Kevin Dowling, sentenced to death in infamous 1997 Spring Grove murder, awarded new trial

On Aug. 5, 1996, Jennifer Myers was robbed of about $40, tied up and sexually assaulted at her business, Tailfeather Gallery, in West Manchester Township. The perpetrator gagged her with a shirt and, at one point, pointed a handgun at her and threatened to shoot if she didn’t shut up.

Myers did not know her assailant. But she later recognized her attacker at a Sheetz in Hanover: Kevin Brian Dowling.

Not long before she was set to testify against him, Myers, a mother of two and rose aficionado, was shot and killed at her new business, Gray Fox Gallery in Spring Forge Plaza in Spring Grove, at about 1 p.m. on Oct. 20, 1997.

The sole eyewitness who testified at Dowling's murder trial — Sandra Eller — stated that she had “no doubt at all” that she saw him in the parking lot of the shopping center on the day of the deadly shooting after grocery shopping.

Eller said she wasn't sure of the exact time. She testified that it could have been about 11:20 or 11:30 a.m.

Though her receipt from Kennie’s Market listed the time as 10:50 a.m., Pennsylvania State Police Trooper William Mowrey testified that clock in the cash register was behind and inaccurate.

Dowling was found guilty of first-degree murder in 1998 and sentenced to death.

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The Pennsylvania Attorney General’s Office — which has handled court proceedings after Dowling's conviction — now concedes that the timestamp on the receipt from Kennie's Market that morning was, in fact, accurate. So Eller, a judge has determined, must have been mistaken when she made that identification.

More than 24 years after the killing, Lebanon County Senior Judge Robert J. Eby on Feb. 22 awarded Dowling, now 63, of East Petersburg, Lancaster County, a new trial, ruling that his defense attorney was ineffective and that prosecutors did not turn over exculpatory evidence and presented false testimony about the receipt from the supermarket.

“This Court has thoroughly considered whether trial counsel provided effective assistance of counsel to Petitioner during his trial,” Eby wrote in a 31-page opinion. “We conclude that he did not.”

“This Court has also thoroughly and extensively considered whether the Commonwealth participated in the suppression of exculpatory evidence prior to Petitioner’s trial in October and November of 1998, as well as whether the Commonwealth failed to correct testimony of both Eller and Trooper Mowrey which it knew or should have known to be materially false,” he added.  “On both of these issues, we concluded that is has.”

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In an email, Assistant Federal Defender Tracy Ulstad, Dowling’s new attorney, said she had no comment at this time.

Dowling’s trial attorney, Jerry Lord, also declined to comment. Former York County First Assistant District Attorney Tom Kelley, who prosecuted the case, asked for a copy of the opinion and stated "we never didn't disclose anything."

In a statement, Molly Stieber, press secretary for the Pennsylvania Attorney General’s Office, said, “We respectfully disagree with the conclusion reached by the court and plan to appeal."

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Mowrey testified that he went to Kennie’s Market five days after the deadly shooting to investigate whether the timestamps on receipts were correct, according to the opinion.Eller’s receipt, his police report indicates, shows that the sale started at 10:45 a.m. on Oct. 20, 1997. Mowrey said investigators checked that cash register — Register No. 6 — and determined that the time printed on receipts was 20 minutes behind on that date.Law enforcement inspected the other registers at the supermarket and found that each showed a different time, according to his police report. Mowrey reported that police collected four register receipt rolls and placed them into evidence.Mowrey did not describe his methodology as well as how he reached the conclusion that the times on all the registers were incorrect, the opinion states.

Right before trial in 1998, Mowrey went back to Kennie’s Market to again check the times on the registers.

Register No. 6, he testified, was 11 minutes slow. His police report, though, indicated there was a time discrepancy of 17 minutes.

