PPO Says No

Judge Peter Paul Olszewski has denied Harlow Cuadra's request to permit an immediate interlocutory appeal... regarding the judge's removal of Cuadra's previous attorney Demetrius Fannick...

(Update 4:19 PM): The Times Leader is reporting that Harlow Cuadra’s trial on homicide charges apparently won’t be delayed because of an appeal.

Cuadra is appealing a ruling that disqualified attorney Demetrius Fannick from defending him.

Pre-trial appeals often delay the start of trial until the appeal is resolved. But a judge has to issue an order allowing that to happen.

Cuadra’s attorneys asked Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. to allow that to happen with his Fannick ruling.

But at a brief hearing on the issue Wednesday, Olszewski refused.

That means Cuadra and Joseph Kerekes are still slated to stand trial in September in the slaying of Bryan Kocis – unless the state Superior Court says otherwise.

Olszewski said Cuadra’s attorneys could ask the Superior Court to review the appeal prior to trial.

If the Superior Court decides to, the court would likely issue a stay of Cuadra’s trial.

Kocis Estate Wins Suit Against Harlow & Joe

The Times Leader is reporting that the estate of a gay porn producer stabbed to death in his Dallas Township home has won a lawsuit against the man’s suspected killers.

But how much in damages the estate will be awarded remains unclear.

Michael Kocis, the father of Bryan Kocis, filed suit in January against Harlow Cuadra and Joseph Kerekes.

Michael Kocis’ suit, filed in Luzerne County Court of Common Pleas, claimed Cuadra and Kerekes entered Bryan Kocis’ home and “jointly” or “separately” caused Bryan Kocis’ death and destroyed the home and property.

But neither suspect responded to the suit, according to court papers. That led to a default judgment being entered against both of them last week, and a judgment entered in favor of the estate, Michael Kocis’ attorney, Conrad Falvello said Tuesday.

Falvello said he has not even heard from any attorney on behalf of the men.

And unless they make a motion to reverse the default judgment, the case will proceed to a trial just to determine damages, he said.

Both suspects claim to be indigent and are represented in their criminal case by publicly funded attorneys.

But Falvello said he heard the suspects had assets seized by federal authorities in Virginia.

He is trying to ensure, through the suit, that Bryan Kocis’ family would be entitled to those assets.

The insurance carrier for the home is also involved in the suit to see if it is entitled to damages for the fire, Falvello said.
---

Previous news & posts about the wrongful death suit:

A Suit in Wolf's Clothing
Kocis v. Cuadra and Kerekes
Porn Producer's Father Sues Suspected Killers

Joseph Kerekes' Homicide Charges Stand

The Times Leader is reporting that Prosecutors have enough evidence to take Joseph Kerekes to trial on homicide charges, a judge ruled Monday.

Kerekes and Harlow Cuadra are charged in the January 2007 slaying of Bryan Kocis inside his Dallas Township home.

Kerekes' attorneys had asked for his charges to be dismissed. They said prosecutors failed to establish enough evidence at a preliminary hearing on the charges.

But Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. on Monday denied the request. Kerekes and Cuadra are scheduled to stand trial Sept. 2. Prosecutors are seeking the death penalty for both men.
----

The Citizens' Voice also reports on the story: Court of Common Pleas Judge Peter Paul Olszewski Jr. denied a petition for writ of habeas corpus in which Kerekes’ attorneys argued prosecutors lacked the evidence or probable cause required to charge Kerekes in the January 2007 killing of Bryan Kocis in Dallas Township.

Kerekes’ attorneys, Shelley Centini and John Pike, argued in the petition, filed last December, that his arrest, prosecution and pre-trial imprisonment violated his constitutional “right to be free from unreasonable seizure of the person.”

Olszewski sided with the prosecutors, Michael Melnick, Shannon Crake and William Dunn, who enumerated their disagreement on Jan. 22 in a 49-page response that included details of pre-trial testimony and evidence.

“A habeas hearing or preliminary hearing is not a trial,” the prosecutors argued. “Consequently, the Commonwealth is not required to prove the elements of the crime beyond a reasonable doubt at a habeas or preliminary hearing.”

Commonwealth's Answer(s) to Cuadra's Motion to Permit Interlocutory Appeal

While I await a copy of the missing page from the Commonwealth's Brief, I figured I'd go ahead and post about the "Answers" filed by the Commonwealth in response to Harlow Cuadra's Notice of Appeal to the Superior Court, originally filed on April 17, 2008.

Surprisingly, the Commonwealth Attorney's Office actually agreed to most of the twenty-eight arguments and statements made by Harlow Cuadra's attorneys... though there are some interesting, and one somewhat humorously put objection(s):

1. Admitted. The Commonwealth notes that these cases have been consolidated and no order granting severance has been issued.

22. Admitted. The Commonwealth advised Attorney Senape and Attorney Menn prior to the filing of this Motion that Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa. 1998) barred the instant appeal. Nevertheless, Defense Counsel filed this Motion to attempt an appeal.

23. Denied. Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa.1998) bars the instant appeal. The Pennsylvania Supreme Court, citing Flanagan v. United States, 465 U.S. 259, 104 S.Ct.1051, 79 L.E.d 2d 288 (1984) held that disqualification orders do not satisfy the collateral order exception. No mention is made of this flagship decision in the Defendant's filing.

25. Denied. This Court's ruling followed long established precedent, decades old. In T.C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.,1953), the court wrote, "To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. It would defeat an important purpose of the rule of secrecy--to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client's private interest, require rigid enforcement of the rule against disclosure. No client should ever be concerned with the possible use against him in future litigation of what he may have revealed to his attorney. Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. The rule prevents a lawyer from placing himself in an anomalous position. Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. Lawyers should not put themselves in the position "where, even unconsciously, the might take, in the interests of a new client, and advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged relationship." In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the later representation within the prohibition of Canon 6. In the instant case I think this can be said. The decision in Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) has been cited at least on 654 occasions throughout the United States in state and federal courts, trial courts and appellate courts. Consequently, the Defendant's characterization that this Honorable Court's decision is a "novel" application has no basis in fact or precedent. This Court's decision is well founded in law.

26. Denied. The right to counsel of choice is not an absolute right. Commonwealth v. Calvin Johnson 550 Pa. 298, 705 A.2d 830 (Pa. 1998).

27. Denied. The mere fact that Defendant Kerekes testified does not cloak him with the imprimatur of credibility. In fact, Defendant Kerekes, riled and overcome with the appearance of Attorney Fannick in the courtroom, uttered the classic "state of mind" or "excited utterance". This emotional spontaneous utterance contradicted his later carefully prepared testimony, wherein Defendant Kerekes denied that over, 8 separate visits spanning several hours, he never talked to Attorney Fannick about his case.

28. Denied. This Court should deny the Defendant's Motion.

Commonwealth Responds to Cuadra's Motion to Permit Interlocutory Appeal

The prosecution has just filed their brief and answer, in response to Harlow Cuadra's appeal of Judge Peter Paul Olszewski's ruling to have Attorney Demetrius Fannick removed as counsel.

Since there are 14 pages of text to post, I'll be breaking this down as I've done in previous long posts, so that it's easier to read and follow.

COMMONWEALTH'S BRIEF IN OPPOSITION TO DEFENDANT CUADRA'S MOTION TO PERMIT INTERLOCUTORY APPEAL

I. STATEMENT OF FACTS
On March 19, 2008, this Honorable Court entered an order disqualifying Attorney Fannick from representing Defendant Harlow Cuadra. Thereafter, the Commonwealth advised Attorney Senape and Attorney Menn prior to the filing of this Motion that Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa. 1998) barred the instant appeal. Nevertheless, Defense Counsel filed this Motion to attempt an appeal.

II. ISSUE
Whether or not this Honorable Court should deny the Defendant Cuadra's Motion requesting Permission for allowance of appeal?

SUGGESTED ANSWER: YES

III. ARGUMENT AND LAW
Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa. 1998) bars the instant appeal. The Pennsylvania Supreme Court, citing Flanagan v. United States, 465 U.S. 259, 104 S.C.1051, 79 L.Ed 2d 288 (1984) held that disqualification orders do not satisfy the collateral order exception. No mention is made of this flagship decision in the Defendant's filing. A copy of this dispositive decision is attached hereto as Exhibit "A". This Court should deny the Defendant's Motion.

