Com. v. Gooden, T. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS A. GOODEN, : No. 232 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, August 25, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002482-2015
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 16, 2018
Appellant, Thomas Gooden, appeals from the August 25, 2016
judgment of sentence entered by the Court of Common Pleas of Philadelphia
County following his conviction of homicide by vehicle, accidents involving
death or personal injury, accidents involving death or serious injury—not
properly licensed, involuntary manslaughter, three counts of aggravated
assault by vehicle, and four counts of recklessly endangering another
person. After careful review, we affirm.
The trial court provided the following factual and procedural history:
On July 13, 2013, at about 2:43 a.m., [appellant]
was driving his automobile on Lincoln Drive near
Morris Street in Philadelphia. At a curve in the
roadway, [appellant] lost control of his vehicle (a
Subaru), which crossed into the opposite bound lane
and collided with a vehicle (a Nissan) driven by
Angela Terry. As a result of the collision,
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[appellant’s] passenger, Ashley Gant Madison, was
killed and another passenger, Bria Staley, was
injured. Angela Terry and her passenger,
Harvey Stratton, were injured. A third vehicle, (a
Honda) was involved in the accident, but [appellant]
was not charged with offenses relating to the third
vehicle.
A jury convicted [appellant] of accident involving
death or personal injury, accident involving death—
not properly licensed, homicide by vehicle,
involuntary manslaughter, three counts of
aggravated assault by vehicle, and four counts of
recklessly endangering another person. [Appellant]
received an aggregate sentence of eight to
16 years[’ imprisonment.]
Trial court opinion, 6/2/17 at 1-2 (citations omitted). Appellant filed a
timely notice of appeal to this court. The trial court ordered appellant to file
a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and appellant timely complied. The trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Did the lower court err in denying [appellant’s]
Frye[1] motion pursuant to Pa.R.E. 702 where no
scientific basis existed for the assumptions
underlying the calculation of [appellant’s] speed by
the Commonwealth’s accident reconstruction expert?
Appellant’s brief at 3.
Appellant specifically avers that the Commonwealth’s accident
reconstruction expert, Philadelphia Police Officer William Lackman
1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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(“Officer Lackman”), “employed no methodology at all” when he reached the
“assumption that [appellant], ‘[drove] the curve as he was supposed to have
been [sic] in the curve.’” (Appellant’s brief at 11.) Appellant further
contends that the manner in which Officer Lackman reached his conclusion is
“deeply flawed and simply cannot meet the Frye standard.” (Id.) Put
another way, at the Frye hearing, appellant’s counsel contended that “the
methodology that [appellant] exceeded that critical speed as the cause of
the accident and then also the methodology used to exclude other possible
causes [are] not scientifically accepted.” (Notes of testimony, 12/21/15 at
3-4.)
When reviewing a trial court’s admission of expert testimony under the
Frye standard,2 we are held to the following:
as to the standard of appellate review that applies to
the Frye issue, [our supreme court] has stated that
the admission of expert scientific testimony is an
evidentiary matter for the trial court’s discretion and
should not be disturbed on appeal unless the trial
2 The Frye standard is as follows:
Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this
twilight zone the evidential force of the principle
must be recognized, and while courts will go a long
way in admitting expert testimony deduced from a
well-recognized scientific principle or discovery, the
thing from which the deduction is made must be
sufficiently established to have gained general
acceptance in the particular field in which it belongs.
Frye, 293 F. at 1014.
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court abuses its discretion. See Commonwealth v.
Zook, 615 A.2d 1, 11 (Pa. 1992), cert. denied, 507
U.S. 974 (1993). An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support as
to be clearly erroneous. Paden v. Baker Concrete
Constr., Inc., 658 A.2d 341, 343 (Pa. 1995).
Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). The Grady
court re-affirmed Pennsylvania’s adoption of the Frye standard, as it applies
only to an expert’s methodology. Id. at 1047.
With respect to application of the Frye standard, our
[supreme court] has “made it clear that Frye is not
implicated every time science comes into the
courtroom; rather, it applies only to proffered expert
testimony involving novel science.”
Commonwealth v. Dengler, 890 A.2d 372, 382
(Pa. 2005); see also Grady, 839 A.2d at 1045
(finding Frye is applicable to novel science, as well
as where scientific methods are utilized in [a] novel
way). Our [supreme court] has noted that a
“reasonably broad meaning should be ascribed to the
term ‘novel,’” and “a Frye hearing is warranted
when a trial judge has articulable grounds to believe
that an expert witness has not applied accepted
scientific methodology in a conventional fashion in
reaching his or her conclusions.” Betz v. Pneumo
Abex LLC, et al., 44 A.3d 27, 53 (Pa. 2012).
Further, what constitutes novel scientific evidence is
usually decided on a case-by-case basis as there is
some flexibility in the construction, as “science
deemed novel at the outset may lose its novelty and
become generally accepted in the scientific
community at a later date, or the strength of the
proponent’s proffer may affect the Frye
determination.” Dengler, 890 A.2d at 382. As [our
supreme court] noted in Dengler:
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Just when a scientific principle or
discovery crosses the line between the
experimental and demonstrable stages is
difficult to define. Somewhere in this
twilight zone the evidential force of the
principle must be recognized, and while
courts will go a long way in admitting
expert testimony deduced from a well-
recognized scientific principle or
discovery, the thing from which the
deduction is made must be sufficiently
established to have gained general
acceptance in the particular field in which
it belongs.
Id. at 380-381 (quoting Frye) (citation omitted).
Commonwealth v. Walker, 92 A.3d 766, 790 (Pa. 2014).
As noted by the trial court, Officer Lackman based his opinion on the
following:
1. Position of stopped vehicles;
2. Damage to the asphalt in the roadway;
3. Interview with [appellant];
4. Interview with police officers on the scene;
5. Observing damage to the vehicles;
6. Photographing the vehicles;
7. Calculating the impact;
8. Calculating the point of maximum engagement;
9. The location of scattered automobile parts;
10. Calculating the trajectory of the vehicles;
11. Mathematical formulation to calculate the
critical speed of the curve; and
12. Obtaining the coefficient of friction.
Trial court opinion, 6/2/17 at 4 (citations omitted). Based upon our review
of the record, we agree with the trial court’s conclusion that it was
“immaterial” whether appellant’s speed exceeded 75 miles per hour when he
attempted to negotiate the curve on Lincoln Street; rather, the critical fact
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was that appellant “was driving twice the speed limit on a wet night on a
curved roadway.” (Id. at 9.) Indeed, appellant’s own expert,
James Halikman, testified that appellant was traveling over 50 miles per
hour—twice the posted speed limit of 25 miles per hour. (Notes of
testimony, 12/21/15 at 112.)
We therefore find that the trial court did not abuse its discretion when
it admitted Officer Lackman’s expert testimony.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/18
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