II. CONCLUSIONS OF LAW
A. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT CRAB CATCHER’S RESTAURANT IN LA HOYA, CALIFORNIA ON APRIL 27, 2007 AND AT BLACK BEACH, SAN DIEGO, CALIFORNIA ON APRIL 28 , 2007.
1. Pursuant to the applicable Rules of Criminal Procedure, the Commonwealth of Pennsylvania bears the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of a defendanUs rights. Pa. R.Crim.P. 581(H).
2. The California Electronic Eavesdropping Law, California Penal Code § and 633 allows for warrantless electronic eavesdropping where an informant has given voluntary consent and is acting at the direction of an enumerated law enforcement officer, See People v. Towery, 174 Cal. App. 1114, 220 Cal. Rptr. 475 (1985).
3. California Courts analyze whether an informant’s consent is voluntary after electronic eavesdropping has occurred and consider a number of factors including whether the informant approached the police or police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by police. See People v. Towery.
4. In contrast, Pennsylvania’s Electronic Eavesdropping Law, 18 Pa. C.S.A. §5704, requires that one of several enumerated government attorneys analyze the facts surrounding the intercept and the circumstances surrounding the informant’s consent before electronic eavesdropping occurs. Commonwealth attorneys have an affirmative duty to meet with and speak to the consenting party prior to approving the intercept. See Commonwealth v. Clark, 542 A.2d 1036, 1039 (Pa. Super. 1988).
5. This fundamental difference in state law requires this Court to initially determine whether California law or Pennsylvania law should be used to examine whether the questioned intercepts were conducted lawfully.
6. In conflict of law cases involving procedural matters, Pennsylvania will apply its own procedural law when it is serving as the forum state. In cases where the substantive law of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania Courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the Court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum state to apply the policy of the jurisdiction most intimately concerned with the outcome. A similar approach is taken in the criminal context where the substantive law of this Commonwealth conflict with those of a sister state. See Commonwealth v. Sanchez, 716 A.2d 1221, 1223-24 (Pa. Super. 2000). See also, Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000).
7. A substantive right is defined as a right to equal enjoyment of fundamental rights, privileges and immunities, as distinguished from a procedural right. By contrast, procedural law is that which prescribes the methods of enforcing rights or obtaining redress for their invasion; this is distinguished from the substantive law which gives or defines the right. Sanchez at 1224.
8. Since the issue before us involves a constitutional protection against self incrimination this issue must be addressed under the principles of conflict between substantive laws, which requires this Court to evaluate which state has the most interest in the outcome.
9. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California law but not Pennsylvania law. Sanchez at 1222-23.
10. Sanchez concluded that California possessed the greater interest in the validity of a canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.
11. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff. (Emphasis added).
12. Sanchez concluded by holding ‘that if the courts of a sister state determine that a canine sniff is not a search in that state the propriety of a sniff initiated by that state’s officers and conducted within that state’s boarders must be evaluated under the laws of that state”. (Emphasis added). Sanchez at 1225.
13. The electronic eavesdropping in our case occurred on April 27, 2007 in La Hoya, California and April 28, 2007 in San Diego, California.
14. As set forth in Findings of Fact 14 and 15, the San Diego Police Department planned, supervised, and conducted the actual interception. San Diego Police supervised the intercepts, and arranged for the fitting, operation, transmission and recording of the intercepted conversations. Pennsylvania law enforcement played a de minimis role in the operation.
15. Under these circumstances, clearly California has the most interest in the procedures used to obtain the intercepts . Pennsylvania should not interfere in the wiretapping procedures adopted by the California legislature and analyzed by California courts even though the California recordings are used to further a Pennsylvania homicide prosecution. See also Commonwealth v Bennett, 369 A.2d 493 (Pa. Super. 1976).
16. Having concluded that California law controls the instant analysis, the issue thus becomes whether Grant Roy validly consented to the intercept.