EXHIBIT A

830 Pa. 705 ATLANTIC REPORTER, 2d SERIES

The order of the Superior Court is affirmed.

CASTILLE, J., files a concurring opinion in which NEWMAN, J., joins.

CASTILLE, Justice, concurring.

I concur with the result reached by the majority but write separately as I believe that once a defendant willfully and purposefully flees from a court’s jurisdiction, he waives any review of the court’s decision regardless of whether such review be requested at the trial or appellate level. Thus, while I would affirm the trial court's denial of relief, I would do so on different grounds.

Over the last decade, as noted by Mr. Chief Justice Flaherty, this Court has repeatedly revisited the impact of a defendant’s flight upon post-flight judicial proceedings despite the seminal case of Commonwealth v. Jones 530 Pa. 536,610 AId 439(1992). The wording in Jones was unambiguous and is barely five years old:

A defendant's voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant forever forfeited his right to appeal.

53O Pa. at 54l, 610 A.2d at 441. I believe that the reasoning of this Court in Jones applies with equal force to this matter even during his trial, as opposed to “after post trial proceedings,” as was the case in Jones. To hold differently gives little meaning to stare decisis.

Persons who disregard the laws and rules which society has formulated for its orderly functioning, who disregard the mandate for their day in court, and who voluntarily and purposely ignore a court’s jurisdiction and authority, should forgo the opportunity for review of the matter and receive their due punishment.

All that is required under the federal or state constitutions is that an accused be afforded the opportunity to exercise his rights thereunder, not that such rights actually be exercised. Here appellant chose not to participate in his trial. Accordingly, I would find that appellant has waived any complaint he may have about the proceeding and that under Commonwealth v. Jones further review is precluded.

NEWMAN, J., joins this concurring opinion.

Exhibit "A": Commonwealth v. Johnson
Exhibit "A": Com. v. Johnson: Criminal Law
Exhibit "A": Com. v. Johnson: Opinion (1)
Exhibit "A": Com. v. Johnson: Opinion (2)
Exhibit "A": Com. v. Johnson: Opinion (3)
Exhibit "A": Com. v. Cassidy: Opinion
Exhibit "A": Zappala, Justice, dissenting (1)
Exhibit "A": Zappala, Justice, dissenting (2)

[to be continued... as I seem to be missing a page... go figure :)]

Commonwealth v. Johnson

Defendant was arrested for murder as a result of a statement made by child witness 13 years after crime occurred. The Court of Common Pleas of Philadelphia County, criminal Division. No. CP 93-11-2197-2200. L. Davis, removed defendant's counsel for violating court order regarding discovery of witness’s privileged mental health records. Defendant appealed. The Superior Court, No. 2907 Philadelphia 1994, 444 PaSuper. 153, 663 A.2d 720, affirmed. Commonwealth petition for allowance of appeal. The Supreme Court, No. 23 }LD. Appeal Docket 1996, Nigro, 3., in a matter of first impression, held that trial court’s disqualification order was an interlocutory order and was not immediately appealable.

Reversed and remanded.

Zappala, J., filed a dissenting opinion, in which Flaherty,C.J., joined.

Com. v. Johnson: Criminal Law

1. Criminal Law 1023(3)
Trial court’s order disqualifying defense counsel for violating court order regarding discovery of privileged mental health records of state’s witness was interlocutory order and was not immediately appealable in murder prosecution; post conviction review protected defendant’s right to counsel, since, if he established that removing counsel was an error, defendant was entitled to a new trial with his counsel of choice, and state had a compelling interest in prompt trials. U.S.C.A Const.Amend. 6.

2. Criminal Law 1023(2)

“Final order,” for purposes of appeal, is one that ends litigation or disposes of entire case. 42 Ps.C.S.A. § 742. See publication Words and Phrases for other judicial constructions and definitions.

3. Criminal Law 1023(10)
Defendant generally may appeal only from a judgment of sentence.

4. Criminal Law 1023(3)
Interlocutory order is considered final and immediately appealable, under exception for collateral orders, if (1) it is separable from and collateral to main cause of action; (2) right involved is too important to be denied review and (3) question presented is such that if review is postponed until final judgment in case, claimed right will be irreparably lost.

5. Criminal Law 641.10(1)
Defendant’s right to counsel of choice is not absolute. U.S.C.A. Const.Amend. 6.

6. Criminal Law 1023(3)
Trial court’s order removing counsel in a criminal case is interlocutory and not immediately appealable. U.S.C.A Const.Anend. 6.

John W. Packel, Helen A. Marino, Philadelphia, for Calvin Johnson.

Catherine Marshall, Louis C. Schoener, Child Advocate, Hugh B. Burns, Jr., Philadèlphia, for the Com.

Before, Flaherty, C.J., and Zappala, Cappy, Castille, Nigro and Newman, JJ.

Exhibit "A": Com. v. Johnson: Opinion (1)

Nigro, Justice.

Appellant Calvin Johnson contends that the trial court erred in removing his counsel from this case after counsel violated a court order related to the discovery of mental health records. In affirming the trial court’s decision, the Superior Court ruled that an order removing counsel is immediately appealable. As discussed below, we hold that an order disqualifying counsel is interlocutory and is not immediately appealable. Thus, we reverse the Superior Court’s decision and remand for the entry of an order quashing the appeal.

Appellant was arrested in 1998 for the 1981 murder of Elvira Hayes. Elvira Hayes was strangled in her home. When her body was discovered, Elvira Hayes' two year old son, L.P., was sleeping on top of her on the floor. Appellant was a boyfriend of Elvia Hayes and while questioned after the murder, he was not arrested. Elvira Hayes’ sister and her husband adopted L.P. after the murder. He underwent counselling and psychiatric care at several institutions in the following years.

In 1993, L.P., then 15 years old, provided a statement to the police that led to Appellant’s arrest L.P. said that he remembered seeing Appellant lying on top of his mother where her body was found. Appellant was charged with the murder and the court appointed the Public Defender Association to represent him. In preparing for trial, Appellant’s counsel sought discovery of L.P.’s mental health records. Because L did not disclose his memory of the murder for over a decade, counsel maintained that they needed the records to prepare a defense.

At a hearing, defense counsel told the court that it needed a court order to get the psychiatric records because of their confidentiality. The trial court decided that the proper course was to order that the records be produced to the court for review to determine their relevance and whether they should be released to counsel. The court then ordered the Eastern Pennsylvania ‘Psychiatric Institute (EPPI) to produce in court its records related to LP. EPPI’s records, however, were hand delivered to defense counsel and counsel read them. These documents contained records from other institutions where LP. was treated.

The court learned that defense counsel received EPPI’s records at a subsequent bearing. Counsel gave them to the court which reviewed them as originally intended for discoverable material While the court initially found no relevant documents, it undertook another review at the request of defense counsel who believed there were relevant documents based upon their review. The court then found relevant documents and gave them to both parties.

Based upon these records, Appellant moved to re-open the preliminary hearing to further question L.P. He also petitioned to obtain all of the medical records. The trial court realized at this time that defense counsel had digested all of the records and decided that the only way to proceed fairly was to give all of the records to both sides.

The Commonwealth did not review the records but consulted the Support Center for Child Advocates about L.P.’s rights. It then asked the court to appoint a child advocate to protect L.P. The court did an and the advocate maintained that L.P.’s records were absolutely privileged and suggested that the best recourse was to remove defense counsel. The Commonwealth agreed that the removal of defense counsel would protect L.P.’s rights and ensure that Appellant received a fair trial.

Exhibit "A": Com. v. Johnson: Opinion (2)

The trial court removed the Public Defender Association and appointed new counsel for Appellant. It based its decision upon defense counsel’s disregard of the court’s instructions that it would review L.P;’s records, and its order directing EPPI to produce the records to the court. The court decided that counsel would be unable to forget the information in the records and that the harm, to the witness, LP., could, not be otherwise remedied. On appeal, the Superior Court affirmed. It ruled that the court's order is immediately appealable and held that the trial court did not abuse its discretion or violate Appellant’s constitutional rights by removing counsel under the circumstances. We granted Appellant’s Petition for Allowance of Appeal.

