Judge denies appeal for new trial in Freeby murder conviction
A Carbon County judge has denied the appeal of a Lansford man convicted earlier this year of first degree murder of his estranged wife, whose body has never been found.
The appeal of Ernest T. Freeby, 37, was denied in a 56 page memorandum opinion filed by President Judge Roger N. Nanovic in response to a lengthy appeal petition filed by defense attorneys Paul J. Levy and George T. Dydynsky, both public defenders. District Attorney Gary F. Dobias successfully prosecuted the case.
Freeby was convicted by a county jury on Jan. 30 following a trail that began on Jan. 9, one of the longest criminal trials ever conducted in the county court. The panel also found him guilty of tampering with evidence.
Following the conviction Nanovic sentenced him to life in prison without parole on May 24.
Levy and Dydynsky then filed a appeal challenging the conviction and asking Nanovic for arrest of judgment and judgment of acquittal, or, in the altermative, a new trial.
Freeby was charged with the murder of his wife, Edwina Onyango, 34, a native of Kenya. The couple married on March 20, 2001.
During the course of the trial testimony revealed the marriage was one of convenience for both. Freeby wanted to use the marriage to help his chances of gaining custody of two chldren from a previous relationship, and Onyango wanted to use the marriage to obtain U.S. citizenship, which a marriage to a U.S. citizen would enhance her chances.
The lengthy trial included the testimony of over 60 witnesses called by Dobias. Many of those witnesses were state troopers, who took over the investigation from Lansford police, and also expert witnesses.
Onyango's family reported her missing on Dec. 17, 2007, to Lansford police. Following an initial investigation by borough police the case was turned over to state police, on Dec. 26, 2007.
Freeby was charged on Aug. 3, 2009, with criminal homicide and tampering with evidence. Troopers contended that Freeby killed Onyango in his Lansford home and dismembered her body in the coal bin of the home.
In his appeal Freeby alleged the sufficiency of evidence was lacking for the jury to reach its verdict, weight of the evidence for the verdict to be reached, the evidence did not support a first degree murder conviction, a claim that proper discovery was not made by the commonwealth to defense counsel, claiming the court erred in permitting presumptive blood tests to establish that blood was found in Freeby's home, the court erred in permitting the testimony of Trooper Phillip Barletto, concerning the type and extent of the bleeding evidence by the pools of blood found in the coal bin, allowing the testimony of Julianne Sneaery, Freeby's live-in girlfriend, concerning statements he made to her, and also challenged the court in allowing some of the expert witnesses testimony called by the Commonwealth.
Nanovic addressed all the contentions made by the defense counsel in the lengthy opinion and refers to numerous prior state court decisions and the testimony of some of the expert witnesses in reaching his decision.
The 56 page opinion examines all contentions made by the defense, point by point, before issuing a denial of the appeal. Nanovic noted at the offset that since the body of the victim has never been found, the prosecution relied heavily on circumstance evidence to convict the defendant. Among other things, the court noted:
Concerning the sufficiency of evidence, that the Commonwealth is not required to produce the body of the victim in a homicide case, and that the Commowealth may establish death through the use of wholly circumstanial evidence.
In establishing Onyango's death the Commonwealth showed the victim was in seemingly good health, kept in regular contact with her family and friends, barely missed a day of work, and suddenly disappeared following a visit to the defendant's home on Dec. 9, 2007. Further, the Commonwealth showed that after December 2007 there was no activity by her on credit cards she owned, despite a history of use and prompt payment. Among other things all her financial activity stopped, except for a credit card used after December, which testimony at trial indicated was used by Freeby.
Concluding, Nanovic wrote, "That the death resulted from criminal activity was amply supported by the testimony of the police and the Commonwealth's experts." He then elaborated in his opinion.
The opinion also reviews the testimony of several witnesses called at trial. The opinion also noted that the defense was given in excess of 1,000 pages of documents at discovery. The court noted some of the documents had blacked out areas, but they were of personal information concerning some witnesses, such as Social Security numbers, etc., which the Commonwealth said did not hinder the defense since none of the witnessess were "eyewitnesses" to the murder.
The court also dismissed contentions by the defense concerning the testimony of experts of bloodstains found in the coal bin which were linked to the death of the victim. The defense contended that some of the blood was that of animals.
However, Nanovic wrote the jury was permitted to consider not only the results of the presumptive blood tests, but also the results of the multiple other tests perform. He wrote, "this is allowed under the case law provided the qualifications and limitations of the tests are fully explained to the jury, including that presumptive tests are not conclusive for blood. since this was done, we find no error was committed."
The defense also challenged the court in permitting the testimony of girlfriend Julianne Sneary. She testified to a conversation she had with Freeby on their way home from Whitehall.
In that testimony Sneary said Freeby told her that the only way he was going to get rid of Onyango was to kill her. Defense claimed that should not have been allowed.
Nanovic said in allowing Sneary's testimony, he relied on a Superior Court decision in another case. After quoting from that decision, Nanovic added, "We also found Sneary's characterization of the statement as a quip went to its weight, and not its admissibility."
The conversation concerned Sneary asking Freeby when he was going to divorce the victim to they could get married.
During that conversation Sneary testified Freeby said the Onyango would not divorce him until she got her citizenship. Sneary did testified that Freeby also "mentioned that the only way he could get rig of her would be to kill her."
The opinion also addresses contentions concerning some of the expert witnesses and a allegation concerning "after-discovered evidence." There was much testimony concerning DNA testing and it was used to establish blood stains found in the coal bin matched DNA of the victim.
Defense had hired an investigator in Kenya to probe the victim's real estate holdings in that country. Defense claimed that it did not receive the investigators' report until after the trial was over and planned on using the report in its defense.
Nanovic notes the report was received on Jan. 19. Adding, "Therefore, the evidence which forms the basis for this claim was, in fact, discovered prior to the conclusion of trial, which ended on January 30, 2012."
He adds, "Further, Defendant has failed to demonstrate that the sole purpose of the evidence was not for impeachment purposes or merely to corroborate Defendant's belief that Edwina was in hiding. In his brief, Defendant states that he intends on using the evidence to 'impreach the untruthfulness of the Onyango witnesses' and 'to show a determined pattern of deception and determination by the Onyangos to establish control over (Edwina's) real estate in Kenya.'"
Nanovic concludes, "Lastly, a reading of the report indicates that the nature and character of the evidence is not such as would likely result in a different verdict because it is at best tangential to the core evidence linking Defendant to Edwina's disappearance and death."
He adds, "As such, the evidence upon which Defendant bases this claim is insufficient to entitle him to a new trial."
Finally, Nanovic dismissed a defense contention for a new trial based on after-discovered expxert evidence on internet postings presented at trial by the Commonwealth of communications between the victim and one of her family members.
Nanovic said defense knowledges it was given multiple e-mails from the prosecution in discovery. Defense claims it was entitled to a new trial because it could not employ an computer expert to determine if the emails were sent from the family members computer.
Nanovic, after dismissing part of the contention, adds, "it seems that Defendant's only use for the evidence would be to impeach the credibility of Phoebe (victim's sister), as Defendant states in his brief that he would use the evidence to show that 'Phoebe Onyango was a liar,' and is covering up the disappearance of her sister and to 'expose the interest of the Onyango family in having the Defendant found guilty of murder because in this way they would be the heirs to the holdings of Onyango.'"
Nanovic concludes, "Finally, critically absent from Defendant's claim is proof that such evidence even exists. Without Defendant producing the proposed new evidence, the claim is wholly speculative and unsubstantiated."
Freeby's defense team is expected to appeal the decision to a state court.