Commonwealth v. Cherry

1

COMMONWEALTH OF PENNSYLVANIA v. LAMONT CHERRY Appellant

No. 1011 MDA 2020

No. J-S20013-21

Superior Court of Pennsylvania

November 8, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered July 1, 2020 In the Court of Common Pleas of Luzerne County Criminal Division at No(s) CP-40-CR-0003610-2009

BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.

MEMORANDUM

NICHOLS, J.

Appellant Lamont Cherry appeals from the order denying his timely first Post Conviction Relief Act^[1] (PCRA) petition. Appellant contends that the PCRA court erred in denying his motion to recuse denying his motion to compel a witness to testify, and denying his PCRA petition asserting that his conviction was based on false and/or flawed expert testimony. We affirm.

On May 29, 2009, Appellant was babysitting Z.M., the one-year-old daughter of his paramour, Christa Smith. When Smith returned home, she noticed that Z.M. was limp and foaming at the mouth. Smith called for an ambulance. Z.M. was then airlifted to Geisinger Hospital in Danville for surgery. A CT scan showed that Z.M. had multiple skull fractures, specifically, a piece of bone in Z.M.'s skull had separated from the rest of her skull. Z.M. did not have a laceration on the back of her head or any external bleeding. While Z.M. was in the hospital, Smith asked Appellant what happened to Z.M. Appellant told Smith that Z.M. might have fallen down the stairs and hit her head on the dumbbells at the base of the stairs. The doctors declared that Z.M. was brain dead, therefore, Smith decided to remove Z.M. from life support, after which Z.M. died. Appellant was later charged with the homicide of Z.M.

Frank Maffei, M.D., the chief of pediatric trauma care at Geisinger Hospital, testified at Appellant's trial^[2] as an expert in the fields of pediatric medicine, pediatric emergency care, and pediatric critical care. Doctor Maffei observed that Z.M. had retinoschisis, i.e., the retinas of her eyes had detached, and retinal hemorrhage, i.e., there was bleeding in her retinas. Doctor Maffei testified that retinal detachment plus retinal hemorrhage is "almost uniquely associated with abusive head trauma in small children and infants." N.T. Trial, 10/18/11, at 245. Doctor Maffei explained "we have never seen this injury in children outside of abusive head trauma except in three documented cases. One was a fall from a three-story window; one was a crush injury, the child was crushed; and then the other one was a motor vehicle accident." Id. at 245-46. Z.M. also had a subdural hemorrhage, i.e., bleeding under the dural space around her brain. Id. at 239. Doctor Maffei testified that Z.M. falling down the stairs and hitting her head on the metal dumbbells would not cause the "constellation" of injuries that Z.M. had. Id. at 250. Doctor Maffei concluded within a reasonable degree of medical certainty that Z.M. was the victim of abusive head trauma.

Samuel Land, M.D., testified as an expert in forensic pathology. Doctor Land performed Z.M.'s autopsy. Doctor Land observed during the autopsy that Z.M. had swelling in her left eye, but she did not have any bruising on her arms and legs, or any other significant external injuries. Doctor Land explained that after an internal examination, he found that Z.M. had bruising on the back of her head inside her scalp, two skull fractures going downwards towards the base of her skull, one on the left side of her head and the other on the right side. Z.M. also had bleeding around her brain and swelling of the brain. Doctor Land also found retinal hemorrhage in both of her eyes. Z.M. also had torn muscles and torn ligaments in her neck where her neck joined her head. Lastly, Z.M. had bruising under both of her buttocks with no evidence of healing, which Doctor Land explained meant that the bruises occurred immediately prior to her admission to the hospital, therefore, he concluded they occurred close in time to her head injuries.

Doctor Land opined that when retinal hemorrhaging is seen immediately after the child's injury, "it is significant, because it suggests that there was some type of rotational force placed on the child's head[, ]" meaning that the child's head moved back and forth in different directions. Id. at 277. Doctor Land explained that a child would have experienced linear force, i.e., force in only in one direction, if a child fell flat and hit his or her head. Id. He further characterized the torn muscles and ligaments in Z.M.'s neck as consistent with "whiplash type injuries in which the head is flung forward and backwards . . . ." Id. at 278. Doctor Land concluded that Z.M.'s head injuries were fatal, specifically that she "died as a result of blunt force trauma to the head." Id. at 278, 280. Doctor Land ruled Z.M.'s death a homicide. He testified that he did not believe Z.M. fell down the stairs and hit her head on the dumbbells at the base of the stairs because he did not observe injuries, such as a laceration or an abrasion, that would result from hitting a hard object like the dumbbells. Id. at 283-84. Doctor Land explained his conclusion as follows:

I believe that she was violently manipulated and slammed into something hard, either a wall, a floor. It could even be something like a cushion or mattress, but you usually don't see skull fractures in those events, you see other--the same--the other injuries that we see, but you don't see the skull fracture. So, most likely, it's my opinion, she was slammed against something hard and flat, like a wall or a floor.

