Technology Aids Police in Capturing Suspects

This article was posted in today's Times Leader, and while there's really nothing new to be learned in regards to the Cuadra/Kerekes case, it does give some interesting insight:

As mobile phones and e-mail are increasingly used in the commission of crimes, law enforcement officials are turning to high-technology techniques to gather evidence and sometimes even to track down suspects.

Cellular phone signals helped authorities capture a man suspected in the killing of three people in Scranton on July 17, according to court records.

Randall Rushing, 26, was being sought after the bodies were found inside a South Irving Avenue home earlier that day. Rushing’s cell phone calls were tracked by the FBI to a cell tower near Sherman Hills apartments and to a vehicle that he eventually abandoned on High Street in Wilkes-Barre.

“Cell phone number was subsequently tracked and reportedly being used between cell phone towers located in Wilkes-Barre, specifically the Sherman Hills area,” court records say. “Based on information from the cell phone tracking being provided by the FBI, the (vehicle) was subsequently located unattended at the corner of High Street and Virgin Lane in Wilkes-Barre.”

Rushing was captured when authorities raided an apartment on High Street, not far from where he abandoned the vehicle.

Authorities could pinpoint Rushing’s location because of the way mobile phones work. The coverage area is divided into “cells” and a signal is handed off from one to another as a caller moves. While cells can be miles wide in rural areas, more of them are needed in cities to handle the volume of calls, making the locations more precise.

Multiple state and federal search warrants were used to get both cell phone and e-mail records in the capital murder case against homicide suspects Harlow Cuadra and Joseph Kerekes, who are accused in the slaying of Bryan Kocis in Dallas Township in January 2007.

Investigators were able to allege that Cuadra and Kerekes, both from Virginia Beach, Va., were near Kocis’ Midland Drive home the night Kocis was killed because they traced their cell phone signals to three towers in the Wyoming Valley, including one just 100 yards from Kocis’ home.

Investigators also traced their Internet log-ins and e-mails before and after Kocis was killed, according to court records.

Nearly two dozen employees from different cell phone and Internet provider companies have been named material witnesses in the case. They are expected, if called by prosecutors to testify, to verify the accuracy of Cuadra’s and Kerekes’ cell phone and Internet records.

A total of 68 e-mails were traced to Cuadra and Kerekes from Jan. 20 to Jan. 29, most of which were sent to Kocis from computers in their Virginia Beach home, court records say.

Other cases are less complex. A White Haven man recently was arrested by Swoyersville police for leaving a voice mail on a cell phone.

It was the content of the message that resulted in criminal charges against Lee Robert Fuller, police said.

Police said in arrest records that Fuller called a man known to him on Sept. 9 and left a voice mail message saying, “I’m going to kill your son.”

Fuller, 36, was charged with two counts of harassment on Wednesday.

Law enforcement officers say that as the Internet and cell phones have entered the mainstream of American life within the last 15 years, those who commit crimes have not missed the electronic revolution.

“Local police departments are seeing these types of crimes more often these days,” said Luzerne County Det. Charles J. Balogh Jr. “The technology is there for criminals to use cell phones to harass, or the Internet to commit identity theft or harass by e-mail.

“All they’re doing is creating more work for us, but at the same time, we have the technological capabilities to investigate and prosecute,” Balogh added.

While investigating the disturbing, “I’m going to kill your son,” phone call, Swoyersville police issued subpoenas to cell phone providers that allowed them to lawfully seize phone records that were traced to Fuller, according to arrest records.

Police dealt with two cell phone companies, AT&T Motorola and Sprint, to get records that led to charges against Fuller, arrest records show.

“People need to be aware that we do have the capabilities of getting cell phone information,” Kingston Township Police Chief James Balavage said. “We have to do a lot of leg work, but we do get it done.”

Balogh and Balavage surmised that the growing number of crimes committed by cell phone and through the Internet is the reason why cell phone and Internet provider companies have dedicated employees to deal with subpoenas or search warrants issued by investigators.

“There are special departments that we deal with,” Balavage said.

“It’s not difficult to investigate crimes committed by electronic means,” Balogh said. “It’s fair to say that cell phone and (Internet) providers cooperate. We fax them our subpoenas for records and many companies respond almost immediately.”

An Interesting Exchange

While I'm not at liberty to say how I was able to obtain the following... this email exchange between Joseph Kerekes and Grant Roy in April of last year... is rather interesting:

From: NME correspondence [mailto:stareyes23510@yahoo.com]
Sent: Tuesday, April 03, 2007 11:47 AM
To: groy@san.rr.com
Subject: Hello

Hello Grant

I hope your doing well today!

As we wait on your proposal for the shoot, I would request you to send first or as part of the proposal a copy of your settlement documents between LSG & Cobra Video & Brent Corrigan personally.

I have approached my corporate lawyer to discuss our possible future collaboration efforts & although we are truly entertaining the possibility, we do not want any legal battles down the road to ensue with any party or Cobra Videos' heirs. Though Kocis is unfortunately deceased, this is a concern.

Please let me know if this is OK

Joe Kerekes
---

From: "Grant" [groy@san.rr.com]

To: "NME correspondence" [stareyes23510@yahoo.com]

Date: Tue, 3 Apr 2007 12:34:50 -0700
Subject: RE: Hello

Joe,

I cannot provide you with that information. The settlement is strictly confidential to the parties of the settlement and cannot be released to anyone else. I can assure you that any proposal that is presented will be in full compliance with the settlement and trademark license as they pertain to “Brent Corrigan” and Cobra Video. If this does not provide you with enough reassurance to move forward with the shoot, then we will have no other choice but to cancel or postpone current plans indefinitely. Please advise, so I do not devote any further time to this matter.

If there is no further issue, I should have a proposal complete this evening. I would ask, however until it is complete and all sides agree to the terms, that you do not make any announcements, or insinuations on any of your websites or other websites or public forums as already seems to be the case. An explanation to this request will be included with the proposal.

Thank you,

Grant Roy
Member
LSG Media, LLC
groy@san.rr.com

Harlow & Joe's Suppression of Evidence...

The Citizen's Voice is reporting that a hearing on the suppression of evidence in the capital murder case against Joseph Kerekes was halted Monday to give attorneys for co-defendant Harlow Cuadra an opportunity to join the proceeding.

Luzerne County Judge Peter Paul Olszewski Jr. ordered prosecutors to provide Cuadra’s attorneys, Michael Senape and Stephen Menn, with all of the suppression-related evidence and documents they previously shared with Kerekes’ attorneys, John Pike and Shelley Centini.

Olszewski said he would allow Cuadra’s attorneys 10 days to review the material and consider filing their own motion or joining Kerekes’ request to suppress evidence seized from the vehicle he and Cuadra were riding in when they were arrested.

Kerekes’ attorneys argued items seized from the BMW M5 sedan he and Cuadra were in at the time of their arrest in May 2007 — including a knife and laptop computer — were obtained outside the scope of a warrant granted for a separate investigation into their business practices.

Olszewski halted the suppression hearing about an hour after it began, following the testimony of Matthew P. Childress, a Virginia Beach police detective who had been investigating Cuadra and Kerekes for money laundering, racketeering and other charges related to their operation of a male escort service that allegedly doubled as a prostitution ring.

The money laundering investigation continued as Pennsylvania authorities closed in on Cuadra and Kerekes for the Kocis killing, Childress said. Childress obtained a warrant on May 14 and, the next day, executed a search on the home where Cuadra and Kerekes lived at 1028 Stratem Court, Virginia Beach, Va., and vehicles parked on the adjacent property.

Cuadra and Kerekes left before the search and were stopped a short time later by police on Virginia Beach Boulevard, about five miles away. They were taken into custody and charged with murdering Kocis.

“They were taken into custody for the outstanding Pennsylvania warrants,” Childress said. “(The evidence) was taken in regard to the active case I had against Mr. Cuadra and Mr. Kerekes.”

Kerekes’ attorneys argued the search warrant did not authorize search or seizure of his vehicle if it was “located on a public roadway, such as Virginia Beach Boulevard.”
---

Meanwhile, the Times Leader says... a hearing scheduled Monday for prosecution and defense attorneys in the murder case against homicide suspects Joseph Kerekes and Harlow Cuadra has been continued, giving attorneys for Cuadra the chance to file a motion to suppress evidence.

The hearing began Monday with testimony from Detective Matthew Childress from the Virginia Beach Police Department, who obtained search warrants for Kerekes and Cuadra’s home regarding an unrelated Racketeer Influenced and Corrupt Organizations Act (RICO) case.

Evidence seized from both the house and vehicle of Kerekes and Cuadra has been entered as evidence in the homicide case.

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.

Kerekes’ attorneys, John Pike and Shelley Centini, 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 court papers.

After Kerekes and Cuadra were arrested, their vehicle was later 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.

Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. said Cuadra’s attorneys, Stephen Menn and Michael Senape, have 10 days to receive paperwork from prosecutors with all evidence in regard to a motion by the defense. The hearing is continued until then.

“Mr. Cuadra did not receive all the information. It wasn’t intentional on the commonwealth’s part,” Olszewski said, stating it was merely an oversight.

Olszewski said that due to the severity of the proceeding he would allow the 10 days for Cuadra’s attorneys to make a decision to join the motion, stating that since the trial isn’t scheduled until January 2009, there is plenty of time to sort things out.

PPO's Memorandum: Harlow Cuadra (Part 1)

Note: Since this memorandum is approx. 43 pages in length, I've posted it in three, easier to follow parts:

• Part 1
• Part 2
• Part 3

MEMORANDUM

BY: HONORABLE PETER PAUL OLSZEWSKI, JR.

I. INDIVIDUAL VOIR DIRE

The Commonwealth and Defendant agree that Defendant is entitled to individual voir dire. See Pa. R.Crim.P. 631(E). (N.T. July 8, 2008 at page 4).

II. MOTION FOR CHANGE OF VENUE/VENIRE

Based upon the holding in Commonwealth v. Drumheller, 808 A.2d 893 (Pa. 2002), the Court will hold Defendant’s Motion in abeyance pending appropriate inquiry regarding the nature and extent of prospective jurors’ exposure to pretrial publicity. (N.T. July 8, 2008 at pages 4-10).

III. MOTION IN LIMINE - PHOTOGRAPHS

Photographs of a deceased victim are not inflammatory per Se. The admission into evidence of photographs depicting the corpse of a homicide victim or the location and scene of the crime lies within the sound discretion of the trial judge. A photograph which is judged not to be inflammatory is admissible if it is relevant and can assist the jury in understanding the facts. A gruesome or potentially inflammatory photograph is admissible if it is of such essential evidentiary value that its need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Commonwealth v Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984).

