A three-member Pennsylvania Superior Court panel has denied the latest appeal of a Carbon County murderer.

The panel affirmed a decision by Carbon County President Judge Roger N. Nanovic II in denying Ernest Freeby, 43, of Lansford, relief under the Post Conviction Relief Act.

Freeby was convicted by a jury on Jan. 30, 2012, of first-degree murder in the death of his wife, Edwina Aiteno Onyango, 34, a native of Kenya.

The trial began with jury selection on Jan. 9, with testimony beginning on Jan. 10, and concluding with the verdict. It was one of the longest criminal trials in the county in recent history. The trial lasted just over three weeks.

The case was unique in that Onyango’s body has never been found.

Freeby did not testify at the trial.

In July 2014 the state’s Supreme Court denied his appeal of the verdict and sentence imposed, life without parole, in a one-line opinion. The highest court affirmed the Superior Court’s decision denying his appeal. That decision was made in December 2013.

The state court ruled that Freeby received a fair trial and the life without parole sentence imposed by Nanovic was appropriate. The rejection of his appeal of the verdict and sentence ended his direct appeal rights.

PCRA appeal

In his PCRA appeal Freeby alleges that his trial counsel was ineffective.

The 17-page opinion reviews state law concerning effectiveness of counsel along with the facts presented at trial and contentions made by Freeby alleging ineffectiveness.

Freeby argued that his trial counsel, public defenders George T. Dydynsky and Paul J. Levy, were ineffective because they allowed a certain juror to be seated who expressed a fixed opinion that she would not follow the court’s instructions regarding Freeby not testifying; failing to appeal the court’s striking jurors for cause on the basis that their ability to be fair and impartial would be “affected” due to the commonwealth’s inability to produce a body in a homicide case; failing to request a mistrial following Dr. Isadore Mihalakis’ statement that the crime scene was consistent with a homicide; and failing to call Dr. Cyril Wecht as a witness.

The state court opinion reviews the questioning of jurors by defense and commonwealth counsel and notes Nanovic instructed the jury that it should draw no conclusion by the fact the defendant decided not to testify.

Concerning the striking of jurors allegation, the state court wrote, “Since appellant (Freeby) restricted his claim of ineffectiveness to these six venirepersons (who were stricken because they said they couldn’t convict without a body being found), we will not address the decision to strike venirepersons.”

Venirepersons are potential jurors.

The court rejected the third ineffectiveness claim that a mistrial should have been declared after Dr. Mihalakis said he believed the scene was “indicative of serious bodily injury or homicide.”

In rejecting this claim, the state court said the trial court “correctly reasoned that appellant’s argument lacked arguable merit.” It added, “A mistrial is an ‘extreme remedy’ that the court must grant ‘only when an incident is of such a nature that its unavoidable effect is to deprive defendant of a fair trial.’ ”

The court continued, “Here, trial counsel immediately objected to Dr. Mihalakis’ testimony, and the court struck the testimony from the record. The court repeatedly instructed the jury to disregard any evidence stricken from the record and to refrain from basing any findings on such testimony.”

Finally, concerning the calling of Dr. Wecht as a witness, the state court dismissed that argument, stating, in part, “To the extent Dr. Wecht was critical of the legitimacy of Dr. Mihalakis’ conclusions and their reliance on what Dr. Wecht termed ‘interpersonal factors,’ this aspect of Dr. Wecht’s report … was of a type readily understandable by a layperson and able to be argued directly by counsel before the jury. Moreover, as noted in our Memorandum Opinion of Nov. 20, 2012, because the ‘interpersonal factors’ to which Dr. Mihalakis referred in his report of Feb. 18, 2008, in opinion that Edwina was dead — factors such as her unexplained disappearance, failure to contact friends and family, and failure to return to work — were all factors which the jury could interpret on its own, without the need for expert testimony, we declined to allow Dr. Mihalakis to make this conclusion for the jury.”

Then District Attorney Gary F. Dobias successfully prosecuted the case. Since his retirement, Dobias has also handled the commonwealth’s response to Freeby’s appeals of the verdict and sentence and his PCRA petition.