Defendants Joint Brief in Support of Motions for Severance

DEFENDANTS CUADRA'S AND KEREKES' JOINT BRIEF IN SUPPORT OF DEFENDANT CUADRA'S AND DEFENDANT KEREKES' MOTIONS FOR SEVERANCE

I. Statement of Facts and Procedural History
II. Law and Argument: Severance because of Virginia Beach Prison Intercepts
III. Law and Argument: Severance based upon Antagonistic Defenses

Statement of Facts and Procedural History

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Commonwealth filed separate 12 Count Criminal Informations against the Defendant on or about October 4, 2007, alleging the “Offense Date” for each and every Count as “1/24/2007.” The homicide, abuse of corpse, robbery and arson allegedly committed by Defendants Cuadra and Kerekes are believed by the Commonwealth to have occurred on or about January 24, 2007. The Commonwealth also alleges that Defendants Cuadra and Kerekes were also involved in conspiracies to commit these crimes as well as the commission of the additional crimes of Tampering with or Fabricating Physical Evidence and Criminal Conspiracy to commit same on January 24, 2007.

According to the Commonwealth’s evidence, the Defendants were arrested and detained on “Fugitive From Justice warrants” by members of the Virginia Beach Police Department on May 15, 2007.

On January 30, 2008, Defendant Kerekes filed his Omnibus Pretrial Motion papers, included within said Omnibus was a “Motion For Severance.” On May 16, 2008, Defendant Cuadra filed his Omnibus Pretrial Motion papers, included within said Omnibus a “Motion For Severance”. The Commonwealth filed Answers to each of the Defendants’ Omnibus Pretrial Motions and specifically answered the aforementioned Motions regarding Severance.

In the Commonwealth’s July 3, 2008 Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion, it specifically responded to the Motion For Severance as follows:

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 here to as: Exhibits “5” and “6”. (See Commonwealth’s Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion filed July 3, 2008, Page 13)

The Commonwealth’s Answer also included the following:

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. (See Numbered Paragraph 44. of Commonwealth’s Answer to Defendant Harlow Cuadra’s Omnibus Pretrial Motion filed July 3, 2008, Page 14)

On January 30, 2008, Defendant Kerekes filed a Notice of Possible Alibi Defense which stated the following:

... the Defendant [Kerekes] may present a defense of alibi at trial. If he presents such a defense, the claim will be that at the time of the alleged offense the Defendant [Kerekes] was at the Fox Ridge Hotel, Room 211, Plains Township, Pennsylvania. (See Notice of Possible Alibi Defense filed by Defendant Kerekes on January 30, 2008)

On July 30, 2008, Defendant Cuadra filed a Notice of Possible Alibi Defense which stated the following:

the Defendant [Cuadra] may present a defense of alibi at trial. If Defendant Cuadra presents such a defense, the claim will be that at the time of th alleged offense, the Defendant [Cuadra] was at the Fox Ridge Hotel, Room 211, Plains Township, PA. (See Notice of Possible Alibi Defense filed by Defendant Cuadra an July 30, 2008)

Also on July 30, 2008, at the continuation of the Suppression / Omnibus Motions hearing, the undersigned counsel for Defendant Cuadra, Michael B. Senape, Esquire, advised the Court, the Commonwealth and Defendant Kerekes and his legal counsel of Defendant Cuadra’s Notice of Possible Alibi Defense and served a copy of said Notice on the Court, the Commonwealth and Defendant Kerekes’ legel counsel.

Immediately thereafter the undersigned counsel presented legal argument on behalf of both Defentants supporting a joint request for Severance based upon the conficting Notice of Possible Alibi Defense filings, antagonistic defenses and the case of Commonwealth v. Brown, 592 Pa. 376, 925 A.2d 147 at 162 (2007).

