Commonwealth v. Smith

Justice SAYLOR.

I concur in the result as to penalty and respectfully dissent as to guilt, as I would remand for an opinion with appropriate factual findings and legal conclusions, and I write to the following:

I. Suppression

In light of prevailing precedent, I support the majority’s application of the attenuation doctrine as consistent with the *182United States Supreme Court’s decision in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). See Majority Opinion, Op. at 140-46, 995 A.2d at 1150-54. As a matter of pure logic, however, it seems to me that the Brown factors should apply differently in Pennsylvania than in the federal forum, since the circumstances are to be considered “in light of the policy to be served by the exclusionary rule,” Brown, 422 U.S. at 604, 95 S.Ct. at 2262, and this Court at least previously has maintained that the policies underlying the exclusionary rule are substantially broader under Pennsylvania jurisprudence than under federal Fourth Amendment law. Compare Commonwealth v. Edmunds, 526 Pa. 374, 398, 586 A.2d 887, 899 (1991) (“[T]he exclusionary rule in Pennsylvania las consistently served to bolster the twin aims of Article I, Section 8; to-wit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause.”), with United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984) (explaining that the federal exclusionary rule serves solely a deterrent purpose). Moreover, it seems somewhat artificial to say that the causal chain between an illegal arrest and an ensuing subsequent confession is “broken” and the taint “purged,”1 where the defendant remains subject to the illegal detention, and in the absence of intervening circumstances beyond the mere giving of Miranda warnings. Certainly those knowledgeable in fields of human thinking and behavior may hold a very different view of the impact of an ongoing illegal detention on arrestee behavior.

Nevertheless, the United States Supreme Court has established the prevailing test and put the matter largely into the hands of a fact-finder, subject to deferential appellate review, and this Court previously has followed this direction in Commonwealth v. McFeely, 509 Pa. 394, 502 A.2d 167 (1985), as the majority aptly develops. Left to my own devices, however, I would prefer a more open acknowledgment of the growing unwillingness at the federal and state levels to apply the *183exclusionary rule in the absence of intentional or, at least grossly negligent, police conduct.2

II. Guilt

Appellant presents multiple claims of trial-counsel ineffectiveness relative to the testimony of the Commonwealth’s expert toxicologist and pharmacologist, Dr. Cohn. Appellant challenges Dr. Cohn’s: 1) trial testimony that cocaine psychosis is dose dependent as false and contrary to generally accepted scientific principles; 2) testimony that Appellant’s detailed recollection of the events of the night of the killing was inconsistent with a cocaine-induced psychosis; and 3) competence to render a forensic diagnosis as to whether Appellant, in fact, suffered from cocaine-induced psychosis at the time of the killing. In my view, the majority’s approach of addressing these arguments in tandem, see Majority Opinion, Op. at 155-56, 995 A.2d at 1159-60, obscures the difficulties with its resolution. Thus, the arguments are discussed separately below.

Regarding dose dependence, Dr. Cohn told the jurors at Appellant’s trial that “toxic psychosis ... is usually reserved to indicate adverse effects of the substance — of a substance taken in large amounts. Certainly with cocaine, a toxic psychosis is dose dependent.” N.T., May 17, 1995, at 282 (emphasis added). The majority characterizes this opinion on dose-dependence as “questionable.” See Majority Opinion, Op. at 155, 995 A.2d at 1159. However, the PCRA court recognized that it is, in fact, a “misstatement.” See PCRA Court Opinion, Op. at 163, 995 A.2d at 1164 ¶ 11. Indeed, the Commonwealth’s own post-conviction expert toxicologist, Dr. Caplan, testified similarly. See N.T., May 14, 2003, at 62 *184(“The fact that it’s not dose related is known.”). As Appellant details at length in his brief, experts presented at the post-conviction hearing by both Appellant and the Commonwealth testified that Dr. Cohn’s opinion on dose dependence was unsupported in the scientific literature, including the text upon which he relied at trial.3

The majority nonetheless states that “it cannot be said [Dr. Cohn’s] methodology was contrary to generally accepted scientific principles.” Majority Opinion, Op. at 155, 995 A.2d at 1159 (referencing, indirectly, Frye v. United States, 293 F. 1013 (D.C.Cir.1923)). To the contrary, I believe it thwarts accepted scientific norms to say an opinion is based on literature which, in fact, supports a contrary proposition.

