WILKES-BARRE — The Luzerne County District Attorney’s Office filed an appeal of a judge’s ruling that excluded the testimony of a witness in the pending homicide trial of Joshua Ovalles.
The notice of appeal to the state Superior Court was filed Thursday, saying the order by President Judge Thomas F. Burke Jr. on July 14 “terminates or substantially handicaps” the prosecution.
Burke ruled the prosecution could not use the preliminary hearing testimony of 18-year-old Erik Rodriguez. The judge said the prosecution failed to keep the witness, Erik Rodriguez, in the country and available for the non-jury trial last month. Rodriguez fled to the Dominican Republic in April to live with his grandparents.
Attorney Peter Moses, who represents Ovalles, said Rodriguez was not served with a subpoena and that the prosecution did not designate him as a material witness for the bench trial before Burke.
Burke agreed with the defense’s argument that there was no subpoena served with a date and time to appear in court to testify. In addition, the judge determined that the prosecution did not attempt to return Rodriguez for the trial.
At the preliminary hearing for Ovalles, 20, Rodriguez testified he heard gunfire outside a South Grant Street residence, looked out the window and saw a man firing a pistol into the air. He later identified Ovalles from a police photo array.
Ovalles, who is being held without bail, was charged in the fatal shooting of Vaughn Kemp, 24, outside a Grant Street residence on July 7, 2013.
Prior to the judge’s ruling, Ovalles was sentenced on July 1 to 20 to 40 years in prison for a Jan. 9, 2013, shooting after a jury convicted Ovalles of attempted homicide, aggravated assault and other charges in the shooting of Michael Kubiak.
The shooting occurred while Kubiak and Ovalles were driving to buy heroin in Wilkes-Barre. Kubiak drove himself to Wilkes-Barre General Hospital and later identified Ovalles from a photos shown to him by police.