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Commonwealth v. Selenski

Superior Court of Pennsylvania

March 16, 2017


         Appeal from the Judgment of Sentence September 21, 2009 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001225-2006

          BEFORE: OTT, J., SOLANO, J., and JENKINS, J.


          SOLANO, J.

         Appellant Hugo M. Selenski appeals from his judgment of sentence following this Court's remand for an evidentiary hearing pursuant to Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), which abolished Pennsylvania's per se ban of the admission of expert testimony regarding eyewitness identifications in criminal cases. The question presented is whether, under Walker, the trial court properly declined to admit such expert evidence in a case in which it found that an eyewitness identification was not the sole or primary evidence of the defendant's guilt. After careful consideration, we affirm.

         On July 10, 2009, a jury convicted Appellant of multiple offenses, including kidnapping, robbery, attempted burglary, criminal conspiracy, theft by unlawful taking, simple assault, false imprisonment, and terroristic threats[1] - all with respect to a home invasion and attack on a jeweler named Samuel Goosay. The trial court recounted the facts adduced at trial as follows:

On January 27, 2003, two men broke into Mr. Goosay's residence just after dinner wearing ski masks and brandishing a gun. The men handcuffed Mr. Goosay and placed duct tape over his eyes while threatening him and questioning him about the alarm code to his jewelry store and $20, 000 in cash. Mr. Goosay gave the men a partial code and one of them went, in Mr. Goosay's car, to the jewelry store where he attempted and failed to break in and disarm the alarm. During this time, the other man stayed with Mr. Goosay. At some point during the altercation, the metal handcuffs initially used to bind Mr. Goosay's hands were switched to plastic flex cuffs.
Mr. Goosay was seated on the bed while the man who had stayed behind ransacked the master bedroom. At this time, Mr. Goosay was able to push the duct tape over one eye and see that his assailant had left the gun on top of a nearby dresser. Mr. Goosay grabbed the gun and a fight ensued where the assailant overtook Mr. Goosay, obtained the gun, and sat Mr. Goosay back on the bed to put a flex cuff around his ankles. While the assailant was putting the flex cuff on his ankles, Mr. Goosay saw the assailant's face without the ski mask. The assailant commented that it did not matter that Mr. Goosay saw his face because the assailant was not "from around here" and that Mr. Goosay would "never recognize [him]" and will "never know who [he] is."
Shortly thereafter, the alarm company at Mr. Goosay's jewelry store called his home phone and indicated that police were being dispatched to the store because the alarm had been triggered. Upon receiving this information, the assailant hit Mr. Goosay in the head and quickly left. Mr. Goosay removed some of his restraints and telephoned the police. The police collected the flex cuffs and duct tape from inside Mr. Goosay's house as well as pictures of footprints in the snow outside Mr. Goosay's home. Among the footprints was one from a New Balance sneaker.
During the time this case was being investigated, police located human remains on [Appellant's] property in Luzerne County. Two bodies, those of Michael Kerkowski, Jr. and Tammy Fasset, were found buried behind [Appellant's] residence. Police determined that Kerkowski was a small business owner and Fasset was his girlfriend. Both victims were bound with flex cuffs: Fasset was bound around her hands, ankles, and neck and Kerkowski was bound around his hands. Additionally, Kerkowski had duct tape over his eyes. Upon searching [Appellant's] garage, home, and the vehicle he used, police located flex cuffs, duct tape, ski masks, metal handcuffs, a black BB pistol, and New Balance sneakers.
The flex cuffs on [Appellant's] property and those used to bind Mr. Goosay were found to be from a common source. The New Balance sneakers that were found in [Appellant's] garage were identified by [Appellant's] ex-girlfriend, Tina Strom, as belonging to [Appellant]. Moreover, an expert in the field of footwear impressions concluded that the prints left outside Mr. Goosay's home could have been left by [Appellant's] sneakers because "the physical size, the general state of wear, and the lack of accidental characteristics" on [Appellant's] sneakers matched the same on the impression in the snow.
During the trial, both the Commonwealth and [Appellant] presented evidence regarding Mr. Goosay's pretrial identifications of [Appellant]. Six months after the incident, Corporal Shawn Noonan showed Mr. Goosay a photo array that contained a picture of [Appellant] from 2001. Mr. Goosay failed to identify [Appellant] in this first array. Approximately two years later, Agent Scott Endy showed Mr. Goosay another photo array containing a picture of [Appellant] from May of 2003. Mr. Goosay was able to identify [Appellant]. Mr. Goosay was also able to identify [Appellant] at trial.

