I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
The Commonwealth filed separate 12 Count Criminal Informations against the Defendant on or about October 4, 2007, alleging the “Offense Date” for each and every Count as “1/24/2007.” The homicide, abuse of corpse, robbery and arson allegedly committed by Defendants Cuadra and Kerekes are believed by the Commonwealth to have occurred on or about January 24, 2007. The Commonwealth also alleges that Defendants Cuadra and Kerekes were also involved in conspiracies to commit these crimes as well as the commission of the additional crimes of Tampering with or Fabricating Physical Evidence and Criminal Conspiracy to commit same on January 24, 2007.
According to the Commonwealth’s evidence, the Defendants were arrested and detained on “Fugitive From Justice warrants” by members of the Virginia Beach Police Department on May 15, 2007.
On January 30, 2008, Defendant Kerekes filed his Omnibus Pretrial Motion papers, included within said Omnibus was a “Motion For Severance.” On May 16, 2008, Defendant Cuadra filed his Omnibus Pretrial Motion papers, included within said Omnibus a “Motion For Severance”. The Commonwealth filed Answers to each of the Defendants’ Omnibus Pretrial Motions and specifically answered the aforementioned Motions regarding Severance.
In the Commonwealth’s July 3, 2008 Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion, it specifically responded to the Motion For Severance as follows:
42. Denied. Defendant Cuadra’s defense is not substantially prejudiced by the joinder with Defendant Kerekes’ case. Defendant Cuadra’s defense is consistent, compatible and coordinated with Defendant Kerekes’ defense. The Defendants defenses demonstrate alliance, not antagonism. Both Cuadra and Kerekes have agreed on Plan B, wherein both defendants are completely innocent. Under Plan B, Defendant Kerekes was slumbering at the Fox Ridge Inn, composing an e-mail to escort client. At 60 Midland Drive, Defendant Cuadra walked in 60 Midland Drive, Dallas, Pennsylvania; Defendant Cuadra smelled smoke and fled from the unfolding tragedy. Then Defendant Kerekes and Defendant Cuadra, apparently overcome by emotion, sped back to Virginia Beach. See Virginia Beach Prison Transcript #98, 101 which are attached here to as: Exhibits “5” and “6”. (See Commonwealth’s Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion filed July 3, 2008, Page 13)
The Commonwealth’s Answer also included the following:
The Commonwealth will play or read transcripts of the following conversation attached hereto:
a. Joseph Kerekes to Renee Martin: Defendant Kerekes outlines Plan B.
b. Joseph Kerekes and Harlow Cuadra: the Defendants agree on Plan B.
c. Joseph Kerekes to Renee Martin: redacted and read to the jury in accordance with Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845, 847 (2001): Defendant Kerekes acknowledges a trip to the Wilkes-Barre Walmart with cuadra in which lighter fluid, a knife, KY jelly and condoms are purchased the day of the homicide. (See Numbered Paragraph 44. of Commonwealth’s Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion filed July 3, 2008, Page 14)
On January 30, 2008, Defendant Kerekes filed a Notice of Possible Alibi Defense which stated the following:
... the Defendant [Kerekes] may present a defense of alibi at trial. If he presents such a defense, the claim will be that at the time of the alleged offense the Defendant [Kerekes] was at the Fox Ridge Hotel, Room 211, Plains Township, Pennsylvania. (See Notice of Possible Alibi Defense filed by Defendant Kerekes on January 30, 2008)
On July 30, 2008, Defendant Cuadra filed a Notice of Possible Alibi Defense which stated the following:
the Defendant [Cuadra] may present a defense of alibi at trial. If Defendant Cuadra presents such a defense, the claim will be that at the time of th alleged offense, the Defendant [Cuadra] was at the Fox Ridge Hotel, Room 211, Plains Township, PA. (See Notice of Possible Alibi Defense filed by Defendant Cuadra an July 30, 2008)
Also on July 30, 2008, at the continuation of the Suppression / Omnibus Motions hearing, the undersigned counsel for Defendant Cuadra, Michael B. Senape, Esquire, advised the Court, the Commonwealth and Defendant Kerekes and his legal counsel of Defendant Cuadra’s Notice of Possible Alibi Defense and served a copy of said Notice on the Court, the Commonwealth and Defendant Kerekes’ legel counsel.
Immediately thereafter the undersigned counsel presented legal argument on behalf of both Defentants supporting a joint request for Severance based upon the conficting Notice of Possible Alibi Defense filings, antagonistic defenses and the case of Commonwealth v. Brown, 592 Pa. 376, 925 A.2d 147 at 162 (2007).
During this argument the Court engaged the undersigned counsel and counsel for the Commonwealth in a discussion of the legal and factual implications and/or distinctions between the case sub judicie and the cases of Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586 (2007) and Commonwealth v. Cull, 418 Pa.Super. 23, 613 A.2d 12 (Pa.Super. 1992). Specifically, the Court pointed out the fact that in the Markman case the statements were made by a co-defendant to law enforcement officials and in Cull the statements were made by a co-defendant to a non-law enforcement person / lay witness. The Court then directed the undersigned to provide, if possible, the Court and the Commonwealth with legal authority to further support the Defendants’ requests for Severance based upon these legal principals.