[1-3] We must first address whether an order removing counsel in a criminal case is immediately appealable. This is an issue of first impression for this Court. The Superior Court has appellate jurisdiction of all appeals from final orders of the courts of common pleas. 42 Pa. Cons.Stat.§ 742 (1981). A final order is one that ends the litigation or disposes of the entire case. Puger v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545(1978). In criminal cases, a defendant generally may appeal only from a judgment of sentence. Commonwealth v. Myers, 457 Pa. 311, 319, 322 A.2d 131, 132 (1974). This rule prevents undue delay and avoids the disruption of criminal cases by piecemeal appellate review.

[4] The rule of finality, however, is not absolute. As interlocutory order is considered final and appealable if it satisfies an exception for collateral orders. Under this exception, an order is immediately appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably ost. Puger v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). See also Pa. R.App. P. 313 (codifying collateral order exception).

[Subnotes]

1. The Commonwealth moved to quash Appellaint’s appeal of the order removing counsel. The Superior Court entered an interlocutory order denying the motion and explained its ruling in its opinion on the merits. In response to Appellaint’s brief to this Court, the Commonwealth again argues that the trial court’s order is not immediately appealable and this jurisdictional issue is now properly before us.

2. This Court has followed the United States Supreme Court’s approach to collateral orders established in Cohen v. Beneficial industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Bell v.Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A 734, 735 (1975).While the United States Supreme Court refined the requirements for an appealable collateral order in Coopers & Lybrand v. Livesay, 437 (1.5. 463,98 S.Ct. 24S4. 57 LEd.2d 351 (1978).

Exhibit "A": Com. v. Johnson: Opinion (3)

Consistent with this exception, criminal defendants have appealed before judgment of sentence when an appeal was necessary to ensure that they would not be deprived of a constitutional right. In Commonwealth v. Brady, 510. Pa. 336 846, 508 A.2d 286, 291 (1986), for example, we held that a defendant may immediately appeal the denial of a motion to dismiss based upon double jeopardy absent a trial court finding that the motion is frivolous. If it is determined post-judgment that the trial court erred in denying a pre-trial motion based upon double jeopardy, the defendant’s right to be free of a second prosecution is lost. Id. at 340, 508 A.2d at 288.

In contrast, a defendant may not immediately appeal the denial of a suppression motion. Commonwealth v. Bosurgi, 411 Pa. 56, 64, 190 A.2d 304, 309 (1963). Even though suppression motions are generally based upon alleged constitutional violations, the claims can be effectively reviewed post-judgment. If a ruling was incorrect, the defendant is granted a new trial, the illegally-obtained evidence is suppressed, and his constitutional right is not lost. Similarly, this Court has held that an order rejecting a defendant’s claim that his right to a speedy trial was violated is not immediately appealable. Commonwealth v. Myers, 457 Pa.. 317, 319—20, 322 A.2d 131, 133 (1974). As long as there has been a hearing in the court below on the speedy trial issue, the right to a speedy trial can be adequately protected in a review following trial. Commonwealth v. Swartz, 397 Pa.Super. 157, 161, 579 A.2d 978, 980 (1990).

While this Court has not addressed whether orders disqualifying counsel in criminal cases are immediately appealable, the United States Supreme Court has held that they are not. In Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed2d 288 (1984), the district court granted the government’s motion to disqualify a law firm that was retained to represent multiple defendants. It found a clear potential for conflicts of interest. The court presumed that the firm obtained privileged information from each of the defendants and thus disqualified it from representing any of them. The defendants appealed and argued in part that the disqualification of counsel of their choice deprived them of their Sixth Amendment right to assistance of counsel.

The United States Supreme Court held that disqualification orders do not satisfy the requirements of the collateral order exception. Id. at 268-69, 104 S.Ct. at 1056-57. The Court found that the exception would not apply whether a defendant had to show that he was prejudiced by the removal of counsel or he did not have to make such a showing. It stated that if a defendant is not required to show prejudice, the disqualification order can be effectively reviewed post judgment. Id. The exception’s third requirement is not met. Post-conviction review protects the right to counsel because if a defendant establishes that removing counsel was an error, he gets a new trial with his counsel of choice. His right is not lost. The Court further stated that if a defendant must show prejudice, the exception does not apply because the disqualification order would not be separate from the merits. The effect of counsel’s disqualification cannot be assessed until the case is tried.

The Court also explained that it strictly interprets the collateral order exception in criminal cases because of the compelling interest in prompt trials. Id. at 265-66, 104 S.Ct at 1054-55. It found disqualiflation orders unlike other collateral orders affecting rights that can be lost if not appealed before trial, such as the denial of a double jeopardy claim. Id. Rather, it viewed them as indistinguishable from other pre-trial orders that affect criminal defendants' rights but must await the completion of trial court proceedings for review. Thus, the Court ordered that the appeal be dismissed. Id. at 270, 104 S.Ct. at 1057.

[Subnotes]

3. Brady was before the Court to address the applicability of a Supreme Court case that was decided before the Court set forth the test for anappealable collateral order in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Thus, while considering the principles embodied in the rest, Brady—as well as earlier Supreme Court decisions cited in this opinion—decided the appealability of the pre-trial order without addressing the collateral order exception per se.

Exhibit "A": Com. v. Cassidy: (Opinion)

The Superior Court declined to follow Flanagan In Commonwealth v. Cassidy, 390 Pa.Super. 359, 568 A.2d 693 (1989). In Cassidy, the trial court also granted the Commonwealth's motion to disqualify counsel representing co-defendants due to a perceived conflict of interest. When a defendant appealed, the Superior Court held that the disqualification order satisfied the collateral order exception. It stated that the order is separate from the main cause of action and involves the important Sixth Amendment right to choose counsel. Id. at 363, 568 A.2d at 695.

The Superior Court disagreed with Flanagan that the order did not satisfy the exception’s third requirement—that it could not be court that by forcing a defendant to proceed to trial without counsel of choice, he must reveal his defense. Even if awarded a new trial for violation of the right to counsel, he is prejudiced. Id. at 366-67, 568 A.2d at 696-97. In addition, the court found that it is unfair to require a defendant to pay for counsel who is not his choice and then bear the cost of a second trial. Id. Finally, the court stated that a defendant should not have to go through the anxiety of trial before appealing his attorney’s disqualification. Id.

The Superior Court’s concerns, however, have nothing to do with whether the right to counsel of choice is lost if not reviewed before judgement. In every case where erroneous pre-trial rulings ultimately require a new trial, defendants have revealed their defenses and borne the costs of trial The majority of pre-trial rulings, however, are not immediately appealable. Thus, the reasoning in Cassidy does not support that an order removing counsel satisfies the third requiremeat of the collateral order exception and that it cannot be reviewed post-judgment.

[5] We agree with the United States Supreme Court’s decision in Flanagan that disqualification orders do not satisfy the collateral order exception. Like the denial of a suppression motion, an order disqualifying counsel is reviewable after judgment of sentence. If a judgment is obtained and it is determined on appeal that the trial court improperly removed counsel, the right to counsel of choice is not lost. There will be a new trial and the defendant will have his counsel of choice. This is unlike a double jeopardy claim where if the trial goes forward and the court wrongly denied the motion, the right is lost. Furthermore, the right to counsel of choice is not absolute. Commonwealth v. Hess, 532 Pa. 607, 619, 617 A.2d 307, 314 (1992); Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d 68, 70(1978).

In addition, this case exemplifies the immeal appeals should be avoided. After Appellant's counsel was removed, the Superior Court denied a motion to stay the case from proceeding. Thus, while this appeal has been pending, this case is advancing with Appellant’s new counsel learning the case, developing a relationship with Appellant, and potentially obtaining a Judgment in Appellant’s favor. The propriety of removing Appellant’s original counsel ultimately may be come moot.

[6] We thus hold that an order removing counsel in a criminal case is interlocutory and not immediately appealable. Whether the trial court erred in removing counsel is not properly before this Court. We thus reverse and remand this case to the Superior Court to enter an order quashing the appeal. Jurisdiction relinquished.

