Pittsburgh Post-Gazette

Judge dismisses case against co-defendant

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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.”

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Robert Thomas

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