17. Roy’s consent was freely and voluntarily given. He was coerced by no one. He was not motivated by present or potential legal problems. He was not under the influence of alcohol or any controlled substance. He neither requested nor was offered immunity. No promises were made to him. No pressure was exerted. No compensation was paid to him.
18. San Diego Detective Donaldson acted as the supervising detective for the interception and was authorized to do so pursuant to § and 633 of the California Penal Code.
19. Finally, Defendant Kerekes possessed no reasonable expectation of privacy with regard to either conversation. The conversations occurred at a public restaurant and a public beach. See Lieberman v. KCOP Television, Inc., 1 Cal. Rptr. 3 536 (Cal. App., 2003).
B. DEFENDANT’S ORAL STATEMENTS GIVEN TO CORPORAL HANNON AND SPECIAL AGENT GLENN ON MAY 15, 2001 IN THE VIRGINIA BEACH, VIRGINIA POLICE DEPARTMENT.
20. Under Pennsylvania law, the Sixth Amendment right to counsel attaches at the time of the Defendant’s arrest. Commonwealth v. Karash, 518 A.2d 537, 541 (Pa. 1986); Commonwealth v. Laney, 729 A.2d 598, 601 (Pa. Super. 1999); Commonwealth v. Richman, 320 A.2d 351 (Pa. 1974); Commonwealth v. Whiting, 266 A.2d 738 (Pa. 1970).
21. Thus Pennsylvania offers its citizens greater protection than that afforded by the United States Constitution.
22. Under Virginia law, the Sixth Amendment right to counsel does not attach until a defendant’s initial appearance before a judicial officer where he learns of the charges against him and his liberty is subject to restriction. Commonwealth v. Malvo, 63 Va. Cir. 22 (Fairfax) (2003).
23. Thus Virginia follows federal precedent concerning attachment of the Sixth Amendment right to counsel. See Brewer v. Williams, 430 U.S. 387 (1977); Michigan v. Jackson, 475 U.S. 625 (1986); Rothgery v. Gillespie County, 128 S.Ct. 2578, 2008 Lexis 5057 (June 23, 2008).
24. Like the issue concerning the electronic intercepts of conversations in California, the conflict of laws between the Commonwealths of Pennsylvania and Virginia requires this Court to initially determine whether the statements elicited by Pennsylvania law enforcement in the Commonwealth of Virginia proceeds with analysis under Pennsylvania or Virginia Law.
25. While the conflict of laws analysis is the same, we reach a different result.
26. In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws 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 laws 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).
27. 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.
28. Since the issue before us involves constitutional protection against self incrimination this issue must be addressed under the principles of conflicts between substantive laws, which requ this Court to evaluate which state has the most interest in the outcome.
29. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California law but not Pennsylvania law. Sanchez at 1222-23.
30. Sanchez concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.
31. 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).
32. 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).
33. In our case, Pennsylvania law enforcement officials filed homicide and related charges in Pennsylvania against Defendant for a Pennsylvania homicide. Pennsylvania law enforcement authorized and requested Virginia Beach Police Department to arrest Defendant. Pennsylvania law enforcement officials traveled to Virginia Beach to speak with Defendant. Corporal Hannon and Special Agent Glenn were the only law enforcement officials who met with Defendant when Defendant made the statements in question; no Virginia authorities were present. Pennsylvania authorities now wish to use the Defendant’s statements in a Pennsylvania capital case.
34. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of a canine sniff because the sniff (1) did not occur in Pennsylvania; and (2) no Pennsylvania state officers were involved in the sniff. (Emphasis added).
35. Instantly, while Defendant made the statements in the Virginia Beach Police Department, the statements were elicited exclusively by Pennsylvania authorities. Virginia authorities played absolutely no role in obtaining the statement. Additionally, the statements were elicited exclusively for use in a Pennsylvania courtroom during a Pennsylvania capital murder prosecution.