During the Motions hearing held on July 8, 2008 the Court viewed all photographs objected to by Defense Counsel. Using the aforementioned standard the Court ruled on the admissibility of each of the photographs in question. (N.T. July 8, 2008 at pages 11-43).

IV. MOTION IN LIMINE — USE OF DEFENDANT’S PRIOR CRIMINAL RECORD

The Commonwealth stipulated that both Defendant Kerekes and Defendant Cuadra have no prior criminal records and therefore no such evidence will be introduced at trial. (N.T. July 8, 2008 at pages 43-44).

V. MOTION IN LIMINE — PROHIBIT USE OF DEFENDANT’S PRIOR BAD ACTS

In their Omnibus Pretrial Motions each Defendant moves to prohibit use of the Defendants’ prior bad acts.

Additionally, the Commonwealth, in its Notice of Commonwealth’s Intention to Seek to Admit Evidence of Other Crimes, Wrongs, or Acts Pursuant to Pa. Rule of Evidence 404(b), filed on November 6, 2007, gives Notice of intention to seek admission of certain conduct it alleges constitutes a prior bad act. In its supporting brief and during oral argument held on July 30, 2008 (See N.T. pages 3-28) the Commonwealth specifically referred to this request to seek to introduce evidence of the following conduct:

A. DEFENDANT’S ESCORT BUSINESS AND ALLEGED PROSTITUTION.

The Commonwealth alleges Defendants operated a male escort business and that each Defendant solicited certain clients of that business to fabricate a false alibi, in order to support their claim that they were not present in Dallas Township when the homicide occurred. More specifically, the Commonwealth alleges that Defendant Cuadra solicited Mitch Halford, an alleged long-standing escort client of Mr. Cuadra’s, to indicate that he was with the Defendant on January 24, 2007, the evening of the murder.

The Commonwealth alleges that Defendant Cuadra sent Nep Maliki a letter instructing him to tell authorities that he went to Cuadra’s residence at 1028 Stratem Court, Virginia Beach, Virginia for an escort call on the evening of January 24,2007. The Commonwealth further alleges that Cuadra instructed Maliki to detail their conduct that evening which conduct, if true, could constitute prostitution. (See N.T. July 30, 2008 at pages 5-9).

The Commonwealth further alleges that Defendant Kerekes solicited Mr. Brannon to tell authorities that Kerekes provided him with escort services at the Fox Ridge Inn, Plains Township, Pennsylvania on the evening of January 24, 2007. (See NT. July 30, 2008 at pages 9-11).

Finally, the Commonwealth alleges that both Defendants contacted David Michaels, again soliciting a fake alibi involving an escort call. (See N.T. July 30, 2008 at pages 11-12).

It is certainly clear that evidence that a Defendant has solicited false alibi testimony is admissible as substantive evidence of consciousness of guilt. See Commonwealth v. Young, 748 A.2d 166 (Pa. 1999); Commonwealth v. Johnson, 668 A.2d 97 (Pa. 1995); Commonwealth v. Carbone, 547 A.2d 584, 589 (Pa. 1990).

At the same time, however, it is equally clear that while Pennsylvania Rule of Evidence 404(b)(2) allows evidence of other crimes, wrongs or acts to be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, 404(b)(3) limits the admission of such evidence to where its probative value outweighs the potential for prejudice.

Under these circumstances, while the Court will allow the Commonwealth to present evidence of Defendants’ alleged solicitation to seek false alibis, the Commonwealth will not be permitted to present evidence of an escort service or of alleged prostitution.

B. FALSE ACCUSATIONS AGAINST ROBERT WAGNER, GRANT ROY AND SEAN LOCKHART.

The Commonwealth broadly suggests that during certain of the intercepted conversations at Crab Catcher’s Restaurant and on Black Beach, as well as in certain Virginia Beach prison intercepts, that the Defendants discussed attempts to accuse Robert Wagner, Grant Roy and Sean Lockhart of involvement in the murder of Bryan Kocis.

During oral argument held on July 30, 2008 the Commonwealth withdrew its request to present such evidence during its case-in-chief, and instead will consider using it as potential rebuttal evidence. (See NJ. July 30, 2008 at pages 18-21).

Under these circumstances the Court obviously need not make any ruling on this issue.

C. DEFENDANTS’ SOLICITATION TO MAKE UNDER THE TABLE PAYMENTS TO RECRUIT BRENT CORRIGAN TO THEIR STABLE OF ACTORS.

Here the Commonwealth requests to introduce evidence that (1) Defendants attempted to circumvent a settlement agreement between L.S.G. and Cobra Video wherein L.S.G. was required to make payment to Cobra Video for its use of Sean Lockhart in its videos; (2) to lure Sean Lockhart away from making videos for Cobra Video and into videos for L.S.G. The Commonwealth argues that while such conduct is not criminal in nature, it qualifies as a bad act in that it advances the Commonwealth’s theory of their case that the motive behind the murder of Bryan Kocis was to recruit Sean Lockhart for L.S.G. and away from Cobra Video. The Commonwealth would produce evidence that Defendants solicited and would secretly pay Sean Lockhart and Grant Roy to make secret videos for L.S.G. without making the required payments of twenty percent of revenue from these videos to Cobra Video. (See N.T. July 30, 2008 at pages 21-28).

Ultimately the Commonwealth argues that by murdering Bryan Kocis, the Defendants would not be required to make the payments to Cobra Video, and would not need to resort to luring Roy and Lockhart to make secret videos.

Should the Commonwealth be able to develop such evidence, the Court believes that it would promote a possible motive for the murder and that its probative value would outweigh prejudice to the Defendants. With proper offers of proof the Court will allow such testimony.

D. VIRGINIA FORFEITURE PROCEEDINGS.

The Commonwealth declined to develop the nature and theory of such testimony and instead indicated that such evidence may only become relevant as rebuttal evidence in a potential penalty phase of the trial. (See N.T. July 30, 2008 at pages 28-29).

E. BURGLARY CHARGES.

The Commonwealth originally sought to introduce testimony that the Defendants were also charged with burglary on the basis of an alleged illegal entry into the Kocis home. During oral argument, this request was modified to eliminate any mention of burglary charges, and to simply submit evidence as to how entry was made to the Kocis home. (See N.T. July 30, 2008 at pages 29-31).

VI. MOTION TO SUPPRESS ORAL AND/OR WRITTEN STATEMENTS

The Commonwealth intends to offer evidence that Defendant Cuadra made the following statements:

A. Defendant’s electronically recorded oral statements and conversations at Crab Catcher’s Restaurant in La Hoya, California on April 27, 2007;

B. Defendant’s electronically recorded oral statements and conversations at Black Beach, San Diego, California on April 28, 2007;

C. Defendant’s oral statement given to Detective Lieutenant Yursha and Sergeant Higgins on May 15, 2007 in the Virginia Beach Police Department.

D. Defendant’s blurt out while on the Pennsylvania Turnpike in the vicinity of the Lehigh Tunnel on June 17, 2007.

The Court adopts the following Findings of Fact and Conclusions of Law:

I. FINDINGS OF FACT

A. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT CRAB CATCHER’S RESTAURANT IN LA HOYA, CALIFORNIA ON APRIL 27, 2007.

1. Corporal Leo Hannon, a twelve and one-half year veteran of the Pennsylvania State Police, is the lead investigator into the homicide of Bryan Charles Kocis. Corporal Hannon is currently assigned to the Bureau of Criminal Investigation in Harrisburg, and has a total of eighteen years experience in law enforcement. (NT. July 28, 2008 at page 9).

2. As part of this investigation, beginning February 10, 2007,Corporal Hannon made contact with Grant Roy of San Diego, California and conducted a number of interviews with Mr. Roy and his legal Counsel. Mr. Roy has been and continues to be a cooperating witness in the Kocis homicide investigation. (N.T. July 28, 2008 at pages 204; 209).

3. Grant Roy knew the victim, Bryan Kocis, from their involvement in the gay pornographic industry. (N.T. July 28, 2008 at page 206).

4. Grant Roy and Bryan Kocis were not friends. Roy did not care for Kocis and has described him as a “demon” and “pervert”. (N.T. July 28, 2008 at pages 212; 218-219).

5. Prior to his death, Bryan Kocis operated Cobra Video which produced gay pornographic videos. (NT. July 28, 2008 at page 217).

6. Sean Lockhart afkfa Brent Corrigan, previously worked as an ‘actor” for Cobra Video and Bryan Kocis. (N.T. July 28, 2008 at page 217).

7. At some point Grant Roy and Sean Lockhart became both business partners and “friends”. (NT. July 28, 2008 at pages 2 16-217).

8. Sometime during “2005-2006” Cobra Video sued LSG Media, Inc.° concerning the use of Sean Lockhart as an actor in gay pornographic videos. LSG Media, Inc. filed counterclaims against Cobra. (N.T. July 28, 2008 at pages 206-208).

9. Following depositions and mediation, on or about January 18, 2007 a settlement was reached in the aforesaid civil litigation whereby Cobra Video was granted the use of Lockhart in certain “scenes” and further over the next four years LSG Media, Inc. would pay Cobra Video twenty (20%) percent of its revenue from videos using Lockhart. (N.T. July 28, 2008 at pages 206; 212).

10. On or about April 27, 2007 Corporal Hannon and various other Pennsylvania Law Enforcement officials traveled to San Diego, California to personally interview witnesses and to further the Kocis investigation. (N.T. July 28, 2008 at page 171).

11. While in San Diego, Corporal Hannon worked closely with Detective Robert Donaldson of the San Diego Police Department. (N.T. July 28, 2008 at pages 171-172).

12. Corporal Hannon advised Detective Donaldson that Joseph Kerekes and Harlow Cuadra had been identified as suspects in the Kocis killing. (N.T. July 28, 2008 at page 172).

13. During continued interviews between law enforcement officials and Grant Roy and his Counsel, Roy agreed to act as an informant and to wear a body wire or transmitter to intercept conversations with Kerekes and Cuadra. (N.T. July 28, 2008 at pages 197-198; 220).

14. The San Diego Police Department planned, supervised, and conducted the actual interception of conversations between Roy, Lockhart, Kerekes and Cuadra. Detective Donaldson acted as the Supervising Detective for the intercepts and Detective Andrew Pappas, also of the San Diego Police Department, acted as the Technical Officer and arranged for the fitting, operation, transmission and recording of the intercepted conversations. (N.T. July 28, 2008 at pages 191-192).

15. Detective Daniel Vursha of the Luzerne County District Attorney’s Office assisted the San Diego Police in surveillance of the two interceptions. (N.T. July 28, 2008 at page 191).

16. The first electronic interception took place on April 27, 2007 at Crab Catcher’s Restaurant in La Hoya, California. (N.T. July 28, 2008 at page 200).

17. Grant Roy orally consented to acting as an informant and participating in the interception on April 27, 2007. (N.T. July 28, 2008 at pages 196-197). This consent was expressed to San Diego Detective Donaldson.

