VIII. Motion to Suppress Black's Beach/Crab Catchers Tapes

37. Denied.

38. Admitted in part. Conversations were intercepted at the Crab Catcher restaurant, in the vehicle to and from Black's Beach and at Black's Beach, Torrey Pines, California.

39. Denied. Defense Counsel errs in asserting Pennsylvania substantive law governs the legality of the intercept. California law governs. See Larrison v. Larrison, 750 A.2d 895(Pa. Super. Ct., 2000), Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976) (holding evidence obtained during a drug investigation in New Jersey pursuant to a wiretap authorized pursuant to New Jersey wiretap law could be used to support a search warrant in Pennsylvania even though New Jersey wiretap violated Pennsylvania law). Section 633 of the California Penal Code permits warrantless electronic surveillance by law enforcement performed with the consent of one of the communicating parties---that is "consensual" surveillance. Here, Mr. Roy consented to the interception.

40. Denied. Section 633 of the California Penal Code permits warrantless electronic surveillance by law enforcement performed with the consent of one of the communicating parties---that is "consensual" surveillance. Here, Mr. Roy consented to the interception. Here, there is no poisonous tree or poisonous fruit.

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

IX. Motion for Severance

41. Denied.

42. Denied. Defendant Cuadra's defense is not substantially prejudiced by the joinder with Defendant Kerekes' case. Defendant Cuadra's defense is consistent, compatible and coordinated with Defendant Kerekes' defense. The Defendants defenses demonstrate alliance, not antagonism. Both Cuadra and Kerekes have agreed on Plan B, wherein both defendants are completely innocent. Under Plan B, Defendant Kerekes was slumbering at the Fox Ridge Inn, composing an e-mail to escort client. At 60 Midland Drive, Defendant Cuadra walked in 60 Midland Drive, Dallas, Pennsylvania; Defendant Cuadra smelled smoke and fled from the unfolding tragedy. Then Defendant Kerekes and Defendant Cuadra, apparently overcome by emotion, sped back to Virginia Beach. See Virginia Beach Prison Transcript #98, 101 which are attached hereto as Exhibits "5" and "6".

43. Denied. The Defendants, in loyal alliance, have agreed upon Plan B. Whatever Defendant Cuadra is speaking of, in terms of antagonism, is not delineated. Even if Defendant Cuadra can point to something that hints of antagonism, the fact that defendants have conflicting versions of what took place, or the extent to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together. 11 Gribble, 863 A.2d at 462.

44. Denied. The Defendant does not point out what statements cause prejudice. The Commonwealth will play or read transcripts of the following conversation attached hereto:

a. Joseph Kerekes to Renee Martin: Defendant Kerekes outlines Plan B.

b. Joseph Kerekes and Harlow Cuadra: the Defendants agree on Plan B.

c. Joseph Kerekes to Renee Martin: redacted and read to the jury in accordance with Commonwealth v. Travers. 564 Pa. 362, 768 A.2d 845, 847 (2001): Defendant Kerekes acknowledges a trip to the Wilkes-Barre Walmart with Cuadra in which lighter fluid, a knife, KY jelly and condoms are purchased the day of the homicide.

45. Denied. The Defendant has not specified what he is referring to.

46. Denied.

47. Admitted in part. The death penalty stage is qualitatively different. The Defendant does not specify, denote or delineate what the risks are he speaks of. To the extent that the Defendant suggests that the courts or the prosecution are inattentive or lax in examining the pros and cons of joinder, the Commonwealth rejects that assumption.

48. Admitted in part. There should be scrutiny for all criminal cases to ensure they are fundamentally fair. The Commonwealth, the Defendant and the public all suffer if trials are not fundamentally fair for offenses as benign as a harassment case.

49. Admitted. This has occurred with multiple defendants in a capital case.

50. Denied. Redaction as set forth in the Travers decision provides the solution. The rest of this averment does not set forth how it applies in the instant case but appears to be inapt generalizations.

51. Denied. The United States Supreme Court and Pennsylvania Supreme Court have delineated what type of statements do not offend the Confrontation Clause. The Defendant fails to point out even a single statement that he is referring to.

