COMMONWEALTH'S MOTION TO LIMIT DEFENDANT CUADRA'S ALIBI DEFENSE AT TRIAL UNDER PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 567
AND NOW COMES, the Commonwealth of Pennsylvani by and through its Attorneys, Jacqueline Carroll, District Attorney of Luzerne County; Michael Melnick, Assistant District Attorney, Shannon Crake, Assistant District Attorney, and Allyson L. Kacmarski, Assistant District Attorney and in support thereof avers as follows:
1. On May 15, 2007, the Defendant was arrested and charged with multiple offenses arising from a criminal homicide which occurred on January 24, 2007, at 60 Midland Drive, Dallas Twp, Luzerne County, Pennsylvania.
2. A preliminary hearing was held on August 20 and 23, 2007, before Honorable James Tupper.
Defendant was formally arraigned on October 4, 2007, and entered a plea of Not Guilty to all of the following charges: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery-Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson, and Criminal Use of a Communication Facility.
4. Defendant’s criminal case was consolidated with Co-Defendant’s, Joseph Manuel Kerekes, criminal case, 3094 CR 2007.
5. Joseph Kerekes was also formally arraigned on October 4, 2007, and entered a plea of Not Guilty to the charges of: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery-Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson.
6. At the time of the formal arraignment, Defendant could no longer afford private counsel and the Court thereafter appointed the Luzeme County Public Defender’s Office to represent the Defendant.
7. On January 3, 2008, the Luzerne County Public Defender’s Office withdrew from the case and the Court appointed Conflict Counsel, Stephen Menn, Michael Senape, and Paul Galante, to represent the Defendant.
8. On January 28, 2008 Attorney Demetrius Fannick entered his appearance on behalf of Harlow Cuadra.
9. On March 19, 2008, the Court ordered that Attorney Fannick is disqualified to represent the Defendant and that the Defendant will be represented by Conflict Counsel, Stephen Menn, Michael Senape, and Paul Galante.
10. Defense Counsel was granted an extension to file all omnibus pre-trial motions by May 9, 2008.
11. On May 9, 2008, Attorney Galante requested and was granted an additional one week one week extension to file all omnibus pre-trial motions.
12. On May 16 2008, Defendant filed his omnibus pre-trial motions, which did not include a Notice of Alibi Defense.
13. On July 9, 2008, Attorney Galante withdrew as Counsel and the Defendant is currently represented by Conflict Counsel Stephen Menn and Michael Senape.
14. On July 30, 2008, Defendant filed a Notice of Possible Alibi Defense.
15. Defendant states in his Notice of Alibi Defense that his possible alibi defense will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, PA.
16. Commonwealth notes that the Defendant’s co-Defendant, Joseph Kerekes, also filed a Notice of Alibi Defense on January 30, 2008, stating that Joseph Kerekes’ possible alibi defense will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, PA.
17. Most noteworthy is the Defendant states he may call other yet unknown and unidentified witnesses to suppott his alibi defense.
18. Commonwealth notes that the Defendant’s Alibi Defense is consistent and compatible with that of his co-Defendant’s alibi defense.
19. The Commonwealth also notes that the Co-Defendants are intimate partners in a relationship and the fact that they are staying together at the same hotel is entirely consistent with their relationship.
20. The, Commonwealth avers that Pennsylvania Rule of Criminal Procedure
567. Notice’ of Alibi Defensec states:
“(A) A defendant who intends ‘to offer the defense of alibi at trial shall file with the clerk of courts not later than the time for filing the omnibus pretrial motion provided in Rule 579 a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.”
21. The Commonwealth avers that Pennsylvania Rule of Criminal Procedure
579, Time for Omnibus Pretrial Motionand Service states:
“(A) Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed añd served within 3O days after arraignment, unless opportunity therefore ‘did not exist, or the defendant or defense attorney, or the’ attorney for the Commonwealth was not aware of the grounds for the motion, or unless that time for filing has been extended by the court for cause shown.”
22. According to Rule 567, Notice of Alibi Defense, Defendant’s Notice of Possible Alibi Defense Motion was not filed and served within 30 days of the Defendant’s date of arraignment, October 4, 2007.
