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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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
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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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