DNA evidence clears 2 in stabbing case

Two men accused of a robbery-turned-violent stabbing of a Southwest Philadelphia store owner - who rushed to his daughter's aid when one of the robbers grabbed her - were exonerated yesterday after DNA results cleared them of the horrific crime.

Terrell Nelson, 22, and Zinnah Tobert, 21, both of the Eastwick section of Southwest Philadelphia, had been charged with attempted murder, conspiracy, robbery and related offenses in the May 4 attack at Whalen's Deli, on Elmwood Avenue near 74th Street, also in Eastwick.

Yesterday, Christopher Diviny, chief of the District Attorney's Major Crimes Unit, withdrew all charges against the two men before Common Pleas Judge Rose Marie DeFino-Nastasi.

DNA analysis done on "pieces of evidence collected at the scene" excluded Nelson and Tobert as the suspects, Diviny said. He said that his office received the DNA results late Monday. He would not say what the evidence was.

He said that a knife recovered from a sewer near the store was tested, but did not have enough evidence on it to yield "any kind of result."

Lt. John Walker, of Southwest Detectives, later said that the DNA results linked two other men to the crime. He identified one as Terrell Byard, 22, of Rosella Street near Elmwood Avenue, Eastwick. Walker said that Byard is in custody on unrelated charges involving store robberies.

Walker would not name the other man, a 20-year-old, because he has not been arrested. He said yesterday afternoon that arrest warrants for the two men had not yet been signed.

Earlier yesterday, Nelson's attorney, Willie Lee Nattiel Jr., said that he was "livid" because his client has been jailed for months based on false accusations. "This drives me crazy, because I told them [authorities] from the beginning that we could have waited on the preliminary hearing until we got DNA," he said. "All they had to do was check this information out."

At a preliminary hearing for Nelson and Tobert in June, Nattiel said that the store owner, Edward Whalen, 51, and his daughter, Ashley Whalen, 26, wrongly identified his client as the man who stabbed the father nine times.

Ashley Whalen had testified that the robber with the knife wore a dark bandanna covering his nose and mouth, but that she saw his eyes and his build.

The father and daughter identified Tobert as the other robber, who had come into the store about 4 p.m., and who had a gun.

The Whalens could not be reached for comment yesterday.

Nattiel said that he is considering whether to ask authorities to investigate how his client was wrongly accused.

Nelson and Tobert were not in court yesterday. As of early yesterday evening, they were still in custody, according to the prison record room.

William Reilly, Tobert's attorney, said yesterday that he was pleased that DNA evidence had vindicated his client.

Nattiel contended that someone in Southwest Detectives suggested to Ashley Whalen that Nelson was the man who stabbed her father. Though she was able to see only the robber's eyes, she quickly picked Nelson out of a lineup, he said.

"You have a white female crying foul" against a black suspect, and authorities will believe her, he said, warning of the weaknesses in cross-racial identification.

When asked whether police had influenced Ashley Whalen, Walker, of Southwest Detectives, later said: "Absolutely false, that wouldn't happen on our end." He said that the assigned detective was not at the lineup, that there wouldn't have been an opportunity for anyone to influence her and that such practice is not condoned.

Walker said that Nelson and Tobert had been arrested after witnesses in the store - not the father or daughter - picked their photos from a police imaging machine.

"The people were credible people in the community," Walker said. "They had no contacts with police. In their minds, they believed these were the right two people responsible [for the robbery and stabbing]."

Once DNA results came in, he said, police linked the crime to the two other men through a police computer database.