18. Roy consented to wearing a body wire. He never withdrew his consent. He was under no pressure from any law enforcement agency regarding consent. Law enforcement officials made no promises or threats. Roy received no compensation for acting as an informant and had no charges pending against him at the time. (N.T. July 28, 2008 at pages 187-198).

19. San Diego Detectives never requested written consent from Mr. Roy. (N.T. July 28, 2008 at pages 219-220).

20. Roy never met with any District Attorney, Assistant District Attorney, Attorney General or Deputy Attorney General prior to participating in the intercept. (N.T. July 28, 2008 at page 219).

21. After Detective Pappas fitted Roy with the body wire, Roy and Lockhart picked up Defendants Kerekes and Cuadra at a local hotel and drove to the Crab Catcher’s Restaurant for lunch. Lockhart was aware that Roy was “wired” and agreed to be present during the interception. (N.T. July 28, 2008 at pages 198-199).

22. Roy’s body wire transmitted the conversations between Roy, Lockhart, Kerekes and Cuadra while they dined at Crab Catcher’s Restaurant. Those conversations were simultaneously intercepted and recorded by San Diego Police. (NT. July 28, 2008 at pages 173-174).

23. At the conclusion of the luncheon, Roy made arrangements to meet Defendants Kerekes and Cuadra at the hotel the following day and go to Black Beach. (N.T. July 28, 2008 at pages 200-201).

24. Corporal Hannon and the other Pennsylvania law enforcement officials who were present in San Diego at the time of the intercept played a de minimis, inconsequential role in the intercept of the Crab Catcher’s conversation. (N.T. July 28, 2008 at pages 191-192).

B. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT BLACK BEACH, SAN DIEGO, CALIFORNIA ON APRIL 28, 2007.

25. On April 28, 2007 Grant Roy met with San Diego Detectives Donaldson and Pappas prior to meeting Kerekes and Cuadra. (NT. July 28, 2008 at page 201).

26. Grant Roy orally agreed and consented to acting as an informant and participating in the interception on April 27, 2007. (N.T. July 28, 2008 at pages 180-181; 201). The consent was expressed to San Diego Detective Donaldson.

27. Roy consented to wearing a body wire. He never withdrew consent. He was under no pressure from any law enforcement agency to agree to consent. Law enforcement officials made no promises or threats. Roy received no compensation for acting as an informant and had no charges pending against him at the time. (NT. July 28, 2008 at pages 180-181; 201-202).

26. The San Diego Police Department planned, supervised, and conducted the actual interception of conversations between Roy, Lockhart, Kerekes and Cuadra. Detective Donaldson acted as the Supervising Detective for the intercepts and Detective Andrew Pappas, also of the San Diego Police Department acted as the Technical Officer and arranged for the fitting, operation, transmission and recording of the intercepted conversations. (N.T. July 28, 2008 at pages 188; 191).

29. On April 28, 2007, San Diego Detectives never requested written consent from Mr. Roy. (N.T. July 28, 2008 at pages 184-185).

30. On April 28, 2007, Roy never met with any District Attorney, Assistant District Attorney, Attorney General or Deputy Attorney General prior to participating in the intercept. (N.T. July 28, 2008 at page 184).

31. Detective Pappas provided Roy with an electronic key remote which acted as a transmitter for the interception of conversations with Kerekes and Cuadra at Black Beach. (N.T. July 28, 2008 at page 187).

32. Black Beach is a public nude beach located at the base of Torrey Pines Golf Course in San Diego, California. Because Roy anticipated being nude, wearing a body wire was obviously impossible, and thus Detective Pappas fit him with the key remote which would serve as the transmitter. (N.T. July 28, 2008 at pages 179-180; 187).

33. On April 28, 2007, Roy and Lockhart then went to Defendants’ motel and transported Kerekes and Cuadra to Black Beach where Roy’s key remote electronically transmitted the conversations and statements made by Kerekes and Cuadra. Those conversations were simultaneously intercepted and recorded by San Diego Police. (N.T. July 28, 2008 at pages 186-187).

34. Corporal Hannon and the other Pennsylvania law enforcement officials were who present in San Diego at the time of the intercept played a de minimis, inconsequential role in the intercept of the Black Beach conversations. (N.T. July 28, 2008 at pages 178; 191-192).

C. DEFENDANT’S ORAL STATEMENT GIVEN TO DETECTIVE LIEUTENANT YURSHA AND SERGEANT HIGGINS ON MAY 15, 2007 IN THE VIRGINIA BEACH POLICE DEPARTMENT.

35. On May 15, 2007 Luzerne County Detective Lieutenant Daniel Yursha and Dallas Township Police Sergeant Douglas Higgins met with Defendant Cuadra in an interview room at the Virginia Beach Police Department. After Yursha read Cuadra Miranda warnings, Yursha also read the ten page Criminal Complaint and twenty-one page Affidavit of Probable Cause. Yursha and Higgins then left the interview room.

36. Yursha re-entered the interview room approximately seven minutes later and again asked Cuadra if he wanted anything to eat or drink. Cuadra refused the offer but blurted out the following statements:

Cuadra stated he bought the knife and the 38 caliber pistol from a pawn shop on the same date. (The knife was seized from the glove compartment of the BMW; the revolver was seized from the search of 1028 Stratem Court). Cuadra also stated they “never went to a gay bar that night” (referring to a witness’ statement that she believes she saw them at a gay bar located near the Fox Ridge Inn in Wilkes-Barre, Pennsylvania). Cuadra also stated that “Joe didn’t do it”. These statements by Cuadra were not in response to any questioning by Yursha or Higgins.

37. During the Pretrial Hearing on July 24, 2008, Defense Counsel stated they are not challenging this statement. (NT. July 24, 2008 at pages 96-98).

D. DEFENDANT’S BLURT OUT WHILE ON THE PENNSYLVANIA TURNPIKE IN THE VICINITY OF THE LEHIGH TUNNEL.

38. On June 17, 2007, Pennsylvania law enforcement authorities transported Defendant Cuadra from Virginia Beach, Virginia to Luzerne County, Pennsylvania. Prior to being placed in an unmarked Pennsylvania State Police vehicle, Cuadra was once again advised of his Miranda rights. Cuadra acknowledged these rights but refused to sign a waiver. While traveling through the Lehigh Tunnel on the Northeast Extension of the Pennsylvania Turnpike, Cuadra stated, “I remember this. It’s a long tunnel”. This statement was not in response to any questions or comments by law enforcement officials.

39. During the pretrial hearing on July 24, 2008 Defense Counsel stated they were not challenging this statement. (N.T. July 24, 2008 at pages 96-98).

PPO's Memorandum: Harlow Cuadra (Part 2)

II. CONCLUSIONS OF LAW

A. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT CRAB CATCHER’S RESTAURANT IN LA HOYA, CALIFORNIA ON APRIL 27, 2007 AND AT BLACK BEACH, SAN DIEGO, CALIFORNIA ON APRIL 28 , 2007.

1. Pursuant to the applicable Rules of Criminal Procedure, the Commonwealth of Pennsylvania bears the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of a defendant’s rights. Pa. R.Crim.P. 581(H).

2. The California Electronic Eavesdropping Law, California Penal Code § and 633 allows for warrantless electronic eavesdropping where an informant has given voluntary consent and is acting at the direction of an enumerated law enforcement officer, See People v. Towery, 174 Cal. App. 3 1114, 220 Cal. Rptr. 475 (1985).

3. California Courts analyze whether an informant’s consent is voluntary after electronic eavesdropping has occurred and consider a number of factors including whether the informant approached the police or police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by police. See People v. Towery.

4. In contrast, Pennsylvania’s Electronic Eavesdropping Law, 18 Pa. C.S.A. §5704 requires that one of several enumerated government attorneys analyze the facts surrounding the intercept and the circumstances surrounding the informant’s consent before electronic eavesdropping occurs. Commonwealth attorneys have an affirmative duty to meet with and speak to the consenting party prior to approving the intercept. See Commonwealth v. Clark, 542 A.2d 1036, 1039 (Pa. Super. 1988).

5. This fundamental difference in state law requires this Court to initially determine whether California law or Pennsylvania law should be used to examine whether the questioned intercepts were conducted lawfully.

6. In conflict of law cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state. In cases where the substantive law of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania Courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the Court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum state to apply the policy of the jurisdiction most intimately concerned with the outcome. A similar approach is taken in the criminal context where the substantive law of this Commonwealth conflict with those of a sister state. See Commonwea!th v. Sanchez, 716 A.2d 1221, 1223-24 (Pa. Super. 2000). See also, Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000).

7. A substantive right is defined as a right to equal enjoyment of fundamental rights, privileges and immunities, as distinguished from a procedural right. By contrast, procedural law is that which prescribes the methods of enforcing rights or obtaining redress for their invasion; this is distinguished from the substantive law which gives or defines the right. Sanchez at 1224.

8. Since the issue before us involves a constitutional protection against self incrimination this issue must be addressed under the principles of conflict between substantive laws, which requires this Court to evaluate which state has the most interest in the outcome.

9. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California law but not Pennsylvania law. Sanchez at 1222-23.

10. Sanchez concluded that California possessed the greater interest in the validity of a canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.

11. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff. (Emphasis added).

12. Sanchez concluded by holding “that if the courts of a sister state determine that a canine sniff is not a search in that state the propriety of a sniff initiated by that state’s officers and conducted within that state’s boarders must be evaluated under the laws of that state”. (Emphasis added). Sanchez at 1225.

13. The electronic eavesdropping in our case occurred on Apri 27, 2007 in La Hoya, California and April 28, 2007 in San Diego, California.

14. As set forth in Findings of Fact 14 and 15, the San Diego Police Department planned, supervised, and conducted the actual interception. San Diego Police supervised the intercepts, and arranged for the fitting, operation, transmission and recording of the intercepted conversations. Pennsylvania law enforcement played a de minimis role in the operation.

15. Under these circumstances, clearly California has the most interest in the procedures used to obtain the intercepts . Pennsylvania should not interfere in the wiretapping procedures adopted by the California legislature and analyzed by California courts even though the California recordings are used to further a Pennsylvania homicide prosecution. See also Commonwealth v. Bennett, 369 A.2d 493 (Pa. Super. 1976).

16. Having concluded that California law controls the instant analysis, the issue thus becomes whether Grant Roy validly consented to the intercept.

17. Roy’s consent was freely and voluntarily given. He was coerced by no one. He was not motivated by present or potential legal problems. He was not under the influence of alcohol or any controlled substance. He neither requested nor was offered immunity. No promises were made to him. No pressure was exerted. No compensation was paid to him.

18. San Diego Detective Donaldson acted as the supervising detective for the interception and was authorized to do so pursuant to § and 633 of the California Penal Code.

