III. Motion in Limeline-Photographs

10. Denied.

11. Admitted.

12. Denied.

13. Denied. The evidentiary value of the photographs lies in the fact that (a) the Commonwealth has charged these defendants with Abuse of Corpse and Tampering with Physical Evidence; (b) the victim was nearly decapitated by a single powerful stroke of a knife, hence, the use of a deadly weapon upon a vital organ of the body is relevant to the specific intent to kill, required for a conviction of murder in the first degree; (c) the multiple postmortem stab wounds are relevant to the Abuse of Corpse charge-18 Pa. C.S.A. 5510; and (d) the incineration of Mr. Kocis' body is relevant to the Abuse of Corpse charge as well as the Tampering with Physical Evidence charge 18 Pa. C.S.A. 4910.

WHEREFORE, the Commonwealth requests this Honorable Court to deny the Defendant's Motion and admit those photographs with evidentiary value.

IV. Cuadra's Prior Criminal Record

14. Denied.

15. Denied. The Commonwealth avers that the Defendant does not have any prior convictions under the name Harlow Cuadra.

16. Denied. The Commonwealth avers that the defendant does not have any prior convictions under the name Harlow Cuadra.

17. Denied. The Commonwealth avers that the defendant does not have any prior convictions under the name Harlow Cuadra.

18. Denied. The Commonwealth avers that the defendant does not have any prior convictions under the name Harlow Cuadra.

19. Denied. The Commonwealth avers that the defendant does not have any prior convictions under the name Harlow Cuadra.

WHEREFORE, the Commonwealth asserts, in so far as it is aware, the Defendant does not have a criminal record under the name of Harlow Cuadra.

V. Defendant's Prior Bad Acts

20. Denied.

21. Admitted in part.

A. Defendant Escort Business

The Commonwealth seeks to introduce evidence of the Defendants' escort business. The escort business in and of itself is not illegal; however, the Commonwealth states that the line between illegal and legal activity is crossed when a person charges money to perform sexual acts. In this case the Defendants, both have solicited fake alibi defenses based on their escorting business. In the case of Harlow Cuadra, he solicited Mitch Halford and Nep Maliki as alibi witnesses. In the case of Mitch Halford, the Defendant-Cuadra initially persuaded Mr. Halford, a long-standing escort client, to indicate that Mr. Halford was with him on January 24th, 2007, the evening of the murder. However, upon further questioning by Detective Dan Yursha, Mr. Halford backed off that statement and indicated that between a two week period between the NFC championship game involving the Chicago Bears and the Super Bowl, he had encountered the defendant Cuadra on a single instance and couldn't be sure when that was. Regarding Nep Maliki, the Defendant-Cuadra sent a "for his eyes only" letter to Mr. Maliki. In this letter, the Defendant-Cuadra gives explicit instructions to Mr. Maliki as to the fictitious events surrounding a January 24, 2007 alibi. The Defendant Cuadra sets forth the pretense of this bogus alibi as being an escort call performed by Mr. Cuadra. See Exhibit "1" and "2" attached hereto; statement of Mitch Halford and letter sent to Nep Maliki respectively.

With respect to the Defendant-Kerekes, he filed an alibi notice, naming Mr. Brannon as an alibi witness for him at the Fox Ridge Inn for January 24, 2007. This, too, allegedly involved in an escort call. However, Mr. Brannon was and is adamant that he was not in the company of Joseph Kerekes on January 24, 2007. Mr. Brannon unequivocally states that he was no where near the state of Pennsylvania on January 24, 2007. Additional information was obtained from Mr. Brannon by investigators in June 2008. Mr. Brannon, when advised that there was possibly an escort related e-mail sent to him on a laptop computer approximately four minutes after the Kocis fire was called in to 911, (and about 10-13 minutes after Amy Zamerowski noted a silver SUV backing out of the Kocis driveway), noted, being trained in and familiar with computers, that, particularly with the use of a mobile air card, one could have sent that escort e-mail from any location where there is "connectivity", i.e. ability to link to the Internet. Trooper Brian Murphy has established that there is continuous Internet connectivity along Route 309 between 60 Midland Drive, Dallas Twp. and the Fox Ridge Inn, Plains Twp. with a weakened signal in the "rock cut", i.e. the chasm in between Exit 6 on Route 309, Luzerne, Pennsylvania and Trucksville, Pennsylvania. In other words, the defendant-Kerekes could have, and the Commonwealth asserts, did, send an e-mail as an alibi cover story, apparently believing that the Commonwealth would not check the time of the 911 call, the arrival of the Dallas fire engines at 8:35 p.m. and the time of the Brannon escort e-mail. See Exhibit "3" attached hereto which is the statement of Mr. Brannon.