36. Virginia’s interest in applying Virginia law to this context is virtually nil. Pennsylvania, and only Pennsylvania, has an intimate concern with the outcome of the suppression issue before us.
37. Clearly, under current conflict of laws analysis, Pennsylvania law must control whether Defendant’s statements are subject to suppression.
38. The broadly defined issue therefore is whether the reading of the criminal charges and the affidavit of probable cause without advising the Defendant of Miranda warnings and Defendant waiving same, amounts to the functional equivalent of interrogation, given that this Defendant was clearly in custody.
39. The Commonwealth may not use statements resulting from custodial interrogation of a defendant unless the Commonwealth proves by a preponderance of the evidence that the defendant was appraised of his right against self incrimination and his right to counsel. Commonwealth v. Oeiesus, 787 A.2d 394 (Pa. 2001).
40. Additionally, Miranda safeguards come into play whenever a person in custody is subjected either to express questioning or its functional equivalent. Rhode Island v. lnnis, 446 U.S. 291 (1980).
41. Thus, the discreet issue before us is whether the encounter between Defendant Kerekes, Corporal Hannon and Agent Glenn rose to the level of interrogation or its functional equivalent such that Miranda applied.
42. In DeJesus, the Supreme Court defined interrogation as “questioning initiated by law enforcement officials”. The Court further explained the “functional equivalent” ot interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect”. DeJesus at 401-02.
43. DeJesus instructs that innis requires the Court to focus on a suspect’s perceptions and give relevance to the officer’s constructive knowledge. The inquiry must look at the suspect’s perceptions rather than the intent of the police. Moreover, “a practice that the police should know is reasonably likely to evoke an incriminating response from a suspect... amounts to an interrogation”. DeJesus at 402.
44. Applying this analysis the Pennsylvania Supreme Court recently held that when an investigator explains to a custodial defendant that he is accused of a crime and reads an eyewitness statement implicating him, the investigator should know his comments are reasonably likely to evoke an incriminating response. Our Supreme Court further held the investigator should have known the defendant would want to defend himself and give his own version of his involvement in the crime. Commonwealth v. Gaul, 912 A.2d 252 (Pa. 2006).
45. The lynchpin of the Miranda analysis is the perception of the suspect and the constructive knowledge of the police. Merely because a police officer intended the encounter to be informational does not mean that it cannot constitute interrogation. DeJesus at 403.
46. Here, Kerekes was clearly in custody and was entitled to Miranda warnings prior to any interrogation.
47. Upon entering the interview room, Corporal Hannon asked Kerekes if he had been advised of Miranda by the Virginia Beach Police and Kerekes responded that he was so advised and told Virginia Beach he wanted to speak to a lawyer.
48. Neither Hannon nor Glenn advised Kerekes of Miranda warnings.
49. Kerekes specifically told Hannon and Glenn that he wanted a lawyer.
50. No lawyer was provided despite two (2) specific requests by Kerekes.
51. Under these circumstances there was absolutely no need for Hannon to read Kerekes the criminal complaint and supporting affidavit of probable cause. Stated differently, doing so created a context and environment suggesting and indicative of the functional equivalent of interrogation.
52. Pa. R.Crim.P. 540 specifically requires the issuing authority to read the criminal complaint to the defendant and to provide a defendant with a copy of the complaint at the time of preliminary arraignment. Additionally, Rule 540(E) specifically prohibits the issuing authority from questioning a defendant about the charges. The issuing authority, as distinct from a law enforcement officer, is a neutral detached judicial officer. This Rule requires the judicial officer to be circumspect in this regard.
53. Corporal Hannon, an experienced and seasoned investigator, was aware Kerekes was entitled to Miranda warnings and further that Defendant had requested counsel on two (2) occasions.
54. Despite the above, Corporal Hannon chose to read and summarize charges and the probable cause affidavit.
55. Corporal Hannon should have known such action was likely to evoke exactly the type of response Kerekes uttered - incriminating in nature.