Id. at 289.

John Lenox, M.D, Ph.D., was admitted as an expert in fields of head and neck injury, trauma and medical research, injury causation, and biomechanics. Doctor Lenox testified that it was more probable than not that Z.M. was injured in a fall down the stairs and hit her head on dumbbells at the base of the stairs. Further, Doctor Lenox explained that while there is a debate among pediatricians, forensic pathologists, neurologists, and neurosurgeons about whether a fall could produce injuries like Z.M.'s, but in the biomechanical community there was no debate because there are documented cases of falls causing those types of injuries.

Marguerite Salam-Host, M.D., testified as an expert in the areas of pathology and pediatric pathology. Doctor Salam-Host testified that there is debate within the medical field concerning whether retinal hemorrhages should automatically be determined as child abuse. Doctor Salam-Host explained that she reviewed the police report, the autopsy report, medical records, and Doctor Land's testimony from a previous proceeding. Based on her review of those materials, she concluded that Z.M.'s death was caused by blunt force trauma to the head from an accidental fall.

Michael D'Ambrosio, D.O., testified as an expert in the fields of emergency medicine and neurology. Doctor D'Ambrosio reviewed Z.M.'s medical records as well as the testimony of Doctors Maffei, Lenox, and Salam-Host. Doctor D'Ambrosio concluded that Z.M.'s injuries could have been caused either by abuse or by an accident.

On October 20, 2011, a jury found Appellant guilty of third-degree murder. The trial court sentenced Appellant to a term of twenty to forty years of incarceration on December 21, 2011. On direct appeal, this Court affirmed Appellant's sentence. See Commonwealth v. Cherry, 2013 WL 11257205, at *1. Appellant did not file a petition for allowance of appeal with our Supreme Court.

A previous panel of this Court summarized the subsequent procedural history of this case as follows:

On May 28, 2014, the PCRA court^[3] appointed Jeffrey Yelen, Esquire ("Attorney Yelen") as PCRA counsel. On June 4, 2014^[fn2], Appellant filed the instant pro se PCRA Petition, his first, averring, inter alia, that his trial counsel had been ineffective. The Commonwealth filed a Response Brief on August 11, 2014, responding to each of Appellant's claims raised in his pro se PCRA Petition.

^[fn2] Appellant dated his PCRA Petition May 15, 2014, which may explain the appointment of counsel before Appellant filed his pro se PCRA Petition as reflected in the docket entries and time stamps.

Attorney Yelen did not file an Amended PCRA Petition, and he did not seek to withdraw pursuant to Turner/Finley.^[4] Instead, Attorney Yelen appeared at a brief hearing on January 16, 2015, at which Appellant agreed not to present any evidence and submitted his case to the PCRA court on the basis of his pro se pleadings alone. [The PCRA court informed Appellant that this hearing was his opportunity to provide testimony in support of his petition and asked if it was his desire to rely on his petition and trial transcripts alone. Appellant replied that it was.] On June 18, 2015, ^[5] the PCRA court denied Appellant's PCRA Petition.

Appellant filed a timely Notice of Appeal. The PCRA court appointed [Matthew Kelly, Esquire ("Attorney Kelly")] to represent Appellant on appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

On June 15, 2016, Attorney Kelly filed a Turner/Finley no-merit letter . . . .

On August 12, 2016, Cheryl Sturm, Esquire ("Attorney Sturm") filed an Application for Relief seeking to enter her appearance as privately retained counsel. On September 7, 2016, we granted Attorney Kelly's Petition to Withdraw in light of Attorney Sturm's entry of appearance as privately retained counsel . . . .

Commonwealth v. Cherry, 155 A.3d 1080, 1081-82 (Pa Super. 2017) (citations and some footnotes omitted). This Court observed that Attorney Yelen did not file an amended petition or a petition to withdraw under Turner/Finley. Id. at 1083. This Court also noted that the January 16, 2015 PCRA hearing was not a hearing pursuant to Commonwealth v. Grazier, 713...