Com. v. Mack, D. ( 2017 )


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  • J-S20011-17
    J-S20012-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    DYSHAWN TYRONE MACK
    No. 2006 EDA 2016
    Appeal from the Order June 28, 2016
    In the Court of Common Pleas of Monroe County
    Criminal Division at No(s): CP-45-CR-0002402-2014
    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    MALIK DION CLARK
    No. 1977 EDA 2016
    Appeal from the Order June 28, 2016
    In the Court of Common Pleas of Monroe County
    Criminal Division at No(s): CP-45-CR-0000892-2015
    BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY BOWES, J.:                           FILED JUNE 13, 2017
    The Commonwealth appeals from the June 28, 2016 order denying, in
    part, its motion in limine to preclude Defendants, Dyshawn Tyrone Mack and
    Malik Dion Clark, from presenting an eyewitness identification expert, and
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    granting, in part, Defendants’ motion in limine to limit the scope of the
    expert testimony offered by the Commonwealth regarding Defendants’ gang
    affiliation.1 We affirm in part and reverse in part.
    This appeal arises from an altercation which occurred during the early
    morning hours on July 6, 2015. At that time, a group of friends were having
    a party on Prospect Street in East Stroudsburg, Monroe County. During the
    gathering, a group of uninvited individuals, ostensibly including Defendants,
    entered the residence.        After being asked to leave, the uninvited guests
    attacked the attendees.        Defendants allegedly assaulted Frankie Lomucio,
    who sustained severe injuries, including brain damage which left him in a
    coma for eight days.         The attack was witnessed by a number of people
    within the residence, several of whom subsequently identified Defendants as
    Mr. Lomucio’s attackers.
    Based on the         foregoing, Defendants      were   each charged with
    attempted murder, aggravated assault, recklessly endangering another
    person, simple assault, and conspiracy. The cases were consolidated, and
    prior to trial, both the Commonwealth and Defendants filed motions in
    limine. The Commonwealth sought to preclude Defendants from offering the
    expert testimony of Jonathan P. Vallano, Ph.D., regarding the unreliability of
    ____________________________________________
    1
    Since these consecutively listed appeals emerge from a consolidated case
    in the court below and raise identical issues, we consolidate the above-
    captioned cases sua sponte for ease of disposition.
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    eyewitness identification.   Defendants filed a motion in limine requesting
    that the court bar the testimony of a supposed “gang-expert,” Trooper
    William Patton, whom the Commonwealth planned to offer during trial.
    On June 28, 2016, the day trial was scheduled to commence, the court
    held a hearing on the parties’ motions in limine. Neither party’s expert was
    in attendance. The court heard argument and reviewed the expert reports.
    The court rejected the Commonwealth’s attempt to entirely exclude
    Defendants’ expert on eyewitness testimony, but limited the scope of his
    testimony.   Specifically, the court ruled that Dr. Vallano could not testify
    regarding any witness’s credibility, that he could not offer testimony for
    which there was no professional consensus, that he could not assess the
    facts of the case, and that he would be constrained to testimony that was
    educational in nature regarding the principles of eyewitness identification.
    The court also granted, in part, Defendants’ motion in limine seeking
    to limit Trooper Patton’s testimony to the facts presented during the case
    and information available to both parties prior to trial. In his expert report,
    Trooper Patton outlined details of an ongoing investigation into gang activity