56. Applying the analysis established by Innis, DeJesus and Gaul, we conclude Defendant Kerekes was subject to the functional equivalent of interrogation. The initial invocation of Defendant’s right to counsel after apparently being advised of Miranda by Virginia Beach authorities, the absence of any warnings or waiver in this regard by Corporal Hannon, and the continued reading of the probable cause and the summarization of the probable cause despite an additional assertion of Defendants right to Counsel require suppression.
57. In the event our Appellate Courts determine Virginia and not Pennsylvania law applies to the above statements, no different result is required.
58. The application of Virginia law requires an examination of Gates v. Commonwealth, 30 Va. App. 352, 516 S.E. 2 731 (1999). There a defendant previously arrested on other charges was served with new arrest warrants. He was neither Mirandized nor did he invoke his right to counsel before police read the charges. Although police posed no questions, the defendant, like Kerekes, made statements following a reading of the charges. Because the Virginia Court found the “usual police practice” was to serve murder warrants Ln an interview room and further because detectives who confronted Gates did not specifically question him, did not have possession of a notebook or did not anticipate receiving statements from the defendant, the Court held this was not the functional equivalent of interrogation.
59. The instant matter differs substantially from Gates:
A. Gates was not Mirandized nor did he invoke his right to counsel;
B. Kerekes was advised of Miranda by Virginia Beach Police and invoked his right to counsel initially to Virginia Beach Police and subsequently to Corporal Hannon;
C. Despite these invocations Defendant was not provided with Counsel or any opportunity to consult with Counsel prior to Corporal Hannon’s recitation;
D. Corporal Hannon inquired about the Defendant’s background, family history, personal relationships and then read and summarized the criminal charges and affidavit of probable cause which included statements from third party witnesses.
E. Unlike the investigators in Gates, Agent Glenn was prepared to record Defendant’s statements and, in fact, did so in a notebook.
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 in 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.
A. DEFENDANT’S ELECTRONICALLY RECORDED STATEMENTS AND CONVERSATION AT CRAB CATCHER’S RESTAURANT IN LA HOYA, CALIFORNIA ON APRIL 27, 2007 AND AT BLACK BEACH, SAN DIEGO, CALIFORNIA ON APRIL 28 , 2007.
1. Pursuant to the applicable Rules of Criminal Procedure, the Commonwealth of Pennsylvania bears the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of a defendanUs rights. Pa. R.Crim.P. 581(H).
2. The California Electronic Eavesdropping Law, California Penal Code § and 633 allows for warrantless electronic eavesdropping where an informant has given voluntary consent and is acting at the direction of an enumerated law enforcement officer, See People v. Towery, 174 Cal. App. 1114, 220 Cal. Rptr. 475 (1985).
3. California Courts analyze whether an informant’s consent is voluntary after electronic eavesdropping has occurred and consider a number of factors including whether the informant approached the police or police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by police. See People v. Towery.
4. In contrast, Pennsylvania’s Electronic Eavesdropping Law, 18 Pa. C.S.A. §5704, requires that one of several enumerated government attorneys analyze the facts surrounding the intercept and the circumstances surrounding the informant’s consent before electronic eavesdropping occurs. Commonwealth attorneys have an affirmative duty to meet with and speak to the consenting party prior to approving the intercept. See Commonwealth v. Clark, 542 A.2d 1036, 1039 (Pa. Super. 1988).
5. This fundamental difference in state law requires this Court to initially determine whether California law or Pennsylvania law should be used to examine whether the questioned intercepts were conducted lawfully.
6. In conflict of law cases involving procedural matters, Pennsylvania will apply its own procedural law when it is serving as the forum state. In cases where the substantive law of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania Courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the Court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum state to apply the policy of the jurisdiction most intimately concerned with the outcome. A similar approach is taken in the criminal context where the substantive law of this Commonwealth conflict with those of a sister state. See Commonwealth v. Sanchez, 716 A.2d 1221, 1223-24 (Pa. Super. 2000). See also, Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000).