19. Finally, Defendant Kerekes possessed no reasonable expectation of privacy with regard to either conversation. The conversations occurred at a public restaurant and a public beach. See Lieberman v. KCOP Television, Inc., I Cal. Rptr. 3 536 (Cal. App., 2003).

B. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT BLACK BEACH, SAN DIEGO, CALIFORNIA ON APRIL 28, 2007.

25. On April 28, 2007 Grant Roy met with San Diego Detectives Donaldson and Pappas prior to meeting Kerekes and Cuadra. (N.T. July 28, 2008 at page 201).

26. Grant Roy orally agreed consented to acting as an informant and participating in the interception on April 27, 2007. (N.T. July 28, 2008 at pages 180-181; 201).

27. Roy further consented to wearing a body wire. He never withdrew his consent, He was under no pressure from any law enforcement agency to agree and consent. Law enforcement officials made no promises or threats to coerce or obtain agreement or consent. Roy received no compensation for acting as an informant and had no charges pending against him at the time. (N.T. July 28, 2008 at pages 180-181; 201-202).

28. The San Diego Police Department planned, supervised, and conducted the actual interception of conversations between Roy, Lockhart, Kerekes and Cuadra. Detective Donaldson acted as the Supervising Detective for the intercepts and Detective Andrew Pappas, also of the San Diego Police Department acted as the Technical Officer and arranged for the fitting, operation, transmission and recording of the intercepted conversations. (N.T. July 28, 2008 at pages 188; 191).

29. On April 28, 2007, San Diego Detectives did not request written consent from Mr. Roy. (N.T. July 28, 2008 at pages 184-185).

30. On April 28, 2007, Roy did not meet with any District Attorney, Assistant District Attorney, Attorney General or Deputy Attorney General prior to participating in the intercept. (N.T. July 28, 2008 at page 184).

31. Detective Pappas provided Roy with an electronic key remote which acted as a transmitter for the interception of conversations with Kerekes and Cuadra at Black Beach. (N.T. July 28, 2008 at page 187).

32. Black Beach is a public nude beach located at the base of Torrey Pines Golf Course in San Diego, California. Because Roy anticipated being nude, wearing a body wire was obviously impossible, and thus Detective Pappas fitted him with the key remote which would serve as the transmitter. (N.T. July 28, 2008 at pages 179-180; 187).

33. On April 28, 2007, Roy and Lockhart then went to Defendants’ motel and transported Kerekes and Cuadra to Black Beach where Roy’s key remote electronically transmitted the conversations and statements made by Kerekes and Cuadra at Black Beach. Those conversations were simultaneously intercepted and recorded by San Diego Police. (N.T. July 28, 2008 at pages 186-1 87).

34. Corporal Hannon and the other Pennsylvania law enforcement officials were who present in San Diego at the time of the intercept played a de minimis, inconsequential role in the intercept of the Black Beach conversations. (N.T. July 28, 2008 at pages 178; 191-192).

PPO's Memorandum: Harlow Cuadra (Part 3)

VII. MOTION TO QUASH/DISMISS INFORMATION FOR LACK OF SPECIFICITY

The Criminal Information for each Defendant is sufficiently specific. See Commonwealth v. Thomas, 408 A.2d 1148 (Pa. Super. 1979); Commonwealth v. Koch, 288 A.2d 791 (1972); See also N.T. July 8, 2008 pages 45-51.

VIII. MOTION FOR SEVERANCE

In their Omnibus Pre-Trial Motions both Defendants move for severance. Defendant Cuadra makes three arguments:

1. Cuadra and Kerekes may present conflicting and antagonistic defenses at trial. (See paragraph 43 of Cuadra Omnibus Pre-Trial Motion).

2. If tried together, Cuadra will be further prejudiced by certain alleged statements made by Kerekes implicating Cuadra. Cuadra further argues that said statements ‘cannot be adequately redacted to protect Cuadra from inadmissible hearsay and in violation of his right to confrontation and cross examination”. (See paragraph 44 of Cuadra Omnibus Pre-Trial Motion).

3. “Other evidence” admissible against Kerekes, but not admissible against Cuadra, will be introduced at a joint trial to the prejudice of Cuadra.

Cuadra’s brief in support of the Omnibus Pre-Trial Motion simply argues without explanation or analysis that Commonwealth v. Markman, 916 A.2d 586 (Pa. 2007) requires severance.

Defendant Kerekes makes the following arguments for severance:

1. Pa. R.Crim.P. 583 provides a Court may order separate trials of offenses or defendants if it appears that joinder of the offenses or defendants may prejudice a party or that joinder would be improper. (See paragraph 44 of Kerekes Omnibus Pre-Trial Motion).

2. Kerekes will be prejudiced in a joint trial En that statements made by Cuadra will be admitted into evidence and considered against Kerekes. (See paragraph 47 of Kerekes Omnibus Pre-Trial Motion).

3. The probability of antagonistic defenses is an overriding factor that the Trial Court should consider in deciding whether to grant severance. (See paragraph 48 of Kerekes Omnibus Pre-Trial Motion).

The Defendants’ positions were somewhat refined in a “Joint Brief in Support of Defendant Cuadra’s and Defendant Kerekes’s Motions for Severance” filed on August 6, 2008.

Defendants presently jointly argue that pursuant to Commonwealth v. Brown, 925 A.2d 147, 162 (Pa. 2007) severance should be granted since their respective defenses are so antagonistic and irreconcilable that the jury would be required to disbelieve the testimony of one Defendant in order to believe the testimony of a co-Defendant.

Secondly, Defendants argue the Commonwealth’s intended use of three separate statements intercepted from the Virginia Beach Prison will impede their right to confrontation and cannot be adequately redacted.

Severance questions fall within the discretion of the trial judge and an order denying severance will not be overturned on appeal absent an abuse of discretion.

When conspiracy is charged, a joint trial is generally advisable. In ruling upon a severance request, the trial court should consider the likelihood of antagonistic defenses. A claim of mere hostility between defendants, or that one defendant may try to exonerate himself at the expense of the other, however, is an insufficient basis upon which to grant a motion to sever. Indeed, the Pennsylvania Supreme Court has noted the fact that Defendants have conflicting versions of what took place, or the extents to which they participated in it, is a reason for rather than against a joint trial because the truth may easily be determined if all are tried together. Instead, severance should be granted only where the defenses are so antagonistic that they are irreconcilable — i.e., the jury essentially would be forced to disbelieve the testimony on behalf of one defendant in order to believe the defense of his co-defendant. (Emphasis added). (Citations Omitted). Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007).

The facts and circumstances of the case at bar do not suggest or require severance.

Included within Defendant Cuadra’s twelve count Information and Defendant Kerekes’s eleven count Information, are four separate conspiracy counts. Criminal Conspiracy to Commit Criminal Homicide; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering or Fabricating Physical Evidence and Criminal Conspiracy to Commit Arson and Related Offenses. The alleged conspiratorial relationship between these Defendants militates against severance.

Second, Defendants’ argument that their defenses are antagonistic is simply inaccurate. Neither Defendant claims his co-Defendant committed the homicide. Indeed, both Defendants have filed absolutely identical alibis:

Defendant Kerekes’s alibi notice states: “If he presents such a defense, the claim will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, Pennsylvania.

Defendant Cuadra’s alibi notice states: If Defendant Cuadra presents such a defense, the claim will be that at the time of the alleged offense the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, Pennsylvania.

Although there was speculation at oral argument that Defendant Kerekes may suggest that after both Defendants arrived at the Fox Ridge Hotel, Cuadra went to the Kocis home on the pretext of auditioning for a role in a Cobra Video, the fact remains the Notices of Alibi are identical. Simply put, the defenses are neither antagonistic nor irreconcilable. They certainly do not require severance.

Finally, Defendants jointly argue the Commonwealth’s intended use of three statements intercepted from the Virginia Beach Prison will impede their right to confrontation and cannot be adequately redacted. The statements are identified as follows:

1. Intercept #98: Defendant Kerekes to Renee Martin: Kerekes outlines plan B.

2. Intercept #101: Defendant Kerekes and Defendant Cuadra: Cuadra agrees to plan B.

3. Intercept #103: Defendant Kerekes and Defendant Cuadra and Martin: Cuadra knows hypothetical.

For purposes of this pretrial determination we are unpersuaded that this potential evidence requires severance. Commonwealth v. Coccioletti, 425 A.2d 387 (Pa. 1981) permits the admission of a defendant’s out of court statement incriminating his co-defendant where sufficient indicia of reliability exists. Commonwealth v. Call, 656 A.2d 476 (Pa. 1995) permits statements by a co-conspirator to be admitted against an accused if the statements are made during or in the furtherance of a conspiracy.

Additionally, redaction is an available remedy should circumstances dictate. See Commonwealth v. Markman, supra.

IX. MOTION TO SUPPRESS SEARCH WARRANT AND EVIDENCE SEIZED FROM 1028 STRATEM COURT, VIRGINIA BEACH, VIRGINIA

In paragraphs 58-64 of his Omnibus Pre-Trial Motion Defendant Cuadra alleges the Search Warrant executed on February 10, 2007 on Defendants’ residence located at 1028 Stratem Court, Virginia Beach, Virginia and the seizure of property from that residence was illegal and defective and should therefore be suppressed.

Prior to the suppression hearing and argument, Counsel for Defendant Cuadra and Defendant Kerekes filed a Joint Motion wherein they narrowed their challenges to the following issues:

1. Due to a substantive difference in law between the Commonwealths of Virginia and Pennsylvania whether the conflict of laws analysis requires the application of Pennsylvania law or Virginia law to the alleged deficiencies in the search warrant;

2. Whether Virginia Beach Detectives exceeded the scope of the Search Warrant by seizing items allegedly not authorized for seizure by the Warrant and which were not contraband;

3. Whether the failure of the Virginia authorities to obtain approva for the Search Warrant from either a Pennsylvania or Virginia Commonwealth attorney causes the Search Warrant to fail; and

4. Since the Search Warrant was executed at 5:53 a.m. the search was considered a “nighttime search” and since the Warrant alleged no additional probable cause to support a nighttime search, the items seized must be suppressed. (NT. July 24, 2008 at pages 152-154)

The Court adopts the following Findings of Fact and Conclusions of Law with regard to the challenged Search Warrant:

I. FINDINGS OF FACT

1. Detective Sean Corse is a seventeen year veteran of the Virginia Beach, Virginia Police Department and is currently assigned as a Homicide Detective. (N.T. July 24, 2008 at page 121).

2. Detective Corse is the Affiant for the Virginia Search Warrant issued on February 9, 2007 for the residence situate at 1028 Stratem Court, Virginia Beach, Virginia. (N.T. July 24, 2008 at page 123).