23. As previously stated, Defense Counsel’s deadline for filing all omnibus pre-trial motions was May 16, 2008.
24. Commonwealth submits that the Defendant’s Notice of Alibi Defense is an omnibus pre-trial motion and was required to be filed by May 16, 2008, in order to be considered timely.
25. ‘The Commonwealth avers that Pennsylvania Rule of Criminal Procedure 567. Notice of Alibi Defense Subsection B. Failure to File Notice states:
“(B)(1) If Defendant fails to file and serve the notice of alibias required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of providing the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.”
26. Based on the Defendant’s untimely filing of his Notice of Alibi Defense, the Commonwealth asks this Court to exclude entirely any other evidence offered by the Defendant for the purpose of providing an alibi defense at trial, except for the Defendant’s own testimony.
27. The Commonwealth avers that Pennsylvania Rule of Criminal Procedure 567. Notice of Alibi Defense. Subsection (A)(2). Notice by Defendant states:
“(A) (2) The notice shallcontain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.”
28. Defendant’s Notice of Possible Alibi Defense states specific information as to the place where the Defendant claims to have been at the time of the alleged offense, however, the Notice fails to specificaily state the names and addresses of the witnesses whom the defendant intends to call at trial in support of his alibi defense.
29. The Commonwealth notes that Defendant has reserved the Right to supplement his Notice of Alibi Defense as to the witnesses that the Defendant would possibly call in support of his claim, however, given the approaching start date of trial, the Commonwealth would not have sufficient time to investigate the filing of the Notice
30. The Commonwealth submits that due to the lack of specificity of the Defendant’s Notice of Alibi Defense, in regards tothe possible witnesses, the Court should exclude entirely any evidence offered by the Defendant for the purpose of providing an alibi defense at trial, except for the Defendant’s own testimony.
WHEREFORE, the Commonwealth requests this Honorable Court to grant the Commonwealth’s Motion Limiting Defendant’s Alibi Defense at trial to the testimony of the Defendant, Harlow Cuadra, and no other witnesses, based on the Defendant’s failure to meet the requirements of Rule 567 specifically regarding the Defendant’s filing of his eleventh-hour Alibi Notice, as well as the lack of specificity as to possible witnesses that the Defendant may call at trial to support this evolving defense.
1. On May 15, 2007, the Defendant was arrested and charged with multiple offenses arising from a criminal homicide which occurred on January 24, 2007, at 60 Midland Drive, Dallas Twp, Luzerne County, Pennsylvania.
2. A preliminary hearing was held on August 20 and 23, 2007, before Honorable James Tupper.
Defendant was formally arraigned on October 4, 2007, and entered a plea of Not Guilty to all of the following charges: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery-Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson, and Criminal Use of a Communication Facility.
4. Defendant’s criminal case was consolidated with Co-Defendant’s, Joseph Manuel Kerekes, criminal case, 3094 CR 2007.
5. Joseph Kerekes was also formally arraigned on October 4, 2007, and entered a plea of Not Guilty to the charges of: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery-Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson.
6. At the time of the formal arraignment, Defendant could no longer afford private counsel and the Court thereafter appointed the Luzeme County Public Defender’s Office to represent the Defendant.
7. On January 3, 2008, the Luzerne County Public Defender’s Office withdrew from the case and the Court appointed Conflict Counsel, Stephen Menn, Michael Senape, and Paul Galante, to represent the Defendant.
8. On January 28, 2008 Attorney Demetrius Fannick entered his appearance on behalf of Harlow Cuadra.
9. On March 19, 2008, the Court ordered that Attorney Fannick is disqualified to represent the Defendant and that the Defendant will be represented by Conflict Counsel, Stephen Menn, Michael Senape, and Paul Galante.
10. Defense Counsel was granted an extension to file all omnibus pre-trial motions by May 9, 2008.
11. On May 9, 2008, Attorney Galante requested and was granted an additional one week one week extension to file all omnibus pre-trial motions.
