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Commonwealth v. Walker

Supreme Court of Pennsylvania

May 28, 2014


Argued: March 7, 2012.

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[Copyrighted Material Omitted]

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Appeal from the Judgment of Superior Court entered on August 23, 2010 at No. 1477 EDA 2008 affirming the Judgment of Sentence entered on December 12, 2007 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-1201561-2005. Appeal allowed April 19, 2011 at 534 EAL 2010. Trial Court Judge: Denis P. Cohen, Judge. Intermediate Court Jacqueline O. Shogan, Anne E. Lazarus, John T.J. Kelly, Jr., JJ.

For Benjamin Walker, APPELLANT: Karl Baker, Esq.; Nyssa E. Taylor, Esq.

For The Innocence Network and The Pennsylvania Innocence Project, APPELLANT AMICUS CURIAE: Nicole Jeanne Aiken, Esq.; David Richman, Esq.; Howard D. Scher, Esq.; Jill Rogers Spiker, Esq.

For Pennsylvania Association of Criminal Defense Lawyers, APPELLANT AMICUS CURIAE: Jules Epstein, Esq.

For American Psychological Association, APPELLANT AMICUS CURIAE: Eric Johnson Mahr, Esq.

For Commonwealth of Pennsylvania, APPELLEE: Hugh J. Burns Jr., Esq.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MADAME JUSTICE TODD. Former Justice Orie Melvin did not participate in the decision of this case. Messrs. Justice Saylor, Baer and McCaffery join the opinion. Mr. Chief Justice Castille files a dissenting opinion. Mr. Justice Eakin files a dissenting opinion in which Mr. Chief Justice Castille joins.


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In this appeal by allowance we address the question of whether a trial court may, in its discretion, permit expert testimony in the area of eyewitness identification, and, in doing so, we reconsider our current decisional law which absolutely bans such expert testimony. For the reasons that follow, we hold that, in Pennsylvania, the admission of expert testimony regarding eyewitness identification is no longer per se impermissible, and join the vast majority of jurisdictions which leave the admissibility of such expert testimony to the discretion of the trial court. Thus, we reverse the order of the Superior Court, and remand the matter to the trial court for reconsideration of such expert testimony, including the possibility of a Frye hearing in light of our decision today.[1]

The origins of this appeal stem from two armed robberies which occurred within two weeks of each other in October 2005 in Philadelphia. As found by the trial court, at 1:00 a.m. on October 15, 2005, three Drexel University students, Jenna Moreno, Courtney Howe, and Caitlyn Costello, were walking south on 36th Street at the intersection of Baring Street. At this intersection is a church with a lighted archway. A man alleged to be Appellant, Benjamin Walker, approached the women, drew a black handgun approximately 6-8

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inches in length, cocked it, and demanded that the women give him their money. After the women explained that they had no money, the assailant demanded their cell phones. Each complied, giving the man their cell phones and digital cameras.

The victims immediately went to campus security who escorted them to a police station to provide a statement and identify their assailant. Two days later, the victims met with Philadelphia Police Detective William Farrell to determine if they could identify the assailant from two photo arrays. Each photo array was composed of eight individuals. Included in the photo arrays were Appellant, along with another suspect, and other individuals closely resembling Appellant and the other suspect. The three victims were separated and provided a photo array one at a time. Moreno and Howe identified Appellant out of the photo arrays. Three months later, on January 18, 2006, Moreno identified Appellant in an in-person lineup.

The second robbery occurred on October 28, 2005. At approximately 3:00 a.m., University of Pennsylvania students Jonathan Ghitis and Kristina Leone were walking west on Pine Street between 40th and 41st Streets. This section of Pine Street is residential in character with several lampposts lining the street. Again, a man alleged to be Appellant and a co-conspirator walked toward the students. As the men approached the couple, Appellant separated from his co-conspirator, and flashed a silver handgun, approximately 6-8 inches in length. Leone began to scream. Appellant threw her to the ground and ordered her to be quiet. At the same time, Appellant's co-conspirator threw Ghitis down onto steps of a nearby residence. The men demanded whatever the victims had. Immediately, Leone gave Appellant her pocketbook, and Ghitis gave Appellant's co-conspirator his wallet, watch, and cell phone. Leone continued to cry and scream, and, so, Appellant, although already in possession of her pocketbook, repeatedly struck her on the back of her head with his gun. Appellant ordered Ghitis to calm Leone, which he did. Appellant let Leone go, and shortly thereafter, Appellant and his co-conspirator fled the scene.

