HOLLIDAYSBURG - Nicholas A. Horner of Altoona decided Friday not to represent himself if his double-homicide case goes to a death-penalty phase later this month.
Horner's trial for two killings that stemmed from an alleged April 6, 2009, robbery at the 58th Street Subway is expected to begin on March 12.
Blair County Deputy District Attorneys Jackie Bernard and Wade Kagarise are seeking the death penalty, but two weeks ago Horner made it known to President Judge Jolene G. Kopriva that he wanted to represent himself if he is found guilty of first-degree murder and his case enters the death-penalty phase.
Horner was arrested for the shooting deaths of Scott Garlick, 19, of Hollidaysburg, a restaurant employee, and Raymond Williams, 64, a retiree, who was killed just two blocks from the restaurant during Horner's attempt to flee. Michele Petty, another Subway worker, was wounded during the robbery.
Horner's attorney in the guilt phase of the trial, Thomas M. Dickey of Altoona, opposed his client's request to get rid of Pittsburgh attorney David J. DeFazio, who is busy preparing Horner's death-penalty defense.
State procedure requires that different attorneys represent a defendant in the separate phases of a first-degree homicide case.
Kopriva scheduled a hearing to determine if Horner was competent to make the decision to represent himself.
Dickey did not think that it was appropriate for Horner to take over the death-penalty phase. He pointed out that attorneys who represent death penalty clients must be qualified under criteria published by the Pennsylvania Supreme Court. He stressed that Horner obviously did not meet that criteria.
Dickey emphasized that Horner would still have a great deal of input concerning how his death-penalty defense would be presented, even if DeFazio stays on the case.
In a death-penalty hearing, the prosecution is to present reasons why the ultimate penalty should be imposed.
The defense is to present mitigating factors, such as the defendant's age, mental health history, family upbringing or other relevant circumstances, and the jury is to decide, by weighing the various factors, if death is or is not appropriate.
The Altoona attorney also enlisted the aid of Dana Cook of the Atlantic Center for Capital Representation who met with Horner on Thursday afternoon to discuss the possibility he may represent himself. The Philadelphia-based center was created to aid local defense lawyers in death-penalty cases.
DeFazio meanwhile has filed a notice of possible witnesses he intends to call during a possible penalty phase.
They include Dr. Rodney G. Richmond, an expert in pharmacology from the MacKenzie Group LLC in Arizona, and people named in a report prepared by Minnesota psychologist Ernest Boswell, a key defense witness who has explored Horner's mental-health issues including post-traumatic stress disorder which he allegedly acquired while serving with the Army in Iraq.
After the hearing Friday, DeFazio said he could not state specifically who he will call to testify.
"What you need depends on what comes out in the guilt phase," he said.
DeFazio expressed confidence in Dickey to sway the jury not to find first degree murder, thus negating the need for a death-penalty phase.
Mirror Staff Writer Phil Ray is at 946-7468.