v. Copenhefer 526 Pa. 555, 587 A.2d 1353, (1991).

On January 30, 2007, a federal search warrant was served on Yahoo for the dmbottompa@yahoo.com email account which was the account used to contact the victim Bryan Kocis and make arrangements for the January 24, 2007 meeting with the victim.

On February 6, 2007, a federal search warrant was served upon IAC Search and Media for the email account of harlowrcuadra@excite.com. This email account was accessed from the same IP addresses during the same time period as the dmbottompa@yahoo.com account.

On March 14, 2007, three respective federal search warrants were served: one on the MySpace account of Harlow Cuadra and one on the MySpace account of Joseph Kerekes. A federal search warrant was served upon stareyes235l0@yahoo.com which Defendant Kerekes is the registered user. These accounts were all accessed from the same IP addresses during the same time period as the dmbottompa@yahoo.com account. The federal search warrants were each supported by lengthy affidavits of probable cause.

On August 27, 2007 District Justice James Tupper, on August 27, 2007, approved and issued a search warrant for any and all information related to the Yahoo Account party757@yahoo.com. This email account was accessed from the same IP addresses during the same time period as the dmbottompa@yahoo.com account. This search warrant was supported by a twenty — two (22) page affidavit of probable cause.

On July 28, 2008, Attorney Michael Senape served a ‘Joint Reply Brief to Commonwealth’s Brief in Opposition to Motion to Suppress Search Warrants and Evidence Seized from E-Mail Accounts’ on behalf of both Defendants. Defense counsel for both Defendants has filed multiple ‘joint’ briefs in recent weeks that, the Commonwealth asserts, indicates that their defenses are consistent, compatible and coordinated. In this brief, the defense argues that should the items seized pursuant to the February 10, 2007 search warrant executed on the Defendants’ 1028 Stratem Court, Virginia Beach, Virginia residence be suppressed, the use of any informationlevidence gained from that alleged illegal seizure to form the basis of Affidavits of Probable Cause for Defendants’ e-mail accounts would result in invalid search warrants, thereby requiring suppression of evidence obtained from the Defendants’ e-mail accounts.

The Commonwealth respectfully disagrees with defense counsel’s position as set forth below. The Commonwealth submits that evidence seized as a result of the Virginia Beach search warrant should not be suppressed, therefore, any reference to such items in affidavits for search warrants for email accounts is not fruit of the poisonous tree. Even if the Court were to suppress the computers/evidence seized from the Defendant’s residence, the Affidavits contain sufficient probable cause without reference to the seized items. Even if the search warrants did not contain sufficient probable cause, which the Commonwealth submits that they do, the ‘good faith’ exception would govern thereby allowing admission of the evidence obtained pursuant to those warrants. Beyond that, the Commonwealth would have discovered and/or been able to lawfully obtain the information in the email accounts in question from other sources than the computers seized from the Defendants’ residence.

Issues: A

This summary is not available. Please click here to view the post.

Issues: B

III. Issues: B. THE PENNSYLVANIA SEARCH WARRANT FOR THE DEFENDANTS’ PARTY757@YAHOO.COM EMAIL ACCOUNT IS VALID.

Pennsylvania Rule of Criminal Procedure 206 specifically outlines the requirements for a search warrant;

(a) the name and department, agency or address of the affiant.

(b) Identify specifically the items or property to be searched for and seized;

(c) The name or describe with particularity the person or place to be searched;

(d) Identify the owner, occupant, or possessor or the place to be searched;

(e) Specify or describe the crime which has been or is being committed,

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

As mandated by the Pennsylvania Constitution, Article 1, Section 8, the standard for evaluating whether probable cause exists for a search warrant to be issued is the totality of the circumstances. See Commonwealth v. Smith 784 A.2d 182, 187 (Pa. Super. 2001), Commonwealth v. Bartee 868 A.2d 1218 (Pa. Super 2005) and Commonwealth v. Gray 503 A.2d 921 (Pa. 1995). The issuing authority must make a common — sense decision whether, pursuant to the totality of the circumstances presented, there is a fair probability that evidence of criminal activity will be found in a particular place to be searched. Commonwealth v. Smith 784 A.2d 182 (Pa. Super. 2001). As always, due deference is given to the issuing magistrate. Commonwealth v. Rompilla 653 A.2d 626, 632 (Pa. 1995).

