The Tribune Democrat, Johnstown, PA

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March 17, 2014

Simmons case goes before Pa. high court

— The state Supreme Court will hear oral arguments on an appeal filed on behalf of convicted killer Ernest “Ernie” Simmons next month.

Simmons, 56, was on death row for the 1992 murder of Anna Knaze, 80, of Johnstown when the higher court in 2009 ordered a new trial.

Instead of going to trial, Simmons agreed to a plea deal to third-degree murder, which got him out of prison with credit for time served.

He was placed on probation for six months to 10 years, but landed back in prison after he allegedly threatened to kill a man.

Scott Lilly, chief of the Cambria County district attorney’s appellate division, will argue that Judge Timothy Creany ruled correctly when he revoked Simmons parole in February, 2011, and sent him back to prison.

“The Supreme Court takes very few cases for appeal. This one could have impact on probation and parole violations,” he said.

“The court probably will determine the definition for assultive behavior. It absolutely will be precedent setting.”

The state’s highest court is expected to hand down a two level decision, providing a definition for assultive behavior and determination of whether Simmons’ actions were assultive behavior when he told a number of people he intended to kill an acquaintance,  Lilly said.

He never acted on the threat that he allegedly made to a number of staff at Dubois Regional Medical Center. He also allegedly made the threat to his then-girlfriend, a woman he met while living at the Just for Jesus halfway house in Brockway, Jefferson County.

Representing Simmons will be court-appointed Altoona attorney Thomas Dickey.

“I am all ready, and my heart’s pounding,” Dickey said.

He will argue that Simmons, even though he was on parole, still had a right to speak.

“We think it’s a First Amendment freedom of speech issue and it didn’t rise to that level (of parole violation.)”

Lilly disagrees.

“It is not a First Amendment case. It has nothing to do with the First Amendment,” he said.

The definition of assultive behavior has been addressed in lower-court cases, but it covers a broad spectrum of patterns.

Unlike the state Superior Court, the Supreme Court has no time limit for arguments.

Lawyers however, are not to be repetitive and are told to be aware when the chief justice indicates the panel has heard enough, according to the letter announcing the April 9 argument date.

Kathy Mellott covers the Cambria County courthouse for The Tribune-Democrat. Follow her on Twitter at twitter.com/kathymellotttd.

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