7. A substantive right is defined as a right to equal enjoyment of fundamental rights, privileges and immunities, as distinguished from a procedural right. By contrast, procedural law is that which prescribes the methods of enforcing rights or obtaining redress for their invasion; this is distinguished from the substantive law which gives or defines the right. Sanchez at 1224.
8. Since the issue before us involves a constitutional protection against self incrimination this issue must be addressed under the principles of conflict between substantive laws, which requires this Court to evaluate which state has the most interest in the outcome.
9. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California law but not Pennsylvania law. Sanchez at 1222-23.
10. Sanchez concluded that California possessed the greater interest in the validity of a canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.
11. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff. (Emphasis added).
12. Sanchez concluded by holding ‘that if the courts of a sister state determine that a canine sniff is not a search in that state the propriety of a sniff initiated by that state’s officers and conducted within that state’s boarders must be evaluated under the laws of that state”. (Emphasis added). Sanchez at 1225.
13. The electronic eavesdropping in our case occurred on April 27, 2007 in La Hoya, California and April 28, 2007 in San Diego, California.
14. As set forth in Findings of Fact 14 and 15, the San Diego Police Department planned, supervised, and conducted the actual interception. San Diego Police supervised the intercepts, and arranged for the fitting, operation, transmission and recording of the intercepted conversations. Pennsylvania law enforcement played a de minimis role in the operation.
15. Under these circumstances, clearly California has the most interest in the procedures used to obtain the intercepts . Pennsylvania should not interfere in the wiretapping procedures adopted by the California legislature and analyzed by California courts even though the California recordings are used to further a Pennsylvania homicide prosecution. See also Commonwealth v Bennett, 369 A.2d 493 (Pa. Super. 1976).
16. Having concluded that California law controls the instant analysis, the issue thus becomes whether Grant Roy validly consented to the intercept.
17. Roy’s consent was freely and voluntarily given. He was coerced by no one. He was not motivated by present or potential legal problems. He was not under the influence of alcohol or any controlled substance. He neither requested nor was offered immunity. No promises were made to him. No pressure was exerted. No compensation was paid to him.
18. San Diego Detective Donaldson acted as the supervising detective for the interception and was authorized to do so pursuant to § and 633 of the California Penal Code.
19. Finally, Defendant Kerekes possessed no reasonable expectation of privacy with regard to either conversation. The conversations occurred at a public restaurant and a public beach. See Lieberman v. KCOP Television, Inc., 1 Cal. Rptr. 3 536 (Cal. App., 2003).
B. DEFENDANT’S ORAL STATEMENTS GIVEN TO CORPORAL HANNON AND SPECIAL AGENT GLENN ON MAY 15, 2001 IN THE VIRGINIA BEACH, VIRGINIA POLICE DEPARTMENT.
20. Under Pennsylvania law, the Sixth Amendment right to counsel attaches at the time of the Defendant’s arrest. Commonwealth v. Karash, 518 A.2d 537, 541 (Pa. 1986); Commonwealth v. Laney, 729 A.2d 598, 601 (Pa. Super. 1999); Commonwealth v. Richman, 320 A.2d 351 (Pa. 1974); Commonwealth v. Whiting, 266 A.2d 738 (Pa. 1970).
21. Thus Pennsylvania offers its citizens greater protection than that afforded by the United States Constitution.
22. Under Virginia law, the Sixth Amendment right to counsel does not attach until a defendant’s initial appearance before a judicial officer where he learns of the charges against him and his liberty is subject to restriction. Commonwealth v. Malvo, 63 Va. Cir. 22 (Fairfax) (2003).
23. Thus Virginia follows federal precedent concerning attachment of the Sixth Amendment right to counsel. See Brewer v. Williams, 430 U.S. 387 (1977); Michigan v. Jackson, 475 U.S. 625 (1986); Rothgery v. Gillespie County, 128 S.Ct. 2578, 2008 Lexis 5057 (June 23, 2008).