[Subnotes]

4. With respect to the financial cost of two trials, the Commonwealth distinguishes this came from Cassidy because Appellant's counsel was court-appointed. Because we find below that the propriety of removing counsel--appointed or retained--can be reviewed after trial, we need not address distinctions, if any, between the defendants' rights to retained versus court-appointed counsel.

Exhibit "A": Zappala, Justice, dissenting (1)

ZAPPALA files a dissenting opinion in which FLAHERTY, C.J., joins.

ZAPPALA, Justice, dissenting.

I disagree with the majority’s conclusion that an order disqualifying counsel is not immediately appealable. A defendant’s right to his chosen attorney is too important to be denied immediate review, and the defendant will be irreparably banned if a disqualification order cannot be appealed until after trial.

The majority concludes that a disqualification order does not satisfy the requirements of the collateral order exception to the general rule that only final orders are appealable. In doing so, the majority endorses the reasoning of Flanagan v. United States, 465 U.S. 259, 104 S.Ct 1051, 79 LEd.2d 288 (1984), rejects the rationale of the Superior Court’s decision in Commonwealth v. Cassidy, 390 Pa.Super. 359, 568 A.2d 693 (1989), and likens a disqualification order to rulings that are not immediately appealable, such as rulings on motions to suppress evidence.

In Flanagan, the U.S. Supreme Court held that a trial judge’s order disqualifying a criminal defendint’s counsel did not satisfy the requirements of the collateral order exception and therefore was not immediately appealable. I note that prior to Flanagan, a majority of federal appellate courts held disqualification orders to be immediately appealable. In United States v. Garcia, 517 F.2d 272, 275 (5th Cir.1975), the court explained that such orders were “separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” (emphasis added). The court also concluded that “deferral of review until after completion of the trial would dissipate judicial resources and possibly jeopardize the defendants' case by prohibiting representation at trial by counsel of their choice.” Garcia, at 275.

In United States v. Phillips, 699 F.2d 798, 802 (6th Cir.1983), the court reasoned that “[t]o require a defendant in a criminal case to stand trial and risk conviction while deprived of the services of his chosen counsel without an opportunity to test the legality of the order of disqualification is fundamentally unfair.”(emphasis added). The Phillips court went on to conclude that “[a] defendant erroneously deprived of the fundamental constitutional right to counsel of his choice should not be required to endure the rigors of trial and obloquy of conviction before establishing that error has been committed.” Phillips, at 802.

In addition, the Second, Third, Fourth, Eighth and Eleventh Circuits all considered disqualification orders immediately appealable prior to Flanagan. See United States v. Curcio, 694 F.2d 14 (2d Cir.1982) (disqualification order is immediately appealable under collateral order doctrine); US; v. Flanagan, 679 F.2d 1072, 1073 n. 1 (3d Cir.1982), rev’d, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (disqualification order is a collateral order and therefore appealable); U.S. v. Smith, 653 F.2d 126 (4th Cir.1981) entertaining appeal of pre-trial disqualification order without discussion of appealability issue); U.S. v. Agosto, 675 F.2d 965, 968 n. 1 (8th Cir.1982), cert. den. after remand and affirmance sub. nom. Gustafson v. U.S., 459 U.S. 834, 103 S.Ct. 77, 74 LEd.2d 74 (1982) (disqualification order is final order under collateral order doctrine); U.S. v. Hobson, 672 F.2d 825 826 (11th Cir.1982) (using conclusory language that disqualification orders are immediately appealable).

Because Flanagan resolved an issue of federal appellate procedure, not constitutional law, we are not bound to follow it. I would hold, as the majority of federal appellate courts held prior to Flanagan, that disqualification orders are immediately appealable. The right to counsel is of exceptional and unusual importance, for it is that right which opens the door to all of a defendant’s other rights.

[Subnote]

1. In speaking of a defendant's right to counsel of choice, I refer to a defendant's right not to be stripped of the attorney he or she has chosen, or of an attorney that has become the defendant's counsel on appointment by the court. I do not imply that the right to counsel is absolute or suggest that a defendant has an unfettered right to be represented by any attorney he or she may request.

Exhibit "A": Zappala, Justice, dissenting (2)

If a defendant is forced to suffer the loss of the benefits that a right is intended to protect, then it does not matter that, after the fact, a court is willing to reinstate that right in a technical fashion. Practically speaking, the defendant will only be able to recover those benefits that survived the erroneous denial of the right in the first place. See Bell v. Beneficial Consumer Co., 465 Pa., 225, 228, 348 A.2d 734, 735 (1975) (“a finding of finality must be the result of a practical rather than a technical construction.”)

Some of the benefits of a defendant’s right to chosen counsel were discussed in Cassidy, where the Superior Court held that an order disqualifying a defendant’s counsel was immediately appealable. The court explained that requiring a defendant to proceed to trial without counsel of choice forces the defendant to reveal his or her defense, as well as the testimony of witnesses, to the prosecution. Cassidy, 390 Pa.Super. at 366, 568 A.2d at 696. Consequently, even if the defendant is awarded a new trial due to the improper disqualification of his or her attorney, the defendant has already been permanently prejudiced. Id. Additionally, the court found it fundamentally unfair to require a defendant to proceed to trial without counsel of choice and incur the attendant counsel fees in order to vindicate on appeal the right to be represented by the attorney initially retained. Id. at 366, 568 A.2d at 696-97. The court also concluded that it could not convincingly protect a defendant’s right to counsel of choice if the defendant had to bear the anxiety of trial and the humilliation of conviction before appealing the issue. Id. at 361, 568 A.2d at 697.

The majority rejects Cassidy on the grounds that the court’s reasons for permitting immediate appeal are common to all erroneous pre-trial rulings, yet the majority of pre-trial rulings are not immediately appealable. Majority Opinion at 834. According to the majority, the Cassidy court’s concerns "have nothing to do with whether the right to counsel of choice is lost if not reviewed before judgement.” Id. at 834. To the contrary, I find that the court’s concerns are very relevant to the issue of whether the right to counsel of choice will be irreparably lost, since those concerns reflect the benefits of the right itself. As previously noted, if the benefits of a defendant’s right to his chosen counsel are lost, then in both a logical and practical respect the right itself is lost.

Moreover, there are additional consequences of forcing a defendant to wait until after judgment to appeal a disqualification order not addressed in Cassidy, Flanagan or the majority’s opinion. For example, the defendant’s chosen counsel may not be available for a second trial due to illness, relocation, or other work that prevents him or her from representing the defendant in a new trial. If this is the case, then the defendant’s right will have been irreparably lost. There is.also the possibility that a defendant may not have the financial resources to obtain the originally chosen attorney a second time. Additionally, the defendant might be hesitant to confide in the new attorney after having been stripped of his or her first attorney.

Simple reinstatement of the original attorney after trial will not repair the defendant’s lost faith in the certainty of his relationship with his attorney. See Osoba, at 151, citing Margolin & Coliver, Pretrial Disqualification of Criminal Defense Counsel, 20 Am.Crim.L.Rev. 227, 227—28 (1982). The only way to prevent such a rupture is to permit such orders to be immediately appealed.

[Subnotes]

2. In Bell, we held that an order dismissing the class aspects of a suit is a final order for the parties put out of court and is appealable even though, in theory, the named plaintiffs can individually pursue action further and the ousted members of the class can bring separate individual actions. Bell, 465 Pa. 225, 348 A.2d 734 (1975)

3. In Flannigan, jurisdiction was not challenged in the lower court. Therefore, the Court avoided a number of potential arguments regarding the issue of immediate appealability. Indeed, the Court failed to address any of the rationales that a number of circut courts had employed in concluding that disqualification orders were immediately appealable. See Wayne F. Osoba, Immediate Appealability of Orders Disqualifying a Criminal Defendant's Counsel, Univ.Ill.L.Rev. 135, 137 n. 16 (1984), citing 52 U.S.L.W. 4201, 4202 n. 2 (U.S. Feb. 21, 1984).

To Think... It's Already Been a Year...

One year ago this weekend, Harlow Cuadra and Joseph Kerekes flew out to San Diego to visit with Sean Lockhart and Grant Roy (they stayed at the Marriott, visited the Zoo, etc...). Little did Harlow and Joe know that their every word was being recorded while visiting Black's Beach. (and possibly elsewhere as well).