3. 1028 Stratem Court, Virginia Beach, Virginia is the residence of Defendant Kerekes and Defendant Cuadra. (N.T. July 28, 2008 at page 124).

4. Detective Corse received the information set forth in the Affidavit of Probable Cause from Corporal Hannon. Virginia Beach Detectives also contributed information they developed from an independent ongoing investigation of Kerekes and Cuadra relative to gay pornography and prostitution. (N.T. July 28, 2008 at pages 125, 131).

5. The offense for which the Search Warrant was issued is murder in violation of Virginia State Code 18.2-32. (N.T. July 28, 2008 at pages 123).

6. The first “thing” to be searched for identified in Section 3 is as follows:

Any computer hardware, including, but not limited to any equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical or similar computer impulses or data. Any computer processing units, internal and peripheral storage devices, (such as fixed discs, external hard discs, floppy disc drives, and diskettes, tape drives, tapes, and optical storage devices, flash or jump drives, digital cameras, cellular telephones or other mobile communication devices), peripheral input/output devices (such as keyboards, printers, scanners, plotters, video display monitors, optical readers), and related communication devices such as modems, cables, and connections, recording equipment as well as any devices, mechanisms, or parts that can be used to restrict access to computer hardware. (Emphasis added).

7. The facts constituting probable cause in support of the search warrant are set forth in Section 4 of the search warrant.

8. With regard to the Defense claim that seizure of certain evidence exceeded the scope of the Warrant, this claim specifically relates to seizure of luggage, firearms, ammunition, clothing, cameras, videotapes, camcorders, battery packs and insulation.

9. During oral argument the Commonwealth stipulated it had no intention to request admission of the seized firearms, ammunition, insulation, clothing, or luggage. (N.T. July 28, 2008 at pages 166-167).

10. The seized items subject to dispute therefore are the cameras, videotapes, camcorders, and battery packs.

11. Detective Corse testified that Virginia Beach Police seized videotapes because they were included in Section 3 of the search warrant and specifically identified as “peripheral storage devices”. (N.T. July 28, 2008 pages 148-149).

12. Cameras were seized because they were also identified in Section 3 of the search warrant and more specifically identified as “digital cameras”. (N.T. July 28, 2008 page 139).

13. Evidence relating to the murder of Bryan Kocis and evidence relating to gay pornography and modeling are intermingled. (NT. July 28, 2008 at pages 140-141).

14. The camcorder was seized because it was identified in Section 3 of the Warrant as an item to be searched for and specifically identified as “recording equipment”. (NT. July 28, 2008 at pages 143-144).

15. The battery packs were seized because they were identified in Section 3 of the Warrant and more specifically identified as computer hardware, peripheral input/output devices and related communication devices.

16. Approval of the Search Warrant by a Virginia Commonwealth attorney is not required in that Commonwealth and therefore no Commonwealth attorney from either Virginia or Pennsylvania approved the issuance of the Search Warrant. (NT. July 28, 2008 at page 136).

17. Chief Circuit Court Judge Thomas Chadrick signed the Search Warrant at 9:35 p.m. on February 9, 2007. (N.T. July 28, 2008 at page 126).

18. A Virginia Beach S.W.A.T team made entry into the residence at 5:53 a.m. on February 10, 2007. (N.T. July 28, 2008 at page 127).

19. The search for and seizure of the evidence was supervised by Detective Corse and was conducted by additional officers from the Virginia Beach Police Department. Pennsylvania authorities were present when Judge Chadrick signed the Warrant and when Virginia authorities executed the Warrant and seized evidence. Pennsylvania authorities played no meaningful role in preparation, approval or execution of the search warrant. (N.T. July 28, 2008 at pages 132-133, 142, 143).

20. The seized evidence was subsequently turned over to Pennsylvania authorities and used in the instant matter. (N.T. July 28, 2008 at page 133).

II. CONCLUSIONS OF LAW

1. This Court is again presented with a conflict of laws issue.

2. Relevant provisions of Virginia Search Warrant law are as follows:

A. Search warrants may issue upon reasonable and probable cause. Va. Code §19.2-52.

B. The following things may be seized upon specification in the warrant:

(1) Weapons or other objects used in the commission of the crime;

(2) Articles or things the sale or possession of which is unlawful;

(3) Stolen property or the fruits of any crime; and

(4) Any object, thing, or person including without limitation, documents, books, papers, records or body fluids constituting evidence of the commission of crime....

Va. Code §19.2-43.

C. The Affidavit supporting the search warrant must “... reasonably describe the place, thing or person to be searched, the things or persons to be searched for there under, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense in relation to which such search is to be made and that the object, thing or person searched for constitutes evidence of the commission of such offense”. Va. Code §19.2-54.

D. The warrant, interalia, must describe the property or person to be searched for and “recite that the Magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committing or is committing a crime”. Va. Code §19.2-56.

E. The warrant shall be executed by the search of the place described and, if property described in the warrant is found there, by the seizure of the property. Va. Code §19.2-57.

3. Relevant provisions of Pennsylvania search warrant law are as follows:

A. A search warrant in Pennsylvania may be issued to search for and seize:

1. Contraband, the fruits of a crime, or things otherwise criminally possessed;

2. Property that is or has been used as the means of committing a criminal offense; or

3. Property that constitutes evidence of the commission of a criminal offense.
Pa, R.Crim.P. 201.

B. Luzerne County has opted to require submission of search warrant applications to the District Attorney’s Office for approval prior to issuance. Pa. R.Crim.P. 202; Luzerne County Criminal Rule 202.

C. No search warrant shall issue but upon probable cause supported by affidavits and no evidence may be considered by the issuing authority outside of the affidavits. Pa. R.Crim.P. 203(8).

D. At a suppression hearing regarding the warrant, no evidence shall be admissible to establish probable cause other than the affidavits. Pa. R.Crim.P.
203(D).

E. No search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search. Pa. R.Crim.P. 203(E). “Nighttime” is defined at 10:00 p.m. until 6:00 a.m. Pa. R.Crim.P. 206(7).

F. The affidavit establishing probable cause for the warrant must:

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

(5) Specify or describe the crime which has been or is being committed;

(6) Set forth specifically the facts and circumstances which form the basis for the affiant’s conclusion that there is probable cause to believe that the items or property identified are evidence or fruit of a crime, or a contraband, or expected to be otherwise unlawfully possessed or 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; and

(7) If a “nighttime” search is requested, i.e., 10:00 p.m. to 6:00 am., state additional reasonable cause for seeking permission to search in nighttime.
Pa.R.Crim.P. 206.

4. As did the issues concerning the electronic intercepts in California and Defendant’s statement elicited in the Virginia Beach Police Department, conflict of laws analysis requires this Court to initially determine whether the seizure pursuant to he Virginia Search Warrant is analyzed under Pennsylvania or Virginia law.

5. In conflict cases involving procedural matters, Pennsylvania will apply its own procedural law when it is serving as the forum state. In cases where the substantive Laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania Courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the Court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum state to apply the policy of the jurisdiction most intimately concerned with the outcome.

A similar approach is taken in the criminal context where the substantive law of this Commonwealth conflict with those of a sister state. See Commonwealth v. Sanchez, 716 A.2d 1221, 1223-24 (Pa. Super. 2000). See also, Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000).

6. A substantive right is defined as a right to equal enjoyment of fundamental rights, privileges and immunities, as distinguished from procedural right. By contrast, procedural law is that which prescribes the methods of enforcing rights or obtaining redress for their invasion; this is distinguished from the substantive law which gives or defines the right. Sanchez at 1224.

7. Since the issue before us involves protection against unreasonable searches and seizures this issue must be addressed under the principles of conflict between substantive law, which require this Court to evaluate which state has the most interest in the outcome.

8. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California but not Pennsylvania law. Sanchez at 1222-23.

9. Sanchez concluded that California possessed the greater interest in the validity of a canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.

10. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff. (Emphasis added).

11. Sanchez concluded by holding “that if the courts of a sister state determine that a canine sniff is not a search in that state the propriety of a sniff initiated by that state’s officers and conducted within that state’s boarders must be evaluated under the laws of that state”. Sanchez at 1225. (Emphasis added).

12. In our case, Virginia Beach Homicide Detective Corse authored the Search Warrant and supporting affidavit. The Search Warrant was approved by a Virginia Circuit Judge. Entry into the residence was made by a Virginia Beach S.W.A.T. team. Detective Corse supervised the search that was conducted by Virginia Beach Police. Property was seized by Virginia officers.

13. Corporal Hannon and the other Pennsylvania law enforcement officials who were present in Virginia Beach at the tine the Search Warrant was approved and executed played inconsequential roles in the preparation, approval and execution of the Warrant.

14. Here, as in Sanchez, the search did not occur in Pennsylvania; it was conducted in Virginia Beach, Virginia. And just as importantly, no Pennsylvania police officer actively participated in the search. (Emphasis added).

15. Clearly Virginia has the most intimate concern with the outcome of the within suppression issue. Sanchez dictates that Virginia law controls.

16. Virginia Search Warrant law requires that search warrants may issue upon reasonable and probable cause. Va. Code. §19.2-52.

17. Unlike Pennsylvania, Virginia applies the good faith exception to the exclusionary rule. While not a per se rule of admissibility we find that even if an appellate court were to rule that the Affidavit sets forth insufficient probable cause against Kerekes on the charge of murder, the good faith exception as set forth in United States v. Leon, 468 U.S. 981, 104 S.Ct. 3405 would reject suppression.

18. This Court concludes the camera, camcorder, videotapes and battery pack were set forth both generally and specifically in Section 3 of the search warrant which identified the “things” to be seized. Seizure of these items does not exceed the scope of the warrant. There is no violation of Va. Code §19.2-57.

19. Virginia state law does not require Virginia law enforcement officials to first secure the approval of the search warrant by a Commonwealth’s attorney and therefore the failure to obtain such approval does not invalidate the warrant.

20. The permissible scope of a search is limited by the terms of the warrant pursuant to which it is conducted. Dotson v, Commonwealth, 47 Va. App. 237, 243, 623 S.E. 2 414, 417 citing Kearney v. Commonwealth, 4 Va. App. 202, 204, 355 S.E. 2 897, 898 (1987).

21. Even if Pennsylvania Jaw controlled, the fact that the Luzerne County District Attorney’s Office did not grant prior approval for issuance of the search warrant does not result in suppression or any relief. Pa.R.Crim.P. 202(D).

22. Virginia law does not require an additional showing of probable cause to conduct a nighttime search.

23. Even if Pennsylvania law controlled while “nighttime” is defined as the period of time between 10:00 p.m. and 6:00 am. (Pa. R.Crim.P. 206(7)) suppression of seized evidence is not required for violation of this rule. See Commonwealth v. Baldwin, 384 A.2d 945 (Pa. Super. 1978).

