Harlow's Supplemental Concise Statement

DEFENDANT'S SUPPLEMENTAL CONCISE STATEMENT
PURSUANT TO Pa.R.A.P. 1925(B)

AND NOW, comes the Defendant, by and through his counsel, Demetrius W. Fannick, Esquire and makes the following statement of issues raised on appeal under Pa.R.C.P. 1925(b).

1. The Defendant is Harlow Raymond Cuadra.

2. On May 15, 2007, the Defendant and his co-defendant Joseph Kerekes were arrested and charged with Criminal Homicide, 18 Pa.C.S.A. § 2501, Criminal Conspiracy to Commit Criminal Homicide, 18 Pa.C.S.A. § 2501, Arson, 18 Pa.C.S.A. § 3301 and other offenses.

3. A preliminary hearing was held on August 23, 2007, and most of the charges, including the criminal homicide charges were bound over for trial in the Court of Common Pleas.

4. Defendant was originally represented by the Public Defenders Office

5. The Public Defender’s Office filed a Motion for Appointment of Conflict Counsel for the Defendant, which was denied by Judge Mark A. Ciavarella.

6. On November 21, 2007, the Commonwealth filed a Motion to Disqualify the Public Defenders Office from representing the Defendant.

7. On December 3, 2007, the Public Defenders Office filed Pre-Trial Motions on behalf of the Defendant

8. On January 28, 2008, undersigned counsel filed his entry of appearance on behalf of Harlow Cuadra.

9. On February 12, 2008, the Commonwealth filed a Motion to Disqualify undersigned counsel from representing Defendant in this case.

10. A hearing on the Commonwealth’s Motion was held on March 14, 2008.

11. On March 19, 2008, the Honorable Judge Olszewski granted the Commonwealth’s Motion to Disqualify undersigned counsel from representing the Defendant.

12. Defendant filed a Notice of Appeal with the Superior Court and a Motion to Permit Interlocutory Appeal of the disqualification of his counsel of choice.

13. Defendant’s Motion to Permit Interlocutory Appeal was denied by Judge Olszewski on April 30, 2008.

14. Additional Pre-Trial Motions were filed by the Public Defender’s Office by Attorney Thomas Cometa on May 16, 2008.

15. On July 15, 2008, the Superior Court granted the Commonwealth’s Motion to Quash the Defendant’s appeal of the grant of the Commonwealth’s Motion to Disqualify undersigned counsel as an Interlocutory Order.

16. That Trial commenced on February 24, 2004 and Defendant was represented at trial by Paul Walker. Esquire and Joseph D’Andrea, Esquire.

17. That on March 12, 2009, the Defendant was convicted of all charges.

18. That on March 16,2009, following a penalty hearing, the Defendant was sentenced to life in prison.

19. That the Suppression Court erred in denying the Defendant’s Suppression Motions and allowing the following testimony to be admitted into evidence:

a. The electronically recorded conversation at Black’s Beach when the interception of said conversation violated Pennsylvania law regarding interception of conversations. 18 Pa.C.S.A. § 5721.1

b. The electronically recorded conversation at Crab Catchers Restaurant when the interception of said conversation violated Pennsylvania law regarding interception of conversations. 18 Pa.C.S.A. § 5721.1

c. The evidence seized from 1028 Stratem Court, Virginia Beach on February 10, 2007.

d. The evidence seized from Defendant’s e-mail accounts.

20. That the Trial Court committed the following errors at trial:

a. With regard to Commonwealth Exhibit 211, the transcript of the Black Beach intercept, in refusing to either grant a cautionary instruction that the transcript was a guide and that there was a question as to the actual words used on the tape, or in failing to sustain Defendant’s objection to the transcript as misleading and incorrect.

b. In admitting Commonwealth Exhibit 163, a video of the Defendant working out over objection of defense counsel.

c. In allowing a Commonwealth witness to present the hearsay evidence that a luminal test conducted by another person had revealed the existence of blood on the carpet of the rental car, when there was not a proper foundation that the witness commonly relied on such tests in arriving at his/her opinions and when the witness merely acted as a conduit for the hearsay evidence of another expert .

d. In allowing the Commonwealth to present a surprise visual aid of Commonwealth witness Trooper Brian Murphy, when said visual aid amounted to an expert report that had never been provided to the Defendant.

