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Fabian Smart’s appeal of murder conviction turned down

March 20, 2008
By JIM RUNKLE — jrunkle@lockhaven.com
LOCK HAVEN — Clinton County Judge J. Michael Williamson has denied a petition by Fabian Smart appealing his murder conviction in the beating death of a Lock Haven area man nine years ago.

Judge Williamson filed the response to Smart’s Post-Conviction Collateral Relief Act petition on Tuesday.

Smart was convicted of first-degree murder and sentenced to life in prison without the possibility of parole in the death of Jason McMann. On Oct. 1, 2007, he filed a motion under the Pennsylvania Post Conviction Collateral Relief Act, asking that the conviction be overturned and that a new trial be held.

Smart is serving his sentence in the State Correctional Institution in Waynesboro.

Judge Williamson rejected all three arguments raised by defense counsel and Smart at a PCRA petition hearing earlier this week:



DNA TESTS

The defense argued that Smart’s trial attorneys were ineffective because they failed to compel forensic tests of victim’s fingernail cuttings and a towel found near McMann’s body.

Judge Williamson said the decision by attorney Ron Travis and co-counsel Eric Linhardt not to request DNA testing of those materials was based on trial strategy. Travis, who was Smart’s attorney at the time of trial, testified he believed it would be “too risky” to seek testing because of the possibility that testing would confirm the involvement of his client in the crime.

“After consideration of all evidence, we are satisfied beyond any question that the strategy was reasonable and intended to be in the best interest of the defendant,” Williamson wrote.



RACIAL BIAS

Smart also contended that the trial attorneys were ineffective in failing to pursue his claim of racial bias, based upon the information provided by one of the jurors after the trial.

At this week’s hearing, Travis said one jury member contacted him after the trial and told him jury members used racial slurs (Smart is black) which were brought up “early and often.”

Unfortunately for the defense, Williamson said, the Pennsylvania Rules of Evidence provides that, “A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations.”

“Because we believe we are precluded from considering the proffered testimony, the defendant’s claim must fail,” Williamson wrote.



PHOTO IDENTIFICATION

Finally, Smart contends he was entitled to a new trial because of newly discovered evidence, in the form of a trial statement McMann secured a PennDOT photo identification card after the date of his presumed death.

A check by the District Attorney Mike Salisbury and defense counsel David Strouse, who was appointed as special counsel in connection with the legal proceedings, indicated the most recent card issued to the victim was secured at noon Nov. 14, 1998, several months prior to the incident and assumed date of death.

During the trial one witness said McMann had purchased a PennDOT identification card between the date of his death on Jan. 23, 1999, and Groundhog Day on Feb. 2 that same year.



McMann was last seen alive in the winter of 1999 near a home occupied by Lock Haven University students at Center and North Fairview streets, and was reportedly involved in a fight with Smart and others at that location.

Three months after his reported disappearance, McMann’s body was found along a stream in a rural section of the county.

Two alleged participants in the event said they helped Smart load McMann into a car, and a third said he and Smart drove to a remote and wooded area near Sugar Valley, where Smart pistol-whipped the unconscious man, struck him with a tree branch and rolled him down a steep incline near a stream, where McMann succumbed to his injuries and exposure to winter weather.

Smart, an LHU student at the time of McMann’s death, was arrested in June 2002, and was later convicted of first-, second- and third-degree murder, kidnapping and conspiracy.

Also charged in McMann’s death were Willie Williams, Jermaine L. Ballard and Quincy Teel, also Lock Haven University students. All three testified against Smart, eventually pleaded guilty to various offenses and were sentenced to lengthy prison terms for their part in the crimes.
 
 

 

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