Trial Court Opinion, 3/4/16, at 2-4 (citations to notes of testimony and footnotes omitted).

         Prior to trial, Appellant sought to contest Mr. Goosay's identification of him as the perpetrator by presenting an expert witness on eyewitness identification and on factors that can lead to inaccurate identification. Because Pennsylvania law at that time precluded such testimony, the trial court declined to permit this evidence. After three days of trial, a jury convicted Appellant of the aforestated charges, and on September 21, 2009, the trial court sentenced Appellant to an aggregate 32½ to 65 years' incarceration.

         Appellant filed a direct appeal in which he challenged the trial court's exclusion of the expert testimony on eyewitness identification, and this Court affirmed his judgment of sentence. Commonwealth v. Selenski, 18 A.3d 1229 (Pa. Super. 2011). Appellant then petitioned for allowance of an appeal to the Supreme Court. During the pendency of his petition, on May 28, 2014, the Supreme Court rendered its decision in Walker, which reversed the longstanding ban on expert eyewitness identification testimony. The Supreme Court subsequently granted Appellant's petition and remanded his case to this Court. Commonwealth v. Selenski, 100 A.3d 206 (Pa. 2014). The Supreme Court's per curiam order stated:

AND NOW, this 29th day of August, 2014, the Petition for Allowance of Appeal is GRANTED, LIMITED TO Petitioner's first issue, as stated by Petitioner:
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?
Further, the Superior Court's order affirming the judgment of sentence is VACATED, and the matter is REMANDED to the Superior Court for further consideration in light of Commonwealth v. Walker, --- Pa. __, 92 A.3d 766 (2014). In all other respects, the Petition for Allowance of Appeal is DENIED.

Selenski, 100 A.3d at 206.

         Upon receipt of the Supreme Court's order, this Court received new briefs and heard argument and then remanded the case to the trial court "so that it may perform its traditional gatekeeper function with regard to the proposed expert testimony." Commonwealth v. Selenski, 117 A.3d 1283, 1285 (Pa. Super. 2015). Notably, the Commonwealth's brief emphasized that "the [Supreme] Court maintained that such testimony generally would only be permitted 'where the Commonwealth's case is solely or primarily dependent upon eyewitness testimony.'" Commonwealth's Br. in Commonwealth v. Selenski, No. 352 EDA 2010, at 9 (Pa. Super. Jan. 26, 2015) (quoting Walker, 92 A.3d at 787). The Commonwealth argued that this is not a case in which expert testimony would be allowed under Walker because "Selenski was convicted following the jury's careful consideration of the Commonwealth's entire case, which included testimony from law enforcement officers, who participated in the investigation of this crime, testimony from Selenski's former girlfriend, physical evidence, scientific analysis of the physical evidence, crime scene photographs, as well as photographs taken during the execution of the search warrant on Selenski's home, in addition to the eyewitness identification by the victim, Mr. Goosay." Id. at 6. In our opinion, however, we summarized the evidence relating to Mr. Goosay's identification of Appellant, see Selenski, 117 A.3d at 1283, and then said we would "decline the invitation of the parties to bypass the trial court" and would not determine Walker's applicability ourselves in the first instance. Id. at 1285-86.

         In the trial court on remand, Appellant moved to present expert testimony by Dr. Jennifer Dysart, who proposed to detail "13 factors that can be relevant to eyewitness identifications" and to opine, "after reviewing partial records from this case and [Appellant's] case in Luz[e]rne County, [that] 9 of these 13 factors apply in [Appellant's] case." Trial Ct. Op. at 6.[2]The trial court concluded that Appellant's motion "logically necessitates a decision regarding whether a defendant is entitled to a new trial based on the admission of expert testimony not allowed at his first trial." Id.

