Commonwealth v. Wilson

Concurring Opinion by

Spaulding, J.:

Appellant Thomas Wilson was convicted of assault and battery with intent to ravish and related offenses, by the Honorable Joseph L. McGlynn, Jr., of the Court of Common Pleas of Philadelphia, sitting without a jury. The most damaging evidence against appellant was the testimony of Mrs. Agnes Mallatratt Douglas, then a technician with the Philadelphia Police Department, who testified that a thread from the assault victim’s dress was found on appellant’s clothing — that microscopic examination revealed that it was identical in color, thickness, and twist to embroidery-on the victim’s shift. In Commonwealth v. Alston, 430 Pa. 471, 243 A. 2d 404 (1968), the Commonwealth has stipulated that this witness lied in all cases in which she testified that she had completed a course in forensic laboratory diagnosis at Temple University. This is one of the cases where the evidence that Agnes Malla-tratt had lied about her academic qualifications was not discovered until after trial.

Commonwealth v. Mount, 435 Pa. 419, 257 A. 2d 578 (1969), which considered those cases in which Malla-tratt testified before it was revealed that she had perjured herself as to her qualifications as an expert, is controlling here. In reversing a conviction because of this witness’ testimony, the Court, per Justice Jones, stated: “The inherent difficulty in this case is that the court below assumed Miss Mallatratt’s qualifications. *134. . . Even though Miss Mallatratt lacked the necessary theoretical and academic background for accreditation, as a laboratory technician, it may well be that the practical experience gained over a long period of years in laboratory work did qualify her to make proper and sound laboratory findings. However, the record in the court below presents no evidence of inquiry in this area.” 435 Pa. at 426-427.

In the instant case, Mallatratt did testify, in addition to her perjurious statements as to her academic background, that she had eight years experience in laboratory work, the first five of which were devoted to on-the-job training. In refusing to grant a new trial, the trial judge held that the crucial testimony was based on a microscopic examination of threads and was merely based on the witness’ observation, stating that her testimony: “[W]as not the product of scientific tests or professional experience but was based merely on her powers of observation. Thus her qualifications are immaterial, except insofar as they are applicable to her ability to use a microscope.” He further found that “she had sufficient practical experience to make proper and sound laboratory findings that are admissible under the rules of evidence as expert or opinion testimony”.

I agree that the witness ivas qualified to testify based on her practical experience, despite her lack of academic credentials. I also agree 'with the court below that the after-discovered evidence of perjury merely impeaches credibility and therefore does not justify the granting of a neAV trial. Mount, supra, citing Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A. 2d 13 (1960), cert. denied, 368 U.S. 884 (1961). However, I feel the learned trial judge’s conclusion, that Mallatratt’s testimony as to the microscopic comparison of threads Avas admissible even if she was not a qualified *135expert since it was based on “observation”, is incorrect. In any instances where Mallatratt did not testify as to her practical experience, but was accepted as an expert based on academic credentials about which she lied, she was not qualified to give expert testimony involving microscopic comparisons. The record presently before us discloses testimony as to her qualifications based on practical experience.

I concur in affirming the judgment of sentence.

Hoffman, J., joins in this concurring opinion.