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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NON-PRECEDENTIAL DECISION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 ...

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