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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAMMERON MCKENZIE
Appellant No. 527 WDA 2014
Appeal from the Judgment of Sentence February 28, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000384-2013
BEFORE: GANTMAN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 09, 2015
A jury found Kammeron McKenzie guilty of possession of a controlled
substance (cocaine) with intent to deliver (“PWID”)1, possession of a
controlled substance2, possession of a small amount of marijuana3, carrying
firearms without a license4, persons not to possess a firearm5 and receiving
stolen property6. The trial court sentenced McKenzie to an aggregate term
____________________________________________
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(31).
4
18 Pa.C.S. § 6106(a)(1).
5
18 Pa.C.S. § 6105(a)(1).
6
18 Pa.C.S. § 3925(a).
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of 5-10 years’ imprisonment7. McKenzie filed a timely notice of direct
appeal, and both McKenzie and the trial court complied with Pa.R.A.P. 1925.
For the reasons that follow, we affirm.
McKenzie and his co-defendant, Anthony Slappy, were tried together.
The trial court accurately recounted the evidence adduced during the
defendants’ trial as follows:
On December 1, 2012 at approximately 1:30 a.m.,
Officer David Johnson of the City of Beaver Falls
Police Department was on patrol in a marked police
vehicle when he observed what he believed to be
Anthony Slappy pumping gas into a white Cadillac at
the A-Plus gas station in Beaver Falls. Officer
Johnson also observed that another individual he
could not identify from that distance was in the
passenger seat of the Cadillac. After pumping the
gas, the individual that appeared to be Slappy
entered the driver's side of the Cadillac and exited
the gas station parking lot.
As the Cadillac turned onto Eighth Avenue and then
to 26th Street, Officer Johnson further observed that
the taillights of the vehicle were not illuminated.
Officer Johnson then activated the overhead lights of
his patrol vehicle in an attempt to initiate a traffic
stop. According to Officer Johnson, the driver of the
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7
On October 30, 2013, the trial court sentenced McKenzie to an aggregate
term of 7-14 years’ imprisonment. McKenzie filed a timely post-sentence
motion seeking modification of his sentence. He subsequently filed
supplemental post-sentence motions which included challenges to the
sufficiency and weight of the evidence. On January 30, 2014, the trial court
granted McKenzie’s motion for modification of sentence and denied the
remaining post-sentence motions. On February 28, 2014, the trial court re-
sentenced McKenzie to an aggregate of 5-10 years’ imprisonment. McKenzie
does not raise any challenges to his sentence in this appeal.
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Cadillac started to pull toward the curb but ultimately
drove back toward the middle of the road and
continued driving. As a result, Officer Johnson
activated his siren and notified dispatch that the
driver was refusing to stop. The driver of the Cadillac
disregarded the siren and continued traveling south
on Tenth Avenue. As they approached the
intersection of Tenth Avenue and 25th Street, it
appeared to Officer Johnson that the driver
attempted to make a left turn toward Ninth Avenue,
but Captain Martin of the Beaver Falls Police
Department had arrived to intercept the driver at
Ninth Avenue. The driver continued on Tenth Avenue
through a ‘Do Not Enter’ sign and onto a one-way
street. It again appeared to Officer Johnson that the
driver attempted to turn left at the intersection of
24th Street and Tenth Avenue, but the driver was
again blocked by Captain Martin’s police vehicle. The
driver continued traveling south on Tenth Avenue,
and, at the intersection of Tenth Avenue and 23rd
Street, Officer Johnson observed, with the aid of his
spotlight, the passenger moving around and
throwing a white object out the window. According
to Officer Johnson, the road on which the driver was
traveling ended, and the driver was forced to turn
left and eventually stop because he was intercepted
by Captain Martin.
After stopping the vehicle, Officer Johnson and
Captain Martin approached the Cadillac with their
weapons drawn. Officer Johnson approached the
passenger side of the Cadillac and recognized
[McKenzie] as the passenger of the vehicle.
According to Officer Johnson, [McKenzie] was leaning
to the left and over his seat toward the floor of the
Cadillac. Officer Johnson ordered [McKenzie] to show
his hands, and, after initially refusing to comply,
[McKenzie] raised his hands. Knowing that there
was an active warrant for [McKenzie]’s arrest, Officer
Johnson removed [McKenzie] from the inside of the
Cadillac and took him to the back of the vehicle in
order to conduct a search for weapons. While doing
so, Officer Johnson observed a white rock substance
on the window of the Cadillac. During the frisk,
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[McKenzie] stated that he had ‘a little bit of weed.’
