By SANDRA K. REABUCK
EBENSBURG — Defense attorneys repeatedly asked Judge Timothy Creany on Friday to bar the testimony of the prosecution’s now-deceased star witness at the retrial of convicted murderer Ernie Simmons. He was convicted in the 1992 beating and strangulation death of an 80-year-old Johnstown woman.
Prosecutors want to have the testimony of Margaret Cobaugh read to the jurors at Simmons’ upcoming trial, contending that the defense would be able to raise questions about her credibility through other witnesses.
Creany did not immediately rule on Cobaugh’s testimony, but he did reject a defense motion seeking a change of venue for the trial. The judge decided that an attempt first will be made to choose an impartial jury from among Cambria County residents, starting Jan. 25. Prosecutors again are seeking a death sentence.
At Friday’s hearing, Creany appeared to be sympathetic to the defense’s argument that jurors should be able to judge a witness’ credibility by seeing and hearing Cobaugh’s answers and reactions on cross-examination. The judge gave both sides until Nov. 30 to submit any briefs, saying that he will rule soon after that.
Simmons, 52, who had been living in Johnstown at the time of the homicide, was convicted of first-degree murder and sentenced to death in the slaying of Anna Knaze at her home in the city’s Woodvale section. Her battered body was found May 6, 1992, by one of her sons.
In September, the U. S. 3rd Circuit Court of Appeals upheld a federal district judge’s decision ordering a new trial because prosecutors and police had withheld critical evidence favorable to the defense - much of it dealing with Cobaugh - in the first trial.
Although Simmons’ new trial is set for Jan. 25, it could be delayed. Prosecutors plan to ask the U.S. Supreme Court to accept the case for review and reverse the federal courts’ ruling. Legal experts have suggested that there is little likelihood the case would be accepted by the Supreme Court.
Cobaugh, who died in 2007, identified Simmons as the man who had raped her before Knaze’s body had been found.
Cobaugh testified that the rapist told her to keep her mouth shut or she “would get the same thing Anna Knaze got.”
District Attorney Patrick Kiniry said after the hearing, that the prosecution will be prepared to go to trial Jan. 25 “with or without her (Cobaugh’s) testimony.”
Altoona attorney Thomas Dickey, Simmons’ new court-appointed lawyer, said, however, “Case law requires that Mr. Simmons and his counsel have an adequate and fair opportunity to cross-examine this witnesss.”
Evidence withheld by the prosecution at the first trial shows that Cobaugh “lied” on the stand, Dickey said.
Ken Sottile, a public defender also representing Simmons, said that Cobaugh later recanted her testimony in an interview with another defense attorney and investigator. Sottile asked the judge not only to exclude Cobaugh’s testimony but also any reference to the alleged rape and about Simmons’ being charged with that rape.
