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[U] Commonwealth v. Graham

Superior Court of Pennsylvania

October 30, 2013



Appeal from the Judgment of Sentence Entered May 30, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000877-2010




Appellant, Robert Graham, appeals from the judgment of sentence of an aggregate term of 11 – 22 years' incarceration following his conviction for robbery and related offenses. Appellant now challenges the sufficiency and weight of the evidence supporting his identity as the perpetrator of the robbery, and he raises two evidentiary claims. In addition, Appellant claims the trial court abused its discretion in denying his request for a Frye[1] hearing to challenge the Commonwealth's fingerprinting expert. Finally, Appellant, an African American, claims a Batson[2] violation occurred when the Commonwealth improperly utilized a peremptory challenge to exclude the only African American in the jury pool. After careful review, we affirm. The trial court summarized the facts adduced at trial as follows:

On June 22, 2009 at approximately 2:20 a.m., an individual wearing sunglasses and a camouflaged sweatshirt with the hood pulled up entered the Uni-Mart on West Fourth Street [in Williamsport] and approached the clerk, Debra Almashy, who was behind the counter doing some paperwork. The clerk asked, "Can I help you?" The individual pulled out a handgun and demanded that the clerk open the register. The clerk opened the register and placed the cash drawer on the counter. The robber grabbed the back of the cash drawer with his left hand and removed $117 in cash, but no coins. The robber then told the clerk to open the safe. When the clerk told him that she couldn't, the robber threatened to shoot her. Again, the clerk told the robber that she couldn't open the safe. The robber then demanded cigarettes. When the clerk started to grab packs of cigarettes, the robber said, "No, cartons." The clerk placed 10 cartons of cigarettes on the counter. The robber went through them and took 5 cartons of Newport cigarettes and left. The clerk immediately called the police. According to the store's surveillance videotape, the entire incident lasted approximately one minute and eleven seconds.
The police responded to the Uni-Mart. As part of their investigation, the police dusted for fingerprints. Latent fingerprints were obtained from the cash drawer and two cartons of cigarettes. The latent prints were sent to the Pennsylvania State Police Wyoming Regional Laboratory for analysis. Sergeant Floyd Bowen, who analyzed the latent prints, determined that the latent fingerprint on the back of the cash drawer matched Defendant's left thumb print.
About ten months after the incident, the clerk saw a photograph in a newspaper article and recognized the person in the photograph as the individual who robbed her.
Defendant was arrested and charged with robbery by threatening to inflict serious bodily injury, robbery by threatening to inflict bodily injury, theft by unlawful taking, receiving stolen property, terroristic threats, and possessing an instrument of crime.

Post Sentence Motion Opinion and Order (PSMO), 9/11/12, at 1 – 2.

On November 23, 2010, Appellant filed an omnibus pre-trial motion requesting, inter alia, a Frye hearing to challenge the admissibility of the Commonwealth's expert testimony on the application of latent fingerprint analysis in this case. The trial court denied Appellant's motion for a Frye hearing in an Opinion and Order dated February 4, 2011. Pre-Trial Opinion and Order (PTO), 2/4/11, at 6. Appellant's jury trial was held on March 5, 7, and 8 of 2012. Following his conviction on all counts, Appellant was sentenced to an aggregate term of 11 – 22 years' incarceration on May 30, 2012. Appellant subsequently filed post-sentence motions which were entertained by the trial court at a hearing held on July 20, 2012. The trial court denied the post-sentence motions on September 11, 2012. PSMO at 12 – 13. On September 24, 2012, Appellant filed a timely notice of appeal. He submitted a timely Pa.R.A.P. 1925(b) concise statement on October 29, 2012. The trial court filed its Pa.R.A.P. 1925(a) opinion on February 11, 2013, in which the court incorporated the PTO and PSMO as dispositive of Appellant's claims of error. Trial Court Opinion (TCO), 2/11/13, at 1.

Appellant now presents the following questions for our review:

1. Whether the Commonwealth failed to provide sufficient evidence to prove [Appellant]'s guilt since the cash drawer was never sent for proper fingerprint analysis and one witness at the scene was never called to testify[?]
2. Whether the verdict issued was against the weight of the evidence since the cashier at the convenience store was inconsistent in her testimony and based her identification on a newspaper story[?]
3. Whether the court erred in failing to allow testimony that … Appellant was employed at the time of the robbery and allowing the affiant to use inexact methods to calculate the height of the [robber?]
4. Whether the court erred in the denial of a Frye hearing regarding expert testimony in fingerprinting[?]
5. Whether the court erred in determining that … no Batson claim existed after the Commonwealth struck the only African-American juror in the jury panel[?]

