Horner gives up appeals

The U.S. Army veteran whose murder trial last year focused on the issues of post traumatic stress and the treatment he received has decided – against the advice of his lawyer – to give up his appeals.

Nicholas Adam Horner, 33, a Johnstown native who was living in Altoona with his wife on April 6, 2009, is serving consecutive life sentences plus 29-58 years for two killings that occurred during a robbery of the 58th Street Subway.

Horner’s attorney, Thomas M. Dickey, wanted to present an insanity defense to the Blair County jury that heard the case, but it was denied by Blair County President Judge Jolene G. Kopriva because experts could not rule out alcohol as a possible factor in shooting that rocked Blair County.

The insanity issue was hotly debated prior to the trial and controversy continued throughout jury selection.

Dickey was adamant he wanted to present the insanity defense and he took an emergency appeal to the Pennsylvania Supreme Court.

One of the justices, Seamus McCaffery, a Marine Corps veteran, halted jury selection and agreed with Dickey, stating that such a defense was appropriate in view of the problems many veterans were experiencing upon their return from Iraq, where Horner served three tours, and Afghanistan.

The other six justices however upheld Kopriva’s ruling and the trial went forward – with a new jury.

During the trial, Dickey argued Horner was suffering from “diminished capacity” the day of the robbery, not only due to post traumatic stress but also to ” delirium” caused by the drugs used to treat him.

In the robbery, Horner killed Subway employee Scott Garlick, 19, a high school senior from Hollidaysburg, and during his escape attempt he killed Raymond Williams, 64, a retired insurance executive and grandfather getting his mail in the parking lot of a nearby apartment complex. Also shot was Michele Petty, another Subway employee.

Dickey filed notice of an appeal to the Pennsylvania Superior Court based primarily on Kopriva’s ruling, and the Superior Court ordered Dickey to file a legal brief by July 30.

The shock came when the Superior Court was notified that Dickey, at the request of his client, who is serving his time at the State Correctional Institution, Albion, filed notice of withdrawal of the appeal and an affidavit stating that it was against his advice.

Dickey said Tuesday he believed Horner would get a new trial if he pursed his appeal.

He said the case was “unique and unusual” because at least one Supreme Court Justice, McCaffery, agreed with him, which to Dickey meant he would have a good chance at arguing in favor of a new trial on appeal.

Dickey said he recently began receiving letters from Horner stating what he wanted to withdraw his appeal.

“The client always controls how the case goes,” Dickey explained.

A lawyer advises his client, for instance, whether or not he should take the stand in his own defense. The lawyer may may suggest that client not testify, but if the client wants to get on the stand, that is what occurs, said the veteran defense lawyer.

Dickey said he could not reveal the content of his discussions with Horner about his reasons, but he said he knows Horner did not want to put the victim’s families through the ordeal of another trial.

He mentioned also that a new trial carried with it a chance that a jury may decide to impose the death penalty as opposed to life in prison.

One of the prosecutors, Deputy District Attorney Jackie Bernard, said the case is closed in view of the withdrawal of the notice of appeal.

She said, “I think this will bring closure to family members, which is important.”

Bernard said she and Deputy District Attorney Wade Kagarise, who tried the three-week trial, felt they had a strong argument against a new trial, but she supports the withdrawal of the appeal “to the extent it provides closure.”

Superior Court records show that Dickey requested several extensions of time to prepare his brief in favor of a new trial.

The last extension was granted June 10.

The initial notice of discontinuance came July 12, and the discontinuance was certified to the Blair County Court of Common Pleas on Monday.

Dickey filed an affidavit stating the discontinuance was against his advice.

Dickey said he was “clearly directed” by Horner to pursue the withdrawal.