52. Denied. The United States Supreme Court and Pennsylvania Supreme Court have delineated what type of statements do not offend the Confrontation Clause. The Defendant fails to point out even a single statement that he is referring to assist the Court in its evaluation.

53. Denied. The Defendant cites no case for this proposition. There is no such thing as a non-statutory aggravator. The fact that defendants have conflicting versions of what took place, or the extent to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together." Gribble, 863 A.2d at 462

54. Denied. The fact that defendants have conflicting versions of what took place, or the extent to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together." Gribble, 863 A.2d at 462 55. Denied. In Commonwealth. v. Chester, 587 A.2d 1367, 526 Pa. 578 (Pa., 1991) Chester and Laird, were tried and found guilty of Murder in the First Degree with the jury imposing the penalty of death for both defendants in connection with the death of Anthony Milano. There are several cases akin to Chester i.e. joined or consolidated death penalty cases in Pennsylvania.

56. Denied. In Commonwealth. v. Chester, 587 A.2d 1367, 526 Pa. 578 (Pa., 1991)Chester and Laird, were tried and found guilty of Murder in the First Degree with the jury imposing the penalty of death for both defendants in connection with the death of Anthony Milano. There are several cases akin to Chester i.e. joined or consolidated death penalty cases in Pennsylvania.

57. Denied.

58. Denied.

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

X. Motion to Suppress Search Warrant Executed on 1028 Stratem Court, Virginia Beach, Virginia

58. Denied.

59. Admitted.

60. Admitted.

61. Admitted.

62. Denied. The Defendant does not specify what he means by service requirements.

63. Denied.

(a) In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held as follows:

Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 438 U.S. at 155-56. West v. Commonwealth, 16 Va. App. 679, 689, 432 S.E.2d 730, 736-37 (1993); Neustadter v. Commonwealth, 12 Va. App. 273,274, 403 S.E.2d 391,392, aff'd en bane, 13 Va. App. 283, 411 S.E.2d 228 (1991).

The Defendant's pleading is utterly devoid of any allegation as to a specific misstatement;

(b) Denied. The Commonwealth avers that Virginia, not Pennsylvania, law governs the legality of a search warrant, sworn out by Virginia Beach police, signed by a Virginia Beach Circuit Court judge and executed on a Virginia beach residence occupied by Virginia Beach citizens.

(c) Denied. Probable cause exists in the search warrant which delineates that Harlow Cuadra, under the guise of the fictitious identity Danny Moilin, used his 1028 Stratem Court computer to make arrangements to meet the victim at 60 Midland Drive, Dallas, Pennsylvania. Certain IP addresses comes back to Defendant Cuadra's residence. In addition, the affidavit sets forth that Defendant Cuadra pointed out to Sean Lockhart, the day after the homicide, that the Website WNEP-Channel 16 was reporting the death and fire at 60 Midland Drive, Dallas Pennsylvania. The Defendant Cuadra stated that "his guy went overboard."

(d) Denied. The warrant and Affidavit of Probable Cause allege sufficient facts;
(e) Denied.
(f) Denied. Defendant Cuadra used a fake identity to establish a meeting with the victim as a model. The victim was an adult movie producer. Cuadra was with the victim at the very moment the homicide was taking place;
(g) Denied.
(h) Denied to the extent this averment states the search was impermissible. The Commonwealth avers that Virginia, not Pennsylvania, law governs the legality of a search warrant, sworn out by Virginia Beach police, signed by a Virginia Beach Circuit Court judge and executed on a Virginia beach residence occupied by Virginia Beach citizens.
(i) Denied. All items seized were within the lawful purview of the warrant. The evidence upon which the issuance of a search warrant is based does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. The requirement is practically the same as that contained in the Fourth Amendment of the federal Constitution. Zimmerman v Town of Bedford, 134 Va. 787, 115 S.E. 362 (1922); Tri-Pharmacy, Inc. v. United States 203 Va. 723, 127 S.E.2d 89 (1962), cert. Denied. In addition, the items seized are admissible under the "good faith" exception to the warrant requirement. The Supreme Court of Virginia embraces the "good faith" exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984) and Anzualda v. Commonwealth, 44 Va. App. 764,607 S.B. 2d 749, 2005 Va. App. LEXIS 88 (2005)

64. Denied. Independent probable cause exists for Defendant-Cuadra's arrest. The arrest was not the fruit of an illegal search.