The search uncovered a small baggy of suspected
marijuana, $640, and a cell phone. After Captain
Martin removed the driver who was determined to be
Anthony Slappy from the Cadillac, the officers
discovered an unloaded .45 caliber Taurus 24/7 Pro
firearm on the driver's side of the vehicle. Officer
Johnson described the location of the firearm as
follows:
[W]e did observe that there was a
firearm also under the, what would be
the driver's seat post, next to the hump.
So if I would be sitting in the driver's
seat, there, like, the bolts where the seat
is bolted to the floor, there’s a firearm
that would be slid down on the side of
the hump right against that post.
The magazine for the firearm was also located on the
driver’s side of the vehicle. The officers also found
another cell phone and a 45 caliber bullet ‘on the
passenger floorboard where [McKenzie] was
seated[].’ In addition, white residue that was later
determined to be cocaine was found in the vehicle.
After [McKenzie] and Slappy were arrested and
secured for transport, Officer Johnson and Captain
Martin went to the intersection of Tenth Avenue and
23rd Street where they previously observed a white
rock substance thrown from the passenger side
window of the Cadillac. Upon arriving at that
location, the officers found and collected a plastic
baggie of suspected crack cocaine as well as several
solid pieces of suspected crack cocaine of varying
sizes. These items as well as the evidence obtained
from the Cadillac were turned over to the police
department's record custodian, Detective Kevin
Burau.
Once the officers returned to the station, the
suspected marijuana and cocaine were tested,
yielding positive results for the presence of
marijuana and cocaine. The officers also determined
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that the Cadillac was registered to Slappy. After the
Cadillac was impounded, the officers obtained a
search warrant for the Cadillac. The subsequent
execution of the search warrant revealed additional
white, rock-type substances from both the driver and
passenger sides of the vehicle. Using the serial
number on the Taurus 24/7 Pro firearm, the officers
conducted a search of the National Crime
Information Center database, which revealed that
someone in Independence Township had reported
that the firearm had been stolen. The officers also
determined through an inquiry to the Pennsylvania
State Police Firearms Unit that neither [McKenzie]
nor Slappy had a valid license to carry a firearm
concealed. The firearm as well as the recovered
ammunition, the suspected controlled substances,
and DNA samples from [McKenzie] and Slappy were
subsequently transferred to the Pennsylvania State
Police for further testing.
Trial Court Opinion, pp. 1-48.
Several additional facts bear mention. Joseph Kukosky, a forensic
DNA scientist with the Pennsylvania State Police Crime Lab, testified that
swabs taken from the firearm contained DNA that matched McKenzie’s DNA
profile9. In addition, both McKenzie and Slappy testified in their own
defense. McKenzie admitted to possessing the firearm in Slappy’s vehicle
but testified that Slappy had given it to him10. On the other hand, Slappy
testified that he never possessed the firearm and claimed that McKenzie’s
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8
See also N.T., 9/6/13, pp. 85-98, 104-08, 112-16, 121-27, 160
(testimony cited in trial court opinion).
9
N.T., 9/9/13, p. 68.
10
Id., pp. 174-75.
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testimony was false11. McKenzie admitted possessing cocaine but claimed it
was for personal use12. The Commonwealth, however, demonstrated that
McKenzie possessed 10 grams of cocaine mostly in rock form but had no
pipe with which to ingest cocaine13. Additionally, McKenzie was unemployed
at the time of his arrest, but he carried $640.00 in his pocket and possessed
two mobile cellular phones14.
McKenzie raises three issues in this appeal:
1. Was the evidence insufficient to convict McKenzie of the possessory
firearm charges and for receiving stolen property consisting of that
same gun because of the failure of the Commonwealth to prove
that the gun was constructively possessed by McKenzie?
2. Whether the verdict of the jury regarding [PWID] was against the
weight of the evidence because of trial testimony lacking in indicia
of that specific intent and direct testimony that the drugs were
possessed for personal use?
3. Was it error to qualify DNA Crime Lab witness Robert Kukosky as an
expert witness by concluding that he had a reasonably specialized
knowledge as to the subject matter for which he rendered
testimony?
McKenzie first argues that the evidence was insufficient to sustain his
convictions for carrying firearms without a license and persons not to
possess firearms, because the Commonwealth failed to prove that he was in
____________________________________________
11
Id., pp. 212, 214, 217.
12
Id., pp. 158, 182, 186.
13
Id., pp. 182, 186; N.T., 9/6/13, pp. 103-06, 110-16, 188.
14
N.T., 9/9/13, p. 186.