    in Monroe County. He noted that, in his role as a member of that task force,
    he has become acquainted with gang activity within the area, and has
    cultivated numerous confidential informants with knowledge of the inner-
    workings of local gangs. Based on this experience and information that he
    obtained from his unnamed contacts, Trooper Patton opined that Appellants
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    were affiliated with local gangs.      The court precluded the trooper from
    testifying to statements made by unnamed or unidentified sources.          As to
    each ruling, the court retained discretion to modify its decisions as the
    evidence was presented during trial.
    After the court issued a written order memorializing its determination,
    the Commonwealth filed a timely appeal as of right in each action pursuant
    to Pa.R.Crim.P. 311(d). As a result, the court dismissed the jury and stayed
    the proceedings below. The Commonwealth complied with the court’s order
    to file a Rule 1925(b) concise statement of matters complained of on appeal,
    and the court filed its Rule 1925(a) opinion. This matter is now ready for
    our review.
    The Commonwealth raises two issues for our review:
    1. Did the trial court err in limiting the content and materials on
    which Trooper William Patton could rely on while testifying as
    an expert in gang activity and affiliation, excluding any
    testimony or opinion based on hearsay information gained
    through confidential informants, third parties, or any other
    evidence not otherwise introduced at trial, contrary to
    Pennsylvania Rules of Evidence 703 and 705, along with
    prevailing case law?
    2. Did the trial court err in permitting the testimony of an expert
    on eyewitness identification when the Commonwealth’s case
    does not rest solely on eyewitness identification, and
    [Defendants’] expert’s report is equivocal and contradictory,
    contrary to the dictates of Commonwealth v. Walker, 
    92 A.3d 766
    (Pa. 2014), and the requirements of Pennsylvania
    Rule of Evidence 702.
    Commonwealth’s brief at 7.
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    As a preliminary matter, we must determine whether the issues raised
    in this interlocutory appeal are properly before us.   Generally, this Court
    exercises jurisdiction only over final orders. 42 Pa.C.S. § 742. However, the
    Commonwealth may invoke this Court’s jurisdiction under Rule 311(d). That
    Rule provides:
    In a criminal case, under the circumstances provided by law, the
    Commonwealth may take an appeal as of right from an order
    that does not end the entire case where the Commonwealth
    certifies in the notice of appeal that the order will terminate or
    substantially handicap the prosecution.
    Pa.R.A.P. 311(d).
    Even when the Commonwealth certifies that an order will terminate or
    substantially handicap the prosecution, we do not “accept blindly the
    Commonwealth’s certification of substantial hardship.” Commonwealth v.
    Woodard, 
    136 A.3d 1003
    , 1005 (Pa.Super. 2016) (citation omitted).
    Rather, we will look to the issue in question to determine whether it
    implicates the Commonwealth’s constitutional responsibility to prove each
    element of the crime beyond a reasonable doubt, and thereby, significantly
    handicaps the prosecution’s case. See Commonwealth v. Cosnek, 
    836 A.2d 871
    (Pa. 2003).       In this vein, the High Court held that the
    Commonwealth’s right to      interlocutory   appeals “does not extend to
    appealing the admission of defense evidence.”       
    Id. at 876;
    See also
    Commonwealth v. White, 
    910 A.2d 648
    (Pa. 2006) (clarifying the holding
    in Cosnak, and applying Rule 311(d) to certain non-evidentiary rulings
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    terminating or substantially handicapping the Commonwealth’s case);
    
