Prosecutors are seeking the death penalty against a man accused of killing the brother of an Erie cop. David McHenry is accused of shooting 32-year-old Joshua DiBello in the parking lot of Herman`s Cafe in late July. During a pretrial hearing in Erie County Court this afternoon, the District Attorney`s office asked the court to consider combining a felony charge of robbery to a charge of first degree murder. If that request is granted, the DA`s office can then uphold its request for the death penalty. Defense attorneys believe there is not enough evidence to prove McHenry robbed DiBello.