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[U] Commonwealth v. Booher

Superior Court of Pennsylvania

February 25, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
BENJAMIN BOOHER COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
BENJAMIN BOOHER

NON-PRECEDENTIAL DECISION

Appeal from the Order, October 2, 2012, in the Court of Common Pleas of Butler County Criminal Division at No. CP-10-CR-0001385-2010

Appeal from the Order, October 10, 2012, in the Court of Common Pleas of Butler County Criminal Division at No. CP-10-CR-0001385-2010

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

The instant action is an interlocutory appeal by the Commonwealth from the orders entered October 2, 2012, and October 10, 2012, in the Court of Common Pleas of Butler County granting appellee's motion to preclude the introduction of certain DNA evidence and precluding two expert witnesses from testifying as to the results of testing performed.[1] Following careful review, we affirm.

On March 21, 2010, appellee was arrested and charged with rape, sexual assault, indecent assault, indecent exposure, and recklessly endangering another person in relation to the alleged act of intercourse with M.L., a 16-year-old girl. The facts, as established at the preliminary hearing, are as follows. After a funeral on March 20, 2010, M.L. went to her aunt's home in Butler County. Here, she met others who gathered to eat, drink alcohol, and socialize. Appellee, who was 31 years old, was present at this event and met M.L. for the first time. (Notes of testimony, 7/28/10 at 9-12.) M.L. had been drinking alcohol at the gathering and acknowledged that she was drunk. M.L. testified that she may have had 2½ to 3 beers and at least 4 mixed drinks. (Id. at 12-13, 18, 21-24.)

M.L, who is from Pittsburgh, decided to stay the night at her aunt's home. (Id. at 13-14.) M.L. and appellee ended up talking together in the basement. (Id. at 14-15.) M.L. remembered being tired and falling asleep on a sofa in the basement. (Id. at 14.) She testified that when she awoke, appellee was on top of her and his penis was inside of her vagina. (Id. At 16.) She told him to "get off" and he complied. (Id.) M.L. called her mother, who in turn called the police.

On January 6, 2011, appellee filed a pre-trial motion to preclude introduction of DNA evidence and a motion to suppress the results of DNA testing. (Docket #16.) The motion argued the Commonwealth should not be permitted to introduce DNA evidence because it did not follow generally accepted laboratory procedures. Appellee argued that the chain of custody was not maintained with respect to the handling of the victim's clothing samples. Specifically, the victim's underwear and bra were packaged together at the hospital on March 21, 2010, and remained in the same package until delivered to the Pennsylvania State Police Crime Laboratory on May 27, 2010.

Additionally, appellee claimed the proffered testimony would be unfairly prejudicial as the evidence did not specifically identify him as the contributor of the seminal matter. He argued the Commonwealth's expert testimony would indicate that neither "[appellee], nor any of his paternally related male relatives can be excluded as the contributor of this DNA." (Id.) Appellee noted that five other paternally related male relatives were present in the home where the alleged assault occurred.

A hearing was held on July 20, 2012, and the Commonwealth presented the expert testimony of serologist Ashlee Mangan ("Mangan") and DNA analyst Timothy Gavel ("Gavel"). The Commonwealth also presented the testimony of Adams Township Police Officer Michael Baily. The defense presented the testimony of Mark Perlin, M.D., Ph.D, and Raymond Melder, a retired Pennsylvania State Trooper. Following the hearing, the parties submitted briefs to the trial court. Thereafter, on October 2, 2012, appellee's motion was granted. (Dockets #48.) On October 10, 2012, the trial court filed an opinion and order clarifying that it was granting appellee's motion to preclude the introduction of DNA evidence and stating

[t]he Commonwealth will not be permitted to present the testimony of Ashley Mangan which indicates that spermatozoa were identified in the crotch and in front of the crotch of M.L.'s underwear. Timothy Gavel will not be permitted to testify of the results as set forth in conclusion seven of the report of July 31, 2010.

Docket #49.

A timely notice of appeal was filed, and the Commonwealth complied with the trial court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. The following issues have been presented on appeal:

A) Did the trial court err in conducting more of a Rule of Evidence 702 Analysis than a Rule of Evidence 403 Analysis, when the parties agreed that the defendant was not challenging the science of the [Y-STR] DNA?
B) Did the trial court err in treating [Y-STR] DNA evidence as if it had to stand alone instead of in conjunction with all of the Commonwealth's evidence?
C) Did the trial court err in taking an all or nothing approach regarding the admission of the [Y-STR] evidence found in the victim's underwear instead of fashioning an Order admitting the [Y-STR] evidence found in the victim's underwear and excluding or limiting the sperm head evidence found in the victim's underwear or considering an appropriate cautionary instruction to the jury?
D) Did the trial court err in ruling that the [Y-STR] DNA found in the victim's underwear should be excluded as not being relevant, that its prejudicial effect was greater than its probative value, and in only considering the prejudicial effect as it related to the suspect and not the Commonwealth?