As an handjtrial anniversary special, I offer you my own personal top ten favorite quotes from the BBT's... (think David Letterman):

#10: DEA AGENT ANDREW PAPPAS: "Well last time we did it, we didn't get the recording. It doesn't hurt to hit the red one twice, right?"

#9: SEAN LOCKHART: "My stomach hurts."

#8: JOSEPH KEREKES: "Baby, remember, if you build up any speed, you're not gonna be able to stop, and you don't wanna get dirty or scratched, alright?"

#7: HARLOW CUADRA: "Well if you guys wanna take care of Cobra once and for all, I mean, I don't think there's a real hurry on it, unless he had a copy of all that paperwork at his lawyer's office, it's all gone."

#6: HARLOW CUADRA: "Umm, and ah, I said well, I saw all I needed to see, I was gonna keep one of them and give it to you as a gift. I was like, nah, it's too hot right now, let me just get rid of it, and ah, he also gave me a couple of items that are disintegrated now also. Ah, he had a Rolex, ah BCK and, and well it's gone."

#5: JOSEPH KEREKES: "Oh tell him about the brand new, he just got it in two days ago, sixty-five inch plasma TV..."

#4: HARLOW CUADRA: "Oh yea, yes, he knew who I was alright, I didn't, check this out... check this out, (inaudible) his fuckin phone rang, he goes ya know what, you remind me of something, of someone and he smiled and I was like ahhh, I don't know, I put my head down, like fuck, and then he smiled at me like ya know, I know who you fucking are, ya know what I mean, and ya know he had his hand on my dick, and ah he answers the phone and then right then ya know my dude comes around, ah hold on, and ah, he knew who the fuck I was, it was crazy, so I mean that whole thing about the escort thing, I think if the guy was (inaudible)".

#3: HARLOW CUADRA: "Yea, yea, I don't think that, honestly like thinking now, I don't think that if we all would have just sat back and you would have done it the legal way, I don't think it would have turned out the way you wanted, honestly. It sounded like they had everything lined up".

#2: JOSEPH KEREKES: "Very respectful, I mean very, I mean Barry never had to shut anybody up, and the interview went on for almost three hours, Harlow did really good, made it very entertaining, ya know, and Barry never shut him up. You know Barry's a client right?"

and Number One...

#1: HARLOW CUADRA: "Oh, no problem. Umm, actually seeing that fucker going down actually it's sick but it made me feel better inside. It almost felt like I got revenge and I know that sounds fucked up, really fucked up but I still couldn't sleep for a week, I had dark circles under my eyes, Xanax, Ambien, you name it, I was taking that shit but umm, he ya know... Like I told ya, it's all over with man, you done climbed that mountain. I know..."

So what are yours?

Where Do We Go Now?

As most of you already know... Harlow Cuadra has decided to appeal Judge Peter Paul Olzewski's ruling to remove attorney Demetrius Fannick as Harlow's paid counsel.

Ever since the appeal was filed... there's been lots of speculation as to what happens next: I've seen reports stating that there will be no changes... Harlow and Joe will be tried seperately... and others claiming that it could delay the trial for a year.

Hopefully we'll know something after the hearing on April 30, 2008.

Update: The prosecution filed a new witness list today... it's down to 97... I'll revise the list shortly.

Strike 1 for the Prosecution?

In a previous post, blogger "BB" asked a question about the cameras that were stolen from Bryan's house: "talking about nutcases, one of them is claiming that in court last week it was revealed that the stolen cameras can not be linked to Bryan. anyone got info on this claim?"

Yes... I'm told that there was some brief discussion about the cameras last week during Harlow Cuadra and Joseph Kerekes' hearing. The way I recall it, it was revealed that the cameras believed to have been stolen from Kocis had the serial numbers forcibly removed from them, making it impossible to POSITIVELY link them.

This was brought up during some argument on the habeas motion for Joe.

(Update: 04/25/2008):Fellow blogger DewayneinSD does an excellent job of explaining "Digital Fingerprints" in a post he did today.

Jailhouse Penpals...

Back in late February 2008, it was reported that the FBI had given handwritten letters, believed to have been authored by Harlow Cuadra and Joseph Kerekes, to the Luzerne County district attorney’s office.

Also in a breaking news article the day before... it was reported that: "Prosecutors want the two men accused of killing gay pornography producer Bryan Kocis to submit handwriting samples to the court to verify they wrote letters the FBI confiscated."

It appears that Judge Peter Paul Olszewski granted the prosecutions' request on April 17, 2008.

What's unfortunate about this evidence, is that it brings up more questions than answers (until trial):

1. When were the letters written?
2. Who were they sent to?
3. What did the letters contain?
4. How did the FBI get them?

While I don't have an exact answer to any of these questions... I'd like to provide a little of my own personal thoughts, opinions, and insights:

1. When were the letters written?... Since the letters were done in handwriting, I can only assume they must have been written after Harlow and Joe's incarceration. If these letters existed before then, I can't imagine it would take the FBI almost a year to hand them over to the DA's office... in fact, I wouldn't be surprised if they were written during the Fannick fiasco (December-January).

2. Who were they sent to?... Who know's really... but there's always that chance that Harlow Cuadra and Joseph Kerekes were trying to communicate with each other, since I don't think the jailhouse 3-ways worked for very long... if at all.

3. What did the letters contain?... Again... another who knows... but according to the prosecutions' motion: "The documents indicate that both defendants had written the letters which contain material information relative to the aforementioned case".

4. How did the FBI get them?... Now that's a question I'm sure we'd all like to know. The FBI doesn't normally have jurisdiction over mail, so I can only assume the letters were either handed over by a postal inspector, or found somewhere. Yet reading the news report that states they were "confiscated"... it really does make you wonder... confiscated from whom (Renee, Elm?), or where?

Some New Dates...

On Thursday, Judge Peter Paul Olszewski filed several orders in regards to the murder trial of Harlow Cuadra and Joseph Kerekes, 2 of them being new hearing dates:

1. A hearing has been scheduled for 07/08/08 (I'm assuming a status conference).

2. Pre-trial conference has been scheduled for 08/12/08.

It also appears that the judge has granted the prosecution's motion for handwriting exemplars. Harlow's attorneys also filed a few motions, and I'll try to have more information on that shortly.

Trial Date: A Heads Up

While we don't yet know what effect Harlow Cuadra's appeal will have on the current 'trial date' announced (there seems to be some uncertainty as to whether there will be a delay for none, one, or both of the cases), I did want to make one thing clear for those that are planning to attend:

September 2nd is technically not the day that Harlow Cuadra and Joseph Kerekes' trial will start. This is when jury selection will begin, and that selection process can easily take at least 5 days, sometimes 6 (based on previous capital cases in Luzerne County). So the actual trial itself probably won't begin until sometime between September 8th - 10th (assuming nothing changes).

... or as a source puts it: 'They write that the trial is set to start Sept. 2 because somewhere along the lines they apparently took it upon themselves to consider jury selection part of the trial process and lump it all in as the word "trial".'

Cuadra Appeals Fannick Ruling

The Times Leader is reporting that Harlow Cuadra has appealed a judge's ruling that forbid attorney Demetrius Fannick from representing him.

Cuadra filed notice Thursday that he will appeal Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr.'s ruling to the state Superior Court.

Olszewski disqualified Fannick from representing Cuadra because Fannick had met with co-defendant Joseph Kerekes before Fannick was hired to defend Cuadra. Prosecutors claimed that created a conflict.

It remains unclear whether the appeal will delay the start of trial. Pre-trial appeals often cause delays, however depending on the legal issue of the appeal, a delay might not occur.

It is also unclear if the appeal will impact the progress of Kerekes' trial.

The Trial: It'a Gonna Be a Long One...

In today's Times Leader a little more is added to the story: Assistant District Attorney Mike Melnick expects his case to last about two weeks. Defense attorneys for both suspects said they expect their cases to last two to three days.

But if the suspects are tried separately, only one of them will go to trial in September.

Cuadra could still appeal a ruling that forbids attorney Demetrius Fannick from defending him, essentially putting off Cuadra’s trial for about a year.

Plan "A", Plan "B", or Plan "Me"?

