Com. v. Washington, D.

J-S32008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANTE WASHINGTON :

:

Appellant : No. 455 MDA 2017

Appeal from the Judgment of Sentence February 14, 2017

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001075-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

DANTE WASHINGTON : No. 480 MDA 2017

Appeal from the Judgment of Sentence February 14, 2017

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001075-2014

BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 02, 2018

A jury convicted Dante Washington of robbing, shooting, and seriously

injuring a cab driver, Eugene Phillips. The primary dispute at trial was whether

the Commonwealth had correctly identified Washington as the man who had

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 Retired Senior Judge assigned to the Superior Court.

J-S32008-18

shot Phillips. On appeal, Washington claims the trial court erred in limiting his

evidence and arguments on the issue of identity. In its cross-appeal, the

Commonwealth argues the court erred by allowing Washington to present

expert testimony on the issue of eyewitness identifications. We quash the

Commonwealth’s cross-appeal and affirm Washington’s judgment of sentence.

We begin by addressing the Commonwealth’s cross-appeal. The

Commonwealth’s sole issue on cross-appeal is that the court erred in allowing

the expert testimony of psychologist Jonathan Vallano, Ph.D., on the issue of

the accuracy of eyewitness identifications. See Appellee/Cross-Appellant’s

Brief, at 16. However, in its conclusion, the Commonwealth merely requests

we affirm the judgment of sentence in its entirety. See id., at 20.

A party must be aggrieved by an order to have the right to appeal from

it. See Pa.R.A.P. 501. A party is not aggrieved when it wins “the case-in-chief

even if one issue in the case was decided against that party.”

Commonwealth v. Fitzpatrick, 159 A.3d 562, 571 (Pa. Super. 2017)

(citation and emphasis omitted). Here, the jury found Washington guilty on

all charges. Thus, the Commonwealth prevailed in its case-in-chief. Also, the

Commonwealth has not raised an issue with the sentence imposed. Under

these circumstances, we must quash the Commonwealth’s cross-appeal, as it

prevailed below. See id., at 572.

Turning to Washington’s issues on appeal, he leads with a challenge to

the court’s decision to exclude the expert testimony of toxicologist Lawrence

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Guzzardi, MBA, MD. The court found Dr. Guzzardi’s proposed testimony

irrelevant.

Admissibility of evidence is within the sound discretion of the trial court

and will not be disturbed absent an abuse of discretion. See Commonwealth

v. Arrington, 86 A.3d 831, 842 (Pa. 2014). “An abuse of discretion is not

merely an error of judgment, but is rather the overriding or misapplication of

the law, or the exercise of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill-will or partiality, as shown by the evidence of

record.” Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016) (en

banc) (citation omitted).

Relevance is the threshold for admissibility of evidence. See

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “Evidence is

relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable or supports a reasonable inference

or presumption regarding a material fact.” Commonwealth v. Drumheller,

808 A.2d 893, 904 (Pa. 2002) (citation omitted). “All relevant evidence is

admissible, except as otherwise provided by law.” Pa.R.E. 402. “Evidence that

is not relevant is not admissible.” Id.

Washington sought Dr. Guzzardi’s opinion on Phillips’s mental state

when he first identified Washington. Phillips first identified Washington in a

photographic array while lying in his hospital bed. “Dr. Guzzardi’s testimony

could have explained what medications the victim was under the influence of

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at the time he identified [Washington] from a photographic array.” Appellant’s

Brief, at 17. Thus, the relevance of Dr. Guzzardi’s testimony would be its

ability to cast doubt on Phillips’s identification of Washington.

This type of evidence is subject to additional limitations on admissibility.

“[G]enerally speaking,” expert evidence on the reliability of eyewitness

identifications is relevant “where the Commonwealth’s case is solely or

primarily dependent upon eyewitness testimony.” Commonwealth v.

Walker, 92 A.3d 766, 787 (Pa. 2014).1

Here, as the trial court recognized, the Commonwealth’s case was not

solely or primarily based upon Phillips’s identification testimony. The

Commonwealth also presented evidence that Washington had eaten dinner

the night of the crime at Shannon Aikey’s home. See N.T., Jury Trial,

12/14/16, at 89. Aikey lived in the building from which Washington

approached the taxi to rob the driver. See id., at 76-77; N.T., Jury Trial,

12/13/16, at 42. She also had seen Washington with a gun. See id., at 91.

The Commonwealth also showed the jury a video taken from a

surveillance camera. The camera was located along one of the possible escape

routes taken by the robber. See N.T., Jury Trial, 12/13/16, at 104. The video

shows a man walk between two homes to the rear porch area. See id., at

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1 We acknowledge that the expert testimony discussed at length in Walker is

not precisely the same sort of testimony that Washington wanted Dr. Guzzardi

to present. However, we conclude the Walker analysis covers all expert

testimony attacking or supporting the credibility of eyewitness testimony.

