The Rev. Lewis Nash believes that a voice mail detailing the last moments of the life of his first cousin Joseph McNair was a message from the beyond.

"That tape actually dropped out of heaven for us," he said.

McNair, 38, a man with a heavy rap sheet who was living in a high-end Montgomery County community, was shot and killed by his neighbor, off-duty SEPTA policeman Sgt. Darryl Simmons, following an argument last Sept. 17.

Simmons, a 22-year veteran of SEPTA's police force, claimed that the killing had been in self-defense. He shot McNair at least four times because, he said, he thought McNair was reaching for a gun, but no gun of McNair's was found at the scene, according to police.

Nearly five months later, Simmons, 48, has not been charged with a crime, but the Montgomery County District Attorney's Office insists the investigation continues, and initial statements from the office that murder had been ruled out were recanted yesterday.

"Everything is still on the table in terms of charges," Deputy District Attorney Thomas McGoldrick said. "The district attorney will make that decision when she is prepared to do so."

Interest was renewed in the case this week, when McNair's relatives released a message he left on a friend's cell phone the night of the killing.

Nash believes that his cousin was calling this friend when the confrontation with Simmons began, unaware that his death was about to be recorded.

But Simmons' attorney, Charles Mandracchia, believes that McNair knew the message would be recorded, and he hopes it will be found inadmissible in court.

The message details the final minute or less of the fight, on Miller Road near Ott in Perkiomen Township, between the cop and the ex-con.

The D.A.'s office said in September that the incident began when McNair's Pontiac Vibe nearly struck Simmons' BMW. McNair drove by, then got out and began threatening Simmons, the D.A.'s office said.

Simmons told police that McNair returned to his car and leaned through the front door. Thinking that McNair was reaching for a gun, Simmons said, he pulled out his .357 Smith & Wesson revolver and fired repeatedly. McNair had several wounds in his trunk and one to the face.

It's clear from the tape that Simmons and McNair had been engaged in a long-standing feud about McNair's pets.

In the profanity-laced recording, McNair can be heard asking Simmons several times: "You jealous of me, man?" and Simmons saying "All I want you to do is keep your dogs down." The two men exchange more profanities before five shots are heard.

Then, before Simmons calls medics or police, he can be heard calling his wife: "Hey. I just shot and killed this b----. I said, 'I just shot this b----.' Yeah, come down to the bottom of the hill. Call 9-1-1."

McNair's family believes that the tape proves that the killing was not in self-defense.

"Why didn't he walk away like the sergeant of 22 years of experience he was?" Nash said. "The tape doesn't warrant the shooting."

Mandracchia claims the message recorded only the last 30 seconds of a four-to-five minute altercation.

He said Simmons initially got out of his car because he was scared and he didn't want McNair to "do something crazy to him."

But Mandracchia said that fear was absent from Simmons' voice because of his police training.

"He wasn't showing his fear but he was fearful," Mandracchia said. "He knew everything about McNair. He knows he was a gang member, that he spent nine years in a federal penitentiary."

McNair was convicted in 1995 on drug charges and served nine years in federal prison, according to court records.

"What you're hearing is the last 30 seconds of a two-year argument, of two years of fear and terror," Mandracchia said.

Mandracchia said Simmons called his wife before he notified police because he wouldn't be able to pick up his daughter, as was planned. But McNair's family said that minute or so gap could have saved their loved one's life.

"To hear the tape and to hear him not automatically call a rescue squad - it's awful," Nash said.

Deputy D.A. McGoldrick said the recording was part of the investigation but he declined to comment further.

Simmons remains on administrative desk duty, as he has been since the shooting, SEPTA spokesman Richard Maloney said. *