Wednesday, July 23, 2014

Prosecutors want to use ‘silence’ as evidence

Request made to use suspect’s lack of concern about victim as proof of guilt in house fire.

May 13. 2013 11:34PM

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WILKES-BARRE — Luzerne County prosecutors said Joseph Derhammer talked to investigators about a fire that claimed the lives of a mother and her daughter in April 2009.

It is what Derhammer, 42, did not say that prosecutors want to offer as evidence to a jury.

Derhammer’s trial on two counts of criminal homicide and four counts of arson is scheduled to begin with jury selection next week.

City police and county detectives allege Derhammer set the blaze at 46 Chester St., Wilkes-Barre, killing Nancy Kostelnick, 48, and Carolyn Kostelnick, 23, on April 13, 2009.

Investigators said Derhammer set the fire on a rear porch because he was angry Nancy Kostelnick had thrown him out two weeks earlier. The two had a relationship despite Nancy Kostelnick’s marriage to Joseph Kostelnick, who also lived in the house.

While city firefighters extinguished the blaze, Derhammer approached city Assistant Chief Donald Crane, now retired, at the scene. Derhammer was questioned about the blaze, but, prosecutors say, did not ask about the welfare of Nancy Kostelnick and her daughter.

Derhammer’s alleged “silence” about the two women is what prosecutors want to offer the jury.

His attorneys, William Watt and Thomas Marsilio, are challenging the introduction of the silent evidence.

“Pre-arrest silence cannot be used,” Watt told Judge Joseph Sklarosky Jr. “Statements he did not make that will be used against him is a violation of his rights.”

“The lack of an inquiry by the defendant is relevant to show his guilt,” countered Assistant District Attorney Mary Hanlon Mirabito, who along with Assistant District Attorney Nancy Violi, is prosecuting Derhammer.

Mirabito said it was Derhammer who initiated contact with police when he approached Crane at the scene.

“He never asked what happened at the house,” Mirabito said.

Sklarosky said he will make a ruling on the matter today.

It is likely prosecutors or Derhammer’s attorneys will appeal the ruling, which would delay the trial.

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