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[U] Commonwealth v. Stewart

Superior Court of Pennsylvania

February 12, 2014



Appeal from the Order Entered February 5, 2013, in the Court of Common Pleas of Lancaster County Criminal Division at No. CP-36-CR-0003579-2005




Micah Jermaine Stewart appeals from the order of February 5, 2013, denying his PCRA[1] petition. We affirm.

The PCRA court aptly summarized the facts and procedural history of this matter as follows:

Defendant, Micah Stewart, and Cortney Fry, the victim in this case, met while attending the Lancaster County Academy, an alternative high school. Defendant and Cortney began dating in March of 2003. After several months, Cortney became pregnant, and on July 4, 2004 she gave birth to the couple's daughter, Giovanna. Throughout the pregnancy, Defendant became increasingly suspicious that Cortney was being unfaithful. Eventually, this suspicion led to physical abuse.
On the morning of July 12, 2004, Nicole Bush Sanchez, a friend of Cortney's, received a call from Cortney. Cortney was crying and revealed to Ms. Sanchez that she and Defendant had been up all night fighting about whether or not she was faithful to him. Ms. Sanchez and another friend, Laura Hess, drove to the apartment Cortney shared with Defendant to pick her and the baby up. After noticing marks on Cortney's neck, Ms. Sanchez and Ms. Hess drove Cortney to the police station. Once she reported the abuse, Cortney and the baby went to Ms. Sanchez's mother's home to stay for the night. Defendant called Cortney multiple times throughout the night and during the following day until Ms. Sanchez transported her back to the couple's apartment.
On July 14, 2004, Sandra Peppler, a coordinator from Healthy Beginnings, went to Cortney's apartment for a home visit. During her visit, Ms. Peppler noticed bruising on Cortney's arm, neck and face, and scratches on her chest. Ms. Peppler expressed concern about the injuries and gave Cortney information about women's shelters and abuse hotlines.
The following day, July 15, 2004, Defendant argued with Cortney about what he perceived to be a discrepancy between the time that she said she was working and the amount of time that she was paid for during her pregnancy. Defendant called Cortney's former employer, Home Team, Incorporated, to inquire about how many hours Cortney worked, and whether she engaged in any relationships with her co-workers. Despite being assured that Cortney was "a complete young lady" at work, Defendant became enraged and told Tabitha Flickinger, a Home Team employee, "that's it, you killed her, you killed her baby, and you killed this family."
After speaking with Ms. Flickinger on the phone, Defendant called his sister, Alicia Stewart, to ask if she would settle his dispute with Cortney. Defendant then drove Cortney to his sister's home in Elizabethtown, Pennsylvania. During the car ride, Defendant threw Cortney's glasses out of the vehicle and beat her head against the car window. Defendant also told Cortney that he could take his gun, drive her down a dirt road and shoot her in the head, and that no one would miss her. When he arrived at his sister's apartment, Defendant was yelling and throwing his arms in the air, threatening both Ms. Stewart and Cortney. Defendant informed Ms. Stewart that he beat Cortney during the entire car ride from their apartment in Columbia to her home in Elizabethtown. Additionally, Ms. Stewart observed bruises on Cortney's arms and neck. Ms. Stewart was so threatened by Defendant's behavior that she contacted the police. After the police arrived and spoke with Defendant, Ms. Stewart took Cortney and the baby back to her apartment in Columbia to get some clothing, then to Ms. Sanchez's home so Cortney could spend the evening there.
On July 16, 2004, Ms. Hess and Ms. Sanchez took Cortney to the salon to get her hair styled by Debra Morgan. Ms. Morgan observed four large weeping wounds on Cortney's head while she was preparing to cut her hair. Cortney told Ms. Morgan that the wounds were caused by Defendant grabbing her hair and pulling it out of her head. While Cortney and her friends were at the salon, Defendant called Ms. Sanchez's home incessantly and threatened Ms. Sanchez's mother. After the hair cut, Ms. Hess took Cortney back to Ms. Stewart's home to talk to Defendant.
The next day, July 17, 2004, Cortney's father, Charles Fry, took Cortney to stay with her mother, Holly Fry, for the weekend. Defendant called Ms. Fry's home throughout the weekend attempting to contact Cortney. Defendant would argue with Cortney over the phone, hang up, then call back again. Finally, on Monday, July 19, 2004, Defendant picked Cortney and the baby up and took them back to the couple's apartment.
On July 20, 2004, Defendant took Cortney and the baby for a paternity test in Dallastown, Pennsylvania. The test was performed by Lisa Olphin-Hamberger. Cortney told Ms. Olphin-Hamberger that she was going to leave Defendant and that she planned to take the baby with her. Cortney wanted to use Defendant's cell phone to make arrangements to be picked up from the testing center, but Defendant would not allow her to make a call. Ms. Olphin-Hamberger permitted Cortney to use her cell phone. Cortney contacted her sister, Samantha Groff, and asked to be taken back to her mother's home. Cortney was informed that she could come home, but that she needed to stay there permanently. Ultimately, the paterntity [sic] test determined that Defendant was the father of Cortney's baby.
Later that evening, Ms. Fry called Cortney to discuss an upcoming appointment for post-partum depression. During the phone call, Mr. Fry arrived at the apartment to drop off spring water for Cortney and the baby. Mr. Fry stated that it appeared that Cortney, Defendant and the baby were getting ready to leave the apartment. Jessica Koontz, an employee at Musser's market and Cortney's former co-worker, saw Cortney and Defendant at the grocery store later that evening. Ms. Koontz recalled that the baby was with them, but that Ms. Fry and Defendant were not speaking to each other.