Commonwealth brief at 4.

Essentially, the Commonwealth argues that the trial court abused its discretion in concluding that the Y-STR[2] DNA evidence should be excluded.

When ruling on a trial court's decision to grant or deny a motion in limine, we apply an evidentiary abuse of discretion standard of review. The admission of evidence is committed to the sound discretion of the trial court, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010) (citations and quotations omitted).

Our standard of review in cases involving the admission of expert testimony is narrow. "Generally speaking, the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion." Commonwealth v. Brown, 596 A.2d 840, 842 (Pa.Super. 1991), appeal denied, 532 Pa. 660, 616 A.2d 982 (1992). An expert's testimony is admissible when it is based on facts of record and will not cause confusion or prejudice. Id.

The overriding principle in determining if any evidence should be admitted involves a weighing of the probative value versus prejudicial effect. Commonwealth v. Dunkle, 529 Pa. 168, 177, 602 A.2d 830, 834 (1992). We have held that the trial court must decide first if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. Commonwealth v. Hawk, 551 Pa. 71, __, 709 A.2d 373, 376 (1998). The Commonwealth defines relevant evidence as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. However, to be relevant and admissible, "evidence need not be conclusive." Commonwealth v. Crews, 536 Pa. 508, __, 640 A.2d 395, 402 (1994).

"Evidence is not unfairly prejudicial simply because it is harmful to the defendant's case." Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009), quoting Commonwealth v. Dillon, 592 Pa. 351, 367, 925 A.2d 131, 141 (2007). The trial court is not required to "sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand." Id. Exclusion of evidence on the grounds that it is prejudicial is "limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case." Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012).[3]

A review of the testimony presented at the hearing is necessary. Mangan, who authored a report about the scientific evidence she analyzed in this case, testified that she examined the sexual assault kit collected from M.L. (Notes of testimony, 7/20/12 at 13.) Mangan noted that the hospital erroneously packaged the evidence by placing M.L.'s bra and underwear in the same bag where the items remained for at least 24 hours. (Id. At 24-27.) Mangan acknowledged that trace evidence can be transferred from one piece of clothing to another piece of clothing if the items are in contact. (Id. at 28-29.)

In the May 28, 2010 report following the first test that she conducted, Mangan stated that there was no biological evidence of semen that would support that there was a sexual assault found in any of the particular rape kit samples. (Id. at 30.) Mangan explained that she examined the sexual assault evidence collection kit taken on M.L. and did not find any spermatozoa on the samples from M.L.'s vagina, rectal area, or mouth. (Id.) No seminal material was identified in the debris in the pubic hair combings. (Id. at 15.) She also testified that she examined the black underwear worn by appellee on the evening in question and found spermatozoa present. (Id. at 19.) Mangan also examined penile swabs, miscellaneous debris, and pubic hair combings taken as part of appellee's sexual assault examination kit and did not find any seminal fluid or spermatozoa on those items. Among the evidence examined were the underwear worn by M.L. the night of the incident. (Id.) Mangan took three cuttings from the crotch area of the underwear to prepare for DNA analysis. (Id. at 17-18.) One cutting was from the front of the crotch and two cuttings were from inside the crotch. (Id. at 18, 41.) The first time Mangan looked at the samples from the female underwear, she did not see any spermatozoa. (Id. at 51.)

On or about February 28, 2011, the Butler County District Attorney's Office asked Mangan to prepare another serology[4] analysis. (Id.) After the cuttings of material had been in water for a longer period to allow the sperm to be released from the cloth, Mangan again examined the extract under a microscope. (Id. at 51-52.) On this date, she found sperm heads in area "X-1." (Id. at 43-44.) She did not find any sperm heads in area "X-2." (Id. at 44.) Mangan testified that she grades the sperm found on a scale from one plus to four plus; she rated the sperm found as "one plus" because there were not many sperm heads found.[5] (Id. at 44-45.) Mangan could not verify if the sperm heads were from the sexual encounter on February 12, 2010. (Id. at 45.)