At 3:30 a.m., after calling the police, both victims gave their account of the events and described their assailant to Detective Philip Lydon of the University of Pennsylvania police department. They met with Detective Lydon at his headquarters three hours later. There, the Detective separated the victims and showed three separate photo arrays of individuals that had similar characteristics to Appellant. Leone looked at the first array and told Detective Lydon that she could not recognize anyone. Upon viewing the second array, Leone immediately identified Appellant, viscerally reacting to his picture. Leone was shown a third array, which included an individual the police suspected was Appellant's co-conspirator, but she could not identify him. Leone spent three to four minutes looking at the arrays. Detective Lydon did not comment to her as to whether Appellant was a suspect after she had made her identification. The same procedure was conducted with Ghitis. He pointed out Appellant from the array, but was less than 100% positive. Again, Detective Lydon did not comment to Ghitis whether Appellant was the suspect after he made his identification. The sole evidence connecting Appellant to the robberies was eyewitness identification by the victims.

Appellant was arrested and charged with various crimes relating to the two robberies, and the charges were consolidated for a single trial. Appellant filed a pre-trial motion in limine to present the

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expert testimony of Dr. Solomon Fulero regarding the fallibility of human memory, the science as to human recall, and scientific studies related to the reliability of eyewitness testimony generally. In the alternative, Appellant requested a Frye hearing to determine the admissibility of such evidence. After hearing argument, the court denied the motions on September 17, 2007. After trial, the jury acquitted Appellant on all charges relating to the October 15, 2005 robbery involving the three Drexel students, but found Appellant guilty of five charges relating to the October 28, 2005 robbery involving the two University of Pennsylvania students.[2] On December 12, 2007, the trial court sentenced Appellant to an aggregate term of incarceration of 17 1/2 - 35 years, followed by 5 years probation.

Regarding the denial of Appellant's motion to admit expert testimony on human recall, or to hold a Frye hearing, the trial court's threshold determination was that a Frye hearing was not necessary, relying upon Pennsylvania case law which holds that expert testimony concerning eyewitness identification is inadmissible. Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995); Commonwealth v. Bormack, 2003 PA Super. 228, 827 A.2d 503 (Pa. Super. 2003). The trial court opined that, not only has our Court explained that an expert would have an unwarranted appearance of authority on the eyewitness's credibility, but that a defendant was free to attack a witnesses' credibility by pointing out inconsistencies through cross-examination and in closing arguments.

The trial court also rejected Appellant's claim that he was denied his constitutional right to present a defense under the United States and Pennsylvania Constitutions by excluding expert testimony, both on eyewitness identification and on suggestiveness of out-of-court identification procedures. The trial court reasoned that, as defendants must comply with the rules of evidence to assure fairness and reliability in the ascertainment of guilt and innocence, and as expert testimony on eyewitness identification is inadmissible, this argument was without merit. The court, thus concluded that it did not infringe upon Appellant's constitutional right to present a defense. Furthermore, the trial court dismissed Appellant's contention that his expert testimony was admissible pursuant to Rule 702 of the Pennsylvania Rules of Evidence. Noting that this Court in Simmons has already spoken to the admissibility of expert testimony, that Rules 401 and 403 require that all evidence be relevant, and that the probative value outweigh its danger of unfair prejudice, the trial court found that Appellant's statistics regarding eyewitness identifications had no bearing on whether the eyewitnesses testifying in this case were mistaken. Thus, the expert testimony, according to the trial court, did not make the fact of the eyewitnesses' identification more or less probable. Finally, according to the trial court, even assuming that the expert's testimony met the threshold for relevance, the probative value of such testimony was nominal, as several witnesses identified Appellant and their encounters with him were more than brief. Again, consistent with Simmons, the trial court reasoned that an expert would have an unwarranted appearance of authority on the eyewitness's credibility.[3]

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On appeal, a unanimous three-judge panel of the Superior Court affirmed Appellant's judgment of sentence in an unpublished memorandum opinion. With respect to the issue of the trial court's denial of the admission of expert testimony on the subject of eyewitness identification, the Superior Court initially noted that evidentiary rulings and the admission of expert testimony is a matter of discretion for the trial court, and will not be disturbed absent an abuse of discretion. The Superior Court explained that it was mindful that our Court has been " unequivocal" in rejecting expert testimony regarding the reliability of eyewitness identification, as such testimony would impermissibly speak to the credibility of a witness's testimony, which is for the jury to assess, citing Simmons, and that the Superior Court has consistently followed this precedent, citing Bormack. Commonwealth v. Walker, 1477 EDA 2008 at 14-15 (Pa. Super. filed August 23, 2010). Thus, based upon our Court's prior case law, the Superior Court found itself " constrained to apply the consistent precedent of our Supreme Court until it rules otherwise with regard to this type of evidence." Id. at 16.[4]