Ever since Harlow Cuadra and Joseph Kerekes where considered suspects in the murder of Bryan Kocis, Joe's always seemed to have had a 'plan', and he was never afraid to state it... from 'we never knew the guy and Harlow was in VA with a client' to... 'I was at the Fox Ridge Inn doing e-mails, while Harlow was visiting Bryan.'

Joe's 'plans' don't make a whole lot of sense... but then again, is that really a surprise:

Plan A: "Alibi defense that stated he was out of the state the night Kocis was killed".

One quick look at the registration he signed (showing his Virginia Driver's Licence Number) when checking in at the Fox Ridge Inn would find that statement invalid. Not to mention the pings from PA towers to his cell phones numerous times... yep, bad idea... scrap Plan "A".

Plan B: "Alibi that states he was at a Plains Township motel when the murder occurred."

I'm not sure how Joe plans to prove this, as it's fairly obvious that his previous statements about having an email alibi, can easily be debunked.

And again... we have evidence of wireless devices owned and registered to Joe, pinging from cell towers in Dallas, PA. ( too far for it to be from the Fox Ridge Inn).

Plan Me: Throughout this entire ordeal, it's been pretty easy to see who Joe's looking after... forget about being 'partners' with Harlow for years... it's time for the survival of the 'fittest'... and it doesn't appear that Joe has any problem with taking prisoners... or at least giving them up first.

Date Set for Kocis Murder Trial

(Update 04/17/2008): The Citizens' Voice has posted a correction to an article in Wednesday’s edition about the scheduling of a Sept. 2 trial for accused killers Harlow Cuadra and Joseph Kerekes misstated Kerekes’ attorneys’ position on a possible alibi defense. Kerekes’ attorneys have maintained he was at the Fox Ridge Motel in Plains Township the night Bryan Kocis was killed in Dallas Township last January. Prosecutors had raised the possibility of Kerekes having two potential alibis, “Plan A” and “Plan B,” but no documents filed by Kerekes’ attorneys ever mentioned a second alibi.

----
(Update 04/16/2008): The Citizens' Voice is also reporting that during yesterday's status conference, Justin Hensley, a prosecution witness serving with the Army National Guard in Iraq, might be able to testify at the trial, Melnick said.

Prosecutors submitted a motion last week claiming Hensley’s military duty would make him unavailable. The motion also sought to admit testimony Hensley gave at a preliminary hearing.

Hensley, who worked with Cuadra and Kerekes in the making of homosexual pornographic movies, recently had his tour of duty extended into next year, but may be able to obtain temporary leave, Capt. Sonny Louie said in an e-mail to prosecutors.

“Mr. Hensley is a very material commonwealth witness,” Melnick told Olszewski. “He sets the scene for the events that transpired that evening.”

----
The Citizens' Voice is reporting that Joseph Kerekes and Harlow Cuadra will stand trial for the murder of Brian Kocis beginning on Sept. 2, Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. ruled at a hearing Tuesday.

Also Tuesday, Kerekes' attorneys said he will abandon a "Plan A" alibi defense that stated he was out of the state the night Kocis was killed.

Kerekes will instead offer a "Plan B" alibi that states he was at a Plains Township motel when the murder occurred.

The dual potential alibis had compelled prosecutors to submit a list of 385 alibi rebuttal witnesses. Kerekes' attorneys argued the list included immaterial witnesses who had no knowledge of Kerekes' whereabouts.

Prosecutors agreed Tuesday to submit a new witness list, with significantly fewer names, once Kerekes' attorneys said he would only offer the motel alibi.

----
The Times Leader is reporting now that the confusion over who will defend suspect Harlow Cuadra has temporarily settled, a judge on Tuesday was able to resolve several other disputes in the homicide case.

Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. on Tuesday scheduled the trial of Cuadra and Joseph Kerekes to begin Sept. 2.

But if the trials end up being severed, only one of the suspects will go to trial in September.

The judge also gave Cuadra's attorneys until May 9 to file their pre-trial motions. A hearing on all of the motions will be scheduled. He said the hearing will likely occur in about a month.

He also ordered prosecutors to revamp their list of witnesses who are expected to rebut Kerekes' alibi defense.

Kerekes' attorneys have said they might present a defense to show Kerekes was at a Plains Township motel when Kocis was being killed inside his Dallas Township home.

Prosecutors later presented a list of 385 potential witnesses to rebut that alibi.

But Kerekes' attorneys said the response was illegal because many of the witnesses had not been contacted about their potential testimony. And they would need more resources and time to interview all 385.

Olszewski on Tuesday said the prosecution's list must contain witnesses who have knowledge that Kerekes was not at the motel at the time.

Assistant District Attorney Mike Melnick said that will significantly reduce the list.

Olszewski has yet to rule on whether Kerekes' charges should be dismissed for a lack of evidence and whether he has to undergo a psychiatric evaluation for prosecutors, as they had requested.

A Kerekes attorney, Shelley Centini, said the defense team had not yet had their own evaluation done. They need to do that first and then decide if they will use it at trial.

Once the defense make that determination, Olszewski said he will decide whether Kerekes should undergo an evaluation for prosecutors.

A Taxing Day Indeed...

The next status conference for Harlow Cuadra and Joseph Kerekes is scheduled for April 15, 2008 @ 1:30 PM. During this hearing, there will be several issues Judge Peter Paul Olszewski will hear testimony and arguments on:

1. Prosecution's request for independent pyschiatric evaluations.
2. Prosecution's request for handwriting exemplars.
3. Kerekes' petition for Writ of Habeas Corpus.
4. Prosecution's request to include Justin Hensley's previous testimony.
5. Kerekes' attorneys want Prosecutors sanctioned.

Other motions that were filed months ago, and are still not ruled upon include:

1. Kerekes' attorneys want the trial moved out of Luzerne County.
2. Kerekes' attorneys want a separate trial for Kerekes and co-defendant Harlow Cuadra.
3. Kerekes' attorneys want to prevent the Prosecution from using any statements Kerekes made to police, the contents of any conversations recorded at a California beach, and the contents of any evidence seized from Kerekes' e-mail account and Virginia home.
4. Kerekes' attorneys want to keep any past criminal record of Kerekes out of trial.

All-in-all, it should make for an interesting afternoon, and a taxing day indeed for PPO. I don't expect the judge to schedule a new trial date though... as Harlow will still have a couple of more days after this hearing, to file an appeal for the removal of his previous attorney Demetrius Fannick.

A Snail's Pace... or Just the Norm?

Both Harlow Cuadra and Joseph Kerekes have been sitting in jail for almost a year now... yet... to date there's been no trial. Some will exclaim that it's a normal process of the judicial system, while others will surely claim that it's unfair, or even worse... a conspiracy. Let's take a look at the 'average time it takes to go to trial' for a capital case, then you can decide:

Recent Capital Cases in Luzerne County:

• William Roland: Arrest: 08/17/2006; Trial: 09/19/2007
• Joseph Gacha: Arrest: 06/02/2004; Trial: 09/05/2006
• Larry Tooley: Arrest: 11/11/2002; Trial: 09/09/2003
• Henry Stubbs: Arrest: 02/26/2002; Trial: 04/23/2003

With the excepton of Joseph Gacha (many twists and turns before trial - sound familiar?), the average time between arrest and trial was just a little over a year. Harlow and Joe were arrested in Virginia on May 15, 2007... they chose to fight extradition... and weren't even brought into Pennsylvania's custody until July 17, 2007. (There's 2 months wasted already).

While the original trial date (March 24, 2008) has come and gone... based on what appears to be the average time from arrest to trial, this case actually seems to still be 'normal'. In some States the average time from arrest to disposition can be as high as 26 months: New York (Full Capital Trials Since 9/1/95).

Let's hope it doesn't take that long.

Kerekes' Attorneys: Witness List Designed to Hamper Defense

Update: Prosecutors said in a brief filed Friday that Kerekes may be planning two potential alibis — one in which he claims he was at the motel and another in which he claims he was out of the state at the time.

“The Commonwealth must be prepared to meet any and all proposed alibis espoused by (Kerekes),” the prosecutors, Jackie Carroll Musto, Michael Melnick, Timothy Doherty and Shannon Crake, said.

----
The Citizen's Voice is reporting that attorneys for Joseph Kerekes filed a memorandum Friday arguing a prosecution witness list of 385 people is designed to hamper his defense.

