Com. v. Miller, N. ( 2021 )

J-A01029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHANIEL MILLER :
:
Appellant : No. 1014 EDA 2020
Appeal from the Judgment of Sentence Entered February 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004971-2018
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY OLSON, J.: FILED APRIL 15, 2021
Appellant, Nathaniel Miller, appeals from the February 6, 2020 judgment
of sentence imposing life imprisonment without parole and a concurrent,
aggregate 3½ to 7 years’ incarceration after a jury convicted Appellant of
first-degree murder, firearms not to be carried without a license, carrying a
firearm on public streets in Philadelphia, Pennsylvania, and possession of an
instrument of crime.1 Counsel for Appellant, James F. Berardinelli, Esquire
(“Attorney Berardinelli”), also filed a motion to withdraw averring that he is
prohibited from continuing to represent Appellant in this matter due to a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, and 907(a), respectively.
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conflict with his current employment.2 We grant Attorney Berardinelli’s motion
to withdraw and affirm Appellant’s judgment of sentence.
A review of the record demonstrates that on February 6, 2020, a jury
convicted Appellant of the aforementioned crimes stemming from the shooting
death of the victim. That same day, the trial court sentenced Appellant to life
imprisonment without parole for his first-degree murder conviction, as well as
3½ to 7 years’ incarceration for carrying a firearm without a license and 1 to
2 years’ incarceration for carrying a firearm on public streets of Philadelphia.
No further penalty was imposed for possession of an instrument of crime. The
trial court imposed Appellant’s term-of-years sentences to run concurrently to
Appellant’s life sentence.
Appellant filed a post-sentence motion on February 13, 2020, which the
trial court subsequently denied. This appeal followed.3
Appellant raises the following issue for our review:
Did the [trial] court err in permitting [the] Commonwealth
expert[, Detective] Thorston Lucke[,4] to testify as to hearsay
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2Attorney Berardinelli avers that in December 2020, he became Chief of the
Appellate Unit for the Montgomery County Public Defenders’ Office and, as
such, is prohibited from further representing Appellant in this matter. See
Motion to Withdraw, 11/22/20.
3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
4 Detective Lucke was accepted at trial as an expert in video analysis and
recovery upon stipulation by the parties and following direct voir dire of his
qualifications before the jury. N.T., 2/5/20, at 100-101.
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statements [made by Detective] James Sloane regarding the time
off-set of video evidence presented where such statements were
not merely a factor upon which the expert formed his opinion but
rather were introduced for the sole purpose of establishing the
existence of the time off-set listed on the reports?
Appellant’s Brief at 3.5
Appellant’s issue challenges the admissibility of evidence for which our
standard of review is well-settled.
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court[,] and we will not reverse a trial
court's decision concerning admissibility of evidence absent an
abuse of the trial court's discretion. An abuse of discretion is not
merely an error of judgment[ but, rather, is] 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. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused[,] and it is the duty of the appellate court
to correct the error.
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation
omitted), appeal denied, 244 A.3d 1222 (Pa. 2021).
Pennsylvania Rule of Evidence 703 states,
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.
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5 We direct Appellant’s counsel to Pennsylvania Rule of Appellate Procedure
2135(c), which requires that lettering be no smaller than 14-point font in the
text of the brief. Pa.R.A.P. 2135(c); see also Pa.R.A.P. 124.
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Pa.R.E. 703. “If an expert states an opinion[,] the expert must state the facts
or data on which the opinion is based.” Pa.R.E. 705. Pennsylvania courts
have long-permitted “an expert witness to rely on, and disclose, data which is
not in evidence in order to form his[, or her,] expert opinions, assuming the
materials relied on are of the type reasonably relied on by experts in their
respective fields.” Primavera v. Celotex Corp., 608 A.2d 515, 518
(Pa. Super. 1992), citing Commonwealth v. Thomas, 282 A.2d 693,
698-699 (Pa. 1971), appeal denied, 622 A.2d 1374 (Pa. 1993); see also
Commonwealth v. Brown, 139 A.3d 208, 218 (Pa. Super. 2016)
(reiterating, that an expert’s independent conclusions based upon
inadmissible evidence are admissible), aff’d, 185 A.2d 342 (Pa. 2018); Adams
v. Rising Sun Med. Ctr., ___ A.3d ___, 2020 WL 7705969, at *11 n.13
(Pa. Super. Filed December 29, 2020) (slip opinion) (stating, that an expert
may express a conclusion or opinion that is based upon material not in
evidence “where such material is of a type customarily relied on by an expert
in his, or her, profession and he, or she, is not acting as a mere conduit of the
[material not in evidence]”).