24. Like the issue concerning the electronic intercepts of conversations in California, the conflict of laws between the Commonwealths of Pennsylvania and Virginia requires this Court to initially determine whether the statements elicited by Pennsylvania law enforcement in the Commonwealth of Virginia proceeds with analysis under Pennsylvania or Virginia Law.
25. While the conflict of laws analysis is the same, we reach a different result.
26. In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws 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 laws 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).
27. 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.
28. Since the issue before us involves constitutional protection against self incrimination this issue must be addressed under the principles of conflicts between substantive laws, which requ this Court to evaluate which state has the most interest in the outcome.
29. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. The canine sniff was legal under California law but not Pennsylvania law. Sanchez at 1222-23.
30. Sanchez concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law it could be used to support probable cause in Pennsylvania. Sanchez at 1224.
31. 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).
32. 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).
33. In our case, Pennsylvania law enforcement officials filed homicide and related charges in Pennsylvania against Defendant for a Pennsylvania homicide. Pennsylvania law enforcement authorized and requested Virginia Beach Police Department to arrest Defendant. Pennsylvania law enforcement officials traveled to Virginia Beach to speak with Defendant. Corporal Hannon and Special Agent Glenn were the only law enforcement officials who met with Defendant when Defendant made the statements in question; no Virginia authorities were present. Pennsylvania authorities now wish to use the Defendant’s statements in a Pennsylvania capital case.
34. Sanchez held that no Pennsylvania state interest would be advanced by analyzing the propriety of a canine sniff because the sniff (1) did not occur in Pennsylvania; and (2) no Pennsylvania state officers were involved in the sniff. (Emphasis added).
35. Instantly, while Defendant made the statements in the Virginia Beach Police Department, the statements were elicited exclusively by Pennsylvania authorities. Virginia authorities played absolutely no role in obtaining the statement. Additionally, the statements were elicited exclusively for use in a Pennsylvania courtroom during a Pennsylvania capital murder prosecution.
36. Virginia’s interest in applying Virginia law to this context is virtually nil. Pennsylvania, and only Pennsylvania, has an intimate concern with the outcome of the suppression issue before us.
37. Clearly, under current conflict of laws analysis, Pennsylvania law must control whether Defendant’s statements are subject to suppression.
38. The broadly defined issue therefore is whether the reading of the criminal charges and the affidavit of probable cause without advising the Defendant of Miranda warnings and Defendant waiving same, amounts to the functional equivalent of interrogation, given that this Defendant was clearly in custody.
39. The Commonwealth may not use statements resulting from custodial interrogation of a defendant unless the Commonwealth proves by a preponderance of the evidence that the defendant was appraised of his right against self incrimination and his right to counsel. Commonwealth v. Oeiesus, 787 A.2d 394 (Pa. 2001).
40. Additionally, Miranda safeguards come into play whenever a person in custody is subjected either to express questioning or its functional equivalent. Rhode Island v. lnnis, 446 U.S. 291 (1980).
41. Thus, the discreet issue before us is whether the encounter between Defendant Kerekes, Corporal Hannon and Agent Glenn rose to the level of interrogation or its functional equivalent such that Miranda applied.
42. In DeJesus, the Supreme Court defined interrogation as “questioning initiated by law enforcement officials”. The Court further explained the “functional equivalent” ot interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect”. DeJesus at 401-02.
43. DeJesus instructs that innis requires the Court to focus on a suspect’s perceptions and give relevance to the officer’s constructive knowledge. The inquiry must look at the suspect’s perceptions rather than the intent of the police. Moreover, “a practice that the police should know is reasonably likely to evoke an incriminating response from a suspect... amounts to an interrogation”. DeJesus at 402.