    Woodard, supra
    (citing Cosnak and examining White in finding Rule
    311(d) did not apply to denial of motion to consolidate).
    Here, the Commonwealth attached a certification to its notice of appeal
    contending that the court’s order terminated or substantially handicapped its
    case. Before this Court, the Commonwealth raised a challenge against the
    court’s decision to limit the testimony of its expert, Trooper Patton.       The
    Commonwealth also disputed the admission of testimony by Defendants’
    expert on eyewitness identification.
    First, insofar as the Commonwealth raises a claim against the
    admission of Defendants’ expert testimony, we find that issue is not properly
    before us in light of our High Court’s holding in 
    Cosnek, supra
    , that defense
    evidence does not hamper the Commonwealth’s ability to present its case or
    meet    its   evidentiary   burden.    
    Cosnek, supra
    .     Second,    as   the
    Commonwealth’s first issue suggests that the trial court erred in limiting the
    scope of its own expert testimony, which assails the Commonwealth’s ability
    to meet its evidentiary burden, we find that we can exercise jurisdiction over
    that claim pursuant to Rule 311(d) and the Commonwealth’s certification.
    Hence, we will consider the merits of the Commonwealth’s first issue alone.
    Our standard of review of the denial or grant of a motion in limine is as
    follows:
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    When ruling on a trial court’s decision to grant or deny a motion
    in limine, we apply an evidentiary abuse of discretion standard of
    review. The admission of evidence will not be disturbed on
    appeal unless that ruling reflects manifest unreasonableness, or
    partiality, prejudice, bias, or ill-will, or such lack of support to be
    clearly erroneous.
    Commonwealth v. Ivy, 
    146 A.3d 241
    , 250 (Pa.Super. 2016) (citation
    omitted).
    The Commonwealth argues that, under Pa.R.E. 703,2 Trooper Patton
    was permitted to testify regarding facts he was made aware of in
    formulating his expert opinion, including hearsay information provided by
    confidential    informants.        The     Commonwealth     maintains    that     such
    foundational information was required under Rule 705,3 and moreover, that
    both rules clarify that when an expert does testify to otherwise inadmissible
    evidence, the trial court may “instruct the jury to consider the facts and data
    only to explain the basis for the expert’s opinion, and not as substantive
    ____________________________________________
    2
    Pennsylvania Rule of Evidence 703 reads,
    An expert may base an opinion on facts or data in the case that
    the expert has been made aware of or personally observed. If
    experts in the particular field would reasonably rely on those
    kinds of facts or data in forming an opinion on the subject, they
    need not be admissible for the opinion to be admitted.
    Pa.R.E. 703.
    3
    Pennsylvania Rule of Evidence 705 reads, “If an expert states an opinion
    the expert must state the facts or data on which the opinion is based.”
    Pa.R.E. 705.
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    evidence.”    Commonwealth’s brief at 16; Pa.R.E. 703 & 705, comment.
    Under the Commonwealth’s understanding of the court’s ruling, the court
    erred since Trooper Patton would be prohibited from rendering his expert
    opinion because it was based, in part, on hearsay.
    In its Rule 1925(a) opinion, the trial court clarified its evidentiary
    ruling, admitting that it was “not as crisp as it could be,” and attributed any
    confusion caused by the order to the late filing of the motions and the failure
    of the Commonwealth’s expert to be present to answer questions regarding
    his one-page report.    Trial Court Opinion, 9/15/16, at 15-16.       The court
    explained the terms of its order, observing that it did not bar Trooper Patton
    from offering “opinions and conclusions based on his own knowledge,
    experience, education, training, and investigation into gang activity in the
    area.” 
    Id. at 15.
    It stated that its ruling “did not unduly limit or restrict the
    bases, hearsay or otherwise[,] on which the gang expert could reach his own
    opinions or render his own conclusions about relevant matters,” including,
    “the meaning and significance of the conduct in which [Defendants] and the
    others with whom they crashed the party engaged[.]” 
    Id. 15-16. Rather,
    the court merely proscribed Trooper Patton from recounting statements
    made by confidential informants regarding Defendants’ gang affiliation as a
    “surrogate fact witness for information . . . he may have uncovered in his
    own investigations[.]” 
    Id. at 16.
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    Here, contrary to the Commonwealth’s position, the trial court clarified
    that it did not forbid Trooper Patton from offering his expert opinion.
    Nonetheless, the court’s order is not the model of clarity, and insofar as it
    can be read to bar Trooper Patton from offering his expert opinion, we find
    that the trial court erred in that regard. However, the trial court explained
    that it intended to constrain the trooper only from repeating hearsay
    statements made by confidential informants for substantive purposes.
    See Trial Court Opinion, 9/15/16, at 16; Pa.R.E. 703 & 705, comment.
    Assuming Trooper Patton is qualified as an expert at trial, his potential
    testimony is subject to standard evidentiary principles, including Rules 703
    and 705. As properly outlined above, Rule 703 permits an expert to “base
    an opinion on facts or data in the case that the expert has been made aware
    of or personally observed.”   Pa.R.E. 703.    Such facts or data need not be
    admissible; however, the rule explicitly requires that other experts in the
    particular field must “reasonably rely on those kinds of facts or data in
    forming an opinion[.]” 
    Id. Thus, if
    the trial court accepts Trooper Patton’s
    qualifications, he will be permitted to explain how he ultimately arrived at his
    expert opinion that Appellants were affiliated with a gang, subject to these
    constraints. Insofar as the court’s order barred that result, it was an abuse
    of discretion.
    Order affirmed in part and reversed in part. Jurisdiction relinquished.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/13/2017
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Document Info

Docket Number: Com. v. Mack, D. No. 2006 EDA 2016

Filed Date: 6/13/2017

Precedential Status: Precedential

Modified Date: 6/13/2017