Com. v. Washington, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
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.
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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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