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possession of the firearm found in the vehicle during the traffic stop15. Our
standard of review for challenges to the sufficiency of the evidence is well-
settled:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as the] verdict winner, there is
sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable
doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts
and circumstances established by the
Commonwealth need not preclude every possibility
of innocence. Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
The Crimes Code defines carrying firearms without a license as
follows: “Except [for circumstances not relevant herein], any person who
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15
In his Statement of Questions Presented, McKenzie purports to challenge
the sufficiency of the evidence pertaining to his conviction for receiving
stolen property. Brief For Appellant, p. 4. The argument section in his brief,
however, fails to discuss receiving stolen property. Id., pp. 10-14. Thus, he
has waived his sufficiency challenge with regard to receiving stolen property.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super.2012)
(appellant waived claim of ineffective assistance of counsel by failing to
argue issue in his brief).
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carries a firearm in any vehicle or any person who carries a flrearm
concealed on or about his person, except in his place of abode or fixed place
of business, without a valid and lawfully issued license under this chapter
commits a felony of the third degree.” 18 Pa.C.S. § 6106(a)(1). The Crimes
Code defines the offense of persons not to possess firearms as follows:
A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use,
control, sell, transfer or manufacture a firearm in this
Commonwealth.
18 Pa.C.S. § 6105(a)(1).
To support a conviction under sections 6106(a)(1) and 6105(a)(1), the
Commonwealth must prove that McKenzie was in possession of the firearm
in question. Because McKenzie was not in physical possession of the firearm
when the police officers spotted it in the vehicle, the Commonwealth must
establish that he had constructive possession of the seized item.
Constructive possession
is a legal fiction, a pragmatic construct to deal with
the realities of criminal law enforcement.
Constructive possession is an inference arising from
a set of facts that possession of the contraband was
more likely than not. We have defined constructive
possession as conscious dominion. We subsequently
defined conscious dominion as the power to control
the contraband and the intent to exercise that
control. To aid application, we have held that
constructive possession may be established by the
totality of the circumstances.
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Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super.2012).
The trial court persuasively reasons that there was “ample” evidence
of McKenzie’s constructive possession of the firearm:
Based on a review of the exhibits, the firearm as well
as the other contraband was in plain view of the
occupants of the vehicle. Officer Johnson testified
that the firearm was found under the driver’s seat
near the middle of the vehicle. The jury could infer
from this testimony that, based on the location of
the firearm, [McKenzie] had the power to control the
firearm. Officer Johnson also testified that, prior to
discovering the firearm, he observed [McKenzie]
leaning to the left and over his seat toward the floor
of the Cadillac. Officer Johnson further testified that
[McKenzie] was ‘moving around towards the floor
area of the vehicle’ and refusing to show his hands
despite commands to do so. The jury could easily
infer from this testimony that [McKenzie] was
attempting to unload and to hide the firearm from
the approaching officers. The Commonwealth also
presented expert testimony which indicated that the
DNA obtained from the grip and trigger of the
firearm matched the DNA obtained from [McKenzie].
In addition, [McKenzie] admitted to possessing the
firearm in the Cadillac, although he claimed that
Slappy gave it to him. Slappy, however, denied ever
possessing the firearm and claimed that [McKenzie]
was lying to the jury. In reaching its verdicts, the
jury chose not to believe [McKenzie]’s explanation,
as is the jury’s right. Commonwealth v. Arrington,
86 A.3d 831, 840 (Pa. 2014) (‘the jury, in passing
upon the weight and credibility of each witness’s
testimony, is free to believe all, part, or none of the
evidence’).
Trial Court Opinion, pp. 9-10. We agree with the trial court, and we
conclude that the evidence, construed in the light most favorable to the
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Commonwealth, establishes beyond a reasonable doubt that he was in
constructive possession of the firearm.
The decisions cited in McKenzie’s brief are distinguishable from the
present case. McKenzie argues that Commonwealth v. Armstead, 305
A.2d 1 (Pa.1973), and Commonwealth v. Duffy, 340 A.2d 869
(Pa.Super.1975), demonstrate the Commonwealth’s failure to present
sufficient evidence of constructive possession. Brief For Appellant, pp. 11-
13. In Armstead, the defendant, a passenger in a vehicle, was convicted of
unlawful possession of a firearm that police officers discovered in the middle
of the front seat. In Duffy, the defendant, a passenger in a vehicle, was
convicted of unlawful possession of a firearm far underneath the passenger’s
side of the front seat, a mask and gloves in the glove compartment and
burglary tools in the rear seat. On appeal, the convictions in Armstead and
Duffy were reversed due to insufficient evidence that the defendants knew
that there was contraband in their respective vehicles. Here, in contrast,
multiple facts establish that McKenzie not only knew of but intentionally
exercised control (i.e., constructive possession) over the firearm found in his
vehicle: (1) the firearm was in plain view under the driver’s seat in the
middle of the vehicle, (2) McKenzie’s movements as the officers approached
the vehicle suggested that he was attempting to hide the firearm; (3)
McKenzie’s DNA was found on the firearm; and (4) McKenzie admitted
possessing the firearm when Slappy gave it to him.