WHEREFORE, the Commonwealth requests this Honorable Court to deny the Defendant-Cuadra's Motion to Suppress under Virginia law.

XI. Motion to Suppress Search Warrants Executed on Defendant-Cuadra's E-Mail Accounts

65. Denied.

66. Admitted in part. The FBI executed various warrants as opposed to State law enforcement. There were also Grand Jury Subpoenas issued by a Federal Grand Jury. There was one state search warrant applicable to this Motion to Suppress.

67. Denied.

68. Denied. The Defendant does not specify what he means by service requirements.

69. Denied.

(a) In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held as follows:

Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 438 U.S. at 155-56.

(b) Denied.

(c) Denied.

(d) Denied. The warrant and Affidavit of Probable Cause allege sufficient facts;

(e) Denied.

(f) Denied.

(g) Denied.

(h) Denied.

(i) Denied.

70. Denied. Independent probable cause exists for Defendant Cuadra's arrest. The arrest was not the fruit of an illegal search. In Rosa v. Commonwealth, 48 Va. App. 93, 628 S.E.2d 92 (2006), under the search warrant executed in that case, the police officer was entitled to open all files, and to search deleted files, on hard drive of defendant's computer. This case relied upon Pennsylvania case law. The Rosa court wrote: The warrant authorized a search of all "electronic processing and storage devices, computer and computer devices, and external storage devices" and did not limit the search to any specific area of the computer. Deem (the detective), therefore, was permitted to look in any section of the computer that might contain the objects of the search, including deleted files that had been re-created. The deleted files are not entitled to additional protection simply because appellant attempted to erase them. The Rosa court relied upon a Pennsylvania case for its conclusion. See Copenhefer, 587 A.2d at 1356.

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

XII. Motion on Definition of Life Imprisonment-Simmons Instruction

71. Denied

72. Denied. The Commonwealth has not been provided any of the "social science" data. The Commonwealth is aware that one of the Defendant's experts, Melissa Lang does have anecdotal evidence to support some of her opinions of which this may be one. However, despite a Commonwealth reciprocal discovery request, no such expert opinion has been provided or the unidentified social science data the Defendant alludes to.

73. Denied. The Commonwealth denies that Cuadra's future dangerousness will imminently become an issue. The Commonwealth denies that by virtue of his "age and appearance", Defendant-Cuadra is interjecting future dangerousness in the case. This leap of logic fa]]s short. In any event, Defendant appears to claim that he is injecting his future dangerousness into any penalty phase and therefore is entitled to a "Simmons" instruction.

74. Denied. In Commonwealth. v. Carson, 913 A.2d 220 (Pa., 2006), the court noted, "In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)(plurality), a plurality of the United States Supreme Court would have held that, if a prosecutor argues a capital defendant's future dangerousness at a sentencing trial, the defendant may request and should be granted a jury instruction that a penalty of life in prison will render the defendant ineligible for parole. ld at 170, 114S.Ct. at 2197. This Court has held that a Simmons instruction is mandated only if two events occur: (1) the prosecutor must place the defendant's future dangerousness in issue; and (2) the defendant must have requested that the trial court issue the instruction Commonwealth v. Dougherty, 580 Pa. 183,860 A.2d 31, 37 (2004), cert. denied, U.S., 126 S.Ct. 63, 163 L.Ed.2d 89 (2005); Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1004 (2002) (citing Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1291 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002)). The failure to issue a Simmons charge is no basis for relief where these circumstances are not met. Jones, 811 A.2d at 1004.34 In Commonwealth. v. Spotz, 896 A.2d 1191 (Pa., 2006), the court wrote, "However, as the PCRA court concluded, Spotz was not entitled· to a Simmons instruction in this case because the prosecution did not inject concerns over Spotz's future dangerousness into the proceedings. (Opinion of the PCRA Court at 60). This Court has consistently recognized that "instructions detailing the character of a life sentence are not required where future dangerousness is not expressly implicated. The trial court is not required to issue the instruction based upon references to a defendant's past violent acts alone." Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998) (citing Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 47 (1998) (holding that evidence regarding a defendant's past violent convictions or conduct does not implicate the issue of his or her future dangerousness)).

