WILKES-BARRE — Lamont Cherry, the man who was convicted of killing a 1-year-old girl in Wilkes-Barre in 2009, was back in court on Monday seeking post-conviction relief.
But things didn’t seem to be going too well for him.
The 44-year-old Wilkes-Barre man is currently serving a 20- to 40-year stint in state prison after he was convicted in 2011 for killing the infant Zalayia McCloe, the daughter of his live-in girlfriend, Christa Smith.
At the time, prosecutors said the man killed the baby while Smith was out of the house, causing brain damage through some act of abuse.
Cherry, though, suggested the girl could have sustained the brain injury that killed her perhaps by falling and hitting her head when he wasn’t looking.
This is the story he maintained through his attorney, Cheryl Sturm, at Monday’s post-conviction relief act, or PCRA, hearing before Luzerne County Judge Tina Polachek Gartley.
Sturm called forensic pathologist Zhongxue Hua to serve as an expert witness.
Hua initially began to suggest the evidence used at the trial could have been faulty, but some of his testimony was shot down by Assistant District Attorney Jill Matthews.
According to Matthews, recent case law suggests that the scientific evidence at PCRA hearings must be substantially new, rather than just a differing opinion on the established facts.
Polachek Gartley agreed, saying that the new evidence needs to be a strong shift that undermines previous evidence.
“PCRA doesn’t say we get a do-over to bring a more competent witness, a new witness,” she said.
Matthews reiterated, saying, “We don’t know what was false or faulty about (the trial evidence) other than the fact that they disagree with it.”
This precipitated a lengthy argument between the three regarding what, exactly, constituted “new evidence.”
While the part of Hua’s testimony where he tried to disagree with trial evidence was cut short, he was allowed to reference a study which suggests that children’s head injuries could look like they come from abuse even if they’re caused by a fall.
Hua even went on to say that Zalayia’s injuries were more consistent with a fall.
However, Frank Maffei, a pediatrician at Geisinger Danville who testified as a prosecution expert witness during the trial, wasn’t buying it.
Maffei, who was subpoenaed as a defense witness for the PCRA hearing, said he thinks the study Hua referenced offers no “conclusive evidence” that would suggest Zalayia’s death were not caused by physical abuse.
In fact, Maffei said he was aware of no strong scientific evidence that would cause him to not believe what he testified at the trial.
Sturm has more witnesses to call, but due to conflicts with Polachek Gartley’s schedule, there was not enough time to allow the hearing to continue throughout the day.
The remainder of the PCRA hearing was tentatively scheduled for Nov. 9 due to various scheduling conflicts.
Until then, Cherry was sent back to state prison.
Reach Patrick Kernan at 570-991-6386 or on Twitter @PatKernan