In addition, the Defendants reached out to David Michaels, for yet another fake alibi. Attached hereto as Exhibit "4" are the e-mails concerning this fake alibi.

B. False Accusations Against Robert Wagner, Grant Roy and Sean Lockhart

The Defendants have also falsely suggested that other persons were responsible for Bryan Kocis' death. More specifically, the Defendants have discussed laying the blame, on among other people, Robert Wagner, Grant Roy, and Sean Lockhart. These false accusations are bad acts which are admissible against the Defendants, and the Commonwealth gives notice pursuant to 404(b) Pa. Rules of Evidence of its intent to use these bad acts. In fact, in one phone intercept, the Defendant Kerekes ruminates as to how to lay the blame on Grant Roy and Sean Lockhart, only to further realize that Grant Roy and Sean Lockhart were in California at the time. (See Virginia Beach prison Conversation #96, pg 9, #97) Indeed, the Defendant Kerekes was downright apologetic to Grant Roy and Sean Lockhart at the time of the April 2007 Crab Catcher intercept in that the Defendants' January 2007 crime spree had the collateral effect of ruining Grant Roy and Sean Lockhart's attempt to get on their business feet. (See Crab Catcher intercept pg. 43)

Not content with the false accusations against Grant Roy and Sean Lockhart, the defendants have also contemplated making false accusations against Robert Wagner according to prison intercepts and a letter turned over to the Commonwealth.

C. Defendant's Solicitations to Make Under the Table Payments to Recruit "Brent Corrigan" to their Stable of Actors

The Defendants, as part of their ultimate objective to lure Sean Lockhart into their stable of actors, solicited Grant Roy and Sean Lockhart to violate their settlement agreement with Cobra Video by accepting under the table payments from the Defendants. See Crab Catcher Restaurant intercept April 2007, pages 66, 67, 81, 82. The Commonwealth gives notice pursuant to 404(b) Pa. Rules of Evidence of its intent to use this potential bad act.

22. Denied. The probative value of the evidence outweighs its prejudicial effect. In addition, the Defendants have attempted to use their escort business as a sword in their defense. In other words, the Defendants have sought to serve up their escort clientele in pressing their spurious alibi defenses. The Defendants have also made false accusations against Robert Wagner, Grant Roy and Sean Lockhart according to prison intercepts.

23. Denied. Mr. Cuadra has attempted to secure false alibis using his escort clientele.

24. Admitted.

25. Denied. Falsely implicating others in a crime and proffering fake alibis constitutes circumstantial evidence of guilt and is admissible. The Commonwealth avers that an independent ground of admissibility of these bad acts or potential bad acts under 404(b) of the Pennsylvania Rules of evidence and hereby gives notice of its intent to use the same.

26. Admitted. However, this is not the threshold of admissibility under 404(b).

WHEREFORE, the Commonwealth moves under 404(b) or the independent ground of "circumstantial evidence of guilt" to introduce such evidence.

VI. Motion to Suppress Oral and/or Written Statements

27. Denied. The Commonwealth notes that nowhere in this portion of the Omnibus Motion does the Defendant set forth even the date(s) of these alleged statements. Given the vagueness of this Motion, the Commonwealth will attempt to identify and address the statements the Defendant has not referred to.

