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.