X. DEFENDANT’S MOTION TO SUPPRESS PHYSICAL EVIDENCE SEIZED REGARDING DEFENDANT’S E-MAIL ACCOUNTS

In his Omnibus Pretrial Motion, Defendant Cuadra cites multiple arguments seeking to suppress physical evidence seized from his e-mail accounts. A similar Motion was also made by Defendant Kerekes. The Commonwealth subsequently filed a brief in opposition to both Motions.

More specifically the Defense Motions sought to suppress evidence seized pursuant to six (6) Federal or Pennsylvania Search Warrants served on e-mail accounts owned by Defendant Kerekes or Defendant Cuadra. The Search Warrants in question are as follows:

(1) January 30, 2007 — Federal Search Warrant executed on Yahoo, Inc. regarding dmbottompa@yahoo.com

(2) February 6, 2007 — Federal Search Warrant executed on IACS Search and Media regarding harlowrcuadra@excite.com

(3) March 14, 2007 — Federal Search Warrant executed on MySpace ID#87311731 regarding www.myspace.com/harlowcuadra

(4) March 14, 2007 — Federal Search Warrant executed on Yahoo, Inc. regarding starey yes23510@yahoo.com

(5) March 14, 2007 — Federal Search Warrant executed on MySpace ID#1 52491673 regarding www.mayspace.com/josephkerekes and

(6) August 27, 2007 — Pennsylvania Search Warrant executed on Yahoo, Inc. regarding party757@yahoo.com.

On our about July 30, 2008 Defendants Kerekes and Cuadra filed a “Joint Reply” to the Commonwealth’s brief opposition to their requested suppression. The joint brief refines the Defense position as follows: Of the six search warrants and attached probable cause affidavits referenced above, four were executed after the February 10, 2007 execution of a Virginia Search Warrant on the Defendants’ residence situate at 1028 Stratem Court, Virginia Beach, Virginia. Of these four search warrants and attached affidavits of probable cause three included references to information, evidence and/or documentation seized as a result of the February 10, 2007 search.

Conversely, the Defendants concede that should this Court decline to suppress any evidence seized from the February 10, 2007 search of 1028 Stratem Court, the Affidavits of Probable Cause supporting all six e-mail search warrants in fact set forth sufficient probable cause to support the respective searches.

Given this posture, since this Court has in fact denied the requested suppression of evidence seized from the February 10, 2007 search of 1028 Stratem Court, as set forth in Section IX, above, we need go no further than to hold that the Motions of both Defendant Kerekes and Defendant Cuadra to suppress seizure of information from the six above-referenced e-mail accounts are denied and dismissed.

XI. DEFENDANT’S CONSTITUTIONAL CHALLENGES TO PENNSYLVANIA’S CAPITAL SENTENCING SCHEME

Each of Defendants six separate constitutional challenges to Pennsylvania’s Capital Sentencing Scheme is DENIED AND DISMISSED without further comment. Should Defendant receive a sentence of death the constitutional issues have been preserved and are more appropriately addressed by the Pennsylvania Supreme Court.

XII. DEFENDANT’S MOTION TO STRIKE COMMONWEALTH’S AGGRAVATING CIRCUMSTANCES

Defendant Motion to Strike Commonwealth’s Aggravating Circumstances is held in abeyance pending completion of the Guilt Phase of the within Trial.

XIII. DEFENDANT’S MOTION FOR WRIT OF HABEAS CORPUS

As part of his Omnibus Pretrial Motion, the Defendant seeks a Writ of Habeas Corpus and alleges in paragraph 109 that at the Preliminary Hearing the Commonwealth failed to establish each of the elements for the crimes of Criminal Homicide, Criminal Conspiracy to Commit Criminal Homicide, Criminal Solicitation to Commit Criminal Homicide, Robbery, Criminal Conspiracy to Commit Robbery and Theft by Unlawful Taking. Nowhere, however, does the Defendant even attempt to articulate which elements of said offenses were not satisfactorily established.

During the hearing held on July 24, 2008 the Commonwealth supplemented the Preliminary Hearing testimony by presenting the testimony of Trooper Brian Murphy. See N.T. July 24, 2008 at pages 253-275.

In subsequent oral argument, Defense Counsel conceded that they now were only pursuing a Writ of Habeas Corpus on the charge of Robbery, 18 Pa. C.S.A. §3701 (A)(1 )(i). Essentially, the Defendant contends that the Commonwealth had not proven that a robbery took place prior to the homicide of Mr. Kocis.

Based upon our review of the evidence we believe that a fact finder could reasonably conclude the Defendant killed Mr. Kocis while robbing him, that he resisted and that the force used to commit the robbery was the force used to commit the murder.

See generally, Commonwealth v. O'Donnell, 740 A.2d 198 (Pa. 1999) and Commonwealth v. Ford, 650 A.2d 433 (Pa. 1994).

PPO's Order: Harlow Cuadra

ORDER

AND NOW, this 8th day of September, 2008, at 12:05 o’clock p.m., upon review and consideration of the Defendant’s Omnibus Pretrial Motion, the Commonwealth’s Answer to said Motion, as well as the briefs and supplemental briefs filed in support of and in opposition to said Motion, and following hearing and argument held on July 8, 2008, July 24, 2008 and July 30, 2008, and for the reasons the forth in the attached Memorandum, it is hereby ORDERED AND DECREED as follows:

1. Defendant’s request for individual voir dire is hereby GRANTED.

2. Defendant’s Motion for change of venue/venire is held in abeyance pending this Court’s questioning of a panel of prospective jurors.

3. Defendant’s Motion in Limine regarding photographs is GRANTED IN PART AND DENIED IN PART. See Notes of Testimony taken on July 8, 2008.

4. Defendant’s Motion in Limine to prohibit use of the Defendants prior criminal record is GRANTED in that the Commonwealth stipulates and agrees that the Defendant has no prior criminal record.

5. Defendant’s Motion in Limine to prohibit use of the Defendant’s prior bad acts is GRANTED IN PART AND DENIED IN PART as is more fully set forth in the attached Memorandum.

6. Defendant’s Motion to Suppress oral and/or written statements is decided as follows:

A. Defense Counsel withdrew their challenge to Defendant’s oral statement to Pennsylvania investigators on May 15, 2007 at the Virginia Beach, Virginia Police Department.

B. Defense Counsel withdrew their challenge to Defendant’s oral statements to Pennsylvania investigators while en route from Virginia Beach, Virginia to Luzerne County, Pennsylvania, said statements being made in the vicinity of the Lehigh Valley Tunnel.

C. Defendant’s Motion to Suppress Defendant’s electronically recorded oral statements and conversations at Crabcatcher’s Restaurant in La Hoya, California on April 27, 2007 is hereby DENIED AND DISMISSED.

D. Defendant’s Motion to Suppress Defendant’s electronically recorded oral statements and conversations at Black Beach, San Diego, California on April 28, 2007 is hereby DENIED AND DISMISSED.

E. The Commonwealth and Defense Counsel agree that Defendant made no written statements.

7. Defendant’s Motion to Quash/Dismiss Information for lack of specificity is hereby DENIED AND DISMISSED.

8. Defendant’s Motion for Severance is DENIED AND DISMISSED.

9. Defendant’s Motion to Suppress physical evidence seized from Defendant’s residence at 1028 Stratem Court, Virginia Beach, Virginia is hereby DENIED AND DISMISSED.

10. Defendant’s Motion to Suppress physical evidence seized regarding Defendant’s e-mail accounts is DENIED AND DISMISSED.

11. Defendant’s Motion requesting the Court to instruct the jury as to the definition of life imprisonment at all levels of the pending proceeding is DENIED AND DISMISSED AS REQUESTED.

12. Defendant’s Motion to preclude the Commonwealth from seeking the death penalty as depriving the Defendant of an impartial jury is DENIED AND DISMISSED.

13. Defendant’s Motion requesting separate guilt phase and penalty phase jurors is DENIED AND DISMISSED.

14. Defendant’s challenge to Pennsylvania Jury Instructions alleging that a “death qualified jury” violates the Defendant’s rights to a fair and impartial trial in violation of Article I, Sections 6, 9 and 13 of the Pennsylvania Constitution and the 6, 8 and 14 Amendments to the United States Constitution is DENIED AND DISMISSED.

15. Defendant’s Motion to declare 42 Pa. C.S.A. §9711 et seq. unconstitutional and to bar imposition of the death penalty is DENIED AND DISMISSED.

16. Defendant’s Motion to preclude the Commonwealth from seeking the death penalty as cruel and unusual punishment is DENIED AND DISMISSED.

17. Defendant’s Motion to Dismiss Commonwealth’s Aggravating Circumstances is held in abeyance pending completion of the Guilt Phase of the within Trial.

18. Defendant’s Motion for Writ of Habeas Corpus is DENIED AND DISMISSED.

PPO's Memorandum: Joseph Kerekes (Part 1)

Note: Since this memorandum is approx. 51 pages in length, I've posted it in three, easier to follow parts:

• Part 1
• Part 2
• Part 3

MEMORANDUM

BY: HONORABLE PETER PAUL OLSZEWSKI, JR.

I. INDIVIDUAL VOIR DIRE

The Commonwealth and Defendant agree that Defendant is entitled to individual voir dire. See Pa. R.Crim.P. 631(E). (N.T. July 8, 2008 at page 4).

II. MOTION FOR CHANGE OF VENU FIVE WIRE

Based upon the holding in Commonwealth v. Drumheller, 808 A.2d 893 (Pa. 2002), the Court will hold Defendant’s Motion in abeyance pending appropriate inquiry regarding the nature and extent of prospective jurors’ exposure to pretrial publicity. (N.T. July 8, 2008 at pages 4-10).

III. MOTION IN LIMINE - PHOTOGRAPHS

Photographs of a deceased victim are not inflammatory per se. The admission into evidence of photographs depicting the corpse of a homicide victim or the location and scene of the crime lies within the sound discretion of the trial judge. A photograph which is judged not to be inflammatory is admissible if it is relevant and can assist the jury in understanding the facts. A gruesome or potentially inflammatory photograph is admissible if it is of such essential evidentiary value that its need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Garcia, 505 Pa. 304, 313, 479 A.2d 473, 478 (1984).

During the Motions hearing held on July 8, 2008 the Court viewed all photographs objected to by Defense Counsel. Using the aforementioned standard, the Court ruled on the admissibility of each of the photographs in question. (N.T. July 8, 2008 at pages 11-43).

IV. MOTION IN LIMINE — USE OF DEFENDANT’S PRIOR CRIMINAL RECORD

The Commonwealth stipulated that both Defendant Kerekes and Defendant Cuadra have no prior criminal records and therefore no such evidence will be introduced at trial. (NT. July 8, 2008 at pages 43-44).