During this argument the Court engaged the undersigned counsel and counsel for the Commonwealth in a discussion of the legal and factual implications and/or distinctions between the case sub judicie and the cases of Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586 (2007) and Commonwealth v. Cull, 418 Pa.Super. 23, 613 A.2d 12 (Pa.Super. 1992). Specifically, the Court pointed out the fact that in the Markman case the statements were made by a co-defendant to law enforcement officials and in Cull the statements were made by a co-defendant to a non-law enforcement person / lay witness. The Court then directed the undersigned to provide, if possible, the Court and the Commonwealth with legal authority to further support the Defendants’ requests for Severance based upon these legal principals.

Law and Argument: Severance because of Virginia Beach Prison Intercepts

II. Law and Argument: Severance because of Virginia Beach Prison Intercepts

The Virginia Beach Prison Intercept statements which the Commonwealth intends to use during a joint trial of Defendants Cuadra and Kerekes, which are outlined above and cited to by the Commonwealth in its own pleadings and briefs, are exactly the type of statements that the Pennsylvania Superior Court addressed in Commonwealth v. Cull, 418 Pa.Super. 23, 613 A.2d 12 at 17 (Pa.Super., 1992) The following excerpt is from the Opinion in the Cull case:

While Faye Cherry was being cross-examined by counsel for co-defendant Smith, she testified, to a telephone conversation with Smith about a month and a half after the murder in which Smith said that he had been merely a bystander and that the killing had been committed by Cull. This statement was not admissible under the co-conspirator exception to the hearsay rule, and it should not have been received. There was no evidence that the conspiracy had been continuing at that time or that Smith’s statements had been made in furtherance of a common design. They were, rather, an attempt to shift the blame for the killing to Cull. This was the kind of statement which Bruton was intended to exclide. Id.

The Virginia Beach Prison Intercept statements were made well after the conclusion of the alleged conspiracy date of 1/24/2007 set forth in the Commonwealth’s Criminal Information. There is no evidence to support that the statements were made during any one of the conspiracies charged in the Commonwealth’s Criminal Information.

Furthermore, the statements were allegedly made after the Defendants were arrested, sometime after the May 15, 2007 arrest date alleged by the Commonwealth. This is of particular importance in the analysis by This Court in this context. The Commonwealth, in one of its many ream size briefs, details, a lengthy discussion of many Pennsylvania cases supporting “adoptive admissions” and exceptions to the hearsay rules when there are co-defendants’ statements in furtherance of the conspiracy. However, the Commonwealth citation to the case of Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387(1981), is factually misguided. In Coccioletti, the court stated:

Although the co-conspirator exception to the hearsay rule has not been applied when the declarations are made after arrest and termination of the conspiracy, Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963), the appellant’s declarations in this case were made prior to their arrest while the conspiracy was still in progress. Id. at 392.

The cases supporting the Commonwealth’s position are factually distinct from the analysis to be applied to the Virginia Beach Prison Intercept statements as these cases dealt with pre-arrest statements and the issues sub judicie are obviously post arrest as they were allegedly made while Defendants Cuadra and Kerekes were being held for extradition from Virginia to Pennsylvania, sometime after the May 15, 2007 arrest date alleged by the Commonwealth.

Law and Argument: Severance based upon Antagonistic Defenses

III. Law and Argument: Severance based upon Antagonistic Defenses

In Commonwealth v. Brown, 592 Pa. 376, 925 A.2d (2007), the Pennsylvania Supreme Court, citing Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679, 685 (1998), cert. denied, 526 U.S. 1161, 119 S.Ct. 2052, 144 L.Ed.2d 219 (1999); Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568, 573 (1992); Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1372 (1991) cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991), stated the following:

... severance should be granted only where the defenses are so antagonistic that they are irreconcilable-i.e., the jury essentially would be forced to disbelieve the testimony on behalf of one defendant in order to believe the defense of his co-defendant. Id. at 161, 162.

Both Defendant Cuadra and Defendant Kerekes have filed individual Notice of Possible Alibi Defense pleadings averring that each was at the Fox Ridge Hotel, Room 211, Plains Township, Pennsylvania at the time of the alleged offenses occurred. These Notices, when viewed in conjunction with what the Commonwealth has put forth as its theory of these cases and the evidence and allegations the Commonwealth has presented in these matters to date and will present at a joint trial, the jury will have no choice but to disbelieve the testimony offered on behalf of one of the Defendant’s in order to believe the testimony offered on behalf of the other Defendant.