Applying the “Totality of the Circumstances Test”, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for...[concluding] "that probable cause existed.” Illinois v. Gates 462 U.S. 213, 239 (1983).

Under Pennsylvania case law the above decision must be based on the facts described within the four corners of the supporting affidavit. Commonwealth v. Smith 784 A.2d 182, 184 (Pa. Super. Ct, 2001). Under Gates the traditional test of the “veracity” and “basis of Knowledge” set out in Spinelli v. United States 393 U.S. 410 (1969) and Aquilar v. Texas 378 U.S. 108 (1964), was abandoned in favor of including those factors with any other factors and analyzing the affidavit under the “totality of the circumstances” to determine if probable cause exists to issue a search warrant.

In Pennsylvania, probable cause to issue a search warrant test is as follows: two factors are used generally when determining if a search warrant should be issued: (1) the items sought are connected with criminal activity and (2) the items will be found in the place to be searched. Commonwealth v. Gray 469 A.2d 169, 173 (Pa. Super. Ct. 1983).

Where information is gleaned from an informant, the reliability of an informant as probable cause, A magistrate must consider four factors in determining the credibility of an unidentified informant and the reliability of his information: (1) Did the informant give reliable information? (2) Was the informant’s story corroborated by another source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip? Commonwealth v. Gray 469 A.2d 169, 174 (Pa. Super. Ct. 1983). The affidavit of probable cause does not have to satisfy all four factors. Id. Information provided by an informant establishes probable cause if there is a probability of criminal activity, a prima facie showing of criminal activity is not required. Commonwealth v. Luton 672 A.2d 819, 822 (Pa. Super. Ct. 1996). When information essential to a finding of probable cause is garnered from a confidential informant the authority issuing a search warrant determines the reliability of the informant’s information from the facts supplied by the police official. Commonwealth v. Gindlesperger 706 A.2d 1216, 1225 (Pa. Super. Ct. 1997).

Although information provided by informants that is contained in an affidavit is hearsay, it may be a sufficient basis to establish probable cause for the purposes of issuing a search warrant. The issuing authority will look within the “four corners” of the affidavit for four factors when determining whether or not an informant is a reliable source and whether or not the affidavit supports a finding of probable cause to issue the search warrant.

Even if the computer forensic examination conducted upon the computers seized from the Defendants’ residence was suppressed, there is still sufficient probable cause in the affidavit for the search warrant for the Defendants’ party757@yahoo.com email account as described at length in the above statement of facts section. The August 27, 2007 affidavit of probable cause for the search warrant for the party757 email account is an involved 22 pages, only a small part of which includes reference to the computer forensic examination on evidence seized from the Defendants’ residence; investigators acted in good faith in relying upon that warrant. Even if the evidence received from the party757@yahoo.com search warrant was suppressed (based on an alleged illegal seizure of computers from the Defendants’ residence), which the Commonwealth submits should not be suppressed, investigators would have ultimately been provided information regarding that account, including all emails exchanged between party757@yahoo.com and Matthew Brannon, from Matthew Brannon who has been interviewed by investigators.

Issues: C

IV. Issues: C. Pennsylvania Authorities Acted in Good Faith in Relying upon Search Warrant

The Good Faith Exception to the exclusionary rule will apply and evidence will not be uppressed where it is shown that authorities reasonably relied in good faith upon a search warrant. The defense correctly sets forth the controlling analysis for the good faith exception where evidence will only be excluded where an officer’s reliance on a warrant is not reasonable. The unreasonable reliance situations are: (1) when the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) when the magistrate judge abandoned his judicial role and failed to perform his neutral and detached function; (3) when the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) when the warrant was so facially deficient that it failed to particularized the place to be searched or the things to be seized. U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents 307 F.3d 137 (3d. Cir.1999).

The Commonwealth submits that Magistrate Tupper’s issuance of/Pennsylvania authorities’ reliance upon the search warrant for the party757 email account was reasonable based upon the arguments set forth in the statement of facts section above, therefore, even if the warrant was deemed to be invalid, the good faith exception would apply and the evidence is admissible.

Issues: D

V. Issues: D. Pennsylvania Authorities were able to obtain the relevant Party757@yahoo.com evidence from indetendent sources and the discovery of the email account was inevitable.