28. Denied. To the extent the Defendant is referring to the actual arrest date in May 2007, Commonwealth v. Eichinger:, 915 A.2d 1122 stands for the proposition that under the 5th Amendment and Conflicts of Laws analysis, Virginia law would apply. The Eichinger court wrote: "As a threshold matter, we must determine whether there is a conflict of laws question in this case, inasmuch as the trial court relied on New Jersey law to resolve this issue. Presumably, the trial court did so because Eichinger was placed into custody in New Jersey and it is from this transaction that the suppression issue arises. More specifically, therefore, we must determine whether Pennsylvania or New Jersey law governs the suppression issue. It is a basic principle of conflict of laws cases involving criminal matters that the "question of jurisdiction and that of governing substantive law always receives the same answer. The governing law is always the law of the forum state, if the forum court has jurisdiction." Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61, 67-67 (1983) (citing Leflar, Conflicts of Laws: Choice of Law in Criminal Cases, 25 Case Western Res.L.Rev. 44, 47 (1974)). Jurisdiction relates to a court's power to hear and decide a case. Ohle, 470 A.2d at 67. This concept has its roots in territorial principles and the idea of sovereignty. Leflar, supra at 45. Although these conflict of laws concepts have evolved, the traditional theory would argue that the Commonwealth of Pennsylvania is an independent sovereign over persons within its territory and can brook no control of its citizens by a foreign sovereign, nor allow what occurs in its territorial boundaries to be punished by another. ld. (citing Levitt, Jurisdiction' over Crimes-II, 16 J.Crim. L. & Criminology 495, 509-1 O( 1925). Pennsylvania has codified its jurisdiction over the matter under 18 Pa.C.S. § 102(a)(1) which provides for a conviction " under the laws of this Commonwealth" when "the conduct which is an element of the offense ...occurs within this Commonwealth." It is not in dispute that the substantive crime of murder occurred in Pennsylvania. As a result, Pennsylvania has jurisdiction and may apply it's law.

Our inquiry could end there. However, although it is not mandated, where more than one state has a substantial connection with the activity in question, the forum state may analyze the interests of all states involved and choose which state's law to apply. Ohle, 470 A.2d at 68. In Pennsylvania, we do not apply our law just because we have jurisdiction. Rather, we have adopted a flexible choice of law rule which weighs the interests our sister-states may have in the transaction. See Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796, 805 (1964). This concept was formally adopted.for criminal cases Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d 1221, 1224 (1998).

To start this analysis, we first note that procedural rules and substantive law require separate considerations. It is a fundamental principle of conflicts of laws that a court will use the procedural rules of its own state. "That is true in both civil and criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law. Procedures in criminal cases are always those of the forum." Leflar: American Conflicts Law, Fourth Edition, § 116 (1977). Procedural rules are "that which prescribe the methods of enforcing rights." Commonwealth v. Sanchez, 716 A.2d a1 1224. On the other hand, substantive law "gives or defines the right." Id.

In Commonwealth v. Sanchez, we held that an issue of search and seizure is substantive as it involves a strict question of constitutional law which concerns the fundamental right to be free from unreasonable searches and seizures. Id. Eichinger raises a constitutional question under the Fifth Amendment, which implicates his right to remain silent and his right to counsel, therefore, the issue must be addressed under the principles of conflict between substantive laws. As noted before, our choice of law rule when there is a conflict between the substantive criminal laws of this Commonwealth and those of a sister-state, requires that we analyze the policies and interests underlying the rule of each state so that the policy of the jurisdiction most immediately concerned will be applied. Commonwealth v. Sanchez, 552 Pa. 570, 716 A.2d 1221, 1223-24·(1998). But it remains implicit in this analysis that there be a conflict between the substantive law of New Jersey and the law of Pennsylvania.

In fact, no conflict exists. Both the Pennsylvania and New Jersey Courts must effectuate the guarantee provided in the Fifth Amendment of the United States Constitution that, as a general rule, the prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial interrogation of a defendant unless it demonstrates that he was apprised of his right against self-incrimination and his right to counsel. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. A suspect in is custody when he is deprived of his freedom of action in any significant way. Id. at 445, 86 S.Ct. 1602.