44. Applying this analysis the Pennsylvania Supreme Court recently held that when an investigator explains to a custodial defendant that he is accused of a crime and reads an eyewitness statement implicating him, the investigator should know his comments are reasonably likely to evoke an incriminating response. Our Supreme Court further held the investigator should have known the defendant would want to defend himself and give his own version of his involvement in the crime. Commonwealth v. Gaul, 912 A.2d 252 (Pa. 2006).
45. The lynchpin of the Miranda analysis is the perception of the suspect and the constructive knowledge of the police. Merely because a police officer intended the encounter to be informational does not mean that it cannot constitute interrogation. DeJesus at 403.
46. Here, Kerekes was clearly in custody and was entitled to Miranda warnings prior to any interrogation.
47. Upon entering the interview room, Corporal Hannon asked Kerekes if he had been advised of Miranda by the Virginia Beach Police and Kerekes responded that he was so advised and told Virginia Beach he wanted to speak to a lawyer.
48. Neither Hannon nor Glenn advised Kerekes of Miranda warnings.
49. Kerekes specifically told Hannon and Glenn that he wanted a lawyer.
50. No lawyer was provided despite two (2) specific requests by Kerekes.
51. Under these circumstances there was absolutely no need for Hannon to read Kerekes the criminal complaint and supporting affidavit of probable cause. Stated differently, doing so created a context and environment suggesting and indicative of the functional equivalent of interrogation.
52. Pa. R.Crim.P. 540 specifically requires the issuing authority to read the criminal complaint to the defendant and to provide a defendant with a copy of the complaint at the time of preliminary arraignment. Additionally, Rule 540(E) specifically prohibits the issuing authority from questioning a defendant about the charges. The issuing authority, as distinct from a law enforcement officer, is a neutral detached judicial officer. This Rule requires the judicial officer to be circumspect in this regard.
53. Corporal Hannon, an experienced and seasoned investigator, was aware Kerekes was entitled to Miranda warnings and further that Defendant had requested counsel on two (2) occasions.
54. Despite the above, Corporal Hannon chose to read and summarize charges and the probable cause affidavit.
55. Corporal Hannon should have known such action was likely to evoke exactly the type of response Kerekes uttered - incriminating in nature.
56. Applying the analysis established by Innis, DeJesus and Gaul, we conclude Defendant Kerekes was subject to the functional equivalent of interrogation. The initial invocation of Defendant’s right to counsel after apparently being advised of Miranda by Virginia Beach authorities, the absence of any warnings or waiver in this regard by Corporal Hannon, and the continued reading of the probable cause and the summarization of the probable cause despite an additional assertion of Defendants right to Counsel require suppression.
57. In the event our Appellate Courts determine Virginia and not Pennsylvania law applies to the above statements, no different result is required.
58. The application of Virginia law requires an examination of Gates v. Commonwealth, 30 Va. App. 352, 516 S.E. 2 731 (1999). There a defendant previously arrested on other charges was served with new arrest warrants. He was neither Mirandized nor did he invoke his right to counsel before police read the charges. Although police posed no questions, the defendant, like Kerekes, made statements following a reading of the charges. Because the Virginia Court found the “usual police practice” was to serve murder warrants Ln an interview room and further because detectives who confronted Gates did not specifically question him, did not have possession of a notebook or did not anticipate receiving statements from the defendant, the Court held this was not the functional equivalent of interrogation.
59. The instant matter differs substantially from Gates:
A. Gates was not Mirandized nor did he invoke his right to counsel;
B. Kerekes was advised of Miranda by Virginia Beach Police and invoked his right to counsel initially to Virginia Beach Police and subsequently to Corporal Hannon;
C. Despite these invocations Defendant was not provided with Counsel or any opportunity to consult with Counsel prior to Corporal Hannon’s recitation;
D. Corporal Hannon inquired about the Defendant’s background, family history, personal relationships and then read and summarized the criminal charges and affidavit of probable cause which included statements from third party witnesses.
E. Unlike the investigators in Gates, Agent Glenn was prepared to record Defendant’s statements and, in fact, did so in a notebook.
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 in 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.
