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).
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).
