Man convicted in child’s death files second appeal
The attorney for convicted murderer Franklin Weimer said Thursday that he be believes Judge Gerald R. Solomon abused his discretion when he allowed jurors to see seven color photos of 2-year-old Zachary Johnson. Weimer was convicted of third-degree murder last year of beating the toddler to death. The pictures show Johnson’s head, where the bulk of the injury was concentrated, before during and after an autopsy was performed, according to defense attorney William C. Costopoulos in his appeal to Superior Court.
Weimer, 33, was charged with beating Johnson when the toddler’s mother, Julie Johnson Marinelli, went to work a midnight shift at a nursing job in January 1998. Johnson Marinelli arrived at her Uniontown job and minutes later, Weimer called from their shared Hopwood home to tell her Johnson fell down the steps. The toddler was taken to a hospital and died a short time later.
Weimer later told police he lied when he said Johnson, who was not his son, fell, and told authorities he was swinging the boy around and his head hit a table leg.
During Weimer’s trial, his second in the killing, Solomon ruled that very few of the prosecution’s many pictures of Johnson’s injuries could go out with the jury because others were too graphic. Still, Costopoulos wrote in his appeal that the ones the jury did see were “unduly inflammatory.”
“Any evidentiary value did not clearly outweigh the certainty that the minds and passions of the jurors were inflamed by viewing them,” claimed Costopoulos.
His statement of issues for appeal also included a claim that Solomon did not give jurors the complete charge on involuntary manslaughter, a lesser count to the third-degree murder of which Weimer was convicted.
Solomon, according to Costopoulos, also erred in not allowing Weimer’s trial attorney to elicit statement from a police officer who was reportedly told by Johnson Marinelli that Weimer treated her son better than his own father.
In two other issues for appeal, Costopoulos claimed that prosecutors attempted to cross-examine character witnesses brought to court on Weimer’s behalf about things Solomon had “expressly forbidden” them to ask about.
He also claimed that Weimer’s trial attorney was prejudiced by prosecutors because they had the table Weimer said he hit his Johnson’s head into for 1 1/2 years, but did not tell that do the defense.
That table, wrote Costopoulos, was “critical to buttressing the defendant’s version of events and his defense of accidental homicide.”
During the trial, Solomon allowed for a brief recess so that Weimer’s trial attorney, George Matangos, could consult with an expert to see if the table could produce any viable evidence. Ultimately, Matangos did not call and expert.
However, Costopoulos said the recess did not mitigate the prosecution’s responsibility.
The statements for appeal in the case will be followed by a more complete brief in which Costopoulos outlines specific instances during the trial to make his points.
Weimer, meanwhile, is serving his sentence of 22 1/2 to 45 years at a state correctional institution.
He was sentenced to the same amount of time as he was several years before when he was earlier convicted in Johnson’s death. The Superior Court, however, overturned that earlier verdict because Solomon refused to allow Weimer’s defense attorneys to present medical evidence to bolster his defense.
The jurist refused to allow the testimony because the attorneys did not present prosecutors with the defense medical findings until the day they were to present the evidence at trial.