Court approves use of videotape in Modery trial
WASHINGTON – Videotape evidence showing Gregory Modery and Alexander Martos buying sandwiches at the Subway store at the Pilot Truck Stop in Bentleyville hours after Ira Swearingen disappeared will be admitted into evidence in Modery’s homicide trial. Judge Katherine B. Emery issued the ruling Wednesday afternoon after hearing testimony from witnesses for both the prosecution and the defense, including brief testimony from Alexander Martos, who has confessed to killing Swearingen. Modery, 31, of McMurray, is being tried as his accomplice. He is charged with homicide, aggravated assault, kidnapping, robbery, tampering with evidence and conspiracy. Swearingen disappeared Dec. 12, 1999, while on his way to assist with surgery at Uniontown Hospital.
Martos testified that he told District Attorney John Pettit on Sept. 1 that he and Modery went to get sandwiches on Dec. 12 after the incidents with Swearingen. He said he also mentioned that to Pettit in January after his confession.
“I don’t believe it was on the first day I spoke with you, but I think it was during that week that I brought up having been at the Pilot,” Martos said.
Two state troopers who had transported Martos to the interviews with Pettit and had participated in them testified that they did not recall any statement about going to the Pilot Truck Stop until Sept. 1, 2002.
Rabner became upset while questioning trooper James McElhaney, the second trooper to testify that investigators didn’t know the videotape from Pilot contained potential evidence until the Martos interview Sept. 1.
McElhaney, like trooper Patrick Leary who testified Tuesday, said he didn’t always take notes at the interview sessions and didn’t file reports on them.
Rabner pointed out in a loud voice that under court order he is entitled to all statements made by co-defendants in the case and he expressed disbelief that state police officers wouldn’t take notes when questioning a confessed murderer.
“This is a miscarriage of justice, and I’m sorry I have to speak in an argumentative tone,” Rabner said.
Attorney Mark Rubenstein, who is working on Modery’s defense strategy with Rabner, testified that the strategy has focused on the lack of physical evidence tying Modery to the case.
“The strategy was to emphasize as much as we could at every opportunity the lack of forensic evidence, videotapes, or photographs,” Rubenstein said. “With trooper Stauffer (who has testified regarding his initial interview of Modery), it was decided to emphasize Greg’s statements, ‘I want you to look at the videotapes, all the videotapes you have.'”
Rubenstein said he and Rabner had been building the defense believing there were no videotapes connecting Modery to the case.
“I said if there are videos and you go through with this strategy, it’s the worst strategy in the world,” Rubenstein testified.
In his closing argument, Pettit said that he doesn’t doubt that Martos may have mentioned getting sandwiches in January, but he was not aware of the statement at the time.
“It is very clear that if the commonwealth was aware of this and I am in negotiations with someone who may or may not have killed Ira Swearingen, I would have used it at that time,” Pettit said.
Pettit said he also offered Rabner the opportunity to review all physical evidence in the case on request, but the request was never made.
In his closing argument, Rabner reiterated that Pettit violated both rules of discovery and a direct court order to turn over all videotapes in the case, as well as a court order to provide the defense with all codefendant statements.
Rabner said that in addition, the jury would be prejudiced by the new evidence.
“There is no one who has viewed any of the testimony or opening statement in this case who can say the defense has not been prejudiced by withholding this tape. There is no remedy you can give my client other than excluding that piece of evidence,” Rabner said. “If you let the commonwealth get away with this, you are giving this county and the laws of Pennsylvania a black eye,” Rabner told Emery. “I’m not calling the commonwealth liars. I’m not calling the commonwealth deceitful. I’m saying they didn’t follow the rules of court.”
Emery reviewed the case for an hour before issuing her ruling that the commonwealth did not violate discovery rules, since the tape was originally taken into evidence to see if it showed activity at an automatic teller machine where Swearingen’s credit card was used, which it did not.
“It contained no evidence, to their belief,” Emery said.
As for the Sept. 1 disclosure by Martos that he and Modery had been at the Pilot Truck Stop, Emery said there was no evidence that the statement was linked to the videotape until Sept. 8.
“Certainly, there is no duty for the police and the commonwealth to stop the investigation because the trial has begun,” Emery said. “The evidence was duly discovered by the commonwealth and turned over in a timely manner.”
Emery also stated that the new evidence should not affect Modery’s right to a fair trial. She said she reviewed Rabner’s opening statement and found that he did not make any statements regarding videos or photographs.
“You mentioned forensic evidence being scientific evidence such as fingerprints, ballistics or testimony from experts,” Emery said.
Emery said the defense has also never alleged that Modery was never in the company of Martos, so a photo of him with Martos should not be prejudicial.
“I’m disappointed with the judge’s ruling in what I believe to be a clear violation of the rules of discovery and a court order,” Rabner said following the hearing. “I am confident that even with this evidence, I am representing a totally innocent client and that will be proven at the end of the day. I believe that the evidence is overwhelmingly in favor of my client.”
Pettit said he was pleased with how things went on Wednesday.
“I never mind defense counsel being critical of me. That means I’m doing a good job,” Pettit said. “The rulings of the judge, I think, were in accordance with the law.”
Testimony will resume today at 9:30 a.m. in the Modery trial.