II. Law and Argument: Severance because of Virginia Beach Prison Intercepts
The Virginia Beach Prison Intercept statements which the Commonwealth intends to use during a joint trial of Defendants Cuadra and Kerekes, which are outlined above and cited to by the Commonwealth in its own pleadings and briefs, are exactly the type of statements that the Pennsylvania Superior Court addressed in Commonwealth v. Cull, 418 Pa.Super. 23, 613 A.2d 12 at 17 (Pa.Super., 1992) The following excerpt is from the Opinion in the Cull case:
While Faye Cherry was being cross-examined by counsel for co-defendant Smith, she testified, to a telephone conversation with Smith about a month and a half after the murder in which Smith said that he had been merely a bystander and that the killing had been committed by Cull. This statement was not admissible under the co-conspirator exception to the hearsay rule, and it should not have been received. There was no evidence that the conspiracy had been continuing at that time or that Smith’s statements had been made in furtherance of a common design. They were, rather, an attempt to shift the blame for the killing to Cull. This was the kind of statement which Bruton was intended to exclide. Id.
The Virginia Beach Prison Intercept statements were made well after the conclusion of the alleged conspiracy date of 1/24/2007 set forth in the Commonwealth’s Criminal Information. There is no evidence to support that the statements were made during any one of the conspiracies charged in the Commonwealth’s Criminal Information.
Furthermore, the statements were allegedly made after the Defendants were arrested, sometime after the May 15, 2007 arrest date alleged by the Commonwealth. This is of particular importance in the analysis by This Court in this context. The Commonwealth, in one of its many ream size briefs, details, a lengthy discussion of many Pennsylvania cases supporting “adoptive admissions” and exceptions to the hearsay rules when there are co-defendants’ statements in furtherance of the conspiracy. However, the Commonwealth citation to the case of Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387(1981), is factually misguided. In Coccioletti, the court stated:
Although the co-conspirator exception to the hearsay rule has not been applied when the declarations are made after arrest and termination of the conspiracy, Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963), the appellant’s declarations in this case were made prior to their arrest while the conspiracy was still in progress. Id. at 392.
The cases supporting the Commonwealth’s position are factually distinct from the analysis to be applied to the Virginia Beach Prison Intercept statements as these cases dealt with pre-arrest statements and the issues sub judicie are obviously post arrest as they were allegedly made while Defendants Cuadra and Kerekes were being held for extradition from Virginia to Pennsylvania, sometime after the May 15, 2007 arrest date alleged by the Commonwealth.
The Virginia Beach Prison Intercept statements which the Commonwealth intends to use during a joint trial of Defendants Cuadra and Kerekes, which are outlined above and cited to by the Commonwealth in its own pleadings and briefs, are exactly the type of statements that the Pennsylvania Superior Court addressed in Commonwealth v. Cull, 418 Pa.Super. 23, 613 A.2d 12 at 17 (Pa.Super., 1992) The following excerpt is from the Opinion in the Cull case:
While Faye Cherry was being cross-examined by counsel for co-defendant Smith, she testified, to a telephone conversation with Smith about a month and a half after the murder in which Smith said that he had been merely a bystander and that the killing had been committed by Cull. This statement was not admissible under the co-conspirator exception to the hearsay rule, and it should not have been received. There was no evidence that the conspiracy had been continuing at that time or that Smith’s statements had been made in furtherance of a common design. They were, rather, an attempt to shift the blame for the killing to Cull. This was the kind of statement which Bruton was intended to exclide. Id.
The Virginia Beach Prison Intercept statements were made well after the conclusion of the alleged conspiracy date of 1/24/2007 set forth in the Commonwealth’s Criminal Information. There is no evidence to support that the statements were made during any one of the conspiracies charged in the Commonwealth’s Criminal Information.
Furthermore, the statements were allegedly made after the Defendants were arrested, sometime after the May 15, 2007 arrest date alleged by the Commonwealth. This is of particular importance in the analysis by This Court in this context. The Commonwealth, in one of its many ream size briefs, details, a lengthy discussion of many Pennsylvania cases supporting “adoptive admissions” and exceptions to the hearsay rules when there are co-defendants’ statements in furtherance of the conspiracy. However, the Commonwealth citation to the case of Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387(1981), is factually misguided. In Coccioletti, the court stated:
Although the co-conspirator exception to the hearsay rule has not been applied when the declarations are made after arrest and termination of the conspiracy, Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963), the appellant’s declarations in this case were made prior to their arrest while the conspiracy was still in progress. Id. at 392.
The cases supporting the Commonwealth’s position are factually distinct from the analysis to be applied to the Virginia Beach Prison Intercept statements as these cases dealt with pre-arrest statements and the issues sub judicie are obviously post arrest as they were allegedly made while Defendants Cuadra and Kerekes were being held for extradition from Virginia to Pennsylvania, sometime after the May 15, 2007 arrest date alleged by the Commonwealth.
