from the Judgment of Sentence September 21, 2009 In the Court
of Common Pleas of Monroe County Criminal Division at No(s):
BEFORE: OTT, J., SOLANO, J., and JENKINS, J.
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.
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 - 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
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
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]
Trial Court Opinion, 3/4/16, at 2-4 (citations to notes of
testimony and footnotes omitted).
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'
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.
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.
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.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.
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 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. 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
then filed this timely appeal in which he presents a single
issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING
[APPELLANT'S] REQUEST FOR AN EYEWITNESS IDENTIFICATION
EXPERT AND A NEW TRIAL WHEN THE EXPERT TESTIMONY REGARDING
EYEWITNESS IDENTIFICATION MEETS THE TWO-PRONGED ...