J-A09030-15
2015 PA Super 126
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HUGO MARCUS SELENSKI, :
:
Appellant : No. 352 EDA 2010
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.
OPINION BY DONOHUE, J.: FILED MAY 27, 2015
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
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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).1
1
In August 2006, the Commonwealth also charged Selenski and another
individual with two murders in a nearby county. The victims in that case
were also small business owners restrained by flex ties and duct tape. See
Commonwealth v. Selenski, 986 A.2d 150 (Pa. 2009).
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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
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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,
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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 in light of “advances in scientific study
… that eyewitnesses are apt to erroneously identify a person as the
perpetrator of a crime when certain factors are present.” Id. at 782-83.
The Supreme Court indicated that “such expert testimony would be
limited to certain cases[,]” and trial courts must exercise their traditional
role in determining the admissibility of expert testimony, including pursuant
to Rules 401, 403, and 702 of the Pennsylvania Rules of Evidence. Id. at
787, 789-91. In particular, the Walker Court explained:
We now allow for the possibility that such expert
testimony on the limited issue of eyewitness
identification as raised in this appeal may be
admissible, at the discretion of the trial court, and
assuming the expert is qualified, the proffered
testimony relevant, and will assist the trier of fact.
Of course, the question of the admission of expert
testimony turns not only on the state of the science
proffered and its relevance in a particular case, but
on whether the testimony will assist the jury. Trial
courts will exercise their traditional role in using their
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discretion to weigh the admissibility of such expert
testimony on a case-by-case basis. It will be up to
the trial court to determine when such expert
testimony is appropriate. If the trial court finds that
the testimony satisfies Frye,[2] the inquiry does not
end. The admission must be properly tailored to
whether the testimony will focus on particular
characteristics of the identification at issue and
explain how those characteristics call into question
the reliability of the identification. We find the
defendant must make an on-the-record detailed
proffer to the court, including an explanation of
precisely how the expert’s testimony is relevant to
the eyewitness identifications under consideration
and how it will assist the jury in its evaluation. The
proof should establish the presence of factors (e.g.,
stress or differences in race, as between the
eyewitness and the defendant) which may be shown
to impair the accuracy of eyewitness identification in
aspects which are (or to a degree which is) beyond
the common understanding of laypersons.
Id. at 792 (footnote added).
In the present case, the trial court excluded the proposed expert
testimony based upon the then-existing per se ban against its introduction in
all cases, and not based upon the above-described analysis set forth by the
Walker Court. Accordingly, we remand this case to the trial court so that it
may perform its traditional gatekeeper function with regard to the proposed
expert testimony by Dr. Fulero. These decisions are in the first instance left
2
The Frye test is an evidentiary test, which is used “when a party wishes to
introduce novel scientific evidence obtained from the conclusions of an
expert scientific witness.” Frye v. United States, 293 F. 1013 (D.C. Cir.
1923); see Commonwealth v. Harrell, 65 A.3d 420, 429 (Pa. Super.
2013).
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solely to the sound discretion and province of the trial court, and we decline
the invitation of the parties to bypass the trial court in this case.
Case remanded to the trial court for proceedings consistent with this
Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
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