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Pa. man won't be tried in 1979 death

July 01, 2004|by DON AINES

chambersburg@herald-mail.com

CHAMBERSBURG, PA. - A Chambersburg man charged six years ago in the 1979 shooting death of a Waynesboro, Pa., man will not be tried, according to Franklin County District Attorney John F. Nelson.

Nelson said Wednesday he has prepared a petition to dismiss the criminal homicide charge against Michael Wayne McCormick because of insufficient evidence, after the Pennsylvania Superior Court last month upheld a Court of Common Pleas ruling by Judge Richard J. Walsh that a statement McCormick made to police was inadmissible.

"Without the statement of the defendant, the commonwealth doesn't have enough evidence to go forward," Nelson said.

"Thank God, is all I can say," McCormick, 56, said Wednesday. "I'm going to relax myself for once instead of being nervous all the time."

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Pennsylvania State Police charged McCormick in 1998 with the death of Alan Bennett Cosey, 23, who died of a gunshot wound to the chest on the night of March 28-29, 1979, according to court records. Cosey's death, which was reported to police by McCormick, was ruled a suicide at the time.

Vickie Lemmon, who was the estranged wife of Cosey at the time of his death, had told her psychiatrist over the years that she believed her husband had been murdered, according to police records. In 1997, the psychiatrist contacted a private investigator who contacted state police, according to court documents.

Lemmon said Nelson's decision came as a surprise.

"I was expecting to go there today to learn what his court date was, not that they were dropping the case," she said.

McCormick, who said two strokes have left him disabled, maintains he was not responsible for Cosey's death.

"There was nothing I could do about it," McCormick said. He said it happened so fast he was unable to stop Cosey from shooting himself.

"When he shot himself, he fell flat backward and I went for help. That's all I could do," he said.

In February 1998, McCormick submitted to a polygraph test and interviews with police at the barracks in Chambersburg. According to allegations in court records, McCormick admitted on Feb. 6 to helping Cosey shoot himself.

A trooper stated McCormick told police on Feb. 6 he and Cosey "were tugging back and forth on the gun and he decided to pull the trigger to help his friend commit suicide," according to court records.

Police did not record the statement, or have a signed statement from McCormick, according to his attorney, Eric Weisbrod.

In 2000, Walsh "threw the case out based on pre-arrest delay," Nelson said. The prosecution appealed that decision to the Pennsylvania Superior Court, which reversed Walsh's ruling.

Weisbrod said he filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied.

Weisbrod said the case went back to Walsh, who ruled on remaining defense motions, including one to suppress McCormick's Feb. 6, 1998, statement to police. Walsh granted that motion in 2003, ruling that a Miranda waiver McCormick signed for the polygraph test did not apply to his subsequent interrogation by police.

The judge 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.

Nelson disagreed, saying Wednesday that McCormick was not in custody and was allowed outside the barracks unattended during questioning to smoke and have coffee. Nelson said, however, he did not have specific grounds to appeal the Superior Court's ruling to the Supreme Court.

"Maybe I'm fighting a losing battle, but I'm not ready to give up," Lemmon said Wednesday after talking with Nelson.

"You just don't shoot yourself in the heart and re-cock the pistol," she said of evidence in court records that the gun, which Cosey owned, was found with the hammer on a live chamber, not the one that discharged the fatal bullet.

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