Because of the powerful nature of expert testimony, I believe our trial judges should maintain a meaningful screening role in evaluating the admissibility of expert testimony. In this regard, this Court has explained that Frye, like the federal test under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), is a means of “insuring that only reliable expert scientific evidence is admitted at trial.” Grady v. Frito-Lay, Inc., 576 Pa. 546, 557, 839 A.2d 1038, 1045 (2003).4 Thus, I do not see how Frye supports the admission of expert misstatements.

*185It might also be suggested that an inquiry into the admissibility of Dr. Cohn’s opinion under Frye was not implicated, on the theory that the methodology employed was not novel. See Commonwealth v. Puksar, 597 Pa. 240, 255, 951 A.2d 267, 276 (2008) (explaining that the Frye test is limited to novel methodologies). I do not believe, however, that we should permit speculative or manufactured conclusions to be merely couched within established scientific methodologies, and, thus, to elude judicial screening. This would lead to perverse results, because Frye was never intended to insulate questionable expert testimony from critical review and exclusion; rather, it was designed to screen out unreliable opinions disguised as science. Accord State v. Coon, 974 P.2d 386, 393-94 (Alaska 1999) (deeming Frye “potentially capricious” in part because it may admit evidence that cannot withstand rigorous scientific scrutiny if such evidence is at least ostensibly based on a generally accepted methodology). Perhaps this is why a number of our sister states have adopted the standard set forth in Daubert, under which it is broadly understood that the common pleas judge must accomplish a more evaluative type of screening to ensure relevance and a reliable foundation. See, e.g., Coon, 974 P.2d at 395; Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512, 519 (2000); State v. Porter, 241 Conn. 57, 698 A.2d 739, 743 (1997); State v. Foret, 628 So.2d 1116, 1121 (La.1993); Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 35-40 (Miss.2003); *186Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862, 867 (2001); Robinson, 923 S.W.2d at 556; State v. Brooks, 162 Vt. 26, 643 A.2d 226, 229 (1993); Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999). Indeed, if the Court is going to interpret Frye so narrowly as to justify the admission of speculative opinions, or opinions falsely couched in scientific literature, I believe the time has come for Pennsylvania to move to the Daubert standard.

Again, I believe that our common pleas courts should maintain a meaningful screening role in determining the admissibility of evidence adduced from those laying claim to special expertise. Thus, I would interpret the term “novel,” in the screening test to determine Frye’s applicability, to subsume any scientific method which cannot be fully explained in terms of generally accepted scientific theory upon a close evaluation.

Even if Frye does not apply, some independent meaning should be given to the requirement of our evidentiary rules that expert testimony should only be considered if it will “assist the trier of fact to understand the evidence or determine a fact in issue.” Pa.R.E. 702. While the evidentiary determination is generally committed to the sound discretion of the trial courts, see Pa.R.E. 104, I do not believe the trial courts should be accorded so much discretion as to admit opinions misrepresenting scientific literature based on the cursory understanding that the expert relied on a scientific text. Clearly a more probing inquiry is warranted if our rules are to have any meaning.5

Second, Appellant complains that Dr. Cohn falsely testified that Appellant’s clear recollection of the events on the night of *187the killing was inconsistent with the defense theory that he suffered from cocaine-induced psychosis. To the extent the majority addresses this claim, it does so as follows:

The fact this opinion was challenged does not make its basis contrary to accepted scientific norms, as appellant contends. Although there was question concerning whether a person with cocaine-induced psychosis would have clarity of recall, Dr. Caplan explained there were no clear studies either way on the issue; therefore, Dr. Cohn’s opinion on an issue for which there is no clear-cut answer cannot be labeled contrary to accepted norms. It was for the jury to determine whether this expert was credible and reliable, and it found him so.

Majority Opinion, Op. at 156, 995 A.2d at 1159-60 (citations omitted). Appellant, however, does not rely on the mere fact that the opinion was challenged, as the majority suggests. Rather, Appellant supports his argument with citations to the post-conviction record, which reflects his advancement of specific evidence that Dr. Cohn misrepresented the scientific literature at trial. See Brief for Appellant at 14-15. The majority rationale simply does not address such evidence and argument on its terms.

