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Killer's latest appeal denied by high court

November 08, 1999|By DON AINES

CHAMBERSBURG, Pa. - A Franklin County man twice convicted of a 1977 double murder may have exhausted his legal remedies now that the Pennsylvania Supreme Court has denied his latest appeal.

"He would face pretty substantial obstacles in getting another hearing," Franklin County District Attorney John F. Nelson said Monday of Gary Lee Rock, who is serving a life sentence at the state prison in Huntingdon, Pa.

The former Fayetteville, Pa., resident was convicted in 1978 and again in 1985 of the July 3, 1977, murders of Fayetteville Fire Chief James W. Cutchall and neighbor Wilbur Brookens.

Both men were shot as they arrived at Rock's cabin off Black Gap Road, which he had set on fire, according to court records. In his second trial he was convicted of two counts of first-degree murder, four counts of attempted murder and four counts of aggravated assault, according to court records.

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Nelson said he was notified by the state Supreme Court last week that it had rejected Rock's most recent appeal. Rock had filed a Post Conviction Relief Act petition in June 1997, seeking to be resentenced for third-degree murder or released.

His petition stated that in his second trial his attorney failed "to file a pretrial motion on double jeopardy grounds based upon the concealment of exculpatory evidence by the Commonwealth during the first trial."

A state trooper testified in his first trial that there were gasoline trails leading from Rock's home, indicating the fire was intentionally set and rebutting his insanity defense.

Rock's petition was the subject of a Feb. 3 hearing before Franklin County Judge Richard J. Walsh during which Rock represented himself. At the hearing he said the trooper who testified about the gasoline trails at the first trial testified differently at a 1982 federal court hearing that led to the first conviction being overturned.

According to court records, Rock failed to file his Post Conviction Relief Act petition during a one-year grace period for old cases that began after the state Legislature amended the act in 1996.

Nelson argued at the hearing that Rock could not seek relief under Commonwealth vs. Jay Smith, a 1992 state Supreme Court ruling on a murder involving the withholding of evidence by prosecutors.

In June, Walsh denied Rock's petition, according to court records. That decision was later upheld by the state's Superior Court and Supreme Court.

"Even if it had been timely ... it (petition) did not raise any deficiencies in the second trial," Nelson said.

"If he has any other avenues to pursue, it would probably be in federal court," Nelson said. "He was back in federal court after his second conviction and that was litigated all the way to the U.S. Supreme Court."

Nelson said both the Third Circuit of the U.S. Court of Appeals and the U.S. Supreme Court affirmed Rock's conviction.

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