We granted allocatur to consider whether a trial court may permit, in its discretion, the testimony of an expert in the field of eyewitness identification. Implicit in resolving this question is the issue of whether the allowance of such expert testimony improperly encroaches on the credibility determining function of the finder of fact. Specifically, we granted allowance of appeal on the following two issues, as stated by Appellant:

a. Should not the trial court have had the discretion to permit [Appellant] to present the testimony of a nationally recognized expert in the field of human memory, perception and recall where the sole evidence to establish guilt was the testimony of a victim who was under extreme duress when assaulted at gunpoint by a stranger of another race?
b. Should not the court permit expert testimony, whether it be for the defense or prosecution, on how the mind works as long as such testimony has received general acceptance within the scientific community?

Commonwealth v. Walker, 610 Pa. 8, 17 A.3d 921 (Pa. 2011) (order).

Traditionally, in reviewing trial court decision making regarding the admissibility of evidence, an appellate court determines whether the lower tribunal abused its discretion. Paden v. Baker Concrete Constr. Inc., 540 Pa. 409, 658 A.2d 341 (1995). An abuse of discretion " is not merely an error of judgment, but if in reaching a conclusion the law is over ridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record,

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discretion is abused." Mielcuszny et ux. v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934). The circumstances in this appeal, however, are somewhat unique. The lower tribunals adhered to our prior precedent regarding the admission of expert testimony concerning eyewitness identification in rendering their decisions, and, thus, we are asked to reevaluate our prior decisions, which raises a pure question of law. Thus, in these circumstances, our standard of review is de novo and our scope of review plenary. Buffalo Twp. v. Jones, 571 Pa. 637, 645 n.4, 813 A.2d 659, 664 n.4 (2002).

Initially, Appellant notes the quantifiable and peculiar problems inherent in questions of identification and asserts that mistaken identifications are the leading cause of wrongful convictions. Appellant submits that because DNA evidence is often times unavailable, determinations of guilt must be based on an accurate understanding of perception, memory, and recall. According to Appellant, scientific advancements in the field of memory and eyewitness identification evince " the need for expert testimony to explain the vagaries inherent in eyewitness identification." Appellant's Brief at 12.

Appellant offers that Dr. Fulero would have explained to the jury how the mind works and informed the jury of certain " scientifically proven facts" relating to eyewitness identification. Id. These findings, as stated by Appellant, are: " (1) the phenomenon of 'weapons focus'; (2) the reduced reliability of identification in cross-racial identification cases; (3) the significantly decreased accuracy in eyewitness identifications in high-stress/traumatic criminal events; (4) increased risk of mistaken identification when police investigators do not warn a witness, prior to viewing a photo array or line up, that the perpetrator may or may not be in the display; and (5) the lack of a strong correlation between witness statements of confidence and witness accuracy." Id. According to Appellant, " [a]ll of these scientific findings have received general acceptance in the scientific, legislative, and judicial communities." Id.

Specifically, regarding the " weapons focus" effect, Appellant claims that multiple studies have shown that the presence of a weapon during an event impairs eyewitness memory and identification accuracy. Appellant points to numerous court decisions in which " weapons focus" has been accepted as a valid scientific principle, including, People v. Cornwell, 37 Cal.4th 50, 33 Cal.Rptr.3d 1, 117 P.3d 622 (Cal. 2005); Campbell v. State, 814 P.2d 1 (Colo. 1991); Garden v. State, 815 A.2d 327 (Del. 2003); United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006); and United States v. Mathis, 264 F.3d 321 (3d Cir. 2001).

Similarly, Appellant asserts that studies have consistently shown that cross-racial identification is not as accurate as same-race recognition. Citing to the American Bar Association Criminal Justice Section Report to the House of Delegates, Appellant offers that it found that " the issue of mistaken eyewitness identification and the increased risk of cross-racial eyewitness identification is a serious problem in the United States." ABA Criminal Justice Section Report to House of Delegates 104D (2008) (available at He further adds that " [c]ourts should have the discretion, where appropriate in an individual case, to allow a properly qualified expert to testify both pretrial and at trial on the factors affecting eyewitness accuracy." ABA Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures,

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ABA Criminal Justice Section, 1 n.16 (August 2004) (available at Additionally, Appellant points to case law noting that especially where cross-racial identification is involved, human perception is inexact and memory fallible. Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002); State v. Cromedy, 158 N.J. 112, 727 A.2d 457 (N.J. 1999); People v. Radcliffe, 196 Misc.2d 381, 764 N.Y.S.2d 773 (N.Y.S. 2003); State v. Whaley, 305 S.C. 138, 406 S.E.2d 369 (S.C. 1991); State v. Copeland, 226 S.W.3d 287 (Tenn. 2007).