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Another decision referenced in McKenzie’s brief, Commonwealth v.
Heidler, 741 A.2d 213 (Pa.Super.2000) (en banc), is distinguishable as
well. In Heidler, the defendant and his girlfriend drove to a nearby school
to pick up the defendant’s son. On the way to the school, the defendant
gave his handgun to his girlfriend, which she put in her purse. Both the
defendant and his girlfriend carried valid licenses to carry a concealed
firearm. The defendant parked his vehicle in the school parking lot and went
into the school while his girlfriend remained in the vehicle. The defendant
was unaware that his estranged wife had filed a complaint against him
alleging a violation of the Protection From Abuse (“PFA”) Act. Security
personnel at the school knew about the petition and called the police, who
rushed to the school and served the PFA petition on the defendant. While
talking to the defendant’s girlfriend, who still remained in the car, the police
learned that she had the defendant’s handgun in her purse. The defendant
was convicted of possession of a weapon on school property16. On appeal,
this Court held that there was insufficient evidence that the defendant had
constructive possession of the handgun, because he had neither the power
nor the intent to control the handgun:
Presently, the firearm at issue was found in the
purse of a passenger in [the defendant]’s vehicle.
____________________________________________
16
See 18 Pa.C.S. § 912(b) (prohibiting individuals from “possess[ing] a
weapon ... on the grounds of ... any elementary or secondary publicly-
funded educational institution....”)
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[The defendant] and his passenger did not have
equal access to that purse. Under the facts before
us, the only person that could be deemed to have
access to the purse was its owner -- the passenger
in [the defendant]’s vehicle. Following the rationale
in our precedent, it is only logical that where [the
defendant] did not have access to the area where
the handgun was found, [the defendant] cannot be
deemed to have the necessary power to control or
intent to control the gun.
Even assuming [the defendant] had the power to
access the firearm, we fail to see how the trial judge
could have logically concluded, beyond a reasonable
doubt, that [the defendant] intended to exercise
control over his handgun upon arriving at the middle
school. The record in this case is devoid of evidence
to support such an inference. On the contrary, it is
clear that [the defendant]’s intent was to relinquish
such control. Indeed, [the defendant] handed over
his handgun to his girlfriend prior to entering school
property. If it was his intention to retain control, he
could have either kept the gun or put it in a place
not under the control of a third party. The record
does not, therefore, support a finding that [the
defendant] intended to exercise control over his
handgun.
Id., 741 A.2d at 216 (emphasis in original). Unlike the defendant in
Heidler, who did not have access to the gun in his girlfriend’s purse,
McKenzie had access to the firearm in the middle of the vehicle. And instead
of relinquishing control of the firearm, as the defendant did in Heidler,
McKenzie exercised control by attempting to hide the firearm as the police
approached his vehicle.
Finally, citing Commonwealth v. Williams, 346 A.2d 308
(Pa.Super.1975), McKenzie argues that the evidence is insufficient under
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section 6106(a)(1) because the Commonwealth failed to prove that he
concealed a firearm on or about his person. Brief For Appellant, p. 14.
McKenzie misreads this statute to require proof both that he possessed a
weapon in a vehicle and concealed it on or about his person. An individual
is guilty under section 6106(a) if he carries a firearm without a license (1)
“in any vehicle” or (2) “concealed on or about his person, except in his place
of abode or fixed place of business.” This provision is phrased in the
disjunctive, so each condition by itself provides a sufficient basis for finding
culpability. Cf. Commonwealth v. Rhoads, 636 A.2d 1166, 1167
(Pa.Super. 1994) (“the simple assault statute is phrased in the disjunctive,
and each subsection of the statute provides an alternative basis for finding
culpability”). The Commonwealth fulfilled its burden under section 6106(a)
by proving that McKenzie carried a firearm without a license in a vehicle. No
proof of concealment was necessary.
For these reasons, we reject McKenzie’s challenge to the sufficiency of
the evidence.
In his second issue on appeal, McKenzie objects to the weight of the
evidence underlying his conviction for PWID. When reviewing a challenge to
the weight of the evidence, this Court’s role is not to consider the underlying
question of whether the verdict was against the weight of the evidence.
