New evidence triggers mistrial in Monessen attempted homicide case

A Westmoreland County judge on Thursday cut short the attempted murder and conspiracy trial of two Monessen men, saying damaging evidence against the defense was turned over too late by prosecutors.

Common Pleas Court Judge Christopher Feliciani said the mistrial in the combined case against Joseph “Jo Jo” Heath III and Rashawn Ford was necessary because defense attorneys did not have enough time to properly prepare to question the alleged victim, who claimed he was shot by Heath on June 25, 2017.

Prosecutors did not intentionally withhold information, Feliciani said.

“… But the new information significantly impeded the defense’s ability to formulate a cross examination of the witness and another witness who previously testified,” the judge said.

District Attorney John Peck said prosecutors and police met last week with Timothy “Boo” Kershaw, who was shot as he attempted to run away from his assailants on Summit Avenue. Kershaw provided new information that further implicated Heath and Ford, according to Peck.

Assistant District Attorney Adam Barr, the lead prosecutor in the case, notified defense attorneys Emily Smarto and Ryan Tutera about the new information as jurors were being led into the courtroom Thursday morning in preparation to hear Kershaw’s testimony.

Following a heated private exchange with the judge, followed by more arguments behind closed doors, Feliciani granted the defense’s request for a mistrial.

Barr referred all questions about the case to Peck, who said prosecutors did nothing inappropriate.

“We don’t know what a witness will say until we know about it. We didn’t plan on using that information, but it’s clearly inculpatory and incriminating to the defendant,” Peck said.

Smarto and Tutera declined to comment.

The defense had sought a mistrial at the start of the case this week, claiming prosecutorial misconduct for failures to turn over evidence about Kershaw’s criminal past and whether he he agreed to testify in return for having drug possession charges dismissed that stemmed from the night he was shot.

Police found bags of heroin and more than $1,400 in cash on Kershaw as he was being treated for his gunshot wound. Defense lawyers said they didn’t learn that police returned the money to Kershaw before he was charged.

That charge against Kershaw was dismissed in October by a magisterial district judge in Monessen and so far has not been refiled. Prosecutors this week maintained there is no deal with Kershaw to ensure his testimony against Heath and Ford.

“He’s the victim,” Peck said. “We expect him to come forward. We don’t offer victims a deal to come forward.”

Barr told the judge that the prosecution was likely to seek a new trial for Heath and Ford.

Heath, 29, is charged with 14 counts, including attempted murder, aggravated assault, robbery and conspiracy. Ford, 23, was charged with two counts of conspiracy.

Both men will remain in jail until at least next week, when Feliciani will conduct a hearing to determine if they should be released on bail pending a new trial.

Rich Cholodofsky is a Tribune-Review staff writer. You can contact Rich at 724-830-6293 or rcholodofsky@tribweb.com.