With respect to the impact of stress on eyewitness identifications, Appellant references studies which show a significant difference in correct identifications in a low-stress setting compared to those made in a high-stress setting and case law supporting expert testimony regarding this subject. Skamarocius v. State, 731 P.2d 63 (Alaska 1987); Garden; State v. Allen, 376 Ill.App.3d 511, 875 N.E.2d 1221, 314 Ill.Dec. 934 (Ill. App. 2007); Currie v. Com., 30 Va.App. 58, 515 S.E.2d 335 (Va. Ct. App. 1999); Brownlee; United States v. Harris, 995 F.2d 532 (4th Cir. 1993). Appellant also cites various studies in contending that failure of a police officer to inform a witness that the perpetrator may or may not be in a photo array contributes to a risk of misidentification. This concern, according to Appellant, has been voiced in case law as well. State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (Conn. 2005); Stephenson v. State, 226 S.W.3d 622 (Tex. App. 2007). Finally, based upon various studies, Appellant advances that any correlation between witness confidence in identification, and witness accuracy in identification, is minimal. Appellant offers two examples where eyewitness testimony, including in one instance five eyewitness testimonials, which were expressed with confidence, nevertheless led to convictions which DNA evidence later refuted. According to Appellant, expert testimony on the absence of confidence-accuracy correlation has been accepted in numerous jurisdictions, citing, inter alia, Radcliffe, supra .

Appellant goes on to offer that Dr. Fulero's testimony regarding eyewitness testimony would have assisted the jurors in this case. Appellant submits that lay persons' knowledge of eyewitness behavior is not only limited in scope but also highly inaccurate. Appellant adds that cross-examination is not an effective tool to educate jurors regarding the potential inaccuracy of witness identification. This is especially true, according to Appellant, when witnesses, although mistaken, sincerely believe what they say is true. State v. Clopten, 2009 UT 84, 223 P.3d 1103, 1110 (Utah 2009). Appellant maintains that making jurors aware of the variables that impact eyewitness accuracy is critical to " a fair adjudication of the truth." Appellant's Brief at 24. Building upon his argument, Appellant contends that the only evidence offered by the Commonwealth in this case were the victim's cross-racial identifications after a stressful nighttime gunpoint robbery, and included identifications from photo arrays, which, according to Appellant, were designed around Appellant and his brother. As noted by Appellant, these eyewitness identifications were without corroboration. Related thereto, Appellant, in a largely undeveloped argument, claims that he has a constitutional right to present a defense, including expert testimony on eyewitness identification, under the Sixth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution.

Turning to admissibility under Pa.R.E. 702, Appellant maintains that every requirement of Rule 702 has been met. Specifically,

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Appellant argues that, under the Frye general acceptance test, testimony by eyewitness identification experts has been generally accepted, and that there is a high degree of consensus among researchers. This acceptance has been confirmed by numerous federal and state judicial decisions applying both the Frye and Daubert tests[5] to such evidence. Additionally, Appellant urges that expert testimony on eyewitness identification should no longer be considered as speaking to credibility, and is distinct from testimony that a particular witness is reliable or not. Appellant stresses that such an expert provides the jury with more information so that it can make informed decisions.

Related thereto, Appellant highlights that, of the jurisdictions that have considered this issue, the vast majority give the trial court discretion to allow an expert to testify regarding eyewitness identification, and only a minority of three jurisdictions besides Pennsylvania -- Louisiana, Kansas, and Nebraska -- embrace such a per se exclusion. Touting the " modern trend," Appellant urges that in cases where strangereye-witness identification is a key element of the prosecution's case, expert testimony on such identification should be permitted. Appellant's Brief at 36. Appellant highlights that, in the past 15 years, numerous states, including Iowa, Kentucky, Tennessee, and Utah, which had previously utilized the absolute prohibition approach, have reversed themselves and embraced this trend, and calls for Pennsylvania to do the same.