Appellant's Brief, at 5.

Appellant's claims will be addressed ad seriatum.

Sufficiency of the Identity Evidence

Appellant claims there was not sufficient evidence to convict him as the perpetrator of the robbery because the cash drawer was not sent for proper fingerprint analysis and because a witness was not called to testify. Our review of sufficiency claims is governed by a well-established standard and scope of review:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal citations omitted).

Appellant claims that "without the fingerprint [on the cash drawer], the connection of … Appellant to the robbery was tenuous at best." Appellant's Brief, at 11. While we agree that the fingerprint was an important piece of evidence establishing Appellant's identity as the robber, it was not the only identification evidence. Appellant was identified by the Uni-Mart clerk, in court, as being the robber. Additional circumstantial evidence (discussed below) linked Appellant to a vehicle seen near the store just after the robbery. Such evidence is sufficient to establish identity. See Commonwealth v. Kloiber, 106 A.2d 820, 827 (Pa. 1954) (stating that "a weak identification, together with other evidence in the case, may be sufficient to convince a jury of the defendant's guilt beyond a reasonable doubt—the credibility of the witnesses and the weight to be given their identification is, under proper instructions from the Court, exclusively for the jury") (footnote omitted).

Moreover, Appellant's argument goes to the weight of the fingerprint evidence, not its sufficiency. Appellant challenged the expert's methodology at trial by presenting his own fingerprinting expert, Dr. Ralph Haber. The essence of Appellant's objections to the Commonwealth's expert, as it relates to the current issue, was that the accuracy of the Commonwealth's expert's methodology in analyzing the fingerprint was in some way compromised by the failure of investigators to retrieve the whole drawer on which the fingerprint was located. Instead, investigators applied dust to the fingerprint, which was then removed by the use of a clear adhesive tape and sent for fingerprint analysis in that form. Whether that method diminished the reliability of the subsequent fingerprint analysis goes to the weight afforded to that evidence, not its sufficiency.

The second aspect of Appellant's sufficiency claim concerns the Commonwealth's failure to call a witness, Shawn Neupauer. Neupauer and his then girlfriend, Laura Robson, lived near the Uni-Mart at the time of the robbery. When they heard over a police scanner that the Uni-Mart had just been robbed, they went outside to see what was going on. From Robson's porch they observed a vehicle that was noticeably out of place in the neighborhood. They then observed that vehicle depart quickly. Robson testified at Appellant's trial and gave a very general description of the vehicle's rear end, as well as its color. Later, on or about July 24, 2009, just after police had determined the cash drawer fingerprint matched Appellant, Agent Eric Delker learned where Appellant worked, went to that location, and waited for Appellant to arrive. Agent Delker testified that when Appellant arrived, he was driving a vehicle that matched the general description given by Robson.

The Commonwealth's failure to call Neupauer to testify as to his observations of the vehicle he and Robson saw the night of the robbery does not call into question the sufficiency of the evidence demonstrating the identity of robber. Even if Neupauer had testified contrary to the account of Robson, it would merely call into question the weight of Robson's testimony and, thus, Appellant's argument is not properly characterized as a sufficiency claim. In any event, Appellant has not adequately established that Neupauer's testimony would in any way contradict or undermine Robson's testimony; thus, Appellant's second sufficiency argument is rooted in conjecture. Accordingly, we conclude that Appellant has failed to meet his burden on appeal of demonstrating a lack of sufficient evidence establishing his identity as the robber.

Weight of the Identity Evidence

Appellant's second claim posits that the verdict was against the weight of the evidence. He premises his claim on the circumstances surrounding the Uni-Mart clerk's (Debra Almashy's) identification of him as the perpetrator of the robbery. Almashy first identified Appellant upon observing his photograph in a newspaper eleven months after the robbery. The photograph was attached to a story caption with the headline, "city man jailed on charges of armed robbery." N.T., 3/5/12, at 84. Appellant contends that these facts compromised Almashy's identification, and he also argues that Almashy's testimony was inconsistent.

In Widmer, our Supreme Court also set out the scope and standard of review of a weight of the evidence claim:

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Widmer, 744 A.2d at 751-53 (internal citations and quotation marks omitted).

