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Motion filed to drop 1979 homicide case

June 28, 1999|By DON AINES

CHAMBERSBURG, Pa. - A Chambersburg man charged with killing a friend two decades ago could benefit from a recent Pennsylvania Superior Court ruling on another 1970s criminal homicide case.

Franklin County Assistant Public Defender Nancy Meyers on June 10 filed a motion to dismiss the criminal homicide charge against Michael Wayne McCormick Jr. "based upon excessive and prejudicial delay" between the 1979 shooting and the charge being filed in 1998.

Meyers said her motion was based in part on a June 7 ruling by the Superior Court in Commonwealth vs. Scher, a case dating back to June 2, 1976.

Dr. Stephen Barry Scher was charged June 27, 1997, with criminal homicide in the death of his friend Martin Dillon at Dillon's Susquehanna hunting camp, Gun Smoke.

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Scher, who married Dillon's widow, was later convicted and sentenced to life in prison, but the court overturned the conviction, ruling that the years between the killing and Scher's conviction had harmed his defense.

McCormick, 51, of 526 Vinell Lane, was charged Feb. 6, 1998, with the March 29, 1979, shooting of Alan Bennett Cosey, 23, at Cosey's Waynesboro, Pa., apartment. He died of a gunshot wound to the chest from a black powder pistol he owned.

Cosey's death was ruled a suicide, but the case was resurrected by Pennsylvania State Police two years ago. Cosey's widow, Vicki Lemmon of Chambersburg, had revealed her suspicions about the case to her psychiatrist, Dr. Harvey Shapiro.

Shapiro contacted a private investigator and police later reopened the investigation, according to state police records.

"This delay in the institution of proceedings against the defendant was unjustified," Meyers' motion states. "No new evidence was discovered by the Commonwealth. In fact, the Commonwealth has less evidence now than it had in 1979."

The motion said "several key defense witnesses ... are deceased," including the doctor who performed the autopsy. Except for the pistol, such evidence as autopsy photographs has been lost or destroyed, according to the motion.

"Several key witnesses, because of advanced age and/or the passage of time, have no memory of the alleged crime," the motion states.

It also notes McCormick suffered strokes in 1985 and 1991 that affected his memory.

"Prosecution of this case under the circumstances will violate the defendant's right to due process," the motion says.

A hearing on the motion is scheduled for Aug. 3 before Judge Richard J. Walsh. Meyers said she plans to call a forensic pathologist, ballistics expert and a forensic psychiatrist.

Meyers said a key to the case is Cosey's state of mind at the time of his death. She said the psychiatrist could conduct a "psychiatric autopsy ... and render an opinion as to whether the person was suicidal or not."

"I'm not convinced the Superior Court ruled correctly on this," Franklin County District Attorney John F. Nelson said, adding the case is being appealed to the Pennsylvania Supreme Court.

"The ruling places an undo burden on police in complicated cases" such as homicide, in which there is no statute of limitations, he said.

Nelson would not discuss specifics of the case, but the police affidavit of probable cause dated Feb. 6, 1998, said McCormick "stated that he pulled the trigger on the handgun and shot Cosey in the chest." The statement was made during an interview that day with state police, the affidavit said.

McCormick's case has been continued to September pending the outcome of the Aug. 3 hearing.

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