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105. After a short period of time behind the house, he returns to the street

and continues on his way. See id. When police searched the back porch of the

house, they located two items that had been taken from Phillips in the robbery.

See id., at 126. Aikey initially identified Washington as the man in the video.

See N.T., Jury Trial, 12/14/16, at 93.

The Commonwealth also presented circumstantial evidence from

forensic testing. Gun shot residue was detected on clothing found in

Washington’s residence. See N.T., Jury Trial, 12/13/16, at 129, 171.

Furthermore, two DNA samples from Phillips’s taxi suggested that Washington

was present at the scene of the crime. One sample showed a correlation to

Washington’s DNA with a chance that, at most, approximately 17 other people

in Pennsylvania would be correlated that highly. See N.T. 12/15/16, at 66-

69.2 A second sample indicated a correlation with Washington’s DNA with a

chance of a false positive being approximately 25 times less likely than the

first sample. See id., at 69-70.

Thus, the Commonwealth presented significant other evidence capable

of identifying Washington as the robber. The Commonwealth’s identification

of Washington was therefore not solely or primarily based upon Phillip’s

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2This probability is based upon a match against an African-American genetic

database. See id., at 66. Phillips identified his attacker as African-American.

See N.T., Jury Trial, 12/13/16, at 43. Matches against databases for

Caucasians and Hispanics yielded significantly lower probabilities for false

positive correlations. See N.T., Jury Trial, 12/15/16, at 66.

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eyewitness identification. Under these circumstances, we cannot conclude the

trial court erred in finding the evidence irrelevant under Walker. Washington’s

first issue on appeal merits no relief.

Next, Washington contends the court erred in precluding him from using

an exhibit while questioning Phillips. The exhibit was a modified version of the

photographic array Phillips used to identify Washington. Washington had used

photograph-editing software to superimpose a hood and sunglasses onto each

face. The court acknowledged this evidence could be relevant to Phillips’s

ability to identify the robber. However, the court concluded Washington could

not establish the modified photographs accurately depicted what the robber

had been wearing on the night of the crime. Furthermore, the court concluded

the modified photographs were ultimately cumulative to a point that was

conceded by the Commonwealth: Phillips’s view of his attacker was limited by

a hood and sunglasses.

Washington’s proposed exhibit is classified as a demonstrative exhibit.

See Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006) (observing

demonstrative evidence is “tendered for the purpose of rendering other

evidence more comprehensible to the trier of fact”). The use of

technologically-derived demonstrative exhibits is governed by the same

fundamental standards applicable to any exhibit. See id., at 1176.

Pennsylvania courts have a long history of admitting demonstrative evidence,

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such as photographs, into evidence at trial, so long as it “fairly and accurately

represents that which it purports to depict.” Id., at 1177 (citation omitted).

Here, the court concluded Washington had not established the modified

photographs fairly and accurately depicted what Phillips saw on the night of

the crime. See N.T., Jury Trial, 12/13/16, at 82, 86. However, as Washington

notes, the court did not let him ask Phillips if the photographs were a fair and

accurate representation. See id., at 82.

Washington was entitled to ask that question. If Phillips had answered

“no,” the modified photographs would have been properly excluded under

existing law. If Phillips had answered “yes,” Washington would have been

permitted to question Phillips about the photographs. But the Commonwealth

would also have been permitted to explore the differences between the

modified photographs and his observations of his assailant. See id., at 85-86

(prosecutor and court noting their beliefs about how the modified photographs

differed from what Phillips had seen).

However, we conclude this error is harmless. “The harmless error

doctrine, as adopted in Pennsylvania, reflects the reality that the accused is

entitled to a fair trial, not a perfect trial. Harmless error exists if the record

demonstrates, inter alia, that the error did not prejudice the defendant or the

prejudice was de minimis.” Commonwealth v. Gonzalez, 109 A.3d 711, 731

(Pa. Super. 2015) (citation and internal quotation marks omitted). Any

possible prejudice suffered by Washington due to the court’s failure to allow

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him to ask if the photographs were fair and accurate representations was

cured by the fact that Phillips conceded that the part of the assailant’s face he

could see clearly was “from about the bottom of the nose down to the chin[.]”

N.T., Jury Trial, 12/13/16, at 72. The Commonwealth conceded, in its closing

argument, that Phillips’s identification was “not strong.” N.T., Jury Trial,

12/20/16, at 63.