Amicus American Psychological Association (" APA" ) supports the admission of expert testimony regarding the factors that bear on eyewitness testimony. Citing various studies, the APA first offers that most jurors do not know, or misunderstand, the issue of eyewitness testimony accuracy, and that expert testimony can bridge this " knowledge gap." APA Brief at 6. Echoing Appellant's arguments, the APA submits that expert testimony does not invade the province of the jury, as such testimony does not go to whether a particular witness is lying, and, moreover, does not give an opinion on the accuracy of a particular witness' identification. Rather, the expert would speak to objective scientific research and knowledge relating to eyewitness identification. The APA offers that studies suggest that jurors do not abdicate their fact-finding role when presented with expert testimony. Turning to the requirement that the methodology underlying the expert testimony must have general acceptance in the relevant scientific community, the APA submits that extensive research has been conducted on human memory and its limits, as well as inaccurate eyewitness identification, and, thus, the science of eyewitness identification passes the Frye general acceptance test. Finally, the APA notes that researchers have identified numerous factors that impact eyewitness identification, including those areas at issue in this appeal.

Amici Innocence Network and the Pennsylvania Innocence Project (" Amici" ), while covering many of the same arguments as Appellant, first emphasize the high percentage of erroneous eyewitness identifications involved in convictions later vacated and urge that evolving scientific knowledge requires a change in approach to the admission

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of expert testimony which is necessary to ensure that fact finders have complete and accurate information about eyewitness identification. Amici offers that a vast majority of states and the federal circuits permit eyewitness identification expert testimony and leave it to the discretion of the trial judge as to whether to admit such evidence. According to Amici, such testimony should be permissible at every stage of criminal proceedings where eyewitness testimony is offered. Amici point out that the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), set forth the minimum due process requirements for the admission of pretrial identification evidence. Manson relies on five factors: (1) the opportunity of witnesses to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Id. 432 U.S. at 113. Amici contends that this criteria is no longer satisfactory in light of the scientific research conducted since Manson, and that it fails to permit additional factors bearing on eyewitness identification. Further, Amici offers that the admission of expert testimony in this area should be determined on a case-by-case basis, under the same standards applicable to other expert testimony. Finally, and while largely tracking Appellant's arguments, the Pennsylvania Association of Criminal Defense Lawyers, as do prior amici, adds that, in its view, expert testimony regarding eyewitness identification would satisfy Rule 702, including being scientifically reliable, and would not constitute an impermissible comment on credibility.

The Commonwealth emphasizes that our Court has repeatedly held that expert testimony on the reliability of eyewitness identifications is inadmissible. The Commonwealth contends that, under Pennsylvania Rule of Evidence 403, psychological testimony concerning eyewitness testimony is unfairly prejudicial because it invites the jury to abdicate its responsibility. The Commonwealth offers that " credibility" is more than simply whether a witness is lying, but is the quality that makes a witness worthy of belief, including trustworthiness and reliability. Thus, the Commonwealth submits that Appellant's theory of mistaken identity based upon a witness's inability to identify a perpetrator directly challenges the witness's credibility, even though it does not suggest the witness is intentionally lying. Commonwealth's Brief at 9. Thus, according to the Commonwealth, when properly understood, expert testimony on the reliability of eyewitness testimony constitutes prohibited expert testimony on the credibility of eyewitnesses. Moreover, the Commonwealth asserts that expert testimony that does not address a particular witness's ability to make an accurate identification improperly shifts the jury's focus to the credibility of identifications from a class of witnesses and to the expert assessment of the credibility of eyewitnesses generally. This, the Commonwealth contends, gives the expert an unwarranted appearance of authority on the subject of witness credibility, citing Commonwealth v. Crawford, 553 Pa. 195, 718 A.2d 768 (1998); Commonwealth v. D.J.A., 2002 PA Super. 176, 800 A.2d 965 (Pa. Super. 2002). The Commonwealth claims that Appellant's proffered expert testimony is identical to that which our Court has previously rejected, citing Simmons, supra, and Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993). Thus, according to the Commonwealth, the trial court properly excluded Appellant's expert testimony.

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The Commonwealth argues that, even if our Court were to review the admissibility question anew, prejudice and other damaging effects of expert testimony on eyewitness reliability would outweigh any probative value. The Commonwealth offers its own study which it claims confirms that expert testimony does not make juries better able to distinguish between reliable and unreliable identifications, and instead makes juries skeptical of all identification evidence. See Martire and Kemp, Can Experts Help Jurors to Evaluate Eyewitness Evidence? A Review of Eyewitness Expert Effects, Legal and Criminological Psychology 16 (2011) (" Martire and Kemp" ). Rather than making jurors more sensitive to identifications of varying quality, the Commonwealth postulates that expert testimony makes jurors skeptical of eyewitness identification, undermining the credibility of both relatively strong and relatively weak eyewitness testimony. Thus, the Commonwealth avers that psychological studies on the issue show that expert testimony on eyewitness reliability is more than twice as likely to cause unfair prejudice to the prosecution as it is to fairly ...

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