The rule governing expert testimony is born, in part, out of the premise
that “the expert is assumed to have the mastery to evaluate the
trustworthiness of the data upon which he[,] or she[,] relies, both because
the expert has demonstrated his[, or her,] expert qualifications and because
the expert regularly relies on and uses similar data in the practice of his[,] or
her[,] profession.” Primavera, 608 A.2d at 519. The data relied upon by the
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expert in reaching his, or her, conclusions and opinions must be “the kind of
data used daily by experts in making judgments, reaching diagnoses, and
taking action.” Id. at 519-520. “[T]he rule permitting experts to express
opinions relying on extrajudicial data depends on the circumstances of the
particular case and demands the exercise, like the admission of all expert
testimony, of the sound discretion of the trial court.” Id. at 521.
At trial, the Commonwealth offered the expert testimony of Detective
Lucke in the field of video analysis and recovery to establish Appellant’s
presence at the scene of the shooting. In turn, the opinions offered by
Detective Lucke relied, in part, on observations relating to differences between
the time-stamp appearing on the surveillance video and so-called “real time.”6
This time differential information was relayed to Detective Lucke through a
report prepared by Detective Sloane. On appeal, Appellant contends that the
trial court erred in permitting Detective Lucke to testify regarding a 5 minute
and 55 second off-set or difference between the time depicted on the
surveillance video and the “real time” as noted by Detective Sloane at the
moment the surveillance video was recovered. Appellant’s Brief at 10.
Appellant asserts that Detective Lucke acted as “a conduit for Detective
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6 Detective Lucke described “real time” as the actual or official time as
determined by, and obtained from, “a series of atomic clocks at [the United
States] Naval Observatory in Washington D.C.” N.T., 2/5/20, at 105. We
take judicial notice that the United States Naval Observatory “serves as the
official source” of “a standard of time for the entire United States.” See
https://www.usno.navy.mil/ (visited, 3/19/21).
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Sloane’s extrajudicial conclusion” that the time depicted on the surveillance
video was 5 minutes and 55 seconds behind the real time. Id. Appellant
argues that, the Commonwealth was required to present the testimony of
Detective Sloane, and not simply rely upon Detective Lucke’s recitation of
underlying data, in order to introduce into evidence this off-set of time
between the time-stamp on the surveillance video and the real time. Id.Appellant asserts that, without the off-set of time evidence, Appellant’s
“[ankle] monitor did not place him at the scene [of the shooting] at the time
the shooting was depicted in the [surveillance] video.” Id.In permitting Detective Lucke to testify regarding the off-set of time
between the time depicted on the surveillance video and the real-time, the
trial court explained,
At trial, Detective Lucke testified that, according to Detective
Sloane's report, the time off-set between [the] real-time and the
time as it [appeared on the surveillance video] was five minutes[
and] fifty-five seconds. Detective Sloane made this determination
by comparing the time as it appeared on [the surveillance video]
to the actual time [recorded] by the United States Naval
Observatory's [a]tomic [c]lock, a technique Detective Lucke
teaches and frequently uses in his own investigations. While this
statement appears to be inadmissible hearsay on its face, [within]
the context of Detective Lucke's expert testimony, the statement
was a fact upon which Detective Lucke formed his expert opinion.
In examining Detective Lucke's testimony as a whole, it is clear
that he was called to [testify] for the [] purpose of establishing
that the [] surveillance [video] recovered from the [minimart
depicted] the sequence of events occurring outside the [minimart]
immediately before and after the instant homicide. The
[surveillance] video in question clearly shows [Appellant]
approaching the location of the shooting, wearing clearly
identifiable boots and an ankle monitor, before moving
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off-camera. The same [surveillance video] captured [Appellant]
fleeing the scene, still identifiable by his boots and ankle monitor
but now carrying a firearm, eighteen seconds after he first
disappear[ed] from view.
However, the time[-]stamp as it appeared on the [surveillance]
video did not comport with the time as demonstrated by the other
evidence presented by the Commonwealth. Because of this,
Detective Lucke utilized the hearsay evidence of Detective
Sloane's [report regarding] the time off-set, as is permissible by
experts, to help form his opinion. Detective Sloane's technique in
using the United States Naval Observatory's [a]tomic [c]lock to
determine the actual time [the video was recorded] is a regularly
used practice in the field of [] surveillance [video] recovery.
Detective Lucke employs the exact same technique in resolving
timing discrepancies appearing on surveillance [video] in virtually
all of his own investigations.