Commonwealth v. Kane, 10 A.3d 327, 332-333 (Pa.Super.2010).
Instead, we must decide if the trial court palpably abused its discretion when
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ruling on the weight claim. Id. In performing this task, we must remember
that the initial determination regarding the weight of the evidence is for the
factfinder, who is free to believe all, some or none of the evidence. Id. We
must not reverse a verdict based on a weight claim unless that verdict was
contrary to the evidence so as to shock one’s sense of justice. Id.
Moreover, “[a]n abuse of discretion is not a mere error in judgment but,
rather, involves bias, ill will, partiality, prejudice, manifest
unreasonableness, or misapplication of law.” Id.
The Controlled Substance, Drug, Device and Cosmetic Act prohibits
“the manufacture, delivery, or possession with the intent to manufacture or
deliver, a controlled substance...” 35 P.S. § 780-113(a)(30). “[D]etermining
whether a person possesses a drug for personal use or with intent to deliver
is based upon the totality of circumstances.” Commonwealth v. Watley,
81 A.3d 108, 114 (Pa.Super.2013). Although expert testimony can be
beneficial, it is by no means necessary. Id. While many cases have opined
that expert testimony is an important consideration in determining whether
a person intended to deliver a controlled substance, no case has ever held
that the absence of such testimony automatically renders the evidence
insufficient to sustain a PWID conviction. Id.
During trial, McKenzie admitted possessing cocaine but insisted it was
for personal use. Moreover, the Commonwealth did not present expert
testimony that McKenzie intended to deliver cocaine to other individuals.
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Nevertheless, there was considerable evidence that McKenzie intended to
sell the cocaine to others. The cocaine was mostly in rock form and weighed
ten grams. McKenzie had no paraphernalia, such as a pipe, with which to
ingest rock cocaine. He was unemployed at the time of his arrest, yet he
carried $640.00 in cash in his pocket and possessed two mobile cellular
phones and a firearm. He attempted to destroy inculpatory evidence by
throwing cocaine out of the passenger side window as his vehicle fled from
Officer Johnson’s marked patrol car. These facts, viewed in their totality,
indicate that McKenzie was selling cocaine, and he discarded the cocaine
during the flight from the police because this amount of cocaine showed that
he was a drug dealer. Commonwealth v. Coyle, 203 A.2d 782, 789
(1964) (flight is evidence of consciousness of guilt and “may form the basis
in connection with other proof from which guilt may be inferred”);
Commonwealth v. Gonzalez, 858 A.2d 1219, 1223 (Pa.Super.2004)
(actions that attempt to conceal crime or destroy evidence are admissible as
evidence of consciousness of guilt). It was within the jury’s province to
credit this evidence, and the jury’s decision to believe this evidence instead
of McKenzie’s claim of personal use does not shock our sense of justice.
In his final argument, McKenzie contends that the trial court erred in
permitting Pennsylvania State Police forensic DNA scientist Joseph Kukosky
to testify as an expert in the field of forensic DNA analysis. Kukosky
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testified that swabs taken from the firearm discovered in the vehicle
matched McKenzie’s DNA profile.
The qualification of a witness as an expert
rests within the sound discretion of the trial court,
and the court’s determination in this regard will not
be disturbed absent an abuse of discretion. See
Commonwealth v. Serge, 837 A.2d 1255, 1260
(Pa.Super.2003). As stated by this Court: ‘The
standard for qualification of an expert witness is a
liberal one. The test to be applied when qualifying an
expert witness is whether the witness has any
reasonable pretension to specialized knowledge on
the subject under investigation.’ Commonwealth v.
Wallace, 817 A.2d 485 (Pa.Super.2002).... A
witness does not need formal education on the
subject matter of the testimony, and may be
qualified to render an expert opinion based on
training and experience. Id.
Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa.Super.2013) (emphasis in
original).
The trial court explains that Kukosky met the standards for
qualification as an expert witness:
At the time of trial, Kukosky had worked in the
Pennsylvania State Police DNA laboratory for three
years, which included one year of training. Before
that, Kukosky worked in the serology department for
several years. Kukosky also testified to his
education, which included coursework and seminars
on topics such as DNA and related subjects. Finally,
Kukosky indicated that he testified as an expert
seven previous times in trial courts throughout
Pennsylvania. Based on this testimony, the court
concludes that Kukosky was qualified to testify as an
expert.
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Trial Court Opinion, p. 1517. We concur with this analysis and conclude that
the trial court acted within its discretion by admitting Kukosky’s testimony.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2015
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17
See also N.T., 9/9/13, pp. 35, 38, 42, 44, 48 (testimony cited in trial
court opinion).
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