Lawyers for John Kunco, the former Harrison man who served nearly three decades behind bars for the rape of a New Kensington woman, wants a judge to dismiss the case.

In court motions filed Thursday, lawyers contend missing evidence and the loss of testimony through the deaths of the alleged victim and an investigator precludes Westmoreland County prosecutors from moving forward with the 1990 rape case.

Kunco, 53, of McKees Rocks was convicted of the 1990 rape of the 55-year-old woman. Prosecutors said Kunco broke in to her New Kensington apartment, blindfolded her with her underwear, shocked her with a frayed electrical cord, then raped her and forced her to perform sexual acts.

His claimed at a trial in 1991 that Kunco, a maintenance man at her apartment building, was her attacker.

She identified him by his distinctive lisp.

After serving more than 28 years of a 45- to 90-year prison sentence, Common Pleas Judge Christopher Feliciani in May vacated Kunco’s conviction and ordered a new trial.

According to Thursday’s court filing, lawyers from the Innocence Project in New York and Pittsburgh attorney Thomas Farrell contend a rape kit collected from the victim after the attack has been lost. DNA evidence collected from the kit could have been used to exonerate Kunco, the defense claims.

“Post-conviction DNA testing of existing evidence collected from the crime scene has already excluded Mr. Kunco as the source of male DNA. In light of these results, additional DNA testing from the rape kit would also likely exclude Mr. Kunco as contributor of that DNA, conclusively proving that he was not the assailant,” the defense claims.

The defense also wants the judge to bar prosecutors from reading to jurors testimony from his accuser, who has since died, because they would not be able to question her about her identification of Kunco.

“(The victim) could not see the assailant both because she had vision problems and her face was covered during the attack. Despite this, she identified Mr. Kunco as the assailant because of his manner of speech matched the assailants,” defense lawyers said.

The New Kensington police detective who secured the woman’s identification based on Kunco’s lisp also has died, and his testimony from the 1991 trial should also be barred, according to the defense.

In vacating the conviction, Feliciani said he was troubled by the lisp testimony at trial.

The judge also cited new DNA findings that failed to link Kunco to the rape scene and questioned evidence prosecutors presented at trial that healed bite marks found on the woman were made by Kunco.

Kunco maintained his innocence at trial and continued to do so during his decades behind bars.

Kunco was freed on bail in May after his conviction was overturned. He was returned to jail in August after he was arrested in Allegheny County and charged with the sexual assault of a young child. His trial in that case is scheduled to begin March 28.

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