One need only look to the numerous other documents, i.e. transcripts, police reports, e-mail print-outs and other documents, filed by the Commonwealth with the Luzerne County Clerk of Courts in these matters as exhibits to the Commonwealth’s many pleadings and briefs to see how Defendant Cuadra and Defendant Kerekes’ respective defenses are antagonistic to the level and degree delineated in the Brown citation set forth above.

WHEREFORE, for the foregoing reasons and averments the Defendants respectfully request that this Honorable Court enter an Order Severing the above captioned matters and directing that separate trials be held for each Defendant.

Respectfully Submitted,

Michael B. Senape, Esq.
Conflict Attorney for Defendant Cuadra

DA's Motion to Limit Caudra's Alibi Defense

COMMONWEALTH'S MOTION TO LIMIT DEFENDANT CUADRA'S ALIBI DEFENSE AT TRIAL UNDER PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 567

AND NOW COMES, the Commonwealth of Pennsylvani by and through its Attorneys, Jacqueline Carroll, District Attorney of Luzerne County; Michael Melnick, Assistant District Attorney, Shannon Crake, Assistant District Attorney, and Allyson L. Kacmarski, Assistant District Attorney and in support thereof avers as follows:

1. On May 15, 2007, the Defendant was arrested and charged with multiple offenses arising from a criminal homicide which occurred on January 24, 2007, at 60 Midland Drive, Dallas Twp, Luzerne County, Pennsylvania.

2. A preliminary hearing was held on August 20 and 23, 2007, before Honorable James Tupper.

Defendant was formally arraigned on October 4, 2007, and entered a plea of Not Guilty to all of the following charges: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery-Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson, and Criminal Use of a Communication Facility.

4. Defendant’s criminal case was consolidated with Co-Defendant’s, Joseph Manuel Kerekes, criminal case, 3094 CR 2007.

5. Joseph Kerekes was also formally arraigned on October 4, 2007, and entered a plea of Not Guilty to the charges of: Criminal Homicide; Criminal Conspiracy to Commit Homicide; Arson-Danger of Death or Bodily Injury; Arson-Inhabited Building or Structure; Robbery-Inflict Serious Bodily Injury; Theft by Unlawful Taking-Movable Property; Tamper With/Fabricate Physical Evidence; Abuse of Corpse; Criminal Conspiracy to Commit Robbery; Criminal Conspiracy to Commit Tampering With or Fabricating Physical Evidence; and Criminal Conspiracy to Commit Arson.

6. At the time of the formal arraignment, Defendant could no longer afford private counsel and the Court thereafter appointed the Luzeme County Public Defender’s Office to represent the Defendant.

7. On January 3, 2008, the Luzerne County Public Defender’s Office withdrew from the case and the Court appointed Conflict Counsel, Stephen Menn, Michael Senape, and Paul Galante, to represent the Defendant.

8. On January 28, 2008 Attorney Demetrius Fannick entered his appearance on behalf of Harlow Cuadra.

9. On March 19, 2008, the Court ordered that Attorney Fannick is disqualified to represent the Defendant and that the Defendant will be represented by Conflict Counsel, Stephen Menn, Michael Senape, and Paul Galante.

10. Defense Counsel was granted an extension to file all omnibus pre-trial motions by May 9, 2008.

11. On May 9, 2008, Attorney Galante requested and was granted an additional one week one week extension to file all omnibus pre-trial motions.

12. On May 16 2008, Defendant filed his omnibus pre-trial motions, which did not include a Notice of Alibi Defense.

13. On July 9, 2008, Attorney Galante withdrew as Counsel and the Defendant is currently represented by Conflict Counsel Stephen Menn and Michael Senape.