Moreover, Detective Lucke based his time off-set analysis on
additional, overwhelming evidence demonstrating that the
[surveillance video] captured the instant shooting [and] not some
unrelated, earlier event. There was no other shooting in the area
of 67th Avenue and [North] 16th Street[, in Philadelphia,
Pennsylvania,] on the date of the homicide that could have been
mistaken for the instant shooting. Further, when reviewing the []
surveillance [video] recovered from the [minimart], Detective
Lucke had the benefit of also reviewing geolocation data recovered
from [Appellant’s ankle] monitor[.]
When cross-referencing the geolocation data with the recovered
surveillance [video], as demonstrated by Detective Lucke's video
compilation, it is readily apparent that images of [Appellant]
moving towards[,] and then fleeing [from,] the scene [of the
homicide] match the uncontroverted geolocation evidence when
the five minute[ and] fifty-five second time off-set is applied.
[The] geolocation data [from Appellant’s ankle monitor] recorded
not only [Appellant’s] location at a certain time - placing him at
the scene of the crime - but also recorded his speed and direction
of movement. Between 7:22 p.m. and 7:23 p.m., both [the
geolocation data from Appellant’s ankle] monitor and the off[-]set
[] surveillance [video] depict[ed Appellant] walking towards the
scene of the shooting at a speed of 3 [miles per hour (“mph”)]. It
is undisputed that, at 7:24 p.m., [Appellant’s] ankle monitor was
moving eastbound on 67th Avenue at 6 mph in the immediate
aftermath of the shooting. This was confirmed by the off[-]set
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[surveillance] video [], which depicted [Appellant] running away
from the shooting location in an eastward direction, while wearing
[an ankle] monitor and carrying a firearm.
Trial Court Opinion, 7/8/20, at 10-12.
A review of the record demonstrates that Detective Lucke testified at
trial that, when analyzing the surveillance video recovered from the scene of
the homicide to formulate his conclusions and opinions about the depictions
in the surveillance video, he relied, in part, on Detective Sloane’s report,7
which indicated that the time-stamp on the surveillance video, at the time
Detective Sloane retrieved the surveillance video from the minimart’s
recording device, was 5 minutes and 55 seconds behind the real-time as
observed by the United States Naval Observatory’s atomic clock. N.T.,
2/5/20, at 103-106. Detective Lucke considered Detective Sloane’s report
“together with other evidence that [he] had access to, [including] reports,
paperwork, [] as well as [geolocation] data from [Appellant’s] ankle monitor
that corroborated the time [off-set].” Id. at 106. Detective Lucke stated that,
it is common practice in surveillance video recovery to note any time
differences between the time-stamp on the surveillance video as compared to
the real-time reported by the United States Naval Observatory’s atomic clock,
____________________________________________
7 Detective Sloane’s findings regarding the 5 minute and 55 second time
differential between the time-stamp on the surveillance video and the
real-time, as set forth in his report, constituted hearsay under Pennsylvania
Rule of Evidence 801. See Pa.R.E. 801 (defining hearsay as, a statement,
including a written assertion, that “the declarant does not make while
testifying at the current trial” and “a party offers in evidence to prove the truth
of the matter asserted in the statement”).
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at the moment the surveillance video is recovered. Id. at 105. Detective
Lucke regularly relies on video recovery reports, such as Detective Sloane’s
report, when analyzing recovered surveillance video to formulate his opinions
and conclusions about the events depicted in surveillance videos. Id. at
102-103. In addition to reviewing Detective Sloane’s report in the case sub
judice, Detective Lucke stated that, he spoke with Detective Sloane about the
surveillance video recovery procedure Detective Sloane utilized and about the
contents of his report. Id. at 103, 132. Detective Lucke also stated that, he
examined the data recovered from the video recording device, including the
system log, in order to determine if the recording device’s time settings had
been altered. Id. at 133.
Based upon a review of the record, we discern no error of law or abuse
of discretion in the admission of Detective Lucke’s testimony regarding the
5 minute and 55 second time differential between the time stamp that
appeared on the surveillance video and the real-time, as set forth in Detective
Sloane’s report. The record establishes that Detective Sloane’s report, and
the information contained therein, was the type of information that Detective
Lucke regularly and reasonably relied on as an expert in video analysis and
recovery when formulating his conclusions and expert opinions. Moreover,
Detective Lucke verified the recovery procedure utilized and the
trustworthiness of the reported information by speaking with Detective Sloane
and by reviewing the video recording device’s system log. Consequently,
Appellant’s issue is without merit.
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Judgment affirmed. Motion to withdraw granted.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2021
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