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A Bucks County jury that was brought in for the trial because of press coverage, the opinion states, received a copy of Eller’s receipt with a handwritten note that specified, “20 minutes off.”Dowling's wife, Joanne, provided investigators with a videotape that purported to show her husband fishing at the time of the murder on Muddy Run Lake in Lancaster County.Robert Boyle, a professor of physics and astronomy at Dickinson College, reviewed the footage and, using shadows and the angle of the sun, determined that some of the times in the videotape had been changed. Dowling conceded that he’d altered the times. That’s because, he said, he did not want his wife to know that he’d grown bored with fishing and left to go to a strip club in Harrisburg.

During the trial, Clarence Hess, the rental boat proprietor at Muddy Run Lake, which is 40 miles away from Spring Forge Plaza, testified that Dowling got into a boat at about 10:20 a.m. and was on the water for 30 to 45 minutes, according to the opinion.

Prosecutors presented evidence at trial that it takes one hour and three minutes, or one hour and eight minutes, to drive from Muddy Run Lake to Spring Forge Plaza.

Based on the prosecution's evidence, Dowling would not have been able to make it to the shopping center until 11:50 a.m. at the earliest — one hour after Eller had already checked out, Eby noted. Because the time on her receipt is accurate, the judge noted, she must have been mistaken in her identification.

Kenneth Hewitt, of WSR Consulting Group LLC, provided an expert report that the internal register clock was accurate on Register No. 6. Christienne Genaro, with PayGility Advisors, independently confirmed his findings and submitted her own report, according to the opinion.

Prosecutors hired their own experts, Dennis and Jeffrey Houser of Financial Forensic Consultants LLC, who reported that they would testify that they agreed with the findings of the defense experts.

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First, Eby determined that Lord provided ineffective assistance of counsel.

Lord, he said, failed to request access to “readily available exculpatory evidence:" the four receipt rolls. He also did not investigate whether the time on the receipt was accurate.

Instead, Lord called Mowrey to testify that the time on the receipt was “off" and erroneously strengthened Eller's testimony.

“*This item is very important,” Lord wrote in a memo that he faxed to his investigator, Bill Donivan, days before jury selection. “If we can establish the clock was definitely off by 20 minutes on 10/20/97, it will establish Dowling could not have been the guy S. Eller saw at Kennies on the morning of 10/20/97 …”

If Lord had requested the register rolls and investigated, he would’ve had “objective proof” that his client was not the man whom Eller saw outside Kennie’s Market. And he would’ve been able to show that Mowrey’s conclusions were "baseless and patently false," Eby said.

Mowrey, he said, was not competent to provide an expert opinion.

Eby remarked that memo provided him with a “clear window into trial counsel’s flawed thought process, resulting in an unreasonable trial strategy.”

Lord later testified and did not offer a reason for not hiring a point-of-sale expert besides that he was not familiar with any defense attorneys and assistant district attorneys hiring them. But Eby stated that was common in 1998.

"Had he done any of these things, it is clear there is a reasonable probability that the outcome of the trial would have been different," Eby said. "Petitioner was prejudiced."

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Second, Eby ruled that prosecutors failed to turn over the receipt rolls, which were exculpatory.

Prosecutors, he said, knew that the time when Eller checked out was important their case. They knew, or should have known, that her identification must’ve been mistaken, Eby said.

"Nevertheless, at trial, the Commonwealth relied upon the incompetent, unscientific and undocumented investigation of Trooper Mowrey in an attempt to bolster Eller's testimony and convince the jury that her receipt was inaccurate,” Eby said.

Eby said there is "more than a reasonable likelihood that this false testimony could have affected the judgment of the jury."

Dowling is currently incarcerated at the State Correctional Institution at Phoenix, according to prison records.

Dylan Segelbaum is the courthouse reporter at the York Daily Record, part of the USA TODAY NETWORK. Contact him at dsegelbaum@ydr.com, by phone at 717-916-3981 or on Twitter @dylan_segelbaum.

This article originally appeared on York Daily Record: Kevin Dowling wins new trial in 1997 death penalty case in York County