The trial court determined that the inconsistencies in Almashy's testimony were not materially different from her previous testimony and, further, that whatever inconsistencies existed were matters of credibility left for the jury's determination. PSMO, at 11. We agree.

At the preliminary hearing, Almashy indicated that the perpetrator was a few inches taller than she was, her height being 5' 4". At trial, she indicated that the perpetrator was approximately 5' 9". At the preliminary hearing, Almashy testified that she was not sure if the robber was wearing a hat or a hood. At trial, she said the robber was wearing a hood and sunglasses. At the preliminary hearing, she said the robber was in the store for approximately five minutes. At trial, it was specifically determined by videotape evidence that the robber was in the store for just over one minute. Finally, Almashy only identified Appellant after seeing his picture in the newspaper article headlined, "City Man Jailed on Armed Robbery Charges." Almashy testified that she was able to recognize Appellant from the bottom half of his face that was visible underneath his hood and sunglasses. She said she did not notice the headline or read the accompanying article when she saw Appellant's photo.

All of these matters were brought to the attention of the jury during Appellant's cross-examination of Almashy. We find no error in the trial court's determination that the jury's credibility assessments on these matters did not shock the conscience of the trial court. There were no facts in this case contradicting the verdict that were of such undeniably great weight that the trial court could rationally conclude that justice had been obviously denied by Appellant's conviction. Accordingly, we conclude the trial court did not abuse its discretion when it found that the verdict was not contrary to the weight of the evidence.

Evidentiary Issues

Appellant's third claim is, in fact, two distinct evidentiary arguments. First, Appellant posits the trial court abused its discretion when it precluded him from introducing evidence of his employment to demonstrate a lack of motive to commit robbery on that basis that he had income from another source. Second, he argues that the trial court abused its discretion when it allowed the Commonwealth to offer testimony by a police officer estimating the perpetrator's height by "inexact methods." As with any evidentiary claim on appeal, our standard of review is well-settled. "The admissibility of evidence is a matter directed to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused that discretion." Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998).

Exclusion of Appellant's Employment Evidence

The trial court determined that evidence of Appellant's employment was irrelevant, and therefore inadmissible, relying on our Supreme Court's holding in Commonwealth v. Haight, 525 A.2d 1199 (Pa. 1987). In Haight, the defendant's girlfriend was cross-examined by the prosecutor regarding the defendant's lack of income in an attempt to demonstrate his motive to commit burglary and related offenses. Haight, 525 A.2d at 1199 – 1200. This Court reversed Haight's conviction because we held that evidence of Haight's income was irrelevant as it did not tend to prove or disprove any material fact at issue and its erroneous admission was not harmless error. Our Supreme Court agreed, concluding that "[t]estimony of income … does not tend to prove or disprove any of the facts needed to establish the crime of burglary nor those of any of the other crimes of which [the defendant] was convicted." Id. at 1200. The Supreme Court also found that because the defendant's credibility was at issue at trial as he had raised an alibi defense, the admission of income evidence was not harmless error, because the "introduction of inadmissible evidence at trial tending to cast a new and not merely cumulative element against the [defendant], given the positions of the parties involved, puts an unmeasurable variable into the proceeding and the jury's deliberation." Id.

Appellant attempts to distinguish his case from Haight on the basis that he attempted to demonstrate his lack of motive to rob due to the presence of employment income, whereas in Haight, the Commonwealth attempted to demonstrate a motive by showing lack of income or employment. Appellant also argues, "[m]ost importantly, this would not have the prejudicial effect that informing a jury that an individual was unemployed would have, which is the distinguishing feature from Haight." Appellant's Brief, at 15.

Haight clearly stands for the proposition that evidence of income "does not tend to prove or disprove any of the facts needed to establish" the crime of burglary. Haight, 525 A.2d at 1200 (emphasis added). Although Appellant's charged crime was robbery and not burglary, the two crimes are indistinguishable for this purpose of the Haight rule. Furthermore, whether such evidence is offered to prove or disprove motive may affect whether its admission is unduly prejudicial, however, it does not affect the primary question of relevancy. The Haight court clearly found evidence of income to be irrelevant in a criminal case involving theft-related offenses.

