WILKES-BARRE — Luzerne County President Judge Thomas F. Burke Jr. said prosecutors didn’t do enough to keep an alleged witness to a fatal shooting closer to home.
Burke on Monday prohibited prosecutors from using preliminary hearing testimony from Erik Rodriguez, 18, against alleged killer Joshua Carlos Ovalles.
Ovalles, 20, of Kent Lane, Wilkes-Barre, was charged in the fatal shooting of Vaughn Kemp, 24, outside 174 S. Grant St., Wilkes-Barre, on July 7, 2013. Ovalles’ non-jury trial before Burke on an open count of criminal homicide was set to begin Monday but has been continued generally when prosecutors said they plan to appeal Burke’s ruling with the state Superior Court.
Assistant district attorneys Frank McCabe and Mamie Phillips would like to have Rodriguez in person but he fled the country sometime in April and is living on Dominican Republic.
Ovalles’ attorney, Peter Moses, said prosecutors never “served” Rodriguez with a subpoena or requested to designate him as a material witness.
Burke agreed, saying prosecutors never served Rodriguez with a subpoena that would have included a date and time to appear in court to testify, never requested to have Rodriguez labeled as a material witness and made no efforts to have Rodriguez returned to Luzerne County to testify.
With the trial continued indefinitely, prosecutors moved to amend the bail for material witness Ramon Duvall, who has been jailed since Thursday for lack of $100,000 bail.
Burke changed Duvall’s bail to unsecured, ordering him to maintain daily contact with county Det. James Noone.
Duvall also testified at Ovalles’ preliminary hearing.
Earlier in court, Phillips said Rodriguez, then 17, was declared a juvenile dependent because he was skipping school when the school year began in 2013. She said plans were put into place to have Rodriguez transferred from Wilkes-Barre Area GAR High School to Coughlin High School out of concerns for his safety as a witness, and a school resource officer was transporting Rodriguez to and from school.
“(Rodriguez) had not attended school for the entire school year,” Phillips said.
When Rodriguez turned 18 in December, the juvenile dependent plan ceased, allowing Rodriguez to do whatever he wanted.
McCabe said Rodriguez was concerned to attend classes at GAR because he was a witness to the fatal shooting in that particular school zone, and had just testified at the preliminary hearing in August prior to the start of the 2013-14 school year.
City police Det. Charles Jensen said he learned from Rodriguez’s mother that Rodriguez went to live with his grandparents in Dominican Republic and had no plans to return to the United States.
During the preliminary hearing, Rodriguez testified he was inside the South Grant Street house and heard gunfire. he looked out a second floor window and saw a man holding a pistol and yelling. Rodriguez said he only saw the man discharging rounds in the air.
Rodriguez identified Ovalles’ picture in a photo array presented to him by police during an interview two days after the fatal shooting.