Published: November 17, 2009 11:29 pm      

DA wants old testimony to be heard at new trial

EBENSBURG — Cambria County prosecutors want the testimony of their star witness from convicted murderer Ernest Simmons’ first trial in 1993 to be heard at his retrial even though she’s now deceased and questions have been raised about whether she recanted what she said.

Simmons, 52, was convicted in 1993 in the brutal beating and strangulation of 80-year-old Anna Knaze of Johnstown’s Woodvale section. Her battered body was found by one of her sons on May 6, 1992, in her Woodvale home.

Prosecutors and defense attorneys are gearing up for a second trial for Simmons early next year, even though the district attorney’s office is hoping to get his conviction reinstated.

In September, the U.S. 3rd Circuit Court of Appeals upheld a federal district judge’s decision ordering a new trial because the prosecution withheld critical evidence favorable to the defense in the first trial.

The district attorney’s office is now preparing a petition to ask the U.S. Supreme Court to accept the case for review, but legal experts say it’s unlikely the nation’s highest court will take the case.

The star witness at the 1993 trial was Margaret Cobaugh, who identified Simmons as the man who had raped her

13 hours after Knaze had been murdered but before her body had been found. Cobaugh said that the man who had attacked her told her to keep her mouth shut or she “would get the same thing Anna Knaze got.”

Cobaugh died Oct. 30, 2007, at the age of 78.

District Attorney Patrick Kiniry declined to comment this week on the impact on the prosecution’s case if Cobaugh’s testimony will not be admitted at the second trial. His office has filed a motion asking Judge Timothy Creany to permit Cobaugh’s testimony to be read into the record at the second trial.

Defense attorneys are expected to oppose the motion because of questions that surfaced in 2004 about her testimony.

The Innocence Institute of Western Pennsylvania at Point Park College and the Pittsburgh Post-Gazette published a scathing report alleging that Cobaugh had told reporters she lied on the stand.

But, in a follow-up interview by The Tribune-Democrat, Cobaugh insisted, “I did not lie.

“I would go on the witness stand today and say the same thing. I didn’t find him guilty.

“The jury did.”

In the Innocence Institute report, Cobaugh was quoted as saying she had been influenced by former Johnstown Detective Richard Rok, the chief investigating police officer in the murder. He allegedly told her he “was positive that Ernest Simmons did it, but he had no proof of it ... He didn’t have a witness,” according to the institute.

Prosecutors have not said whether Rok will testify at the retrial. Now working for the county probation office, Rok served time in a federal prison after he pleaded guilty to a federal offense of violating a suspect’s rights by repeatedly kicking him during an arrest in the 1990s.

Johnstown Detective Sgt. Tom Owens, who heads the city’s detective bureau, has been working closely with the county prosecutors in recent weeks.

In the motion seeking to have Cobaugh’s testimony admitted at the new trial, David Kaltenbaugh, first assistant district attorney, said that the defense’s cross-examination of Cobaugh at the 1993 trial had been “full and fair.”

But Kaltenbaugh acknowledged that the decisions ordering a new trial maintained that the prosecution and police had failed to disclose:

n Cobaugh’s failure to identify Simmon’s photo from the police’s mug-shot books.

n The dismissal of charges against Cobaugh for lying on an application for a gun after she had been attacked. She had failed to disclose she had a felony record from 1951 that would have prevented the purchase.

n Inconclusive results by the state police lab on evidence pertaining to the sexual assault.

Kaltenbaugh suggested that the defense could be allowed at the new trial to attack her testimony by raising those points.

Simmons is due back in county court Friday for a hearing on whether there should be a change of venue for the second trial. It’s unclear whether Creany will address the Cobaugh testimony at that hearing.