Here, Appellant sought to introduce evidence of employment for the express purpose of showing that his source of income tended to show he was less likely to commit a robbery. Despite the role-reversal, this is the same type of evidence found to be inadmissible in Haight. We conclude that it is immaterial whether the Commonwealth attempts to present evidence of lack of income to show propensity to commit crimes, or whether a defendant attempts to present evidence of income to show the opposite propensity. In either case, such evidence is irrelevant and, therefore, inadmissible. Accordingly, we conclude the trial court did not abuse its discretion when it precluded Appellant from introducing evidence of his employment.

Admission of Evidence Approximating the Robber's Height

Appellant next complains that the trial court abused its discretion when it permitted the Commonwealth to present Agent Delker's opinion testimony that Appellant's height and size matched that of the robber seen on the Uni-Mart's video surveillance tape. Agent Delker measured fixed objects in the store to give the jury a frame of reference by which to view the height of the perpetrator as seen on the tape. Appellant argues that because Agent Delker "was not an expert in measurements[, ]" his testimony was not relevant. Appellant's Brief, at 16. The trial court found the evidence to be admissible and not unduly prejudicial. Appellant's argument regarding Agent Delker's lack of expertise in conducting measurements suggests that Appellant is claiming that Agent Delker was testifying as an expert witness without having first been qualified as such. We disagree.

Opinion evidence by lay witnesses is governed by Pa.R.E. 701, which reads:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Pa.R.E. 701. Simply put, "[e]xpert testimony is necessary where the subject matter involves special skill and training beyond the knowledge of a layman." Vrabel v. Commonwealth, 844 A.2d 595, 598 (Pa. Cmwlth. 2004). In Vrabel, the Commonwealth Court stated that "because the use of motor vehicles is so common, courts do not restrict testimony about the operation of motor vehicles to expert witnesses. Indeed, our courts routinely permit lay witnesses to opine as to speeds of vehicles and to estimate times and distances of vehicular travel." Id. at 598.

Here, Agent Delker's opinion testimony that Appellant matched the size and height of the robber on the surveillance tape was based upon his own observations of the tape and the layout of the Uni-Mart. That testimony was helpful in determining a fact at issue in the trial: whether Appellant fit the physical characteristics of the robber that could be seen on the surveillance tape. We do not believe that basic measurements of the height of various objects in the Uni-Mart were "scientific, technical, or other specialized knowledge" that required expert testimony. That is not to say that the taking of measurements of length or height will never require expert testimony. In this instance, however, where the means employed would be commonly understood by the jury, and the accuracy required was only enough to be able to approximate the robber's height, expert testimony was not required. Accordingly, we conclude the trial court did not abuse its discretion when it permitted Agent Delker's lay testimony approximating Appellant's height by comparing the surveillance tapes with actual measurements taken by the Agent in the Uni-Mart.

Denial of Appellant's Request for a Frye Hearing

Appellant next claims that the trial court erred when it denied his request for a Frye hearing regarding expert testimony in fingerprinting. Appellant claims that the methodology used by the Commonwealth's expert in this case was not generally accepted in the relevant scientific community.

The trial court denied Appellant's request for a Frye hearing because it found that the science at issue was not novel, and because Appellant's challenge to the expert's methodology went to the weight of the testimony and not to its admissibility.

"[T]he admission of expert scientific testimony is an evidentiary matter for the trial court's discretion and should not be disturbed on appeal unless the trial court abuses its discretion." Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). "[T]he proponent of expert scientific evidence bears the burden of establishing all of the elements for its admission under Pa.R.E. 702, which includes showing that the Frye rule is satisfied." Id. at 1045.

In determining whether novel scientific evidence is admissible in criminal trials, Pennsylvania courts apply the test set forth in Frye…. Pursuant to Frye, to be admissible, such evidence must have gained general acceptance in the relevant scientific community. This Court has generally required that both the theory and technique underlying novel scientific evidence must be generally accepted.

Commonwealth v. Blasioli, 713 A.2d 1117, 1119 (Pa. 1998).

"[A] Frye hearing is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions." Betz v. Pneumo Abex, LLC, 44 A.3d 27, 53 (Pa. 2012). Whether a Frye hearing should be conducted is not simply as narrow a question as whether the science is truly "novel" in the most literal sense; however, nor should a trial court conduct a Frye hearing every time scientific evidence is introduced in the courtroom.

Here, Appellant sought to challenge the Commonwealth's fingerprinting expert on the basis that relatively recent scientific literature calls into question some of the common practices in the applied science of fingerprint analysis. The trial court found that it "has been well[- ]established in the scientific community that patterns of friction ridges on fingertips are unique and permanent to each individual." PTO, at 4.