On July 21, 2004, Mr. Fry attempted to call Cortney's apartment at 10:30 A.M., but did not receive an answer. Around 11:00 A.M., Karen Garber, a social worker from Children and Youth, arrived at the apartment. Ms. Garber found Defendant and the baby in the apartment, but Cortney was not present. In the early afternoon, Mr. Fry came to the apartment and found Defendant alone. Defendant told Mr. Fry that he went to the store the evening before, and that when he returned home, Cortney was gone. Later that day, Defendant threw away many of Cortney's clothes and personal items in a dumpster near the apartment. That evening, after attempting unsuccessfully to locate Cortney, Mr. Fry contacted the Columbia Borough Police Department and reported his daughter missing.
On July 22, 2004, Officer Edgar Mann of the Columbia Borough Police Department went to Defendant's apartment to question him about Cortney's disappearance. Defendant gave Officer Mann permission to search the apartment. Officer Mann found two young girls, ages 14 and 15, in the bathroom. One of the girls, 15 year old Rozalyn McAleer, stated that she was Defendant's girlfriend. Ms. McAleer additionally revealed that she had engaged in sexual intercourse with Defendant that evening.
The following day, July 23, 2004, Sergeant Jack Brommer of the Columbia Borough Police Department interviewed Defendant about Cortney's disappearance. Defendant told Sergeant Brommer that on July 20, 2004, he dropped Cortney and the baby off at the couple's apartment around 7:30 or 8:00 P.M., and that afterwards he went to his father's home.
Later that night, Manny Santos, one of Defendant's former neighbors, received a call from Defendant stating that he was traveling to Delaware to visit a female friend, Kristina Arnold. Four days later, on July 27, 2004, Defendant returned from Delaware. Chief Michael Landis of the Lancaster City Police Department interviewed Defendant about Cortney's disappearance at his mother, Cindy Adams', home. During the interview, Defendant consented to a search of his apartment and of his car.
After the interview concluded, Defendant met with his step-brother, Lemuel James. Defendant told Mr. James that, during an argument, he choked Cortney to death. Defendant also informed Mr. James that he disposed of Cortney's body by burning it in a field. Following this conversation, Mr. James drove Defendant to his aunt's home in Brooklyn, New York. After returning from New York, Mr. James told his mother, Angelica Rivera, where he had taken Defendant. Ms. Rivera insisted that she and Mr. James drive to New York and bring Defendant back to Columbia. Several days after returning from New York, Defendant again confessed to murdering Cortney, this time to Ms. Rivera.
On January 22, 2005, while rabbit hunting in Manor Township, James Ortman discovered skeletal remains in a field. Two days later, Dr. Stefan Bender, Cortney's dentist, identified the remains as Cortney Fry's through the use of dental records. The remains and the surrounding area had been heavily damaged by a fire. Several of Cortney's bones were broken or chipped, particularly around the ribs, thigh, nose, and jaw areas, and some of her teeth were broken. Additionally, a circular hole was present on the left side of Cortney's skull. Forensic pathologists concluded that a long fixed object was used to penetrate the skull. Cortney's cause of death was determined to be multiple traumatic injuries and the manner of death was deemed to be homicide.
A search of Defendant's car revealed the fingertips of a latex glove stained with blood and plant matter that was also found at the location where Cortney's remains were discovered. Additionally, a screwdriver recovered from the trunk of Defendant's car was the correct size and length to create the circular hole on the side of Cortney's skull.
On July 14, 2005, Defendant was charged with one Count of Criminal Homicide for the murder of Cortney Fry. After a six day trial, on December 13, 2006, Defendant was found guilty of the First Degree Murder. At trial, Defendant was represented by Attorney Roger Renteria with Attorney Jay Whittington serving as standby counsel. On February 5, 2007, Defendant was sentenced to a term of life in prison without the possibility of parole. After filing a timely Notice of Appeal to the Superior Court of Pennsylvania, Defendant's sentence was affirmed on December 19, 2007. Defendant then filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which Petition was denied on September 23, 2008. On June 23, 2009, Defendant filed a pro se Petition for Post-Conviction Collateral Relief and was appointed counsel. An Amended Petition was filed on May 7, 2010. A PCRA hearing was held on October 20, 2010, however, due to counsel's inability to secure an essential witness, a portion of the hearing was continued to April 20, 2012. Defendant is claiming ineffective assistance of counsel and violations of the Constitution of the Commonwealth of Pennsylvania and laws of the United States.

PCRA court opinion, 2/5/13 at 1-9 (citations to the record omitted).[2]

Appellant has raised the following issues for this court's review:

A. Whether trial counsel was ineffective when he claimed in his opening statement that [appellant] had a[c]quired certain enemies since he had occasionally sold drugs when these statements were not supported by the record and needlessly attributed prior criminal conduct to [appellant]?
B. Whether trial counsel was ineffective when he failed to object to the testimony of Officer Michael Lyons to the effect that Courtney [sic] Fry told him that [appellant] threatened to "fucking shoot her" when this testimony was inadmissible hearsay and violated [appellant]'s confrontation rights?
C. Whether trial counsel was ineffective when he failed to object to the Commonwealth being permitted to ask ...

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