In Pennsylvania, the test for determining whether a suspect is in custody is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted. Commonwealth. v. Chacko, 500 Pa. 571, 459 A.2d 311, 314 (1983) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602). Likewise, in New Jersey, a suspect is in custody where he has been deprived of freedom of action in a significant way. Timmendequas, 737 A.2d at 108 (citing Miranda, 384 U.S. at 444,86 S.Ct. 1602). These rules align, as they both track Miranda Neither the Constitution of Pennsylvania nor of New Jersey provides additional protection under this particular factual scenario. Thus, there is no actual conflict between the laws of Pennsylvania and New Jersey on this issue. Any interest that New Jersey might have in this transaction is rendered moot by that lack of conflict. With no other interested state to consider, we will apply the law of the Commonwealth." In Commonwealth v Gates 30 Va.App. 352,516 S.E.2d 731, the court noted that reading a warrant to the Defendant did not amount to the functional equivalent of interrogation.

29. Denied. Any statements given by Cuadra are governed by Virginia law as the May 2007 arrest occurred in Virginia. To the extent the Defendant's motion alludes to other unidentified statements, of uncertain dates by unidentified law enforcement personnel, the Commonwealth avers the Defendant's Motion as to those statements be denied.

30. Denied. Any statements given by Cuadra are governed by Virginia law as the May 2007 arrest occurred in Virginia. To the extent the Defendant's motion alludes to other unidentified statements, of uncertain dates by unidentified law enforcement personnel, the Commonwealth avers the Defendant's Motion as to those statements be denied.

31. Denied. Any statements given by Cuadra are governed by Virginia law as the May 2007 arrest occurred in Virginia. Any statements given by Cuadra are governed by Virginia law as the May 2007 arrest occurred in Virginia. To the extent the Defendant's motion alludes to other unidentified statements, of uncertain dates by unidentified law enforcement personnel, the Commonwealth avers the Defendant's Motion as to those statements be denied.

32. Denied. Any statements given by Cuadra are governed by Virginia law as the May 2007 arrest occurred in Virginia. Any statements given by Cuadra are governed by Virginia law as the May 2007 arrest occurred in Virginia. To the extent the Defendant's motion alludes to other unidentified statements, of uncertain dates by unidentified law enforcement personnel, the Commonwealth avers the Defendant's Motion as to those statements be denied.

WHEREFORE, the Commonwealth moves this Honorable Court to deny the Defendant's Motion to Suppress.

VII. Motion to Quash-Lack of Specificty

33. Denied.

34. Admitted.

35. Admitted.

36. Denied. The Commonwealth's Information has sufficient specificity. In Apprendi v New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court wrote: "Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The Defendant does not specify how the Commonwealth's information is vague or how the dictates of the Apprendi Court are violated."

In Commonwealth. v. Jones, 912 A.2d 268 (Pa., 2006), the court wrote," "Indictments must be read in a common-sense manner, and are not to be construed in an overly technical sense." Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887,890 (1974). "At an earlier stage of legal development, indictments were strictly and technically construed, and the slightest imprecision in wording was often considered incurable error. Today, however, such arguments are unpersuasive." Id. (internal citations omitted). This Court has upheld criminal indictments possessing a flaw and found them to be constitutional because they put the defendant on sufficient notice of the charge against him or her. See, e.g., Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21(1979) (upholding indictment that charged defendant with possession of heroin when the controlled substance in fact was methamphetamine because defendant was well advised of the nature of the offense charged)."

In Commonwealth. v. Thomas, 408 A.2d 1148, 268 Pa.Super. 566 (Pa. Super.1979), the court wrote, "All indictment charging murder generally is adequate notice that the defendant may be tried and convicted of first degree murder. Commonwealth v. Koch, 446 Pa. 469, 473, 288 A.2d 791, 793 (1972). The instant indictment, which recited a willful killing with malice, charged murder generally and was sufficient to support a conviction of first degree murder."

In Commonwealth v. Koch, 446 Pa. 469, 473, 288 A.2d 791, 793 (1972), the court noted, "An indictment charging murder generally is adequate notice that the defendant may be tried and convicted of first degree murder and fully satisfies the purposes of Rule 213 to insure adequate notice of the charges. See Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 340, 223 A.2d 699, 701 (1966); Commonwealth ex rel. Andrews v. Russell, 420 Pa. 4, 6, 215 A.2d 857, 858 (1966)."

WHEREFORE, the Commonwealth moves this Honorable Court to deny the Defendant's Motion to Quash.