However, the trial court concluded that "the apparent universal acceptance of latent fingerprint identification must not deprive the Defendant of the right to defend himself." Id. at 5. Thus, although the trial court denied Appellant's request to put the Commonwealth's expert's science to the test at a Frye hearing, the court did permit Appellant to challenge whether the expert had, in fact, conformed to the generally accepted methodologies. For instance, the trial court granted Appellant's request for funds for his own expert to "investigate, assess, and testify as needed in connection with the reliability of not only the results of the latent fingerprint[] analysis done on the Defendant but also the standards and procedures utilized in connection with said analysis." Id. at 5 – 6.

Both the Commonwealth's expert and Appellant's expert agreed that the methods employed in this case were the subject of recent scientific criticism. Essentially, the methods used by the Commonwealth's expert, although well-established, have been criticized as having less reliability than more recently developed practices. However, Appellant has failed to sufficiently develop his argument in his brief to demonstrate that the trial court abused its discretion by applying an incorrect standard of law or by misapplying an existing standard when it refused to conduct a Frye hearing. The existence of recent criticisms in the scientific literature of the reliability of the methodology employed by the Commonwealth's expert, some of which were published after the fingerprint analysis conducted in this case, are not sufficient to demonstrate a change in the scientific consensus of the basic underlying science.

There is no evidence that Appellant was prejudiced by the denial of a Frye hearing in this case. Appellant's expert did not offer any opinion regarding whether Appellant's fingerprint had been misidentified. He only criticized the methods employed by the Commonwealth's expert, and not the validity of the science underlying the analysis. Nevertheless, Appellant was afforded the opportunity to challenge the weight afforded the Commonwealth's expert's testimony and put before the jury whether the expert employed a now inferior methodology of applying the underlying science. In these circumstances, we find the that approach adopted by the trial court was reasonable. Accordingly, we conclude that Appellant has failed to meet his burden on appeal of demonstrating that the trial court abused its discretion when it denied his request for a Frye hearing.

Batson Issue

In Appellant's final claim, he asserts that the trial court erred when it determined that no Batson claim arose when the Commonwealth struck the only African American from the jury pool.

To show a Batson violation, an appellant must generally demonstrate his particular factual situation satisfies the well[-]established test laid out by the United States Supreme Court's opinion in that case: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for his peremptory challenges. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013).

Here, it is undisputed that the Commonwealth struck the only African American juror in the jury pool, and that Appellant raised a timely objection. The prosecutor responded that he intended to strike the juror on the basis that the juror had been previously charged with, but not convicted of, indecent assault. The prosecutor averred that when he made the decision to strike, he was not even aware of the juror's race, which he did not discover until the juror was called up during voir dire. The prosecutor explained:

I don't want to take a juror who's been charged with certain types of crimes. Don't get me wrong, I don't strike DUI's and things like that in general, but other crimes, serious crimes where they're charged and the charges result in a dismissal, they may feel they're treated unfairly by the system so I intend to strike.

N.T., 2/14/12, at 2.

Appellant complains that the determination to strike had been made before any questions were asked of the juror regarding whether he could be fair and impartial. Appellant contends that because no inquiry was made into the juror's potential biases arising out of the dismissed charges, "[i]t appears that striking the juror may have had more to do with racial concerns than any other type of concern." Appellant's Brief, at 20.

The trial court found that Appellant was not entitled to relief because "the Commonwealth offered a credible, race-neutral reason for exercising one of its peremptory challenges to strike the juror." PSMO, at 3. The trial court also found the prosecutor to be credible in his claim that he did not know the race of the juror when he made the decision to exercise his peremptory challenge. Id. at 3 – 4.

In light of these circumstances, we agree with the trial court's determination that the prosecutor's peremptory challenge did not violate Batson, and we conclude that the reasoning offered by the trial court is supported by the record. Appellant has cited no authority that stands for the proposition that a prosecutor's peremptory challenge based upon an arrest record is not a race-neutral criterion. Furthermore, the trial court found the prosecutor's statement that he lacked knowledge about the juror's race prior to deciding to strike that juror to be credible. Accordingly, Appellant failed to carry his burden of proving purposeful discrimination and, therefore, the trial court did not abuse its discretion.

Judgment of sentence affirmed.

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