The attorneys said the witness list is "inclusive of immaterial witnesses," who have little or no knowledge of the case. They said the tactic "unlawfully hampers the defense from effectively preparing its case."

Attorneys John Pike, Mark Bufalino and Shelley Centini requested the court prohibit prosecutors from introducing evidence or testimony to rebut Kerekes' alibi defense.

"The said list identified 385 prospective witnesses, some of which have no knowledge of Kerekes' whereabouts on the day and time of the alleged crime," the attorneys said.

If Judge Peter Paul Olzsewski Jr. rules that prosecutors can present a rebuttal of Kerekes' alibi, his attorneys said they would request additional funding from the district attorney's office to hire investigators to interview all 385 witnesses.

Motion to Include Former Testimony of Justin Hensley

(Note: This motion was filed on 11/06/07 - the trial date and counsel(s) have changed since that time)

--------
Due to Justin Hensley being stationed overseas in Iraq, he must be deemed unavailable at the upcoming trial that is, scheduled to begin on March 28, 2008. The Pennsylvania Rules of Evidence clearly states that "Unavailability of a witness includes a situation where the declarant is unable to be present or to testify at the hearing because the Commonwealth is not able to procure the witnesses testimony by process or other reasonable means. Pennsylvania Rule of Evidence 804(a)(4).

According to 42 Pa. C.S.A. § 5917, "whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards dies... notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue." 42 Pa. C.S.A. § 5917.

The Appellate Courts of Pennsylvania have consistently held that a deceased witness's preliminary hearing testimony is admissible in the subsequent trial at the Common Plea Court level where the defendent was provided with a full and fair opportunity for cross examination. See Commonwealth v. Williams, 460 A.2d 1178, (Pa. Super. 1983), Commonwealth v. Thompson, 648 A.2d 315 (Pa. 1994), Commonwealth v. Scarborough, 421 A.2d 147, (Pa. Super. 1980), Commonwealth v. Werner, 282 A2.d 258, (Pa. Super. 1971).

Justin Hensley was cross examined by Attorney Tom Cometa, defense counsel for Harlow Raymond Cuadra and asked approximately sixty-eight (68) questions and by Attorney Frank Nocito, defense counsel for Joseph Manuel Kerekes, who asked approximately forty-seven (47) questions. Furthermore, Attorney Cometa asked an additional seventeen (17) questions on re-cross-examination of the witness and Attorney Nocito asked and additional twenty (20) questions on re-cross-examination of the witness. Attorney Melnick did not enter any objections during the defense counsel cross examination and re-cross examination.

The Commonwealth at no time attempted to limit areas of inquiry or subject matter of either defense counsel's cross examination. Furthermore, defense counsel was given the witness statement of Justin Hensley prior to his testimony.

Kerekes’ Attorneys Oppose Psychiatric Exam

The Citizen's Voice is reporting that attorneys for Joseph Kerekes, who is accused with Harlow Cuadra of killing Bryan Kocis in Dallas Township last year, filed a motion Wednesday opposing a prosecution request that he undergo an independent psychiatric examination.

Prosecutors requested the psychiatric evaluation in an omnibus pretrial motion filed last November, a month after they disclosed their intention to seek the death penalty against Kerekes, 34, of Virginia Beach, Va.

Kerekes’ attorneys argued the request was “premature and inappropriate at this juncture.”

They said Commonwealth v. Sartin, a 2000 case in which an independent psychiatric examination was allowed, “does not give the Commonwealth carte blanche to seek an independent psychiatric evaluation whenever they seek the death penalty.”

Kerekes’ attorneys also filed a brief opposing a prosecution motion seeking to admit the former testimony of Justin Hensley, a prosecution witness who is serving in Iraq.

A second brief submitted by Kerekes’ attorneys on Wednesday said he would be willing to submit to a “reasonable handwriting exemplar” for purposes of “non-testimonial” identification.

Lie... then Hope Someone Believes You?

This all orginally started with accused murder suspects Harlow Cuadra, and Joseph Kerekes making numurous false statements a few months/years ago to the public, police, media, etc...:

Harlow & Joe... Lying They Know
The Questions Kerekes Poses
Joseph Kerekes' Email Alibi Doesn't Add Up
Interview, Surveillance & I'm Not Afraid
And Lie They Did
Harlow Lies to Newswatch 16
Joe lies to the Citizen's Voice
Harlow's Jacket of Mystery
Kerekes' Outburst in Court

... and that's just a really small sample.

Meanwhile... there's still apparently some supporters of Harlow and Joe, that are caught in these same kind of lies as well:

Elm 1,2,3 - Update: Elm also admits to reporting a Lie (comment 2) on his own blog. (Or was it a lie about telling a lie?)

Then we have The Jakester... need I say more.

Here's hoping that the truth will prevail at trial, and I don't think it'll be coming from an Angel.

The House that Sex Built... Get's No Loving.

Virginia Beach has just released their 2008 real estate assessments, and once again the house and land that Harlow Cuadra and Joseph Kerekes lived at on 1028 Stratem Court, has lost value for the third year in a row:

Assessment History:

2006: $571,803.00
2007: $542,683.00
2008: $513,800.00

That's a loss of $58,003.00 in two years.

With the current asking price at $471,900.00 - it appears to be quite a bargain, at least until a few more years... assuming this trend continues. The house was listed for $699,000.00 not too long ago, and was originally purchased by Harlow and Joe on 10/19/2005 for $542,375.00.

It should also be noted that every house within Harlow and Joe's neighboorhood has been losing value since they were built... some as much as $100,000.00 in four years. What's interesting is that it seems to be the values of the land, more than the houses themselves.

Raise Your Hands and Step Away From The Hedgehog

While this post has nothing to do with the Harlow Cuadra and Joseph Kerekes' trial... I just couldn't help but post it for a little comic relief:

According to CNN... a New Zealand man has been accused of assault with a prickly weapon -- a hedgehog.

Police allege that William Singalargh, 27, picked up the hedgehog and threw it at a 15-year-old boy in the North Island east coast town of Whakatane on February 9.

"It hit the victim in the leg, causing a large, red welt and several puncture marks," police Senior Sgt. Bruce Jenkins said Monday. The teen did not need medical treatment, he added.

Police arrested Singalargh shortly after the incident, and charged him with assault with a weapon -- "namely the hedgehog," Jenkins said.

At a hearing in Whakatane District Court on February 14, Singalargh's lawyer said he intended to plead innocent, The Herald on Sunday newspaper reported. The case is due to resume on April 17. If convicted, he faces up to five years in prison, Jenkins said.

"People often get charged with assault for throwing things at other people," Jenkins said, although he admitted the use of a hedgehog as a weapon was "uncommon."

It was unclear if he also would face animal cruelty charges. The Herald said the hedgehog was dead when it was collected as evidence, but did not know if it was dead or alive at the time of the alleged attack.

Comments...

After some careful consideration... I've decided that "comments" should still be permitted on posts labled "useful trial resources", regarding the Harlow Cuadra and Joseph Kerekes trial... as such, comments are once again open for these previous posts/discussions:

Harlow & Joe's Debt
Black's Beach Transcripts
Affidavit of Probable Cause
Criminal Charges Filed
Preliminary Hearing (Day 1)
Preliminary Hearing (Day 2)
2007 Timeline of Events
Evidence Presented Thus Far
Prosecution's Witness List

Comments will likely remain open until the trial of Harlow and Joe is over... if this would make things confusing, or you have a better idea... please let me know.

Round Three: Elm's Theories...

Since it's another "slow news day" for Harlow Cuadra and Joseph Kerekes... why not post some more chat transcripts... and I'll repeat... Google Chat... not email... so I'm not real sure why the email issue ever came up.

To quote a recent comment made on Jim's blog by Elm: "We all have our sources and some of us just know how to keep our mouths shut." - Kind of ironic isn't it?