12. On May 16 2008, Defendant filed his omnibus pre-trial motions, which did not include a Notice of Alibi Defense.
13. On July 9, 2008, Attorney Galante withdrew as Counsel and the Defendant is currently represented by Conflict Counsel Stephen Menn and Michael Senape.
14. On July 30, 2008, Defendant filed a Notice of Possible Alibi Defense.
15. Defendant states in his Notice of Alibi Defense that his possible alibi defense will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, PA.
16. Commonwealth notes that the Defendant’s co-Defendant, Joseph Kerekes, also filed a Notice of Alibi Defense on January 30, 2008, stating that Joseph Kerekes’ possible alibi defense will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, PA.
17. Most noteworthy is the Defendant states he may call other yet unknown and unidentified witnesses to suppott his alibi defense.
18. Commonwealth notes that the Defendant’s Alibi Defense is consistent and compatible with that of his co-Defendant’s alibi defense.
19. The Commonwealth also notes that the Co-Defendants are intimate partners in a relationship and the fact that they are staying together at the same hotel is entirely consistent with their relationship.
20. The, Commonwealth avers that Pennsylvania Rule of Criminal Procedure
567. Notice’ of Alibi Defensec states:
“(A) A defendant who intends ‘to offer the defense of alibi at trial shall file with the clerk of courts not later than the time for filing the omnibus pretrial motion provided in Rule 579 a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.”
21. The Commonwealth avers that Pennsylvania Rule of Criminal Procedure
579, Time for Omnibus Pretrial Motionand Service states:
“(A) Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed añd served within 3O days after arraignment, unless opportunity therefore ‘did not exist, or the defendant or defense attorney, or the’ attorney for the Commonwealth was not aware of the grounds for the motion, or unless that time for filing has been extended by the court for cause shown.”
22. According to Rule 567, Notice of Alibi Defense, Defendant’s Notice of Possible Alibi Defense Motion was not filed and served within 30 days of the Defendant’s date of arraignment, October 4, 2007.
23. As previously stated, Defense Counsel’s deadline for filing all omnibus pre-trial motions was May 16, 2008.
24. Commonwealth submits that the Defendant’s Notice of Alibi Defense is an omnibus pre-trial motion and was required to be filed by May 16, 2008, in order to be considered timely.
25. ‘The Commonwealth avers that Pennsylvania Rule of Criminal Procedure 567. Notice of Alibi Defense Subsection B. Failure to File Notice states:
“(B)(1) If Defendant fails to file and serve the notice of alibias required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of providing the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.”
26. Based on the Defendant’s untimely filing of his Notice of Alibi Defense, the Commonwealth asks this Court to exclude entirely any other evidence offered by the Defendant for the purpose of providing an alibi defense at trial, except for the Defendant’s own testimony.
27. The Commonwealth avers that Pennsylvania Rule of Criminal Procedure 567. Notice of Alibi Defense. Subsection (A)(2). Notice by Defendant states:
“(A) (2) The notice shallcontain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.”
28. Defendant’s Notice of Possible Alibi Defense states specific information as to the place where the Defendant claims to have been at the time of the alleged offense, however, the Notice fails to specificaily state the names and addresses of the witnesses whom the defendant intends to call at trial in support of his alibi defense.
29. The Commonwealth notes that Defendant has reserved the Right to supplement his Notice of Alibi Defense as to the witnesses that the Defendant would possibly call in support of his claim, however, given the approaching start date of trial, the Commonwealth would not have sufficient time to investigate the filing of the Notice
30. The Commonwealth submits that due to the lack of specificity of the Defendant’s Notice of Alibi Defense, in regards tothe possible witnesses, the Court should exclude entirely any evidence offered by the Defendant for the purpose of providing an alibi defense at trial, except for the Defendant’s own testimony.
WHEREFORE, the Commonwealth requests this Honorable Court to grant the Commonwealth’s Motion Limiting Defendant’s Alibi Defense at trial to the testimony of the Defendant, Harlow Cuadra, and no other witnesses, based on the Defendant’s failure to meet the requirements of Rule 567 specifically regarding the Defendant’s filing of his eleventh-hour Alibi Notice, as well as the lack of specificity as to possible witnesses that the Defendant may call at trial to support this evolving defense.
