Appeal from the Judgment of Sentence September 21, 2009, Court of Common Pleas, Monroe County, Criminal Division at No. CP-45-CR-0001225-2006
BEFORE: BOWES, DONOHUE and STABILE, JJ.
Appellant, Hugo Marcus Selenski ("Selenski"), appeals from the judgment of sentence entered by the Court of Common Pleas, Monroe County, on September 21, 2009. This case returns to this Court on remand from the Pennsylvania Supreme Court. For the reasons that follow, we remand this case to the trial court.
A summary of the relevant facts and procedural history is as follows. On January 27, 2003, Samuel Goosay ("Goosay"), a jewelry store owner, was assaulted and burglarized in his home by two masked individuals. Goosay was restrained with flex ties and had duct tape placed over his eyes. At one point, Goosay was able to remove the duct tape from one of his eyes, and saw the face of one of the individuals. After informing police of the incident, Goosay reviewed two photo arrays that included Selenski's photograph. Goosay was unable to identify Selenski at that time. In January 2005, however, Goosay reviewed another photo array and identified Selenski.
On October 27, 2006, Selenski was charged with one count of each of the following: kidnapping to facilitate a felony, 18 Pa.C.S.A. § 2901(a)(2); robbery – threat of immediate or serious injury, 18 Pa.C.S.A. § 3701(a)(1)(ii); criminal attempt – burglary, 18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 3502(a); criminal conspiracy engaging – robbery, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3701(a)(2); criminal conspiracy engaging – burglary, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3502(a); theft by unlawful taking – movable property, 18 Pa.C.S.A. § 3921(a); criminal conspiracy engaging – theft by unlawful taking – movable property, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3921(a); simple assault, 18 Pa.C.S.A. § 2701(a); and false imprisonment, 18 Pa.C.S.A. § 2903(a). Selenski was also charged with two counts of each of the following: terroristic threats with intent to terrorize another, 18 Pa.C.S.A. § 2706(a)(1); criminal conspiracy engaging – simple assault, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 2701(a); and criminal conspiracy engaging – robbery – threat of immediate or serious injury, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3701(a)(1)(ii).
On June 22, 2007, prior to trial being scheduled, Selenski filed a motion in limine seeking to admit "expert testimony from Dr. Solomon Fulero [("Dr. Fulero")], a leading expert on human memory, concerning the psychological factors that influence the accuracy of eyewitness identifications[.]" Selenski's Motion in Limine, 6/22/07, at 1-2. The trial court denied Selenski's motion on June 25, 2007.
On July 3, 2007, Selenski filed a motion for reconsideration and a memorandum in support of the motion. The trial court denied the motion on July 5, 2007. Selenski thereafter filed a notice of appeal to this Court on July 26, 2007. On August 7, 2008, a panel of this Court quashed Selenski's appeal as interlocutory. Our Supreme Court denied Selenski's petition for allowance of appeal on March 11, 2009.
A jury trial commenced on July 8, 2009. On July 10, 2009, at the conclusion of trial, the jury found Selenski guilty of all charges. The trial court sentenced Selenski on September 21, 2009 to an aggregate term of thirty-two and one-half years to sixty-five years of incarceration.
Following the denial of his post-sentence motions, Selenski filed a timely notice of appeal to this Court on February 1, 2010, raising four issues for review. On April 20, 2011, a panel of this Court affirmed Selenski's judgment of sentence. In its published Opinion, the panel held, in relevant part, that Selenski's claim that the trial court violated his constitutional right to present a defense by "precluding expert testimony on the subject of human memory and perception as it relates to the identification process" did not merit relief. Commonwealth v. Selenski, 18 A.3d 1229, 1232-33 (Pa. Super. 2011). In reaching its decision on this issue, the panel concluded that Selenski failed to identify an abuse of discretion as the trial court adhered to established case law, noting "the long-standing principle guarding the jury's function of deciding credibility by prohibiting expert testimony on the reliability of eyewitness identifications." Id.
On May 20, 2011, Selenski filed a petition for allowance of appeal to the Pennsylvania Supreme Court. On August 29, 2014, our Supreme Court vacated this Court's decision, granted Selenski's petition limited to the question concerning the trial court's exclusion of the aforementioned expert testimony, and remanded the case to this Court for consideration of Selenski's claim in light of Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). See Commonwealth v. Selenski, 100 A.3d 206 (Pa. 2014). On remand, we are asked to address the following issue:
Does the constitutional right to present a defense include the right to offer proven science bearing on the understanding of human memory and perception, and police practices in the identification process, where those advances are unknown to laypersons?
Selenski's Brief at 6.
For over twenty years, Pennsylvania case law placed a per se ban on expert testimony regarding the reliability of eyewitness identification, holding that such testimony would "intrude upon the jury's basic function of deciding credibility." See Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993); Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995). Recently, our Supreme Court in Walker reversed course, holding that "the admission of expert testimony regarding eyewitness identification is no longer per se impermissible in our Commonwealth[.]" See Walker, 92 A.3d at 792-93. In so doing, the Walker Court joined the trend among state and federal courts to permit testimony regarding the fallibility of eyewitness identification ...