          In considering this issue, the trial court held an evidentiary hearing. At the beginning of the hearing, the court said it would "conduct first what under the new law we'll say will be a Fry[e[3] hearing and then further analysis under Walker." N.T., 10/20/15, at 6. After hearing testimony by Dr. Dysart, the court concluded that Dr. Dysart's testimony was inadmissible. In making that determination, the trial court made no ruling regarding the admissibility of the testimony under Frye.[4] Instead, the court held that, under Walker, the testimony was inadmissible because Mr. Goosay's eyewitness identification "was not the sole or primary evidence against [Appellant] at trial" and there was sufficient non-identification evidence to convict Appellant beyond a reasonable doubt. Trial Ct. Op. at 6, 8, 10. The court stated:

As with all evidence, expert testimony must first be relevant to the case in order to be admissible. See Pa.R.E. 402 ("All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is inadmissible."); see also Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008). Indeed, the Supreme Court addressed this very issue in Walker, finding that "the use of expert testimony regarding eyewitness testimony when relevant does not improperly intrude upon the jury's credibility determinations." Walker, 92 A.3d at 788 (emphasis added). The Supreme Court specifically stated that cases in which this type of expert testimony would be relevant are "where the Commonwealth's case is solely or primarily dependent upon eyewitness testimony." Id. at 787 (emphasis added). After careful review of the record, the testimony from the hearing, and the parties' briefs, we find [Appellant's] proffered expert testimony on eyewitness identification does not meet the relevancy standard expressed in Walker and thus renders the testimony of Dr. Dysart inadmissible at trial.
In Walker, the only evidence presented by the Commonwealth was the eyewitness identifications of Walker from alleged victims. Id. at 791. The Supreme Court noted that these identifications could have been tainted by some of the factors that Dr. Dysart discussed in relation to [Appellant's] case. Id. (for example, stress, instruction bias, and post-identification confidence). Unlike Walker, however, the Commonwealth's case against [Appellant] consisted of an abundance of circumstantial evidence which placed [Appellant] in Mr. Goosay's home on January 27, 2003. Thus, we need not reach the relevance of each factor discussed by Dr. Dysart because the Commonwealth presented sufficient evidence at trial to convict Defendant of the crimes charged.
In its brief, the Commonwealth argues that this case does not fit into the Walker framework because the Commonwealth did not rely on Mr. Goosay's eyewitness identification since there was other, corroborating evidence. [Appellant] argues primarily for the relevance of each factor discussed by Dr. Dysart. However, in his reply brief, [Appellant] addresses the overall relevance of Dr. Dysart's testimony and disagrees with the Commonwealth because he claims no "direct evidence" other than Mr. Goosay's eyewitness identification was presented against him. In essence, the issue is whether the evidence presented against [Appellant] at trial, absent Mr. Goosay's eyewitness identification, was sufficient to convict Defendant. See Walker, 92 A.3d at 787.
In determining whether sufficient evidence was presented at trial to warrant a conviction, the appellate courts apply the following standard: "whether viewing all evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt." [Citation omitted.] "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." [Citation omitted.] Moreover, Pennsylvania has long recognized that convictions can be based entirely on circumstantial evidence. . . . Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, testimony on eyewitness identification would be irrelevant to this case. The Commonwealth's case against [Appellant] did not solely or primarily depend on Mr. Goosay's identification. . . . Even without Mr. Goosay's eyewitness identification, we find the combination of evidence links [Appellant] to the crimes against Mr. Goosay beyond a reasonable doubt, thus placing this case outside the category of cases contemplated by the Supreme Court in Walker.

Id. at 6-7, 10 (footnotes and citations to briefs omitted). The court therefore denied Appellant's request for a new trial at which he could introduce the expert evidence.

         Appellant then filed this timely appeal in which he presents a single issue for our review:


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