The Commonwealth filed separate 12 Count Criminal Informations against the Defendant on or about October 4, 2007, alleging the “Offense Date” for each and every Count as “1/24/2007.” The homicide, abuse of corpse, robbery and arson allegedly committed by Defendants Cuadra and Kerekes are believed by the Commonwealth to have occurred on or about January 24, 2007. The Commonwealth also alleges that Defendants Cuadra and Kerekes were also involved in conspiracies to commit these crimes as well as the commission of the additional crimes of Tampering with or Fabricating Physical Evidence and Criminal Conspiracy to commit same on January 24, 2007.
According to the Commonwealth’s evidence, the Defendants were arrested and detained on “Fugitive From Justice warrants” by members of the Virginia Beach Police Department on May 15, 2007.
On January 30, 2008, Defendant Kerekes filed his Omnibus Pretrial Motion papers, included within said Omnibus was a “Motion For Severance.” On May 16, 2008, Defendant Cuadra filed his Omnibus Pretrial Motion papers, included within said Omnibus a “Motion For Severance”. The Commonwealth filed Answers to each of the Defendants’ Omnibus Pretrial Motions and specifically answered the aforementioned Motions regarding Severance.
In the Commonwealth’s July 3, 2008 Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion, it specifically responded to the Motion For Severance as follows:
42. Denied. Defendant Cuadra’s defense is not substantially prejudiced by the joinder with Defendant Kerekes’ case. Defendant Cuadra’s defense is consistent, compatible and coordinated with Defendant Kerekes’ defense. The Defendants defenses demonstrate alliance, not antagonism. Both Cuadra and Kerekes have agreed on Plan B, wherein both defendants are completely innocent. Under Plan B, Defendant Kerekes was slumbering at the Fox Ridge Inn, composing an e-mail to escort client. At 60 Midland Drive, Defendant Cuadra walked in 60 Midland Drive, Dallas, Pennsylvania; Defendant Cuadra smelled smoke and fled from the unfolding tragedy. Then Defendant Kerekes and Defendant Cuadra, apparently overcome by emotion, sped back to Virginia Beach. See Virginia Beach Prison Transcript #98, 101 which are attached here to as: Exhibits “5” and “6”. (See Commonwealth’s Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion filed July 3, 2008, Page 13)
The Commonwealth’s Answer also included the following:
The Commonwealth will play or read transcripts of the following conversation attached hereto:
a. Joseph Kerekes to Renee Martin: Defendant Kerekes outlines Plan B.
b. Joseph Kerekes and Harlow Cuadra: the Defendants agree on Plan B.
c. Joseph Kerekes to Renee Martin: redacted and read to the jury in accordance with Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845, 847 (2001): Defendant Kerekes acknowledges a trip to the Wilkes-Barre Walmart with cuadra in which lighter fluid, a knife, KY jelly and condoms are purchased the day of the homicide. (See Numbered Paragraph 44. of Commonwealth’s Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion filed July 3, 2008, Page 14)
On January 30, 2008, Defendant Kerekes filed a Notice of Possible Alibi Defense which stated the following:
... the Defendant [Kerekes] may present a defense of alibi at trial. If he presents such a defense, the claim will be that at the time of the alleged offense the Defendant [Kerekes] was at the Fox Ridge Hotel, Room 211, Plains Township, Pennsylvania. (See Notice of Possible Alibi Defense filed by Defendant Kerekes on January 30, 2008)
On July 30, 2008, Defendant Cuadra filed a Notice of Possible Alibi Defense which stated the following:
the Defendant [Cuadra] may present a defense of alibi at trial. If Defendant Cuadra presents such a defense, the claim will be that at the time of th alleged offense, the Defendant [Cuadra] was at the Fox Ridge Hotel, Room 211, Plains Township, PA. (See Notice of Possible Alibi Defense filed by Defendant Cuadra an July 30, 2008)
Also on July 30, 2008, at the continuation of the Suppression / Omnibus Motions hearing, the undersigned counsel for Defendant Cuadra, Michael B. Senape, Esquire, advised the Court, the Commonwealth and Defendant Kerekes and his legal counsel of Defendant Cuadra’s Notice of Possible Alibi Defense and served a copy of said Notice on the Court, the Commonwealth and Defendant Kerekes’ legel counsel.
Immediately thereafter the undersigned counsel presented legal argument on behalf of both Defentants supporting a joint request for Severance based upon the conficting Notice of Possible Alibi Defense filings, antagonistic defenses and the case of Commonwealth v. Brown, 592 Pa. 376, 925 A.2d 147 at 162 (2007).
During this argument the Court engaged the undersigned counsel and counsel for the Commonwealth in a discussion of the legal and factual implications and/or distinctions between the case sub judicie and the cases of Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586 (2007) and Commonwealth v. Cull, 418 Pa.Super. 23, 613 A.2d 12 (Pa.Super. 1992). Specifically, the Court pointed out the fact that in the Markman case the statements were made by a co-defendant to law enforcement officials and in Cull the statements were made by a co-defendant to a non-law enforcement person / lay witness. The Court then directed the undersigned to provide, if possible, the Court and the Commonwealth with legal authority to further support the Defendants’ requests for Severance based upon these legal principals.