Here, the specific references that Spotz points to all relate to his past conduct and not his future dangerousness. As Justice Saylor notes in his Concurring and Dissenting opinion, the United States Supreme Court in Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), revisited the issue concerning the sufficiency of the evidence required to entitle a defendant to a Simmons instruction. In Kelly, the Supreme Court suggested a more relaxed standard for assessing when a defendant is entitled to a Simmons charge. Id. at 253-54, 122 S.Ct. 726 ("Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms. "). Although Kelly was decided several years after the sentencing of Spotz, Justice Saylor asserts that it supports Spotz's claim that trial counsel was ineffective for failing to request a Simmons instruction. According to Justice Saylor, Kelly "merely clarified" existing law and is therefore applicable retroactively to the cases of appellants, like Spotz, who were sentenced before it,was decided.

75. Denied.

76. Denied.

77. Denied.

WHEREFORE, the Commonwealth requests this Honorable Court to deny this Motion and/or require the Defendant to produce the social science data and statistical data he premises this argument on.

XIII. Defendant's Claim that a "Death Qualified Jury" Deprives Him of a Fair Trial

78. Denied.

79. Denied. In Commonwealth. v. Paolello, 665 A.2d 439, 542 Pa. 47 (Pa., 1995), the court wrote, "This Court has repeatedly stated that the purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions on the law as provided by the trial court. Commonwealth v. Jermyn, 533 Pa. 194, 620 A.2e 1128 (1993), cert. denied, Jermyn v. Pennsylvania, 510 U.S. 1049, 114 S.Ct. 703, 12E L.Ed.2d 669 (1994), (reaffirming Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987), cert. denied, Jermyn v. Pennsylvania, 510 U.S. 1049,114 S.Ct. 703,126 L.Ed.2d 669 (1994)). The selection of jurors who assert their ability to follow the law and impose the death penalty when the law so requires, does not mean that the jurors are prone to death as asserted. This argument has repeatedly been rejected by this Court. Commonwealth v. Blount, 538 Pa. 156,647 A.2d 199 (1994)".

80. Denied. The Commonwealth has not been provided this social science evidence and believes the Defendant has little more than anecdotal evidence.

81. Denied. Again, the Commonwealth requests an offer of proof.

82. Denied. See Commonwealth. v. Paolello, 665 A.2d 439,542 Pa. 47 (Pa., 1995)

WHEREFORE, the Commonwealth requests this Honorable Court to deny this Motion.

XIV. Defendant's Claim that he is Entitled to a Bifurcated Proceeding

83. Denied

84. Denied for the reasons previously stated.

85. Denied. Such bias exists only in the minds of individuals opposed to the Death Penalty. The Pennsylvania Supreme Court has rejected this unfounded assertion.

86. Denied. In Commonwealth v Howard, 517 A.2d 192 (Pa. 1986), the court held that the Defendant has no right to bifurcated juries, one to decide the guilt phase and the other to decide the penalty phase. The Howard court wrote:

Appellant's next argument is that the trial court erred in denying his motion for the bifurcation of trial with separate juries, one to determine guilt, the other to determine penalty. In support of his motion, appellant had argued that a "death-qualified jury" can be reasonably predicted to be conviction prone. Therefore, there should be two juries for the two distinct phases of the trial.

Our Supreme Court has held that "simply questioning potential venire men on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury." Commonwealth v. Maxwell, 505 Pa. 152, 165, 477 A.2d 1309, 1316 (1984); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985). Furthermore, there is no provision in either Pennsylvania law or the Rules of Criminal Procedure for the empanelling of two separate juries in a first degree murder case. Therefore, the trial court did not err in denying appellant's motion.

WHEREFORE, the Commonwealth requests this Honorable Court to deny this Motion.

XV. Defendant's Claim that Juries do not Follow the Standard Instructions

89. Denied.

90. Admitted in part. The Commonwealth believes the Court may also instruct the jury with the litigant's proposed instructions provided they comport with the law and are not cumulative.

91. Denied.

92. Denied.

93. Denied. The Commonwealth awaits the production of such social science evidence.

94. Denied.

WHEREFORE, the Commonwealth requests this Honorable Court to deny this Motion.