On cross-examination, defense counsel inquired whether she would generally expect to find millions of sperm heads if seminal fluid was found in a sexual assault case. (Id. at 46.) Mangan replied that there are many variables to consider, such as whether, a male produced sperm in his ejaculate, he did not ejaculate, or it was pre-ejaculate. (Id.) But she did concur that when investigating sexual assault cases involving a normal male, she would generally find millions of sperm heads. (Id. at 47.)

Next, Gavel testified regarding both his July 31, 2010 and March 8, 2011 DNA reports on appellee's penile swabs, the cuttings from M.L's underwear and appellee's underwear; buccal collectors[6] from both M.L. and appellee were also examined. (Id. at 61, 65-66, 78-79.) Gavel testified that he completed testing on the Q2 sample sent to the lab by the serology department. Gavel testified at length as to the samples tested, which will include both a sperm fraction and a non-sperm fraction. The sample is separated through a process by which the heavy sperm cells are collected at the bottom of the tube, and the rest of the cells remain at the top. Gavel stated that the cells at the top are classified as the non-sperm fraction, and the sperm cells at the bottom are classified as the sperm fraction. "The non-sperm fraction you would expect to find DNA from saliva or skin cells or blood cells, and basically any other type of cell except for sperm DNA would be expected to be found in that particular fraction." (Id. at 65.) Various procedures are conducted to separate the different fractions, and the sperm fraction is then compared with the profile of the suspected perpetrator's DNA.

Gavel also testified to STR analysis (traditional DNA analysis) and Y-STR analysis.

Generally, Y-STR analysis is performed when you would have a sample that may contain male and female DNA. . . . [I]f there is a large amount of female DNA present on a particular item and only a small amount of male DNA, the female DNA may overwhelm or mask the male DNA present and may not be able to be observed in our traditional testing. At that point, we would try the Y-STR analysis which is specific to male and would allow us to target the male DNA present in a particular item.

Id. at 71. The Y-STR analysis targets areas that are specific to the Y-chromosome. (Id.) He explained the Y-STRs provide a weaker analysis than autosomal STRs because the Y-chromosome is only found in males, which are only passed down by the father, making the Y-chromosome in any paternal line practically identical. (Id. at 72-73.)

With regards to his July 31, 2010 report, Gavel testified no interpretable results were obtained from the non-sperm fraction and sperm fractions of the penile swabs of appellee, as there was too little DNA present. (Id. at 79.) Nor was any of M.L.'s DNA on appellee's penile swabs. (Id. at 79-80.) Additionally, Gavel testified that his July 31, 2010 report indicates that there was "no autosomal STR evidence that would support a DNA match between M.L.'s underwear and [appellee]." (Id. at 83.) His March 8, 2011 report indicates that none of M.L's DNA was found in appellee's underwear or appellee's penile swab. (Id. at 84-85.) He concurred with defense counsel that in a sexual assault case, there is oftentimes a mixture of bodily fluids, which was not found in either underwear sample. (Id. at 85.) He also concurred that not finding appellee's DNA in M.L.'s underwear is potentially exculpatory evidence. (Id. at 83.) Gavel reported that, as one would expect, appellee's DNA is in his underwear and M.L.'s DNA is in her underwear.

Gavel testified regarding the Y-STR testing. He averred that the Y-chromosome DNA profile obtained from the reference sample from appellee matches the Y-chromosome DNA profile obtained from the non-sperm fraction of the sample from the victim's underwear. (Id. at 73-74.) Following his statistical calculation, the results were equivalent to 1 in every 1, 724 [male] individuals. (Id. at 74.) "Therefore, neither [appellee] . . . nor any of his paternally related male relatives could be excluded as a contributor of this DNA." (Id.) On cross-examination, he concurred with defense counsel that the item tested on Y-STR was a trace amount of DNA and that it was a non-sperm fraction, which could be from saliva, skin, or blood that tested positive. (Id. at 89-90.)

[Defense counsel]: So, there was all this testimony earlier about finding a couple sperm heads in [M.L's] underwear and [appellee's] underwear. You can't tell us that the DNA that you found that matches the male members of [appellee's] family is that from the spermatozoa, sperm heads, found in [M.L.'s] underwear, right?
[Gavel]: Correct.
[Defense counsel]: Do you also agree with me that the [Y-STR] testing cannot determine the time at which this Booher family Y chromosome was deposited?
[Gavel]: Correct.
[Defense counsel]: So, that particular Y chromosome that you found could have been there for days, months, years? You can't tell us.
[Gavel]: Certainly, under the right conditions it could be there for a while. We're not able to determine the time of deposit.
[Defense counsel]: Mr. Gavel, do you agree with me that you are incapable of rendering any scientific opinion that [appellee] contributed his DNA to the biological evidence in this case?
[Gavel]: Um, it could be his or any of his paternally male related individuals.
[Defense counsel]: You can't say it's solely his?
[Gavel]: That's correct.
[Defense counsel]: And that's from a trace amount, and you [don't] know what the source of that is, blood, saliva, skin, or sperm?
[Gavel]: Correct.
[Defense counsel]: And a trace amount could be picked up by somebody on their clothing by being in someone's house, isn't that right?
[Gavel]: Certainly is possible.