Notably, upon a proper Frye motion, the proponent of scientific evidence bears the burden of establishing all of the elements for its admission, which includes the showing that Frye is satisfied. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 558, 839 A.2d 1038, 1045 (2003). The majority, however, appears to treat scientific evidence as presumptively admissible. See Majority Opinion, Op. at 156, 995 A.2d at 1159-60 (“Dr. Cohn’s opinion on an issue for which there is no clear-cut answer cannot be labeled contrary to accepted norms. It was for the jury to determine whether this expert was credible and reliable[.]”). Such treatment, however, is plainly contrary to the established admissibility standard and, in my view, a deleterious dilution of what I regard as the critical gatekeeping function to be played by the trial courts in screening scientific evidence to be put before a lay jury.

*188Third, Appellant contends that, as a toxicologist and pharmacologist, Dr. Cohn was unqualified to render a forensic diagnosis that Appellant did not suffer from cocaine-induced psychosis. In this regard, the Commonwealth’s own post-conviction expert toxicologist, Dr. Caplan, confirmed that: “The diagnosis of psychosis is a medical diagnosis and requires a medical professional.” N.T., May 14, 2003, at 30-31. In response, both the majority and the PCRA court rely on different passages of Dr. Caplan’s testimony, in which he sought to soften the impact of multiple faults in Dr. Cohn’s trial testimony as follows:

I would not share [the] opinion [that Dr. Cohn’s testimony should not have been permitted]. I think that’s a little harsh. That the basis for some of the facts — you know, a representation or misrepresentation of a fact may be accurately stated. In other words, you can look through the literature and say, you know, here’s a statement which is in conflict with your general opinion, but is it — the question is whether or not the statement in and of itself, is present to a sufficient degree of certainty to be able to make that. You can always — you know, the old thing — all things are possible. So it evokes possibilities. It does not inhibit the ability to make the statements. So I believe that Dr. [Cohn] is qualified to use the literature and make the opinion. As I indicated to you earlier, I would use the psychosis or the medical outcomes as a symptom in the field of toxicology. We would not get into diagnosing an individual, a patient. I would not be, you know, evaluating an individual to see whether or not they are psychotic, or what their medical or mental condition is. But even the psychiatrist in the case of individuals could only have — would have to use the same literature. I mean, because the — if the psychosis is short-lived, and might occur, and goes away, it’s — the ability to say that it occurred at a given time is a matter of whether the literature supports a statistical number of that presence occurring. And I do not see that type of information anywhere in the literature. So what that means is that in the absence of definitive literature that *189answers the question one way or the other, there’s going to be a difference — there could be a difference of opinion. And that difference of opinion, you know, I think people are entitled to. You have cross examination, and you — you know, you figure it out. But it doesn’t prevent the opinion. I don’t think there’s anything wrong. So I think — the answer to your question I think — to say that Dr. [Cohn] is unqualified I think was probably a little harsh. You might say that the basis of some of the things he said was not warranted, or did not meet the status of the literature. But I think he has — he is able to provide the opinion.

N.T., May 14, 2003, at 50-52.

In my view, however, such testimony is inconsistent with the prevailing law concerning the admission of scientific evidence. In terms of Dr. Cohn’s opinion that Appellant did not suffer from cocaine-induced psychosis, Dr. Caplan appears to be saying that even a psychiatrist is unqualified to render a forensic diagnosis; therefore, since Appellant’s psychiatrist rendered one, the Commonwealth’s toxicologist was free to do so also. Dr. Caplan also appears to believe that if the science is not sufficiently developed for anyone to express a supported opinion, anyone should be permitted to say whatever he wishes, since “all things are possible.” This Court and others, however, at least previously have squarely rejected such a let-it-all-in-and-let-the-jury-decide proposition. See supra note 4. Moreover, I do not believe it is appropriate for a toxicologist to testify as to the state of the literature in- the field of psychiatry, or to express an opinion concerning what a psychiatrist is qualified to diagnose in the first instance. Dr. Caplan was not qualified as an “expert on experts,” and his views concerning admissibility should carry no weight with this Court, particularly as his testimony reads more like a jumbled series of weak excuses than a credible justification.6

*190In view of the above, I would reject the PCRA’s stated basis for resolution of the above claims and remand for an evaluation of the remaining, salient criteria governing eligibility for relief, including the prejudice requirement. In this regard, I have reservations about the strength of Appellant’s defense resting on a claim of a short-lived, transient psychotic episode, particularly absent any prior history, and where there are indicia that he maintained control of his faculties. While Appellant appears to be correct that the applicable science confirms that cocaine-induced psychosis and clear sensorium are not mutually exclusive, his defense is at the very least counterintuitive in view of the circumstances presented. Thus, I believe that there are reasonable differences to be addressed in the prejudice inquiry.