14. On July 30, 2008, Defendant filed a Notice of Possible Alibi Defense.

15. Defendant states in his Notice of Alibi Defense that his possible alibi defense will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, PA.

16. Commonwealth notes that the Defendant’s co-Defendant, Joseph Kerekes, also filed a Notice of Alibi Defense on January 30, 2008, stating that Joseph Kerekes’ possible alibi defense will be that at the time of the alleged offense, the Defendant was at the Fox Ridge Hotel, Room 211, Plains Township, PA.

17. Most noteworthy is the Defendant states he may call other yet unknown and unidentified witnesses to suppott his alibi defense.

18. Commonwealth notes that the Defendant’s Alibi Defense is consistent and compatible with that of his co-Defendant’s alibi defense.

19. The Commonwealth also notes that the Co-Defendants are intimate partners in a relationship and the fact that they are staying together at the same hotel is entirely consistent with their relationship.

20. The, Commonwealth avers that Pennsylvania Rule of Criminal Procedure

567. Notice’ of Alibi Defensec states:

“(A) A defendant who intends ‘to offer the defense of alibi at trial shall file with the clerk of courts not later than the time for filing the omnibus pretrial motion provided in Rule 579 a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.”

21. The Commonwealth avers that Pennsylvania Rule of Criminal Procedure

579, Time for Omnibus Pretrial Motionand Service states:

“(A) Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed añd served within 3O days after arraignment, unless opportunity therefore ‘did not exist, or the defendant or defense attorney, or the’ attorney for the Commonwealth was not aware of the grounds for the motion, or unless that time for filing has been extended by the court for cause shown.”

22. According to Rule 567, Notice of Alibi Defense, Defendant’s Notice of Possible Alibi Defense Motion was not filed and served within 30 days of the Defendant’s date of arraignment, October 4, 2007.

23. As previously stated, Defense Counsel’s deadline for filing all omnibus pre-trial motions was May 16, 2008.

24. Commonwealth submits that the Defendant’s Notice of Alibi Defense is an omnibus pre-trial motion and was required to be filed by May 16, 2008, in order to be considered timely.

25. ‘The Commonwealth avers that Pennsylvania Rule of Criminal Procedure 567. Notice of Alibi Defense Subsection B. Failure to File Notice states:

“(B)(1) If Defendant fails to file and serve the notice of alibias required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of providing the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.”

26. Based on the Defendant’s untimely filing of his Notice of Alibi Defense, the Commonwealth asks this Court to exclude entirely any other evidence offered by the Defendant for the purpose of providing an alibi defense at trial, except for the Defendant’s own testimony.

27. The Commonwealth avers that Pennsylvania Rule of Criminal Procedure 567. Notice of Alibi Defense. Subsection (A)(2). Notice by Defendant states:

“(A) (2) The notice shallcontain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.”

28. Defendant’s Notice of Possible Alibi Defense states specific information as to the place where the Defendant claims to have been at the time of the alleged offense, however, the Notice fails to specificaily state the names and addresses of the witnesses whom the defendant intends to call at trial in support of his alibi defense.

29. The Commonwealth notes that Defendant has reserved the Right to supplement his Notice of Alibi Defense as to the witnesses that the Defendant would possibly call in support of his claim, however, given the approaching start date of trial, the Commonwealth would not have sufficient time to investigate the filing of the Notice

30. The Commonwealth submits that due to the lack of specificity of the Defendant’s Notice of Alibi Defense, in regards tothe possible witnesses, the Court should exclude entirely any evidence offered by the Defendant for the purpose of providing an alibi defense at trial, except for the Defendant’s own testimony.

WHEREFORE, the Commonwealth requests this Honorable Court to grant the Commonwealth’s Motion Limiting Defendant’s Alibi Defense at trial to the testimony of the Defendant, Harlow Cuadra, and no other witnesses, based on the Defendant’s failure to meet the requirements of Rule 567 specifically regarding the Defendant’s filing of his eleventh-hour Alibi Notice, as well as the lack of specificity as to possible witnesses that the Defendant may call at trial to support this evolving defense.

