Selenski, Weakley want witness’s testimony out

WILKES-BARRE – Attorneys for homicide suspects Hugo Selenski and Paul Weakley said they have a host of new inquiries they need to pose on a key witness.

But because that witness, the father of slain pharmacist Michael Kerkowski, has died, the attorneys have no way of getting answers to those questions.

That, they said, is enough reason to stop prosecutors from using the elder Kerkowski’s testimony from a past hearing at the upcoming homicide trial for the duo.

But prosecutors said that past hearing gave the attorneys the necessary opportunity to ask their questions. It’s the attorneys’ faults, First Assistant District Attorney Jackie Musto Carroll said, if they failed to ask the questions.

“If they sit there and they don’t open their mouth, it doesn’t matter,” she said. “(They) were given the opportunity.”

And because they had that opportunity, it means the past testimony can be used at the suspects’ homicide trial, she said.

Court of Common Pleas Judge Chester Muroski on Friday said he could decide within two weeks whether prosecutors can use a transcript of that testimony at the duo’s trial.

Selenski and Weakley are charged with homicide in the deaths of Kerkowski and Tammy Fassett. They went missing in May 2002 before Kerkowski was to be sentenced in Wyoming County Court on charges including illegal distribution of drugs and fraud.

Police found their bodies buried behind Selenski’s Mount Olivet Road residence in Kingston Township when they executed a search warrant on the house in June 2003.

The elder Kerkowski testified against the men at a preliminary hearing, saying Selenski bilked him out of tens of thousands of dollars. Selenski once fired a bullet past the elder Kerkowski’s head, too, he said.

Selenski and Weakley are awaiting trial and the elder Kerkowski was expected to testify, but he died in September.

Now, attorneys for the suspects want a judge to stop prosecutors from using a transcript of that past testimony. They say using a transcript will prevent them from having a full and fair opportunity to cross-examine the witness.

At a hearing on the issue Friday, Musto Carroll said Kerkowski’s testimony at trial would be the same as it was at the past hearing. And the defense attorneys were able to cross-examine him on that testimony at that hearing.

But a Weakley attorney, Joseph Nocito, said he was forbidden from asking certain questions at that hearing because rules at a preliminary hearing are not the same at the trial level. For instance, he was forbidden from questioning the elder Kerkowski on issues of credibility at that hearing. He would be allowed to ask those questions at trial, he said.

A Selenski attorney, John Pike, said prosecutors also objected to many questions at the past hearing, claiming the questions were being asked too early in the trial process. They claimed the questions being asked were more relevant to issues that arise during the evidence discovery phase, which comes after the preliminary hearing. That leaves Pike unable to get answers to those questions.

Muroski will also decide whether prosecutors can use evidence from a Monroe County robbery in the homicide trial.

District Attorney David Lupas said he wants to show the similarities between that robbery, allegedly committed by Selenski and Weakley, and the Kerkowski and Fassett slayings.

A Selenski attorney, Stephen Menn, argued against using the evidence, claiming there are more differences in the two cases than similarities. That makes using the items prejudicial against Selenski. Menn also noted how the Monroe County robbery victim did not identify Selenski as one of the assailants until two years after the incident.