. See Brown, 422 U.S. at 602, 95 S.Ct. at 2261 (explaining that more than voluntariness is required to "purge the primary taint” of an illegal arrest — "the causal chain, between the illegal arrest and the statements made subsequent thereto [must be] broken”).

. Notably, the majority’s analysis suggests a movement away from a narrow construction of exceptions to the warrant requirement, as it references a decision of the United States Supreme Court applying the federal good-faith exception to the warrant requirement as supportive of its position, see Majority Opinion, Op. at 144, 995 A.2d at 1153 (citing Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009)), even though this Court previously has maintained that the exception does not pertain under Pennsylvania constitutional law. See Edmunds, 526 Pa. at 411, 586 A.2d at 905-06. Again, when moving away from prior precedent, my preference is for a more direct discussion and treatment.

. See, e.g., N.T., August 8, 2002, at 24-25 (reflecting the testimony of Appellant’s post-conviction expert that “the studies that have been done, have consistently shown that toxic psychosis is not a dose response relationship that it is more related to the time period that somebody has been using cocaine, not the dose that they are using at any one given time. And there are several studies that clearly show that it is not dose related in individuals.”); N.T., May 14, 2003, at 33 (testimony of the Commonwealth’s post-conviction expert that “the literature indicates that there is not a dose dependent relationship directly with cocaine”); id. at 48 (testimony of the Commonwealth’s post-conviction expert, regarding the text relied upon by Dr. Cohn at trial, that the authors "do make a statement that it’s not dose-related”).

. Although Daubert is understood as the more liberal standard in terms of admissibility, see General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997), its purpose remains to guard against consideration by jurors of unreliable evidence disguised as scientifically-based expert opinion. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir.2005). As the Supreme Court of Texas has explained:

*185Expert witnesses can have an extremely prejudicial impact on the jury, in part because of the way in which the jury perceives a witness labeled as an expert. To the jury an "expert” is just an unbridled authority figure, and as such he or she is more believable. A witness who has been admitted by the trial court as an expert often appears inherently more credible to the jury than does a lay witness. ... Added to the potentially prejudicial influence of the term expert is the difficulty inherent in evaluating scientific evidence.

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995) (citations and quotation marks omitted); accord Commonwealth v. Topa, 471 Pa. 223, 232, 369 A.2d 1277, 1282 (1977) (expressing the concern that "scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen”); cf. Robinson, 923 S.W.2d at 553 ("Professional expert witnesses are available to render an opinion on almost any theory, regardless of its merit.”).

. The majority also indicates that Dr. Cohn was rigorously cross-examined and "forc[ed] to retreat from his opinion regarding dose-relation and note an exception.” See Majority Opinion, Op. at 155, 995 A.2d at 1158. However, causing an expert to minimally qualify his opinion is of a lesser effect than causing the opinion to be excluded in the first instance. In the end, in the fashion of many expert witnesses, Dr. Cohn sparred with defense counsel and gave some ground where necessary. Ultimately, however, he was able to maintain his central opinion grounded, in part, on a “general rule” embodying a linear relationship between dose and psychotic effect to support his opinion that Appellant did not suffer from cocaine-induced psychosis.

. I also share the minority view expressed by former Chief Justices Flaherty and Zappala that the testimony of Dr. Woody would have been proper surrebuttal, as expressed in the dissent on direct appeal. See Commonwealth v. Smith, 548 Pa. 65, 85-87, 694 A.2d 1086, 1096-97 (1997) (Flaherty, C.J., dissenting). Such conclusion flows particularly from Dr. Woody’s specialized expertise pertaining to cocaine toxicity, *190see N.T., August 6, 2002, at 24 (reflecting post-conviction testimony describing Dr. Woody as “one of the world’s experts and the person who wrote the book on the diagnostic and statistical section on cocaine toxicity”), and the Commonwealth’s tactic of adducing a medical diagnosis regarding the effects of cocaine toxicity beyond the range of its witness’s expertise. See Brief for Appellant at 23 n. 19 ("It is particularly ironic that the Commonwealth’s expert was permitted to provide the jury with a medical opinion and diagnosis, but the defense expert was precluded from rebutting the pharmacologist’s medical opinion because he was a doctor, not a pharmacologist.”). I recognize, however, that the majority position on this point represents the law of this case.