V. MOTION IN LIMINE — PROHIBIT USE OF DEFENDANT’S PRIOR BAD ACTS

In their Omnibus Pretrial Motions each Defendant moves to prohibit use of the Defendants’ prior bad acts.

Additionally, the Commonwealth, in its Notice of Commonwealth’s Intention to Seek to Admit Evidence of Other Crimes, Wrongs, or Acts Pursuant to Pa. Rule of Evidence 404(b), filed on November 6, 2007, gives Notice of intention to seek admission of certain conduct it alleges constitutes a prior bad act. In its supporting brief and during oral argument held on July 30, 2008 (See N.T. pages 3-28) the Commonwealth specifically referred to this request to seek to introduce evidence of the following conduct:

A. DEFENDANT’S ESCORT BUSINESS AND ALLEGED PROSTITUTION.

The Commonwealth alleges Defendants operated a male escort business and that each Defendant solicited certain clients of that business to fabricate a false alibi, in order to support their claim that they were not present in Dallas Township when the homicide occurred. More specifically, the Commonwealth alleges that Defendant Cuadra solicited Mitch Halford, an alleged long-standing escort client of Mr. Cuadra’s, to indicate that he was with the Defendant on January 24, 2007, the evening of the murder.

The Commonwealth alleges that Defendant Cuadra sent Nep Maliki a letter instructing him to tell authorities that he went to Cuadra’s residence at 1028 Stratem Court, Virginia Beach, Virginia for an escort call on the evening of January 24,2007. The Commonwealth further alleges that Cuadra instructed Maliki to detail their conduct that evening which conduct, if true, could constitute prostitution. (See N.T. July 30, 2008 at pages 5-9).

The Commonwealth further alleges that Defendant Kerekes solicited Mr. Brannon to tell authorities that Kerekes provided him with escort services at the Fox Ridge Inn, Plains Township, Pennsylvania on the evening of January 24, 2007. (See N.T. July 30, 2008 at pages 9-11).

Finally, the Commonwealth alleges that both Defendants contacted David Michaels, again soliciting a fake alibi involving an escort call. (See N.T. July 30, 2008 at pages 11-12).

It is certainly clear that evidence that a Defendant has solicited false alibi testimony is admissible as substantive evidence of consciousness of guilt. See Commonwealth v.. Young, 748 A.2d 166 (Pa. 1999); Commonwealth v. Johnson, 668 A.2d 97(Pa. 1995); Commonwealth v. Carbone, 547 A.2d 584, 589 (Pa. 1990).

At the same time, however, it is equally clear that while Pennsylvania Rule of Evidence 404(b)(2) allows evidence of other crimes, wrongs or acts to be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, 404(b)(3) limits the admission of such evidence to where its probative value outweighs the potential for prejudice.

Under these circumstances, while the Court will allow the Commonwealth to present evidence of Defendants’ alleged solicitation to seek false alibis, the Commonwealth will not be permitted to present evidence of an escort service or of alleged prostitution.

B. FALSE ACCUSATIONS AGAINST ROBERT WAGNER, GRANT ROY AND SEAN LOCKHART.

The Commonwealth broadly suggests that during certain of the intercepted conversations at Crab Catcher’s Restaurant and on Black Beach, as well as in certain Virginia Beach prison intercepts, that the Defendants discussed attempts to accuse Robert Wagner, Grant Roy and Sean Lockhart of involvement in the murder of Bryan Kocis.

During oral argument held on July 30, 2008 the Commonwealth withdrew its request to present such evidence during its case-in-chief, and instead will consider using it as potential rebuttal evidence. (See N.T. July 30, 2008 at pages 18-21).

Under these circumstances the Court obviously need not make any ruling on this issue.

C. DEFENDANTS’ SOLICITATION TO MAKE UNDER THE TABLE PAYMENTS TO RECRUIT BRENT CORRIGAN TO THEIR STABLE OF ACTORS.

Here the Commonwealth requests to introduce evidence that (1) Defendants attempted to circumvent a settlement agreement between L.S.G. and Cobra Video wherein L.S.G. was required to make payment to Cobra Video for its use of Sean Lockhart in its videos; (2) to lure Sean Lockhart away from making videos for Cobra Video and into videos for L.S.G. The Commonwealth argues that while such conduct is not criminal in nature, it qualifies as a bad act in that it advances the Commonwealth’s theory of their case that the motive behind the murder of Bryan Kocis was to recruit Sean Lockhart for L.S.G. and away from Cobra Video. The Commonwealth would produce evidence that Defendants solicited and would secretly pay Sean Lockhart and Grant Roy to make secret videos for L.S.G. without making the required payments of twenty percent of revenue from these videos to Cobra Video. (See N.T. July 30, 2008 at pages 21-28).

Ultimately the Commonwealth argues that by murdering Bryan Kocis, the Defendants would not be required to make the payments to Cobra Video, and would not need to resort to luring Roy and Lockhart to make secret videos.

Should the Commonwealth be able to develop such evidence, the Court believes that it would promote a possible motive for the murder and that its probative value would outweigh prejudice to the Defendants. With proper offers of proof the Court will allow such testimony.

D. VIRGINIA FORFEITURE PROCEEDINGS.

The Commonwealth declined to develop the nature and theory of such testimony and instead indicated that such evidence may only become relevant as rebuttal evidence in a potential penalty phase of the trial. (See N.T. July 30, 2008 at pages 28-29).

E. BURGLARY CHARGES.

The Commonwealth originally sought to introduce testimony that the Defendants were also charged with burglary on the basis of an alleged illegal entry into the Kocis home. During oral argument, this request was modified to eliminate any mention of burglary charges, and to simply submit evidence as to how entry was made to the Kocis home. (See NT. July 30, 2008 at pages 29-31).

VI. MOTION TO SUPPRESS ORAL AND/OR WRITTEN STATEMENTS

Defendant Kerekes challenges the admissibility of the following statements:

A. Defendant’s electronically recorded oral statements and conversations at Crab Catcher’s Restaurant in La Hoya, California on April 27, 2007;

B. Defendant’s electronically recorded oral statements and conversations at Black Beach, San Diego, California on April 28, 2007;

C. Defendant’s oral statements to Corporal Leo Hannon of the Pennsylvania State Police and to Special Agent James Glenn of the Federal Bureau of Investigation on May 15, 2007 in Virginia Beach, Virginia Police Department.

The Court adopts the following Findings of Fact and Conclusions of Law with regard to these statements:

I. FINDINGS OF FACT

A. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT CRAB CATCHER’S RESTAURANT IN LA HOYA, CALIFORNIA ON APRIL 27, 2007.

1. Corporal Leo Hannon, a twelve and one-half year veteran of the Pennsylvania State Police, is the lead investigator into the homicide of Bryan Charles Kocis. Corporal Hannon is currently assigned to the Bureau of Criminal Investigation in Harrisburg, and has a total of eighteen years experience in law enforcement. (N.T. July 28, 2008 at page 9).

2. As part of this investigation, beginning February 10, 2007, Corporal Hannon made contact with Grant Roy of San Diego, California and conducted a number of interviews with Mr. Roy and his legal Counsel. Mr. Roy has been and continues to be a cooperating witness in the Kocis homicide investigation. (N.T. July 28, 2008 at pages 204; 209).

3. Grant Roy knew the victim, Bryan Kocis, from their involvement in the gay pornographic industry. (N.T. July 28, 2008 at page 206).

4. Grant Roy and Bryan Kocis were not friends. Roy did not care for Kocis and has described him as a “demon” and “pervert”. (N.T. July 28, 2008 at pages 212; 218-219).

5. Prior to his death, Bryan Kocis operated Cobra Video which produced gay pornographic videos. (N.T. July 28, 2008 at page 217).

6. Sean Lockhart a/k/a Brent Corrigan, previously worked as an “actor’ for Cobra Video and Bryan Kocis. (N.T. July 28, 2008 at page 217).

7. At some point Grant Roy and Sean Lockhart became both business partners and “friends”. (N.T. July 28, 2008 at pages 216-217).

8. Sometime during “2005-2006” Cobra Video sued LSG Media, Inc. concerning the use of Sean Lockhart as an actor in gay pornographic videos. LSG Media, Inc. filed counterclaims against Cobra. (N.T. July 28, 2008 at pages 206-208).

9. Following depositions and mediation, on or about January 18, 2007 a settlement was reached in the aforesaid civil litigation whereby Cobra Video was granted the use of Lockhart in certain “scenes” and further over the next four years LSG Media, Inc. would pay Cobra Video twenty (20%) percent of its revenue from videos using Lockhart. (N.T. July 28, 2008 at pages 206; 212).

10. On or about April 27, 2007 Corporal Hannon and various other Pennsylvania Law Enforcement officials traveled to San Diego, California to personally interview witnesses and to further the Kocis investigation. (N.T. July 28, 2008 at page 171).

11. While in San Diego, Corporal Han non worked closely with Detective Robert Donaldson of the San Diego Police Department. (N.T. July 28, 2008 at pages 171-172).

12. Corporal Hannon advised Detective Donaldson that Joseph Kerekes and Harlow Cuadra had been identified as suspects in the Kocis killing. (N.T. July 28, 2008 at page 172).

13. During continued interviews between law enforcement officials and Grant Roy and his Counsel, Roy agreed to act as an informant and to wear a body wire or transmitter to intercept conversations with Kerekes and Cuadra. (N.T. July 28, 2008 at pages 197-198; 220).

14. The San Diego Police Department planned, supervised, and conducted the actual interception of conversations between Roy, Lockhart, Kerekes and Cuadra. Detective Donaldson acted as the Supervising Detective for the intercepts and Detective Andrew Pappas, also of the San Diego Police Department, acted as the Technical Officer and arranged for the fitting, operation, transmission and recording of the intercepted conversations. (N.T. July 28, 2008 at pages 191-192).

15. Detective Daniel Yursha of the Luzerne County District Attorney’s Office assisted the San Diego Police in surveillance of the two interceptions. (N.T. July 28, 2008 at page 191).

16. The first electronic interception took place on April 27, 2007 at Crab Catcher’s Restaurant in La Hoya, California. (N.T. July 28, 2008 at page 200).

17. Grant Roy orally agreed and consented to acting as an informant and participating in the interception on April 27, 2007. (N.T. July 28, 2008 at pages 196-197). This consent was expressed to San Diego Detective Donaldson.

18. Roy consented to wearing a body wire. He never withdrew his consent. He was under no pressure from any law enforcement agency regarding consent. Law enforcement officials made no promises or threats. Roy received no compensation for acting as an informant and had no charges pending against him at the time. (N.T. July 28, 2008 at pages 187-198).