Similar Alibis Don’t Require Separate Trials, Prosecutors Say

According to an article in the Citizens' Voice... The similarity of the alibis being considered by accused killers Harlow Cuadra and Joseph Kerekes cannot be used as grounds for a defense motion to have them tried separately, prosecutors argued in a brief filed Thursday.

Attorneys for Cuadra and Kerekes have said the defendants could both claim they were in Room 211 at the Fox Ridge Motel in Plains Township motel the night Bryan Kocis was killed in January 2007 in Dallas Township, 12 miles away.

Cuadra, 27, and Kerekes, 34, both of Virginia Beach, Va., are accused of killing Kocis and later setting fire to his Midland Drive, Dallas Township, home. They face the death penalty and are scheduled to stand trial together, beginning Sept. 2.

Michael Senape, an attorney for Cuadra, disclosed the possible alibi last month in a closed-door meeting with Judge Peter Paul Olszewski Jr., prosecutors and the other defense attorneys on the case. Kerekes’ attorneys made a similar alibi claim in a notice filed in January.

Both defense teams suggested in a brief filed Wednesday that the similar alibis, combined with a deteriorating relationship between Cuadra and Kerekes, will lead to competing, antagonistic defenses at trial.

“The jury will have no choice but to disbelieve the testimony offered on behalf of one of the defendants in order to believe the testimony offered on behalf of the other defendant,” the defense attorneys said.

Cuadra and Kerekes had previously agreed to an alibi defense they referred to as “Plan B,” according to telephone conversations recorded while they were imprisoned at the Virginia Beach Correctional Facility.

Under “Plan B,” Kerekes claimed he stayed at the Fox Ridge Inn sending e-mail messages and viewing Web sites while Cuadra went to visit Kocis. Kerekes said Cuadra arrived at Kocis’ home after it had already been broken into and set on fire. Cuadra drove back to the motel, they packed quickly and fled to Virginia Beach, Kerekes said.

“In this case, Cuadra’s and Kerekes’ alibi defenses are consistent,” prosecutors said. “Neither defendant is pointing the finger at the other. Neither defendant is saying the other committed any crime whatsoever.”

Prosecution's (New) Witness List

COMMONWEALTH’S RESPONSE TO DEFENDANT CUADRA’S NOTICE OF POSSIBLE ALIBI DEFENSE

The Commonwealth, by and through District Attorney JACQUELINE MUSTO CARROLL, Assistant District Attorney MICHAEL MELNICK, Assistant District Attorney SHANNON CRAKE, and Assistant District Attorney ALLYSON KACMARSKI submits its response to Defendant Harlow Cuadra’s Notice of Possible Alibi Defense. This also serves as a supplemental response to Defendant Kerekes’ Notice of Possible Alibi; the Commonwealth’s reciprocal list of witnesses in response to the Defendants’ respective Notices of Alibi is the same as the Defendants’ possible alibi defenses are consistent with each other. Attached hereto is a list of all prospective witnesses the Commonwealth may call to rebut the Defendants’ alibi defense. The Commonwealth reserves the right to supplement this response with additions or corrections at any time as the information becomes known to the Commonwealth.

