Locked up in Cumberland County, Scott Kimberly couldn't hear the gunfire miles away that may someday help set him free.
The Fayette County man was an inmate at the State Correctional Institution at Camp Hill as a young man named Casey Shannon joined the U.S. Army and shipped out to Iraq, a war zone where bullets whizzed past him. Where he earned a Bronze Star. Where other people died, and are dying.
Shannon, of Charleroi, Washington County, was 16 when he testified at Kimberly's sexual assault trial, helping Fayette County prosecutors to secure the October 2002 conviction that the 36-year-old Perryopolis man continues to fight.
Kimberly stood before Fayette County Judge John F. Wagner Jr. on Tuesday with his lawyer, Thomas W. Shaffer, of Uniontown, to argue that his trial lawyer was ineffective, that medical evidence of the assault was nonexistent, and that Shannon was recanting his testimony. Roughly 20 people watched yesterday's proceeding.
"I just want to know why," Kimberly's brother, Kevin Kimberly, said outside the courtroom. "How do you do years of prison for this?"
State police at Belle Vernon say Kimberly forced himself on a 14-year-old girl after providing her with marijuana and malt liquor in July 2001. He faced charges including statutory sexual assault and involuntary deviate sexual intercourse. He was sentenced to serve 6 1/2 to 13 years in prison.
The girl was Shannon's girlfriend at the time. After she went to the authorities, Shannon supported the story.
But months after the October 2002 trial, the story started to fall apart.
In May 2003, a private investigator confronted Shannon with the possibility that a four-hour phone conversation between him and the girl happened at the same time the girl claimed to have been assaulted.
Shannon declined to sign an affidavit to that effect, according to records, saying that he wasn't sure if he was even at home on the day in question, July 6, 2001. Years later, Shannon apparently changed his mind after returning home from a war zone.
"He became a hero," said Kimberly's mother, Melinda Wagner. "I think this made him realize he had to do something to help someone else."
While home on leave in August, Shannon signed the affidavit.
According to Shaffer, the document, supported by phone records, helps to clear Kimberly's name. With it, the defense can question how Kimberly sexually assaulted the girl while she was talking on the phone.
Other factors also were called into play. A nurse testifying at the trial found no physical evidence of a sexual assault. However, the examination came 37 days after the alleged incident.
Shaffer argued that the nurse's testimony appeared to draw a conclusion that the girl had been assaulted, despite the lack of evidence. He questioned why trial lawyer Dennis Paluso, of Charleroi, did not cross-examine the nurse on the opinion.
Paluso said he didn't think it was a good tactic to draw attention to what he thought was a minor issue.
Wagner did not issue a ruling yesterday as to whether Kimberly would be granted a new trial. Assistant District Attorney Phyllis Jin has until March 14 to file a written argument on the case.
Shannon reportedly is back overseas with the Army. Attempts to contact his family yesterday were unsuccessful.
In January, he told The Valley Independent, of Monessen, a subsidiary newspaper of the Tribune-Review, how the war had changed him. He saw combat, earned medals and came to grips with death.
"I was proud when I received it," he said of his Bronze Star. "But when I think about it, we lost three guys in the company. The Bronze Star didn't mean much in comparison."