Additionally, as discussed previously, the Commonwealth’s case was not

solely limited to Phillips’s identification. The Commonwealth also presented

DNA evidence that strongly linked Washington the crime scene. Gun shot

residue was found on Washington’s clothes, and those clothes matched the

clothes described by Phillips. Finally, the Commonwealth presented Aikey’s

prior statements placing Washington at the scene of the crime and identifying

him as the man seen on a video discarding items stolen from Phillips.

Even assuming Phillips would have testified to the accuracy of the

modified photographs, any prejudice suffered by Washington from their

exclusion was de minimus. Washington’s second issue merits no relief.

Next, Washington argues the court erred in precluding certain testimony

from his expert psychologist, Jonathan Vallano, Ph.D. In his expert report, Dr.

Vallano opined on the effect the sunglasses and hood had on Phillips’s ability

to identify his assailant. The court ruled these effects were not outside the

common knowledge held by the jury, and therefore precluded Dr. Vallano from

testifying on the issue.

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The Pennsylvania Rules of Evidence governs the admissibility of expert

testimony on scientific knowledge:

If scientific, technical or other specialized knowledge

beyond that possessed by a layperson will assist the trier

of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge,

skill, experience, training or education may testify thereto

in the form of an opinion or otherwise.

Pa.R.E. 702. “Expert testimony becomes necessary when the subject matter

of the inquiry is one involving special skills and training not common to the

ordinary lay person.” Storm v. Golden, 538 A.2d 61, 64 (Pa. Super. 1988)

(citations omitted).

Here, Washington wanted the jury to consider the impact the sunglasses

and hood had on Phillips’s ability to identify his assailant. The court ruled the

ability to assess this impact was well within the common knowledge of the

jurors. We cannot conclude this ruling was an abuse of the court’s discretion.

Washington’s third issue on appeal merits no relief.

Next, Washington contends the court erred in limiting the testimony of

his statistical expert, Nathaniel Adams. Adams has several degrees in

computer science, and works for a company that performs forensic DNA

consulting. As forensic consultants, the company reviews DNA analysis reports

and provides critiques and highlights issues with the results.

The court qualified Adams as an expert on computer science and

statistics, but denied expert status on issues dealing explicitly with biology.

Washington complains this limitation of Adams’s testimony rendered his

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testimony “impotent.” Appellant’s Brief, at 34. “[T]he court’s interpretation

and limitation on Mr. Adams’s testimony was the equivalent of saying a person

was not permitted to count wild horses at Assateague Island because he was

not a veterinarian.” Id., at 35. However, Washington misrepresents the

reasoning used by the court when it sustained the Commonwealth’s

objections.

Defense counsel used Adams to challenge the Commonwealth’s method

for calculating probabilities from the raw data. In particular, Adams testified

that one of the samples from the taxi actually indicated an “[a]pproximately

one in three and a half billion” probability that the sample matched

Washington’s DNA. N.T., Jury Trial, 12/15/16, at 172-173.

The court overruled the Commonwealth’s objection to Adams’s

testimony, noting the opinion was based solely upon calculating probability

from the raw data. See id., at 173. The Commonwealth responded by

objecting on the basis that the opinion was outside the scope of Adams’s

expert report. See id. The court sustained this objection. See id. When

Washington sought to have Adams opine on the correct calculation of

probabilities for two other samples, the Commonwealth again asserted this

testimony was outside the scope of the expert report. See id., at 175. And

again the court sustained the objection. See id.

On appeal, Washington links the exclusion of these calculations to the

court’s ruling on expertise. As we have shown, however, the rulings were

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based upon the scope of Adams’s report. Washington presents no argument

that the court incorrectly construed the expert report, or that the expert report

implicitly covered these calculations. We therefore find that Washington’s

fourth issue on appeal merits no relief.

In his fifth and final issue, Washington argues the court erred in

precluding defense counsel from “arguing during closing argument that Eric

Williams committed the offense and from specifically pointing the finger at Mr.

Williams.” Appellant’s Brief, at 37. Williams was present at Aikey’s home on

the night of the crime. When his hands were tested for gun shot residue, the

test registered two of the three particles found in gun shot residue. When only

two particles are found, the result is described as “indicative,” as opposed to

“characteristic” when all three particles are found.

However, during argument following the court’s ruling, defense counsel

admitted he was never going to argue that Williams committed the crime. See

N.T., Jury Trial, 12/20/16, at 7. He repeated this sentiment several times. See

id., at 10 (“I’m never going to say that [Williams was] the one that did it.”);

12 (“I wasn’t going to [say Eric Williams did it.]”). This issue is therefore

waived, as it was not preserved in the trial court. See Pa.R.A.P. 302(a).

As none of Washington’s issues on appeal merit relief, we affirm the

judgment of sentence.

Judgment of sentence affirmed. Commonwealth’s cross-appeal at 480

MDA 2017 quashed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/2/2018

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