“The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawfiil search, and of testimony concerning knowledge acquired during an unlawful search Murray v. United States 487 U.S. 533 (1988)(citing Weeks v. United States 232 U.S. 383 (1914) and Silverman v. United States 365 U.S. 505 (1961)). “Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint.” Id. at 537 (citing Nardone v. United States 308 U.S. 338, 341 (1939); Wong Sun v. United States 371 U.S. 471, 484-485 (1963).

“The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Id. citing Nix v. Williams 467 U.S. 431, 443 (1984). “The independent source doctrine applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.” Id. citing Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 (1920).

“Information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.” Id. at 538 citing United States v. Silvestri 787 F. 2d 736, 739 (1986). “The independent source doctrine does not rest upon a metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawflul seizure is genuinely independent of an earlier, tainted one, which may well be difficult to establish where the seized goods are kept in the police’s possession, there is no reason why the independent source doctrine should not apply.” Id. at 541.

“In addition, the inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered though an independent source, it should be admissible if it inevitably would have been discovered.” Id. at 539.

The Commonwealth submits that, based on testimony, oral argument and the arguments contained in prior submissions that the evidence seized pursuant to the Virginia Beach warrant on the Defendants’ residence should not be suppressed. Even if the evidence seized were to be suppressed, the affidavits of probable cause for the respective email accounts in question still contained sufficient probable cause to obtain the sought after email account information. Even if the Court were to decide that the affidavits did not contain sufficient probable cause, the Commonwealth submits that the good faith exception would apply, thereby justifying the Magistrates’ issuance of and Pennsylvania authorities’ reliance upon the search warrants. Even if the Court were to decide that the warrants for the Virginia Beach residence and the email accounts in question were faulty and the 'good faith’ exception did not apply to any of the warrants, the Commonwealth submits that it still obtained the same information from independent sources and the emails in question would have been/were inevitably discovered by the Commonwealth; various recipients of emails sent from the email accounts in dispute, for example, Grant Roy, Sean Lockhart, Matthew Brannon and David Michaels were/are in lawful possession of the same email information the Commonwealth seeks to introduce and the Defendants are seeking to suppress.

Based on the foregoing, the Commonwealth respectfully requests that the Defendants’ joint motion to suppress information pursuant to search warrants for certain email accounts be denied and dismissed.

So Who Did It?

"Approx “seven years ago”, KEREKES enlisted into the Marine Corps through a local recruiting station. KEREKES stated that his military attendance was for a duration of three days at Paris Island, North Carolina, KEREKES added; I wasn’t cut out for it. They classified me as “unfit for duty”. "

3 days at Marine Corps boot camp certainly doesn't qualify you as being a Marine, and Joe certainly wouldn't have had any kind of combat training during that short visit.

"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. "

Someone that takes the time to place a smoke detector on a table, certainly doesn't seem like a person that's in any great hurry. One would think that if you where, you'd rip the things down, and not care where they landed.

"Amy Zamerowski 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. "

...and...

"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. "

That's an eight minute difference in time... yet the call was placed from the same area... and then we have:

"Chief Vivian, of the Dallas Township Fire Dept states the fire was called in at 8:35 p.m."

So many interesting quotes... I'll add more to this post shortly, but here's my theory thus far... and again I say it's only a theory. This should in no way be construed as fact:

Both Harlow and Joe went to Bryan's house that night... Harlow met with Bryan while Joe waited in the SUV, sending emails through his wireless Internet in the hopes of creating an alibi.

Harlow slips a drug in Bryan's drink... slits Bryan's throat figuring that it would take care of things (remember, he was an alleged Navy corpsman)... then lets Joe in. There are no defensive wounds found... so this would tell me that the slice was not done by some 'dude' that 'just came around'.

After nearly decapitating him... Bryan's body is still moving, so Harlow and Joe panic figuring he's not dead, and then proceed to stab him 28 times to ensure the deed is done, or when any motion finally stops.

Harlow and Joe then proceed to take all of the items they knew they wanted... computer towers, 2257's, etc... the Rolex was an extra 'gift' - which I think they pawned as alleged by Joe in the CCT's.

I also think the knife bought at the Wilkes-Barre Walmart was done as a ruse... they either used the knife purchased in Virginia Beach to commit the crime, and used the Walmart knife as 'left-behind' evidence, or they bought the knife in VB, figuring the PA police would never know that they purchased another in Wilkes-Barre. Either-way, I think the DA has the murder weapon.

Meanwhile... what are your thoughts of how the murder took place?

... I'll share more of mine tomorrow.