1. Cpl. Leo Hannon - Pennsylvania State Police
2. Tpr. Stephen Polishan - Pennsylvania State Police
3. Tpr. Brian Murphy - Pennsylvania State Police
4. Cpl. Michael McTavish - Pennsylvania State Police
5. Tpr. Michael Gownley - Pennsylvania State Police
6. Dale Young - Computer Crimes Unit - Pennsylvania State Police
7. Sgt. Doug Higgins - Dallas Twp. Police Department
8. Det. Lt. Gary Capitano - Luzerne County District Attorney's Office
9. Det. Lt. Daniel Yursha - Luzerne County District Attorney's Office
10. Det. Robert Donaldson - San Diego Police Department
11. Special Agent Kim Kelly - Naval Criminal Investigative Services
12. Special Agent Andrew Pappas - DEA San Diego Field Division
13. Sgt. John Rivera - San Diego Police Department
14. Investigator Ron Thill - San Diego District Attorney's Office
15. Det. Lynn Rydalch - San Diego Police Department
16. Det. Laurie Agnew - San Diego Police Department
17. James Gilbert - Bryan Kocis Neighbor
18. Ralph Szalkowski
19. Kirby Szalkowski
20. Amy Lynne Withers - Bryan Kocis Neighbor
21. Amy Zamerowski - SUV Eyewitness
22. Alex Puente - Cobra Video Webmaster
23. Det. Larry Fabian - Luzerne County District Attorney's Office
24. Sean Lockhart - Former Model for Cobra Video
25. Grant Roy - Boyfriend to Sean Lockhart
26. Andrew Shunk - Former Model for Cuadra/Kerekes
27. Renee Martin - Former Neighbor to Cuadra/Kerekes
28. Justin Hensley - Former Model for Cuadra/Kerekes
29. Mitch Halford - Former Escort Client to Cuadra/Kerekes
30. Cpt. Cassandra Lee - Virginia Beach Correctional Facility
31. Brandon Sheovic - Virginia Beach Correctional Facility
32. Robert Tolley - Virginia Beach Correctional Facility
33. Walter Smith - Virginia Beach Correctional Facility
34. John Tierney - Virginia Beach Correctional Facility
35. Travis Bohny - Virginia Beach Correctional Facility
36. Carlos Ortega - Virginia Beach Correctional Facility
37. Angel Berdecia - Virginia Beach Correctional Facility
38. David Jacobson
39. Nep Malaki - Former Client/Alibi Witness for Cuadra
40. Robert Wallace
41. Robert Rodden - Former Cellmate to Kerekes
42. Joseph Ryan
43. Matthew Brannon
44. David Mitchell
45. Elena Arosemena - Cox Communications, Inc.*
46. Jefferey Standford, Yu Jin Kang or Christian Lee - Yahoo, Inc.
47. Andrei Lazar - Verizon Wireless*
48. Tracey Ingle - MSN Hotmail*
49. Heather Blewett - Sprint/Nextel*
50. Nate Davis - American Registry of Internet Numbers*
51. Cindy Talathan - TracFone*
52. Andrea Almeida - The Planet Internet Services, Inc.*
53. Keena Willis - Domains by Proxy*
54. Christopher DeWolfe, Kristen Alfred - Myspace.com*
55. Annie Cappeller - IAC Search & Media*
56. Maryann Walsh - Nokia USA*
57. Colin Padgett or Kathleen Loughlin - Comcast Cable Communications, Inc.
58. Chris Hurd - Digital Video Information Network*
59. John Riggs - Western Tidewater Regional Jail
60. Phillipa Green or Kimber Hultgren - Sony Electronics, Inc.
61. Jeanne Mulcahy - AT&T Wireless*
61. Linda Huffman - UCN, Inc.*
62. Karen Valdez - Qwest Communications*
63. Linda Huffman - UCN Long Distance
64. Sue Kubiski - Commonwealth Telephone Company*
65. Sue Kubiski - Commonwealth Telephone Company*
66. Anthony Signoire - Cingular Wireless, Inc.*
67. Ronald Wiegal - Verizon Pennsylvania, Inc.*
68. Sue Kubiski - Frontier Telephone of Rochester, Inc.*
69. Steven Miller - Verizon New York, Inc.*
70. Anthony Signoire - SBC West*
71. Ken Haertling - Telcove*
72. Mary Hochheimer - OPEX Communication Services, Inc.*
73. Marge Montemayoer - PAETEC Communications
74. Mary Hochheimer - Qwest LCI International*
75. Walt Coursol - Spring Long Distance*
76. Eric Tyrell - Virginia PCS Alliance L.C.*
77. Angela Evans - ALLTEL Communications Inc. - Virginia*
78. Mary Whiting - Choice One Communication, Inc.*
79. Custodian of Records - Verizon Virginia, Inc.
80. Lee Ann Simpson - XO Communications*
81. Eric Tyrell - Nextel Partners*
82. Anne Joyner - Virginia PCS Alliance L.C.*
83. Shelly Halfman - Verizon South*
84. Eric Tyrell - NTELOS Network - Virginia*
85. Anthony Signoire - Bell South*
86. Jason Krieger - Level 3*
87. Mark Horner - Yipes Communications, Inc.*
88. Al Joyce - Lackawanna County Correctional Facility
89. Jackie Grimes - Luzerne County Correctional Facility
90. Thakor Patel - Fox Ridge Inn
91. Matthew Brannon Former Escort Client to Cuadra/Kerekes.
92. Joseph Ryan - Former Escort Client to Cuadra/Kerekes
93. Thomas Lampman

