The defense attorney for a man convicted nearly five years ago of kidnap and rape claims the conduct of the prosecution was so egregious that the charges against his client should be dismissed rather than retried.
State Superior Court two years ago ordered a new trial for John D. Yocolano II, now 38, of Monongahela, in connection with an episode involving his ex-girlfriend that occurred Dec. 6, 2012.
On Monday, Washington County Judge Gary Gilman heard testimony from several witnesses and argument presented by Yocolano’s attorney, Noah Geary, and Deputy Attorney General Evan Lowry, who disputed the amount of time that has passed since the appellate court made its ruling on the new trial.
Taking into account various stays and requests for postponements, Geary contends the court-imposed deadline for a retrial has passed, while Lowry calculated that the Commonwealth has until May 2, 2020, to prosecute Yocolano.
Arithmetic aside, “even if they are within the time, retrial should be barred for intentional prosecutorial misconduct” for not turning all photographs over to the defense for Yocolano’s trial in 2015 before Judge John DiSalle.
“If they showed no injuries that could be reasonable doubt right there,” Geary said. “A jury could say, ‘Hmm, I’m not buying this,” because the victim testified in detail at trial about how her wrists and ankles were bound.
Former assistant district attorney Kristin Clingerman testified Monday that she was aware of only ligature wounds photographed at Mon Valley Hospital and turned over all photographic evidence to attorney Neil J. Marcus, who represented Yocolano at trial.
Marcus intended to call Dr. Cyril Wecht as an expert witness to raise doubts about the ligature wounds, but that Wecht was unable to make a determination because photos were blurred.
Lowry questioned what to call photographs that may or may not exist, referring to them at least once as “hypothetical photographs.”
The victim testified she was photographed not only at the hospital, but by the investigating officer and a third time at the courthouse complex by either Clingerman or someone else in the presence of a friend who accompanied her to Washington sometime before a preliminary hearing because bruises appeared after her initial hospital evaluation.
The officer, Alyssa Haines, testified she never photographed the victim, and Clingerman said under oath that she is not trained as a photographer and has never acted as such. Doing so, she said, would disqualify her from the Yocolano case because she would have been bearing witness to the victim’s additional bruising rather than acting as a prosecutor.
“What happened to her was horrific,” Clingerman testified on Monday. “The whole case is extremely serious.”
She informed Marcus of previous protection-from-abuse cases involving Yocolano during the trial just a few days before the defendant was planning to testify. Marcus then changed his mind about calling his client to the stand.
Clingerman said the cases were public record of which the defense could have or should have been aware.
Gilman took the matter under advisement and gave each side 30 days to submit legal briefs.
When Superior Court ordered a new trial for Yocolano, it vacated his 18- to 36-year prison sentence, citing several errors by DiSalle and finding “the prejudicial effect of these erroneous evidentiary rulings were significant and deprived (Yocolano) of a fair trial.”
Yocolano has been free on $1 bond. Clingerman, who now teaches criminal justice at Waynesburg University, said when asked in her capacity as an assistant district attorney that his bond be raised to $500,000, she did so because she thought he posed a threat to the victim, who is the mother of his child, or the child.
A jury found Yocolano guilty on 13 counts, including rape and kidnapping, following a weeklong trial.
The alleged victim and Yocolano had a son together, and an on-again, off-again relationship that precipitated an engagement at one point before the woman broke it off. She testified at trial she went to his apartment to collect their son Dec. 6, 2012 – the same day she’d filed a petition to withdraw a protection-from-abuse order against him she’d previously sought – when he lured her inside, according to her trial testimony.
According to an opinion by Judge Judith Olson, the woman testified Yocolano punched her in the face and began choking her before carrying her to the bedroom, where he bound her wrists and ankles with an electrical cord and raped her multiple times (Olson’s opinion noted Yocolano contends they had consensual sex). The woman fled when a friend came to look for her at Yocolano’s apartment and reported the incident to police.
Olson’s opinion identified several “erroneous evidentiary rulings” by DiSalle as the basis for the decision.
The appellate court cited DiSalle’s decision to improperly bar Yocolano’s trial attorney from calling rebuttal witnesses who would have disputed the alleged victim’s accounts of abuse Yocolano had allegedly committed on previous occasions. “Once the trial court found the evidence was material to explain the complete story, it follows that (Yocolano) should have been permitted to test the veracity of (the alleged victim’s) version of events,” the opinion said.
Olson also pointed to two PFAs against Yocolano involving women other than the alleged victim, which the prosecution produced for the first time on the fourth day of the trial. The appellate judges found the prosecution didn’t explain the reason for producing those documents mid-trial, meaning it didn’t meet its burden of showing “good cause” for the late discovery.
“The Commonwealth could have discovered the third-party PFAs through due diligence prior to the trial and given (Yocolano) proper notice to prepare his defense,” according to the opinion. Olson also concluded DiSalle “did not examine the substance of the third-party PFAs to determine whether the conduct was similar to the alleged crimes” and thus failed to identify the “close factual nexus” necessary to show their relevance to the case.
Finally, the appellate court found testimony by an emergency room doctor and nurse “blurred the line between factual, lay-witness observations and expert testimony requiring specialized knowledge.”
The opinion stated it was appropriate for those witnesses to describe the ligature and strangulation marks they observed when they treated the alleged victim, but improper for them to answer a prosecutor’s questions about whether the injuries were consistent with the woman’s story, when no evidence was presented to show they had the necessary expertise.
According to his First Assistant Dennis Paluso, District Attorney Gene Vittone requested in June that the state attorney general’s office assume jurisdiction in the case.