07/20/07:

11:49 PM me: Hey Elm
11:50 PM eloise: hey whats up?
me: Not much... interesting last couple of days... to say the least.
eloise: true that
11:51 PM It looks like Joe is playing right into the hands of the police.
11:53 PM me: I'm not sure what to make of it to be honest... brb... bathroom break.
eloise: ok
11:54 PM me: I'm back
eloise: ok
me: It surprised me a little to be honest.
eloise: why?
11:55 PM me: I didn't expect anyone in their right-mind to admit being in PA, renting a car, and visiting Kocis house.
eloise: Look a it this way they reaqlly do not have attorneys and they are at the mercy of public deffenders
11:56 PM that is precisely why h did it
he
me: I spoke to Mike at Out about this, this morning... we seemed to be both shaking our heads.
11:57 PM The only 'official' comment I've gotten thus far is from the DA in VA, which stated: " I'm not surprised".
11:58 PM eloise: well it is understandable that he would do somethng like this. he was segragated from all communication and he said it himelf he was in solitary
11:59 PM that is basically what they do to prisoners when they want them to squeal
12:00 AM me: As I told Mike, and perhaps he just didn't get my lingo... "guess the interigators are doing their jobs"
12:01 AM eloise: the police really have no clue as to what is really involved here.
12:03 AM me: I wouldn't be so fast on that one. From the folks that I've talked to, they seem to believe they know quite a bit... and I'd have to agree to be honest.
12:06 AM eloise: They know about the Joe and Harlow angle, I would agree but did Joe and Harlow really do this? Are they just the most likely suspects? The real question is why would they do this? to work with Sean lockhart, That makes no sense to me. if you kill someone to be around me I am heading for the hills.
12:09 AM me: I agree, and respectfully disagree. Does the whole 'plot' make sense... no. Where Harlow and Joe in some serious debt... Yes. Guess that'll be something that's looked at for motive.
12:11 AM I reviewed their credit record, and one car that they
12:12 AM 'previously' owned had a monthly payment of over $900
12:13 AM eloise: yeah but the had assets that could be sold. so that still does not work for me. everyone is in debt. when you say serious debt are you talking about what they owed? as to that I have a friend wohhas 50,000 plus in credit card debt and he is also under the gun for 4 mortgages to a tune of 1.5 million but he has the home that he could sale and all be fine and good so debt is purely subjective
me: When I say previously... that would mean before the arrest.
12:14 AM eloise: they had some high end Cars that is true but the question is were the purchased por leased?
12:15 AM me: They had over 900k in debt, mostly the cars and house. Credit cards came next. There was a Citi card that was owed over $100K.
12:16 AM eloise: I will admit that they had allot of stuff but than again we all have a lot of stuff.
were they maing the payments?
12:17 AM me: The last I looked there were over 7 accounts that where past-due... and this was last month.
12:18 AM eloise: wll that would be understandable dur to the circumstances
me: Some accounts actually showed a past-due balance before the arrest. ( off the record naturally )
12:19 AM eloise: well I can say this I pay bills when I have the money you probalbly do as well so what is so strange about that
12:20 AM me: There's nothing really strange about it... I'm simply stating what was found.
12:21 AM eloise: If you want to base your reason on why they did this based on their credit report you might want to check the credit reports of a few other people as well
me: When the accused make statements about making a million dollars, at the same time that's about what they owe... hmm... makes one wonder.
12:23 AM Elm, my conversation with you is off the record... I'm simply talking to you as a 'friend'... nothing else.
eloise: yeah know but I still say the motive is suspect. they might not e the brghtest bulbs in the lamp but I can pretty much tell you that they would not do this for the chance to work with Sean Lockhart. especially if there was no agreement in place to do so.
yeah I know
12:24 AM do you have clue what a porn movie really makes?
me: I've heard you say that several times... what really makes you thin Joe and Harlow aren't a part of this?
12:25 AM eloise: If you make a 150,000 you did good
me: Depends on who you ask ;)
12:26 AM eloise: I don't think they killed Bryan but I think there is more to this than we all currantly know.
12:27 AM me: Again... nothing to be reported elsewhere... if Harlow and Joe ( who now reports to being at the scene )... who could it be?
12:30 AM eloise: as I have said that Bryan was into some dirty stuff and the people who were involved in this dirty stuff did not want to be to high profile. Bryan was doing just that making it profile. he as a risk to some very high powered and influential people. has it occured to you that Joe and Harlow are probably able to destroy the reputions of some high placced political people? it just goes to figure kill 2 birds with one stone
12:31 AM me: Elm, you know I've never spoken badly about your stinky ass ( ala ******* ), the whole 'high-interest' John's just don't make sense. Where are they today?
12:35 AM eloise: why would you ask me that question? they were escorts you know this. who hires escorts? people who don't want it known that they are 1 Gay,2 Married 3 in a hig power position or 4 all of the above. so it just stands to reason. look at they're location. how far from DC were they and the had their home set up to see their clients.
12:36 AM me: I guess I have a problem with beleiving who was in their client list. Wasn't it Harlow that stated that they 'played' with
12:37 AM Senators, etc... and in the same post boasted about jets and yachts they never had?
12:38 AM eloise: smart people don't own jets or ycts they lease or rent them. the upkeep will break you
me: Smart people know they didn't do either ;)
12:39 AM eloise: this is why you do not see any of joe or Harlow's former John's coming forward to help him they are scared that they will be outed in the press.
12:40 AM so what did you find ot about Barry taylor
12:41 AM me: I would say that it looks like ( from the RICO stuff) ... everyone involved will be made public.
12:42 AM eloise: not if they do not have details asto their client list
12:43 AM me: Nothing more that was already known... this whole story about he was required to leave as their defense is false. I'll be covering some of this tomorrow in my blog.
12:44 AM eloise: ok no details just that it is false?
12:45 AM why would he lie about it
12:46 AM me: You'd have to ask him that question... I'll post the story tomorrow... can't let the cat out of the bag too early ;)
eloise: ok
12:47 AM me: I trust that you wouldn't say anything... I just don't feel like having to type the story twice.
12:49 AM eloise: I trulym sring to loose interest in this whole sordid mess as my last post proves. I don't really even read the news reports anymore. the blogs are all on there own mission of destruction and I just don't think I want to be a part of it anymore.
12:50 AM I will just say this you are innocent until proven guilty and thats al I have to say on that.
me: I agree. Most of the blogs have become nothing more than a fantasy fest.
12:51 AM eloise: or hate spreaders
12:52 AM I read somewhere the reason that the gay community will nevr get anywhere is because f tere petty attitude towards one and other. and I tend to agree with that.
12:54 AM me: I guess it depends upon the definition of hate. If some has a rightfull disagreement, with backup - I personally don't consider it hate... if it's just plain stupidness... then yes... and it's quickly deleted from my blog... which it should from others as well.
eloise: It really is sad that we as a community will let someone like Bryan Destroy the lives of young gay men just so a select few can get they're rocks of by watching these young men risk their lives.
12:56 AM me: I won't disagree with you there... yet it's equally stupid to let the younger crowd think it's okay to kill someone that may be deranged.
1:01 AM eloise: it is in my opinion really quite sad how everyone attacked Brent about leaving cobra. yet they never made a statement about Bryan being killed in such a awful way. Bryan was killed to make a point to those who do not listen and do what they are told to do. that would be all of the models who worked for cobra video if you have noticed very few models have come forward with anything negative to Say about Bryan. His murder was a message to them to shut up. I can almost Gaurantee you that any models who do come forward will start to turn up missing or will be killed under supicioiuus circumstances.
me: Elm, don't forget it's 1:01 AM here ;)
1:02 AM eloise: ok well I have to go any way so I will chat with you later
ciao
1:03 AM me: Okay... didn't mean we had to end the chat... but hope to talk with you again soon.
1:04 AM eloise: ok I have to go and get something to eat and run acouple of errand before the stores close
so we can chat in the next couple of days
1:07 AM me: Enjoy your shopping... hope you're not cutting it too close.
1:08 AM eloise: 24 hour grocery restrant closes at midnight
me: So much for 24 hrs ;)
1:09 AM eloise: yeah great for the nocturnal
1:10 AM me: lol... enjoy your shopping... I'll talk to you tomorrow ( perhaps )... and thanks for wasting some time with me. :)
eloise: no time is wasted if you enjoy yourself
1:11 AM me: As long as it's enjoyed by all... then no waste at all... still a pleasure though.
1:12 AM eloise: cool gotta go later days dude
me: Have a great evening!