WILKES-BARRE – A Luzerne County judge on Thursday denied a Tobyhanna man’s request to have homicide charges brought against him thrown out.
Judge Joseph Augello denied the habeas corpus request of Fernando Gotay, 25, to have charges thrown out in a case in which prosecutors say he shot and killed 22-year-old Donald Spry last December.
The decision came after several hours of testimony, including from Jared Goodwin, who was present at the South Hancock Street residence the day of the shooting.
Goodwin testified he and two of his friends, Tyree Harris and Spry, went to the South Hancock Street house to buy marijuana from Gotay.
Goodwin, 17, who is currently incarcerated, said he was carrying a .45-caliber handgun and his half-brother, Spry, was carrying a .357-caliber gun.
Goodwin said the three men went there to rob Gotay and his friend, Matthew Garcia, of money, jewelry and drugs. Goodwin testified he and Gotay talked about paying for 4 ounces of marijuana when Spry asked to use the bathroom.
A few minutes later, Spry emerged from the bathroom, pointing his gun at Gotay’s brother-in-law, Peter Melendez.
Spry said “Don’t move,” Goodwin testified, and then Gotay aimed his gun, a 9 mm semi-automatic, at Spry, followed by Goodwin, who pointed his gun at Gotay.
Goodwin said he didn’t know who fired first. Goodwin said he ducked behind a couch after firing six rounds from his gun. That’s when he heard three more shots and stood up to find Spry lying on the floor.
“Gotay said ‘Don’t move or I’ll kill you like I killed your friend,’ ” Goodwin said.
Investigators also testified about items seized in searches of Gotay’s father’s home in Tobyhanna and a vehicle belonging to Melendez.
County Detective Daniel Yursha and Wilkes-Barre Detective George Hudock, said they found a jacket that Gotay wore during the shooting, as it had a bullet hole consistent with a gunshot wound Gotay received. Yursha also said he found money and marijuana in the pockets of the jacket.
In the vehicle, Hudock said, he found marijuana, scales, three cell phones and a 9 mm black Glock handgun.
Gotay’s attorneys, John Pike and Robert Buttner, argued their client acted in self-defense.
Pike and Buttner argued that items found in Melendez’s vehicle can’t be placed with Gotay because he does not own the vehicle and Gotay has cooperated from the beginning.
Gotay is scheduled to stand trial on homicide charges on Jan. 5.