T HREE FELONY sex charges were thrown out Thursday against Andrew McCormick - a Catholic priest arrested last month and charged with sexually assaulting a 10-year-old altar boy in 1997 - after a dispute in court over the definition of "penetration."

The alleged victim, now 24, testified that when McCormick was assigned to St. John Cantius Church in Bridesburg, the priest straddled his chest and tried to force him to perform oral sex. But Municipal Judge Karen Yvette Simmons discharged the most serious counts: involuntary deviate sexual intercourse, statutory sexual assault and felony sexual assault.

After Thursday's preliminary hearing, Simmons let stand misdemeanor counts of indecent assault, child endangerment, corruption of a minor and indecent exposure. McCormick now has a trial date of Oct. 18 in Municipal Court on those charges.

City prosecutors quickly announced they would refile the felony charges against McCormick, 56, who dressed in his clerical collar and black uniform despite having been placed on leave by the Archdiocese of Philadelphia.

Within 30 days, another judge will review the testimony and determine whether McCormick will be held on the felonies.

Defense attorney William J. Brennan argued during the hearing that no penetration had occurred, noted that the alleged victim could not remember in which month the incident took place and questioned why the accuser reported it 15 years later and only after other priests and former Penn State assistant football coach Jerry Sandusky had been put on trial for similar crimes.

"It seems very opportunistic," he said after leaving court, referring to the man's testimony.

Assistant District Attorney Jack O'Neill argued that because McCormick's penis allegedly touched the victim's lips, that is a felony.

"The testimony is quite clear: The penis went past the lips and to the teeth," O'Neill told Simmons after the man stepped down from the witness stand.

After reading the law, Simmons came down largely on the side of the defense.

"I have to make a decision based on how I see the law, and I don't get offended if somebody gets offended," she said.

In a statement, the D.A.'s Office said that under state law, involuntary deviate sexual intercourse is defined as penetrating a victim's mouth with one's penis, however slightly.

McCormick, who lives in Pottstown and was ordained in 1982, turned himself in to police July 26 and was released the next day after posting 10 percent of $150,000 bail.

He is accused of assaulting the victim inside the rectory at St. John Cantius Church. In March, when McCormick was put on administrative leave, he was assigned to Sacred Heart Parish in Swedesburg, Montgomery County.

Contact Mensah M. Dean at 215-568-8278 or deanm@philly.com or on Twitter at @mensahdean.

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