Evan Kelly successfully suppressed cocaine, Oxycodone and Marijuana found in client’s home in Attempted Homicide case
WEST CHESTER >> The prosecution in the case of a Honey Brook man facing attempted homicide charges in the shooting of a West Chester University student will not be able to include the presence of illegal narcotics found inside the garage “carriage house” where he was staying when the shots were fired, a Common Pleas Court judge has ruled.
The ruling by Judge David Bortner paves the way for attorneys representing James Maurice Cannavo Jr. to assert a self-defense argument in the case should it proceed to trial, the attorneys said last week.
Bortner ruled that evidence of drug possession — including a stash of marijuana, a bag of Oxycodone pills, another bag with crack cocaine, and a digital scale — found at the scene of the shooting, could not be used at trial because the West Chester police had unwittingly crossed the line between a proper “protective sweep” following a shooting and an improper warrantless search of someone’s property.
“Any evidence seized by the West Chester Police Department that was not in plain view when officers conducted their initial entry and a protective sweep into the structure at Boxwood and Juniper Alleys in the borough … is hereby suppressed,” Bortner wrote in his order, filed May 6. Advertisement
Cannavo will now be able to argue that when he fired a handgun at a closed door in the garage he had been under the impression that someone was trying to break into the dwelling, and that he was thus acting in self-defense.
“We are pleased that Judge Bortner agreed with our position that the police did not have the lawful authority to seize evidence that was not in plain view after conducting a protective sweep of the carriage house,” said attorney Thomas Ramsey of West Chester, one of three attorneys representing Cannavo, in a statement following Bortner’s ruling. “We now look forward to trial to prove that our client was justified in using deadly force against the individuals that were kicking and banging on his door.”
Ramsay said those people were apparently trying “to gain entry into his premises to either assault or rob him.”
Defense attorney Evan Kelly of West Chester, who argued the case on Cannavo’s behalf during a hearing before Bortner in April, explained that had the judge not suppressed the drugs found inside the garage, that line of defense would not have been allowed under state law.
“If someone is breaking into your dwelling by force then it is presumed that you have a reasonable belief that deadly force is necessary to defend yourself,” Kelly said. “But a defendant looses that presumption if he is engaged in criminal activity” such as drug dealing, as the narcotics found by police during their search indicated.
“Since the drugs were suppressed, Cannavo was not engaged in criminal activity and can argue he deserves this presumption since the defense theory is the victim was forcefully entering the residence,” Kelly said. Ramsay and Kelly were joined at the hearing before Bortner by Ramsay’s partner, attorney Marissa Ramsay.
Assistant District Attorney Jonathan Harrar, who is prosecuting the case along with First Assistant District Attorney Michael Noone, had argued in the hearing that police were justified in expanding their search of the garage beyond the first sweep because the owner of the property, landlord Brian Nelson, had given them permission to look around the place. But Bortner said that Nelson could not waive Cannavo’s privacy rights in the matter.
“The court concludes that (Cannavo) had an exclusive privacy interest in these items, and the contents of these items, which could not be validly overcome except by (his) own consent, or the issuance of a search warrant.”
Bortner said his decision hinged on the fact that at some point he told the police searching the garage that he did not own the furniture and other items inside. His authority to consent to a search “terminated” at that moment, he wrote in his eight-page ruling.
Cannavo, 31, a felon with an extensive criminal record dating back to 2004 with convictions for firearms violations, felony assault, and intimidation of witnesses, is currently being held on $100,000 bail in Chester County Prison. His trial is scheduled for later this month.
He is charged with attempted first-degree murder, aggravated assault, recklessly endangering another person, weapons offenses and other charges.
The shooting occurred at about 1:15 a.m. on Nov. 1, the morning after Halloween.
The victim, 19-year-old Fletcher Grady, and others from the university were walking back to their dormitories after stopping on their way home from a party at a local pizza shop. They walked down Boxwood Alley, where they met up with other friends, who told them they were not allowed to enter a party at a nearby house on South High Street, according to testimony at a December preliminary hearing.
A witness said that Grady, who had been drinking, grew frustrated and angry at the news, and turned and banged with both hands on the door to a garage he had been standing in front of. He said he then heard something that sounded “like a door closing.” He and Grady began to walk away, when Grady exclaimed that his side hurt and lifted up his shirt. “I’ve been shot,” he told his friend, before collapsing on the pavement.
A friend called 911.
Ramsay in asking Magisterial District Judge Mark Bruno to dismiss the attempted murder charge, raised the self-defense argument, saying that the prosecution had not shown any intent on the part of his client to kill the victim. “He was trying to protect himself” from someone he thought was attempting to break into his home. “He had no duty to retreat.”
But Noone, who led the preliminary hearing, told Bruno that evidence showed that Cannavo had a surveillance camera above the door of the garage, and could see what was going on outside the building when the victim banged on the door.
“He knew what was going on outside that door,” Noone argued in asking Bruno to hold Cannavo for trial on the attempted murder charge. “He knew what he was shooting at.”
To contact staff writer Michael P. Rellahan call 610-696-1544.