* Denotes that the witness is the person named, or there could be another designated representative.

Prosecutors ask PPO to Not Allow Possible Alibi for Cuadra

Today's Citizens' Voice is reporting that prosecutors filed a motion Wednesday asking Luzerne County Judge Peter Paul Olszewski Jr. to preclude attorneys for accused killer Harlow Cuadra from presenting evidence and witnesses to corroborate his possible alibi.

In a notice of possible alibi filed last month, Cuadra’s attorneys, Stephen Menn and Michael Senape, said Cuadra, 27, of Virginia Beach, Va., could claim he was in Room 211 of the Fox Ridge Motel in Plains Township at the time Bryan Kocis was killed in Dallas Township in January 2007.

Under state law, Cuadra’s attorneys were required to file the alibi notice on May 16, at the same time they submitted a series of omnibus pre-trial motions, including requests to suppress evidence, move the location of the trial and separate Cuadra’s trial from that of his co-defendant, Joseph Kerekes, prosecutors said.

“Based on the defendant’s untimely filing of his notice of alibi defense, the Commonwealth asks this court to exclude entirely any other evidence offered by the defendant for the purpose of providing an alibi defense at trial, except for the defendant’s own testimony,” prosecutors said, citing the section of the Pennsylvania Rules of Criminal Procedure that allows judges latitude to limit alibi defenses.

Cuadra and Kerekes, 34, also of Virginia Beach, Va., are accused of killing Kocis, a rival producer of gay pornographic films, and later setting fire to his Midland Drive, Dallas Township, home.

They face the death penalty and are scheduled to stand trial together beginning Sept. 2. Olszewski said he could rule on pre-trial motions within a week.

Kerekes’ attorneys, Shelley Centini and John Pike, filed a similar alibi notice in January and listed potential witnesses from Internet companies to support a theory that he stayed at the motel, sending e-mail messages and viewing Web sites, while Cuadra visited Kocis.

Neither notice indicated Cuadra and Kerekes were together at the motel.

Cuadra’s one-page notice listed no witnesses who could potentially corroborate his alibi story, but the attorneys said they reserved the right to list witnesses on future supplemental filings.

“Given the approaching start date of trial, the Commonwealth would not have sufficient time to investigate the defendant’s witnesses, given the late filing of the notice,” the prosecutors argued.

Late Wednesday, prosecutors filed a list of 93 prospective witnesses they could call to rebut Cuadra’s alibi defense, including investigators, neighbors who said they saw a vehicle rented by Cuadra leaving Kocis’ driveway just before the fire was called into 911, and two men who had settled a lawsuit with Kocis a week before his death.

In a prison telephone conversation with acquaintance Renee Martin, Kerekes said the men, Grant Roy, a former suspect in the killing, and his business partner and lover, Sean Lockhart, had spoken to Cuadra by telephone as he was killing Kocis.

“They were on the phone from San Diego with (Cuadra), like while this was, while that was happening,” Kerekes told Martin.

“While the murder was happening?” Martin said.

“Yes,” Kerekes said. “(Investigators) know that Grant and Brent weren’t there.”

“They were on the phone with him while the murdering was happening?”

“Yes, that’s all knowledge, everyone knows,” Kerekes said.