21. That the Commonwealth committed prosecutorial misconduct in the following ways:

a. Publishing autopsy photographs to the jury a second time in contravention to the Trial Court’s pre-trial order that the photographs only be published once.

b. In constantly asking leading questions of the Commonwealth witnesses despite admonishments by the Court not to ask leading questions.

c. In asking the Defendant if his co-defendant, Kerekes had admitted that he was Mr. Cuadra’s accomplice when the Commonwealth knew that there was never any such admission by Mr. Kerekes.

d. In improperly seeking to disqualify Demetrius Fannick, Esquire, as a tactical move to remove him because he was particularly effective in that he had recently obtained an acquittal in a death penalty case, thus depriving the Defendant of the counsel of his choosing.

e. In testifying falsely at suppression hearing that the Arrest Warrant was issued by Magistrate Tupper at 9:30 am. when the warrant was signed at 1:00 p.m., resulting in the illegal arrest of the Defendant and seizure of items from Defendant Kerekes vehicle.

22. The Suppression Court’s Ruling denying the defense Motion to Suppress the evidence seized from the defendant’s automobile at the time of their arrest was incorrect as it was premised upon a finding of fact that the Arrest Warrant for the defendant was signed by Magisterial District Justice Tupper at 9:30 a.m. (prior to the arrest of the defendant) when that specific fact was later contradicted by the trial testimony of Commonwealth witness, Detective Daniel Yursha.

23. That the Trial Court erred violating the Defendant’s rights under the Pennsylvania and United States Constitutions in granting the Commonwealth’s Motion to Disqualify undersigned counsel in representation of Defendant Cuadra in that:

a. The defendant has a right under the Sixth Amendment to the U.S. Constitution and the Pennsylvania Constitution. Article 1, Section 9 to counsel of his choice;

b. The Commonwealth did not meet its burden of establishing by clear and convincing evidence that confidential information was given by Defendant Kerekes to Attorney Fannick;

c. Commonwealth did not meet its burden of establishing by clear and convincing evidence that there was any real, as opposed to speculative conflict of interest which would affect either Mr. Cuadra or Mr. Kerekes’ rights to effective representation of counsel;

d. That there ultimately turned out to be no conflicts in that Defendant Kerekes did not testify at Mr. Cuadra’s trial, but refused to answer questions, thus establishing that the Commonwealth’s arguments of conflict were, in fact, speculative;

e. That any arguments as to a conflict regarding who was the actual killer and who was the accomplice did not represent any real conflict of interest in that in the guilt phase an accomplice or conspirator is equally as liable as the actual killer and the Supreme Court has stated that separate counsel should be utilized for the penalty phase.

f. That the Trial Court failed to give due weight to undersigned counsel’s representations in his signed answer to the Commonwealth’s Motion to Disqualify, wherein undersigned counsel, an officer of the Court, represented that he had not discussed anything other than fees with Mr. Kerekes and had obtained no confidential information because Mr. Kerekes was already represented at by other counsel and fails to take into account that although not verified, pursuant to Pa.R.Crim.P. 575(A)(3)(a) that “The signature of an attorney shall constitute a certification that the attorney has read the answer, that to the best of the attorney’s knowledge. information, and belief there is good ground to support the answer, and that it is not interposed for delay".

g. The Commonwealth did not establish by clear and convincing evidence that Mr. Kerekes had any detrimental reliance upon Attorney Fannick’s alleged representation of him or that there was any real, as opposed to speculative, possible detriment to Mr. Kerekes.

h. That the Commonwealth did not establish by clear and convincing evidence that an attorney/client relationship pursuant to Pennsylvania Rules of Professional Conduct 1.9 and 1.7 existed between Mr. Kerekes and Attorney Fannick or that Mr. Fannick had been retained by Mr. Kerekes.

i. That the rules with regard to Rule 1.18 of the Rules of Professional Conduct expressly provide that until an attorney has been retained the attorney should limit conversations to avoid disqualifying information, and a disqualification assumes that Attorney Fannick did not follow Rule 1.18.

j. That the Court did not give any reason why the waiver colloquys of conflict by Kerekes and Cuadra, were not sufficient or invalid and did not overcome any alleged conflict.

k. That the Commonwealth did not rebut the presumption in Wheat V. U.S. 486 U.S. 153, 108 S.Ct. 1692 (1988) in favor of defendant’s counsel of choice that by a showing of an actual conflict or a showing of a serious potential for conflict.

l. In allowing the hearsay testimony regarding statements made by Co-Defendant Kerekes in violation the Pennsylvania Rules of Evidence.8O1 through 805.

m. In granting the Commonwealth’s Motion to Disqualify Attorney Fannick in violation of the Defendant’s right to counsel under the U.S. and Pennsylvania Constitutions.

24. The evidence was insufficient to convict the Defendant of First Degree Murder, Conspiracy to commit murder, arson and robbery.

25. The Defendant incorporates the arguments made by his prior defense attorneys which were made in their Briefs in Support of their Motions to Suppress and in Opposition to Commonwealth’s Motion to Disqualify undersigned counsel.

Respctfully submitted,

Demetrius W. Fannick, Esquire
Attorney for Defendant
297 Pierce Street
Kingston. PA 18704
(570) 283-3191
Supreme Court ID 32356