Judge dismisses case against co-defendant
Just an hour before testimony in the death penalty case against two men accused in the 2016 mass shooting in Wilkinsburg was scheduled to start, the judge presiding over the trial threw out the charges against one of them.
It was a shocking turn of events in a case that has been filled with them in the past month.
Allegheny County Common Pleas Judge Edward J. Borkowski said Monday morning that, over the past three days, he had read every page of every transcript and every page of every motion in the case against Robert Thomas.
His conclusion, he said, was that the charges against the 31year-old from Homewood could not stand. He granted a defense motion to dismiss the case.
That meant that only Cheron Shelton, 33, of Lincoln-Lemington, would go to trial for the March 9, 2016, shooting that killed siblings
Jerry Michael Shelton, 35, Brittany Powell, 27, and Chanetta Powell, 25, who was eight months pregnant; and their cousins Tina Shelton, 37, and Shada Mahone, 26. Three others were wounded.
Defense attorney Casey White filed a motion late Thursday alleging that the prosecution did not have enough evidence to proceed against Thomas, prompted by the
decision earlier that day by the district attorney’s office to not call a cooperating jailhouse witness who allegedly had evidence against Thomas.
That witness was the third such person from the jail prosecutors attempted to use. Now, they will use none.
“They are treacherous waters, we know that from experience,” Judge Borkowski said of jailhouse witnesses.
“The commonwealth is left with some good circumstantial evidence” against Shelton, the judge continued.
A gag order prohibiting Mr. White from commenting remains in effect. He hugged Shelton’s counsel as he left the courtroom.
The dismissal comes after more than a week of motions, argument and accusations of prosecutorial misconduct. In Mr. White’s motion on Thursday, he cited that the district attorney’s office decided just earlier that day it would not be calling at trial a controversial jailhouse informant who claimed to have evidence against his client. Mr. White asked that the case against Thomas be thrown out.
The decision by the Allegheny County District Attorney’s Office to not present testimony from the person known as Witness No. 3 marked the third time prosecutors were prepared to use a jailhouse informant only to reverse course.
The testimony of the unidentified informant was put in jeopardy last week when it was revealed that he had confessed to killing a 15-month-old boy in 2013 but was not charged, and that he received financial consideration and relocation help from the authorities. None of that had been disclosed until recently.
Defense lawyers went berserk at the revelations and accused the DA’s office of deliberately holding back information that the defense could use to either help clear their clients or impeach the credibility of the witness.
The lawyers characterized Witness No. 3 as a crucial part of the case against Thomas.
On Thursday, the four defense attorneys — Mr. White and Michael Machen, and Shelton’s lawyers Wendy Williams and Randall McKinney — jointly filed a 26-page motion alleging prosecutorial misconduct and violations of rules that govern the turning over of evidence.
They wrote that “it becomes apparent that there has been a pattern of egregious non-disclosure and burying of Witness No. 3’s statements from the district attorney’s office.”
Judge Borkowski ruled Friday that there was no misconduct, although he said there were “shortcomings” in the way the prosecution handled the issue.
An hour after Thomas was dismissed from the case, the selected jurors filed into the third-floor courtroom to find just Shelton and his two attorneys sitting at the defense table.
In his opening instruction to them, Judge Borkowski told the panel that it will only deliberate the case against Shelton.
“The case of Commonwealth v. Robert Thomas is no longer before you. In that regard, your task becomes narrower,” he said. “You are not to draw any adverse or positive conclusion to the commonwealth or Mr. Shelton.”