WILKES-BARRE — Prosecutors in a city homicide case are asking a judge to permit use of a Dominican teen’s previous testimony against suspect Joshua Ovalles after the witness left the country.
Ovalles, 20, of Wilkes-Barre, is scheduled to go to trial next week in the July 7, 2013, shooting death of Vaughn Kemp, 24, outside a party at 174 S. Grant St. Witnesses have said they saw Ovalles fire shots into the air.
Meanwhile, another material witness in the case, Ramon Duval, was taken into custody and held in lieu of $100,000 bail, according to court documents.
According to a motion filed by assistant district attorneys Frank McCabe and Mamie Phillips, testimony by then-17-year-old Erik Rodriguez during an Aug. 21 preliminary hearing is admissible under state rules of evidence because it is “essentially impossible” to return him to Wilkes-Barre from the Dominican Republic.
“In prior Luzerne County homicide cases, officials have attempted to secure witnesses from the Dominican Republic with the help of the Federal Bureau of Investigation,” prosecutors wrote. “In the past, local law enforcement officers traveled to the Dominican Republic and unless the witness is willing to voluntarily return, they were unable to extradite the witness.”
The case is scheduled to be heard before Luzerne County President Judge Thomas F. Burke Jr.
A hearing regarding Duval, listed as a Hughes Street resident, was held Thursday. Court documents indicate that if he is able to post bail, Duval must provide his home, work and cell phone numbers and also surrender his passport. Otherwise, he will be transported to court for trial on Monday.
District Attorney Stefanie Salavantis said she could not comment on Duval’s status as Burke had sealed all documents in the case.
Rodriguez, now 18, and another man testified for the prosecution last year at the hearing. He and Duval were among 25 to 30 people who attended a party at the South Grant Street house when Kemp was gunned down.
A Spanish interpreter was used for the two witnesses.
Rodriguez had testified he was inside the house when he heard gunfire. He looked out of a second-floor window and saw a man holding a pistol and yelling. “I only saw him shooting in the air,” the teen said.
Rodriguez initialed his name next to Ovalles’ picture in a photo array presented to him by police during an interview on July 9, 2013.
While “face-to-face accusation” is the constitutionally preferred approach for witness testimony, prosecutors note, they argue that prior recorded testimony from a preliminary hearing is admissible when a witness is unavailable and the government has made reasonable efforts to locate the person and bring them to court to testify.
On July 3, prosecutors wrote, they learned that city police went to Rodriguez’s last known residence and were told that he had moved back to the Dominican Republic with his grandparents and has no plans to return to the United States.
Thus, prosecutors say, Rodriguez is considered an unavailable witness and his prior testimony meets admissibility standards under Pennsylvania rules of evidence.
In an unrelated development, defense attorney Peter John Moses on Thursday filed a motion seeking modification or reconsideration of a 20- to 40-year sentence Ovalles received from county Judge David W. Lupas earlier this month for shooting another man in the face last year.
Ovalles was convicted of attempted homicide in May for a Jan. 9, 2013, gunfire attack on Michael Kubiak, who later identified Ovalles as his assailant based on a photo line-up shown to him.