Brother testifies against brother to save a third brother

For 13 years, Kenyatta Felder told the judge, he had borne the knowledge that his brother was serving life in prison for a murder he didn't do.

That did not make telling the truth easier. Felder sobbed Tuesday as he told Philadelphia Common Pleas Court Judge Rose Marie DeFino-Nastasi that he knew his brother Lance was innocent - because his brother Robert was not.

"I couldn't handle the burden no more, knowing my brother is in jail for something he didn't do and my other brother is out free," Felder, 32, told the judge.

On Sunday, Felder said, he believed he had persuaded Robert Felder to do the right thing: admit that he drove the getaway car for the gunmen who killed North Philadelphia businessman Thomas Keal in a botched 1995 robbery.

Kenyatta Felder said he believed that Robert, now 38, would testify that Lance Felder and Eugene Gilyard did not kill Keal, because "Rolex" and "Tizz" - street names of two Southwest Philadelphia enforcers who sometimes worked for Robert's drug gang - were the gunmen.

"Until Monday, he said he was going to confess," Kenyatta Felder testified. "He was supposed to be [in court Monday]. He didn't show up."

"Is he here today?" DeFino-Nastasi asked Tuesday.

"No," replied Felder.

Kenyatta Felder testified on the second day of an appeals hearing for Gilyard and Lance Felder - both now 34 - in which their lawyers are asking DeFino-Nastasi to vacate their convictions or grant them new trials.

The petition, filed under the state's Post-Conviction Relief Act, makes the unusual claim that both are "actually innocent" and cites "newly discovered evidence" - a confession to the Keal murder by Ricky "Rolex" Welborn, 34, now serving life for an unrelated killing.

Assistant District Attorneys Laurie Williamson and Robin Godfrey oppose the petition, arguing that it was not filed within 60 days after the defense learned about Welborn's willingness to confess.

DeFino-Nastasi has not ruled on the timeliness motion but decided to go ahead with an evidentiary hearing, which continues Wednesday at the Criminal Justice Center.

Gilyard is represented by the Pennsylvania Innocence Project, based at Temple University's law school, staff lawyer Charlotte Haldeman Whitmore and civil rights lawyer David Rudovsky. Lance Felder's attorney is veteran civil rights lawyer Jules Epstein, a Widener University law school professor.

Gilyard and Lance Felder were found guilty and sentenced to life without parole based on a single piece of testimony: an eyewitness identification made two years after the fact by Keal's daughter from a police photo array.

Tonya Keal was a 29-year-old mother taking her young son to the bathroom about 2 a.m. Aug. 31, 1995. She was living in an apartment above her father's seafood restaurant at 17th Street and Erie Avenue and, according to trial testimony, heard a blast and looked out the window.

On the sidewalk lay her 52-year-old father. Tonya Keal testified she saw one man holding a sawed-off shotgun stand near the body as another put a revolver to her father's head and fired several times.

But it was not until December 1998 that Keal, shown police photo arrays, identified Gilyard as the man with the shotgun and Lance Felder as firing the revolver. It was her identifications - there was no physical evidence - that convicted them.

Now 46, Keal signed the Pennsylvania Innocence Project letter asking the District Attorney's Office to review the case against Lance Felder and Gilyard.

Gilyard's and Felder's freedom is not assured and the reasons have as much to do with the "no-snitch" culture of the streets as appellate law and the difficulty of trying to upset a verdict.

Even in his confession, Welborn refused to identify "Tizz."

The night Keal was killed, there were a half-dozen witnesses who could have vouched that Gilyard and Lance Felder - then teenagers selling drugs for Robert Felder - were at their usual station several blocks away outside a Chinese take-out at 17th and Atlantic Streets.

Among the witnesses was Kenyatta Felder, who testified that Welborn and Tizz had stopped by to tell them they were going to rob someone. They watched as Robert Felder drove off with the gunmen, he said.

Ten minutes later they heard the shots and ran toward them, discovering Keal's body.

Kenyatta Felder, then 14, testified that his brother Robert told him to keep quiet and he did not question the order.

The Felders' father was absent and their mother had died two years earlier. Robert Felder was our "sole provider," Kenyatta Felder testified, and was not above physical punishment to enforce his will.

He said Robert once "split my head open with a concrete flower pot." The message was clear: "If you tell, you die."