Id. at 91-93. Gavel testified that he did not know that five members of appellee's family had been in the home the day of the incident and that three of them lived in the home. (Id. at 92-93.) Nor did Gavel know that M.L. had been in the house on previous occasions. (Id. at 93.)

The defense presented testimony of Officer Bailey and Trooper Melder who explained that the clothing samples had been erroneously packaged together at the hospital. The officers testified regarding the possibility of cross-contamination of the packaging and that trace evidence can be transferred from one item to another. The defense also presented the testimony of Dr. Perlin. Perlin is employed at Cybergenetics, a firm that focuses on computer interpretation of DNA data, particularly forensic evidence. Perlin testified that only a trace amount of the Y-chromosome was identifiable. He testified that there is "no connection between the few sperm cells that were found on the underwear and the Y chromosome that was found in the female non-sperm fraction that came from the Booher family that was determined by a match afterwards. It looks like it was a coincidence." (Id. at 142.) Importantly, Perlin testified that there is a high likelihood that trace amounts of Booher Y-chromosome could be transferred onto M.L.'s clothing as she had changed clothing at the house that day. (Id. at 143-145.)

If she was in a house that was a Booher household, and she took off her clothes, sat down on a bed, used a bathroom, anyplace, you would expect huge quantities of Booher Y chromosome -- there are three men in the house -- to be abundant and present. And it has been mentioned of intimate, you know, undergarments and so on. If someone took a bra off, put it down on a bed and then did something else while they were changing . . . there is a reasonable chance that that would be a source.

Id. at 144-145. Perlin testified that a few sperm heads, as found here, could survive after being washed in a washing machine.

Based on the testimony presented, the trial court found that the testimony and evidence the Commonwealth sought to admit was not probative because it was not relevant to the issue of whether appellee had sexual intercourse with M.L. by forcible compulsion or threat of forcible compulsion, and or that he had sexual intercourse with M.L.

As the trial court summarized

No evidence of [appellee's] ejaculate was discovered on or in M.L.'s body or underwear. There was no DNA identified as being a match for M.L.'s DNA on the penile swabs of [appellee], nor in any of his clothing. The very small piece of genetic material that was discovered in M.L.'s underwear cannot be identified as sperm of [appellee]. The very small piece of genetic material that was discovered in M.L.'s underwear cannot be identified as genetic material of [appellee]. The very small amount of genetic material that was discovered in M.L.'s underwear could be genetic material identified as being from [appellee] or any of his paternal male relatives.
The Commonwealth cannot state when this genetic material was placed there or how long it had been there. The Commonwealth is not able to identify what the genetic material is, i.e., it could be skin, hair, blood or saliva.

Trial court opinion, 10/10/12 at 11-12.

As noted by the trial court, DNA evidence is generally relevant when it establishes the identity of the source of the DNA sample at a crime scene. Crews, supra. This testimony would serve only to include the appellee in the class of possible assailants yet did not definitively connect him, in any way, to the charged offense. The evidence recovered connecting appellant to M.L. was genetic material that does not advance a case of penile/vaginal intercourse; Gavel stated that the material examined was unidentifiable and could be a variety of things but not semen.

However, the trial court went further and determined that even if the DNA could be found to be relevant, its prejudicial impact on a jury far outweighed its low probability.

The Commonwealth argues that it should be permitted to present the evidence to the jury and then allow it to determine what weight and probative value to give the evidence. Under another factual scenario the Court would agree with the Commonwealth. In the case at hand, as the Commonwealth is not able to articulate the identity of the genetic material, the source of the genetic material, the time the genetic material was deposited, or the length of time the genetic material was located in the underwear, the Court finds that the danger of unfair prejudice and confusion outweighs the minimal probative value proffer[ed] by the Commonwealth and therefore should be excluded.

Trial court opinion, 10/10/12 at 15. Thus, we find no abuse of discretion in the trial court's exclusion of the proffered evidence.

Orders affirmed.

Ott, J. concurs in the result.

Judgment Entered.


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