Com. v. Freeby, E. (memorandum)
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J-S62018-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ERNEST TROY FREEBY Appellant No. 3294 EDA 2012 Appeal from the Judgment of Sentence May 14, 2012 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0000539-2009 BEFORE: BOWES, J., LAZARUS, J., and WECHT, J. MEMORANDUM BY LAZARUS, J. FILED DECEMBER 04, 2013 Ernest Troy Freeby appeals from the judgment of sentence, imposed by the Court of Common Pleas of Carbon County, after a jury convicted him of murder in the first degree1 and tampering with physical evidence.2 As required by statute, on the charge of murder, Freeby was sentenced to life imprisonment without the possibility of parole.3 After our review, we affirm. The trial court summarized the relevant factual and procedural history in its Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 11/20/12, at 1-7. On May 24, 2012, Freeby filed a post-sentence motion, requesting an arrest of ____________________________________________ 1 18 Pa.C.S.A. § 2501(a). 2 18 Pa.C.S.A. § 4910(1). 3 18 Pa.C.S.A. § 1102(a)(1). J-S62018-13 judgment and judgment of acquittal or, in the alternative, a new trial. The trial court denied the motion. This timely appeal followed. On appeal, Freeby raises the following issues for our review: 1. Was the evidence presented by the Commonwealth sufficient to convict Freeby of first[-]degree murder and tampering with evidence? 2. Was the weight of the evidence presented by the Commonwealth such as would lead a reasonable jury to conclude beyond a reasonable doubt that Freeby was guilty of first[-]degree murder and tampering with evidence? 3. Did the court commit fatal error when it admitted a statement of Julie Sneary described as a quip that Freeby made to her about killing Edwina Onyango approximately one year prior to [sic] disappearance of Edwina Onyango? 4. Did reversible error occur during questioning by the Commonwealth of the Commonwealth s witness Isidore Mihalakis, M.D., which questioning was contrary to the court s clear directions during trial and which elicited an extremely prejudicial statement by the witness that a homicide occurred? Brief of Appellant, at 5. In his first issue, Freeby contends that the evidence was insufficient to sustain his convictions for first-degree murder and tampering with evidence. The trial court properly concluded that the testimony and circumstantial evidence presented was sufficient to convict Freeby of first-degree murder and tampering with evidence. Trial Court Opinion, 11/20/12, at 9-17. The Commonwealth s evidence established that: (1) Freeby was the last person to see Edwina alive; (2) the circumstances of her disappearance and the results of the investigation to find her suggested death; (3) Freeby had a -2- J-S62018-13 motive and expressed a reason for killing Edwina; and (4) subsequent to her disappearance, Edwina s blood and hair was found in sufficient quantity throughout Freeby s basement to indicate a seriously bodily injury. This evidence supports the conclusion that Edwina is dead, her death resulted from criminal agency, and Freeby is responsible. Although unable to produce direct evidence linking Freeby to the Edwina s murder, the totality of the Commonwealth s circumstantial evidence was more than sufficient to support the jury s verdict. With regard to Freeby s conviction for tampering with evidence, police testimony clearly established that Freeby knew an official investigation into Edwina s whereabouts was in progress. The evidence further indicated that once the police made Freeby aware of the investigation, but before the police searched his home, he painted the steps leading to the basement and the coal bin door. Moreover, between the first and second searches of his home, Freeby removed and disposed of between eight and ten inches of soil from the floor of the coal bin, as well as the bloodstained two by four. In light of this evidence, together with that previously discussed, the jury was able to conclude, beyond a reasonable doubt, that Freeby tampered with evidence. In his second issue, Freeby challenges the weight of the evidence sustaining his convictions. The trial court properly concluded that the verdict was not against the weight of the evidence because it did not shock one s sense of justice. Trial Court Opinion, 11/20/12, at 17-24. -3- See J-S62018-13 Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (appellate court may only reverse lower court s verdict if so contrary to the evidence as to shock one s sense of justice). During trial, Freeby challenged the trustworthiness and reliability of the Commonwealth s evidence. He also offered the testimony of two eyewitnesses, one of whom was his own mother. As to both eyewitnesses, the jury had reason to doubt their testimony. Despite Freeby s claim that the jury arbitrarily ignored and capriciously disregarded his proffered evidence, we agree with the trial court that Freeby ultimately failed to undermine the unbelievable. Commonwealth s evidence and render it completely Therefore, the trial court did not abuse its discretion in determining that the verdicts were not so contrary to the evidence as to shock the conscience, and this claim also fails on both convictions. Id. In his third issue, Freeby challenges the court s exercise of discretion in admitting the testimony of his longtime girlfriend, Julianne Sneary, that approximately one year prior to Edwina s disappearance, Freeby commented that the only way he could rid of Ms. Onyango would be to kill her. N.T. Trial, 1/19/12, at 202. The trial court properly concluded that the challenged testimony consists of evidence probative of Freeby s state of mind and is clearly relevant to determining whether Freeby killed his wife -4- J-S62018-13 and whether he intended to do so.4 Trial Court Opinion, 11/20/12, at 40-43. While the comment admittedly paints Freeby in an unflattering light, it is not so prejudicial as to outweigh its probative value in establishing his state of mind or motive. Moreover, the trial court gave lengthy consideration to whether Sneary s testimony should be admitted.5 Accordingly, the trial court appropriately exercised its discretion when it ruled Sneary s testimony admissible. Finally, Freeby contends that the trial court erred in failing to declare a mistrial sua sponte in response to Dr. Isidore Mihalakis s testimony that he believed the scene in Freeby s basement was indicative of significant bodily injury or homicide. N.T. Trial, 1/23/12, at 152-53. The trial court properly concluded that there was no error in failing to declare a mistrial because Dr. ____________________________________________ 4 The admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact. Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice. Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (en banc) (citations omitted). 5 On January 9, 2012, Freeby filed a motion in limine seeking, among other things, to preclude Sneary from testifying about this conversation. By order dated January 10, 2012, the trial court directed counsels to provide the court with legal authority in support of their respective positions on the admission of this statement . . . . Order of Court, 1/10/12. Before Sneary testified, counsels were given an opportunity to argue their positions further. Moreover, the court first heard Sneary s testimony in camera. N.T. Trial, 1/19/12, at 172. -5- J-S62018-13 Mihalakis s remark in no way deprived Freeby of a fair and impartial trial. Trial Court Opinion, 11/20/12, at 44-48. See Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super. 2003) (when declaring mistrial, remark must be of such nature or substance or delivered in such manner that defendant was deprived of fair and impartial trial). This is especially so given the court s immediate instruction that the testimony be stricken together with court s opening and closing instructions that the jury not base its finding upon stricken testimony. Trial Court Opinion, 11/20/12, at 47. See Commonwealth v. Lee, 662 A.2d 645, 653 (Pa. 1995) (no mistrial warranted where court sustained objection, cautioned jury testimony should be disregarded, and later instructed jury not to consider testimony court previously told it to disregard). Moreover, the record demonstrates overwhelming evidence of a homicide, even without Dr. Mihalakis s remark. In such circumstances, it cannot reasonably be said that Dr. Mihalakis s comment deprived Freeby of a fair and impartial trial. After our review of the parties briefs, the record, and the relevant law, we rely on the Honorable Roger N. Nanovic s Rule 1925(a) opinion in affirming the trial court s order. We instruct the parties to attach a copy of Judge Nanovic s decision in the event of further proceedings in the matter. Judgment of sentence affirmed. -6- J-S62018-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 -7-
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