19. San Diego Detectives never requested written consent from Mr. Roy. (N.T. July 28, 2008 at pages 219-220).

20. Roy never met with any District Attorney, Assistant District Attorney, Attorney General or Deputy Attorney General prior to participating in the intercept. (N.T. July 28, 2008 at page 219).

21. After Detective Pappas fitted Roy with the body wire, Roy and Lockhart picked up Defendants Kerekes and Cuadra at a local hotel and drove to the Crab Catcher’s Restaurant for lunch. Lockhart was aware that Roy was ‘wired” and agreed to be present during the interception. (N.T. July 28, 2008 at pages 198-199).

22. Roy’s body wire transmitted the conversations between Roy, Lockhart, Kerekes and Cuadra while they dined at Crab Catcher’s Restaurant. Those conversations were simultaneously intercepted and recorded by San Diego Police. (N.T. July 28, 2008 at pages 173-174).

23. At the conclusion of the luncheon, Roy made arrangements to meet Defendants Kerekes and Cuadra at the hotel the following day and go to Black Beach. (N.T. July 28, 2008 at pages 200-201).

24. Corporal Hannon and the other Pennsylvania law enforcement officials who were present in San Diego at the time of the intercept played a de minimis, inconsequential role in the intercept of the Crab Catcher’s conversation. (N.T. July 28, 2008 at pages 191-192).

B. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT BLACK BEACH, SAN DIEGO, CALIFORNIA ON APRIL 28, 2007.

25. On April 28, 2007 Grant Roy met with San Diego Detectives Donaldson and Pappas prior to meeting Kerekes and Cuadra. (N.T. July 28, 2008 at page 201).

26. Grant Roy orally agreed and consented to acting as an informant and participating in the interception on April 27, 2007. (N.T. July 28, 2008 at pages 180-181; 201). The consent was expressed to San Diego Detective Donaldson.

27. Roy consented to wearing a body wire. He never withdrew consent. He was under no pressure from any law enforcement agency to agree to consent. Law enforcement officials made no promises cr threats. Roy received no compensation for acting as an informant and had no charges pending against him at the time. (NT. July 28, 2008 at pages 180-181; 201-202).

28. The San Diego Police Department planned, supervised, and conducted the actual interception of conversations between Roy, Lockhart, Kerekes and Cuadra. Detective Donaldson acted as the Supervising Detective for the intercepts and Detective Andrew Pappas, also of the San Diego Police Department acted as the Technical Officer and arranged for the fitting, operation, transmission and recording of the intercepted conversations. (N.T, July 28, 2008 at pages 188; 191).

29. On April 28, 2007, San Diego Detectives never requested written consent from Mr. Roy. (N.T. July 28, 2008 at pages 184-185).

30. On April 28, 2007, Roy never met with any District Attorney, Assistant District Attorney, Attorney General or Deputy Attorney General prior to participating in the intercept. (N.T. July 28, 2008 at page 184).

31. Detective Pappas provided Roy with an electronic key remote which acted as a transmitter for the interception of conversations with Kerekes and Cuadra at Black Beach. (N.T. July 28, 2008 at page 187).

32. Black Beach is a public nude beach located at the base of Torrey Pines Golf Course in San Diego, California. Because Roy anticipated being nude, wearing a body wire was obviously impossible, and thus Detective Pappas fit him with the key remote which would serve as the transmitter. (N.T. July 28, 2008 at pages 179-180; 187).

33. On April 28, 2007, Roy and Lockhart then went to Defendants’ motel and transported Kerekes and Cuadra to Black Beach where Roy’s key remote electronically transmitted the conversations and statements made by Kerekes and Cuadra. Those conversations were simultaneously intercepted and recorded by San Diego Police. (N.T. July 28, 2008 at pages 186-187).

34. Corporal Harmon and the other Pennsylvania law enforcement officials were who present in San Diego at the time of the intercept played a de minimis, inconsequential role in the intercept of the Black Beach conversations. (N.T. July 28, 2008 at pages 178; 191-192).

C. DEFENDANT’S ORAL STATEMENTS GIVEN TO CORPORAL HANNON AND SPECIAL AGENT GLENN ON MAY 15, 2007 IN THE VIRGINIA BEACH, VIRGINIA POLICE DEPARTMENT.

35. On May 15, 2007 Corporal Hannon filed a Criminal Complaint in the Office of Magisterial District Judge James Tupper charging Defendant Kerekes and Defendant Cuadra with one count of Criminal Homicide (18 Pa. C.S.A. §2501(A), as well as a plethora of additional charges in connection with the death of Bryan Charles Kocis (N.T. July 28, 2008 at pages 9-10).

36. Immediately after obtaining Defendant’s Arrest Warrant Corporal Hannon contacted the Virginia Beach, Virginia Police Department, advised them of the warrant, and requested Virginia Beach Police to arrest the Defendant as a Fugitive From Justice. (N.T. July 28, 2008 at pages 10-11).

37. Defendant Kerekes was taken into custody at his home by Virginia Beach Police Department at approximately 10:00 a.m. on May 15, 2007 and held at the Virginia Beach Police Department.

38. Corporal Hannon and a contingent of Pennsylvania law enforcement officials from the Pennsylvania State Police, Federal Bureau of Investigation, Dallas Township Police Department and Luzerne County District Attorney’s Office Detective Division traveled to the Virginia Beach Police Department to “advise Defendants of the charges” and to obtain certain “biographical data” from them. (NT. July 28, 2008 at pages 11-12).

39. Corporal Hannon and Special Agent Glenn were assigned to meet with Defendant Kerekes; Detective Lieutenant Yursha from the Luzerne County District Attorney’s Office and Officer Douglas Higgins of the Dallas Township Police Department were assigned to meet with Defendant Cuadra. (N.T. July 28, 2008 at page 13).

40. Corporal Hannon and Special Agent Glenn initially entered and met Defendant Kerekes in a standard interview room in the Virginia Beach Police Department at approximately 8:00 p.m. (N.T. July 28, 2008 at pages 13-14).

41. This room had a table, chairs and an adjoining restroom. At no time was a Virginia Beach Police Officer present nor did a Virginia Beach Police Officer in any way participate in this encounter. (N.T. July 28, 2008 at pages 13-14).

42. While obviously in custody, Defendant Kerekes was neither handcuffed nor shackled. (N.T. July 28, 2008 at pages 14-15).

43. Neither Corporal Hannon nor Agent Glenn possessed any weapons. (N.T. July 28, 2008 at page 43).

44. Corporal Hannon asked the Defendant if he had previously been “Mirandized’ by Virginia Beach Police and the Defendant stated he had, and that he told Virginia Beach Police that he wanted to speak with a lawyer. (N.T. July 28, 2008 at page 15).

45. At no time did Corporal Hannon and/or Agent Glenn advise the Defendant of his Miranda Warnings.

46. Defendant Kerekes again invoked his right to counsel and advised Corporal Hannon he wished to speak to a lawyer. (N.T. July 28, 2008 at page 15).

47. Corporal Hannon told the Defendant that other than requesting biographical information that he would not be questioned. (N.T. July 28, 2008 at page 14).

48. Defendant was not under the influence of drugs or alcohol; he was alert and coherent. (N.T. July 28, 2008 at pages 14-15).

49. Corporal Hannon advised the Defendant that he could use the adjoining restroom and have food or a drink if he wished. (N.T. July 28, 2008 at pages 15-16).

50. Corporal Hannon further told the Defendant he was going to ask for certain “biographical information” which included the Defendant’s name, date of birth, social security number, address, height, weight, eye color, family history, employment information, military experience, general educational information and personal relationships. (N.T. July 28, 2008 at pages 16; 35-36).

51. At no time did Corporal Hannon permit the Defendant to consult with counsel prior questioning regarding the aforementioned information. (N.T. July 28, 2008 at page 65).

52. The Pennsylvania State Police, as an entity, do not mandate that an arresting officer gather certain specific biographic information from defendants at the time of arrest. (N.T. July 28, 2008 at page 52).

53. Defendant cooperated and provided Corporal Hannon with the requested information. (N.T. July 28, 2008 at page 16).

54. Corporal Hannon then read Defendant the criminal charges that had been filed against him. (NT. July 28, 2008 at page 17).

55. Despite previously telling Defendant he would not ask the Defendant any questions, Corporal Hannon asked the Defendant if he understood the charges. (N.T. July 28, 2008 at page 17).

56. Defendant Kerekes responded by essentially saying that while he understood the words, he did not understand why he had been charged. (N.T. July 28, 2008 at page 17).

57. Corporal Hannon then proceeded to advise the Defendant of the probable cause in support of the charges. He did this, in part, by reading portions of the affidavit of probable cause, and, in part, by summarizing the affidavit. (N.T. July 28, 2008 at pages 17-19).

58. As Corporal Hannon did this, on at least nine separate occasions, the Defendant “interrupted” Corporal Hannon and made a variety of statements. (N.T. July 28, 2008 at pages 19-30).

59. Agent Glenn recorded each statement in his notebook. (N.T. July28, 2008 at page 72).

60. The statements made by the Defendant are incriminatory. (N.T. July 28, 2008 at page 54).

61. As Corporal Hannon neared the end of reading the affidavit to Defendant Kerekes, Kerekes began crying and swore on his mother’s grave” that he wasn’t the one who killed Kocis. The following exchange then took place:

Kerekes: What do you want?

Hannon: I want the truth.

Kerekes: I want to tell you the truth.

Corporal Hannon then stopped Defendant and told him to consult with his attorney. (N.T. July 28, 2008 at pages 24-25).

62. The Affidavit of Probable Cause used by Corporal Hannon consists of twenty-three pages. (N.T. July 28, 2008 at page 30).

63. Defendant was allowed to use the restroom and was given a Snicker’s bar and a pink lemonade during the encounter. (N.T. July 28, 2008 at page 25).

64. The encounter lasted approximately two hours. (N.T. July 28, 2008 at page 30).

65. Special Agent Glenn did not say anything to the Defendant; nor did he ask Defendant any questions. (N.T. July 28, 2008 at page 72).

66. It is not the standard operating procedure of the Pennsylvania State Police, the F.B.I. or the Luzerne County District Attorney’s Office to read the criminal complaint or the affidavit of probable cause to a homicide Defendant who has requested to consult with an attorney. (N.T. July 28, 2008 at pages 49; 66; 75-76).

67. There are no written policies, procedures or mandates from the Pennsylvania State Police, F.B.I. or the Luzerne County District Attorney’s Office requiring arresting officers to read a homicide Defendant the contents of the Criminal complaint or affidavit of probable cause after the Defendant has invoked his right to counsel. (N.T. July 28, 2008 at pages 49; 66; 75-76).

68. Corporal Hannon testified it was his “personal policy” to read the criminal complaint and affidavit of probable cause to homicide Defendants, and that he has done so in five of approximately fifteen homicide arrests made in his career. (N.T. July 28, 2008 at page 50).