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D.A. to appeal court's homicide ruling

July 15, 2003|by DON AINES

chambersburg@herald-mail.com

CHAMBERSBURG, Pa. - A 24-year-old criminal homicide case is headed back to Pennsylvania Superior Court for a second time after Franklin County District Attorney John F. Nelson said he would appeal a lower court ruling throwing out a statement Michael Wayne McCormick Jr. made to Pennsylvania State Police more than five years ago.

Nelson's decision will further delay any trial for McCormick, whose case was set for jury selection Monday.

McCormick, 55, of 526 Vinell Drive, Chambersburg, was charged in 1998 with the March 29, 1979, death of Alan Bennett Cosey, 23, of Waynesboro, Pa. Cosey's death originally was ruled a suicide.

On June 18, Common Pleas Court Judge Richard J. Walsh granted a defense motion to suppress a statement McCormick allegedly made to police following a Feb. 6, 1998, polygraph examination.

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According to Walsh's ruling, police told McCormick he had failed the examination, even though the trooper who administered the test "actually scored the results of the examination as inconclusive."

McCormick then told police he had been trying to wrest a black powder revolver from Cosey, "but eventually gave up and pulled the trigger," Walsh wrote. In 1979, McCormick told Waynesboro police he had been with Cosey on the night of his death, but was not present when he died, according to court records.

It was McCormick who reported finding the body in Cosey's Waynesboro apartment. State police re-opened the case in 1997 after Cosey's widow told her psychiatrist about her suspicions that McCormick killed her husband.

On Feb. 4, 1998, McCormick allegedly gave police a statement indicating that Cosey shot himself in the chest as McCormick tried to wrestle the gun from him. He allegedly told police he had placed the gun in Cosey's hand "to make sure it looked like a suicide," according to the ruling.

Two days later, police asked him to take the lie detector test.

Weisbrod said police did not record the Feb. 6 statement, or get a signed statement from McCormick.

Walsh denied a defense motion to suppress the Feb. 4 statement. He also denied attorney Eric Weisbrod's motion to dismiss the case for lack of evidence at McCormick's May 28, 1998, preliminary hearing.

Walsh ruled, however, there was probable cause established at the hearing. Evidence included the lack of gunpowder burns on Cosey's T-shirt and not enough gunpowder residue on Cosey's hand to indicate he had fired the weapon.

Additionally, the hammer of the handgun was on a loaded cylinder, not the cylinder that discharged the fatal shot.

In the case of the Feb. 6 statement, Walsh ruled the Miranda waiver McCormick consented to at the beginning of the polygraph examination should not have applied to the subsequent interrogation by three troopers. The judge also wrote that McCormick was under "custodial interrogation" because "a reasonable person ... would likely believe that his personal freedom was impaired in a significant way" during questioning.

"I just think he's wrong on the law," Nelson said when asked why he intended to appeal Walsh's ruling.

Walsh had previously dismissed the charge against McCormick, ruling on March 20, 2000, that the delay between the incident and the filing of the charge was prejudicial because of a pre-trial delay. The superior court reversed Walsh's decision on April 6, 2001, according to court records.

The Pennsylvania Supreme Court later declined to hear McCormick's appeal, which sent the case back to Common Pleas Court.

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