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Ruling revives old homicide case

April 10, 2001

Ruling revives old homicide case



By DON AINES / Staff Writer


CHAMBERSBURG, Pa. - A decision by a Pennsylvania Superior Court panel could mean that a Franklin County man will again face a criminal homicide charge in the 1979 shooting death of a friend.

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In a 2-1 ruling Friday, the three-judge panel overturned Franklin County Court of Common Pleas Judge Richard J. Walsh's March 2000 dismissal of the charge against Michael Wayne McCormick, 52.

Pennsylvania State Police in 1998 charged McCormick, of Chambersburg, with the March 1979 shooting death of Alan Bennett Cosey. The charge was filed based on statements McCormick was alleged to have made during police interviews in February 1998, according to court records.

Waynesboro police initially determined that Cosey's death was a suicide, but state police reopened the case in 1997 after Cosey's widow, Vicki Lemmon, confided suspicions about her husband's death to a psychiatrist.

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Dr. Harvey Shapiro then contacted a private investigator who convinced police to take another look at the case.

Walsh dismissed the criminal homicide charge last year, ruling McCormick had been denied due process because witnesses had died and evidence had been lost or destroyed during the intervening years.

"At this point we're on hold," District Attorney John F. Nelson said Tuesday. He said the Superior Court has yet to remand the case back to the Court of Common Pleas and there are still options open to McCormick and his attorney, Eric Weisbrod.

"My inclination is to file the petition for allowance of appeal with the Supreme Court," Weisbrod said. That has to be done within 30 days, but the court could take months before even deciding whether to hear the appeal.

Weisbrod called the Superior Court's decision "ridiculous," saying the panel decided "the burden is on the defendant because he basically failed to confess."

McCormick "was concerned, but I would say optimistic, about the outcome," Weisbrod said. His client was out on bail when the charge was dismissed last year.

Cosey, 23, was found dead in his Waynesboro apartment in March 1979, according to court records. McCormick reported finding the body, according to police records.

Cosey died of a gunshot wound to the chest from a replica Civil War black powder pistol he owned, court records said. Almost 19 years passed before police reopened the investigation.

At the time Walsh dismissed the charge, McCormick was represented by Assistant Public Defender Nancy Meyers. Now an assistant district attorney, Meyers declined to discuss the case Tuesday.

Last year, however, she said McCormick had been charged after 11 hours of police questioning without legal counsel over two days. Police had not recorded the interrogation, nor had McCormick signed a statement admitting guilt, Meyers said at the time.

The Superior Court panel ruled the delay had hurt McCormick's case, but said Walsh's ruling was flawed because prosecutors "did not intentionally or negligently" contribute to the delay.

"Any delay was caused by Mr. McCormick's own lies to the police," Judge Joseph A. Hudock wrote in an opinion joined by Judge Correale F. Stevens. "Moreover, the record shows police followed all appropriate leads at the time of the original investigation, and reopened the case when new information became available."

In a dissenting opinion, Judge John L. Musmanno said prosecutors were "patently negligent" in waiting so long to charge McCormick. Musmanno wrote that the only new evidence was McCormick's allegedly self-incriminating statement.

"It is simply unrealistic to assume that a murder suspect will assist the police in his own conviction," Musmanno wrote. "While a prosecution may be hindered by lies, the commonwealth's job ... is to get beneath the surface of possible deception by those involved."

Weisbrod said McCormick's case could rest on how the Pennsylvania Supreme Court rules on a similar case. In 1997, Dr. Stephen Scher was convicted on a charge of first-degree murder in the 1976 death of his friend Martin Dillon at a hunting camp in Susquehanna County.

The conviction was thrown out in 1999 on grounds that the 20-year delay between the shooting and the filing of charges deprived Scher of his due process rights. Dillon's death had originally been ruled accidental.

The Superior Court's ruling was the opposite in McCormick's case, in that it decided he had not been denied due process despite the years that elapsed between the death and filing of charges, according to Weisbrod.

There is no statute of limitations on murder in Pennsylvania, Nelson said.

The Associated Press contributed to this story.

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