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).
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).
