Commonwealth v. Jacoby, T., Aplt.

[J-58-2016][M.O. – Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 709 CAP
:
Appellee : Appeal from the Judgment of Sentence
: imposed on 10/9/14 in the Court of
v. : Common Pleas, York County, Criminal
: Division at No. CP-67-CR-0006857
:
TIMOTHY MATTHEW JACOBY, :
:
Appellant : SUBMITTED: May 10, 2016
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: September 28, 2017
I join the majority’s treatment of all the issues except for part V, pertaining to the
search warrant for Appellant’s home seeking a handgun registered in his name, and
part VIII, regarding the rejection of Appellant’s claim for a Frye hearing premised on
challenging the reliability of the statistical analysis pertaining to Y-STR DNA testing.1
As to the search warrant for Appellant’s home, my view comports with the
reasoning of Justice Mundy, namely, that the probable cause affidavit sufficed to
support the inference that Appellant’s firearm would be found in his residence. See
Concurring Opinion, slip op. at 2-4. To that analysis I would add that the import of the
majority’s emphasis on the proximity between the crime scene and Appellant’s home is
not clear, and there is no cited authority for the notion that such a consideration is
1
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
determinative in reviewing a probable cause assessment. See, e.g., Majority Opinion,
slip op. at 25-26.2
Further, even assuming that the majority’s substantive analysis is correct, I have
difficulty with its application of the harmless error standard.3 The applicable analysis
requires the Commonwealth to establish beyond a reasonable doubt that the relevant
trial court error did not affect the verdict. See Commonwealth v. Mitchell, 576 Pa. 258,
280, 839 A.2d 202, 214 (2003) (citing Commonwealth v. Story, 476 Pa. 391, 408, 383
A.2d 155, 164 (1978)). Additionally, reviewing courts are to confine their appraisal to
the “properly admitted and uncontradicted evidence of guilt.” Commonwealth v. Wright,
599 Pa. 270, 312, 961 A.2d 119, 143 (2008) (emphasis added) (quoting Commonwealth
v. Young, 561 Pa. 34, 85, 748 A.2d 166, 193 (1999) (on reargument)). Along these
lines, this Court has explained:
Where the evidence is disputed, it is necessary that the
factfinder weigh the opposing sides' evidence, making
credibility determinations where necessary. A jury which
had been exposed to tainted evidence would have utilized
that tainted evidence in performing this weighing process,
thus making its ultimate determination suspect.
Furthermore, we as an appellate court cannot attempt to
rectify this error by disregarding the tainted evidence and
reweighing the properly admitted evidence of the
Commonwealth against that presented by the defendant.
Where such factfinding functions are implicated, appellate
2
Of course, proximity could play a role, if, for example, the suspect was apprehended
immediately following the commission of the crime, and the home was located such a
distance away as to make travel there impossible within the subject timeframe.
However, such facts are not presently before the Court.
3
Notably, the Commonwealth does not presently advance any claim of harmless error,
for which it bears the burden of proof. See Commonwealth v. Mitchell, 576 Pa. 258,
280, 839 A.2d 202, 215 (2003) (citation omitted).
[J-58-2016][M.O. – Wecht, J.] - 2
courts are incompetent to choose which side's evidence is
more persuasive.
Young, 561 Pa. at 86, 748 A.2d at 194 (internal citation omitted).
Presently, in tension with the above, the majority evaluates only the
Commonwealth’s evidence in support of its conclusion that the evidence of Appellant’s
guilt is comparatively overwhelming. Indeed, from my point of view, its analysis more
closely resembles review for sufficiency of the evidence, in which the facts are taken
most favorably to the Commonwealth, than harmless-error review, where the entire
record is to be considered, including that which is favorable to the defendant. Notably,
such deviations from strict harmless-error review have been the subject of significant
critical commentary. See Harry T. Edwards, To Err Is Human, But Not Always
Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. REV. 1167 (1995)
(discussing, at length, the difficulties facing appellate judges in adhering to an effect-on-
the-verdict framework for harmless error review in cases in which the defendant's guilt
seems well established, and the substantial consequences of failing to do so,
particularly in terms of the erosion of constitutional rights); Jeffrey O. Cooper, Searching
for Harmlessness: Method and Madness in the Supreme Court's Harmless
Constitutional Error Doctrine, 50 U. KAN. L. REV. 309, 340, 344 (2002) (discussing the
rigorous analysis essential to harmless error review and questioning conclusory
decision making that is “essentially opaque because it tends to [affirm on the basis of
harmless error] in the most summary fashion, with little or no analysis”).
In this regard, I note that Appellant substantively contested most aspects of the
Commonwealth’s case, including the timeline of the murder, the witness identifications,
the van seen on the surveillance video, the ballistics evidence, his knowledge of the
cash payments, and the possible motive. See N.T., Oct. 7, 2014, at 1481-82, 1483,
1488-89, 1492-93, 1496-97, 1500-01, 1504 (summarizing, in closing, these various
[J-58-2016][M.O. – Wecht, J.] - 3
deficiencies in the Commonwealth’s case).4 Rather than addressing the many
contradictions, the majority relies on inferences favorable to the Commonwealth. For
example, although Appellant’s coworker identified the company’s work van from the
surveillance video, no one testified to having “seen” Appellant, or anyone matching his
description, driving the company van that day. Compare Majority Opinion, slip op. at 28
(“On that date, a man matching [Appellant’s] description was seen driving a customized
van that belonged to the company for which he worked”), with N.T., Oct. 2, 2014, at 910
(“Q. Do you see the driver [in the surveillance video]? [Coworker:] No.”).
Further the majority cites to testimony by two of the victim’s neighbors in which
they recalled seeing a man who generally fit Appellant’s description nearby the victim’s
residence on the day of the murder. See Majority Opinion, slip op. at 28. However,
omitted from the majority’s review is testimony from those same neighbors that the
person they saw was balding with short-cut hair, see N.T., Sept. 30, 2014, at 476; N.T.,
Oct. 1, 2014 at 521 (“He had a well-groomed head [of] hair . . ..”), which materially
4
In addition to Appellant’s own evidence, many of his challenges to the
Commonwealth’s circumstantial case were developed via cross-examination of the
prosecution’s witnesses, seeking to undercut their credibility, highlight inconsistencies,
and/or refute inferences that the Commonwealth attempted to draw, as reflected in
some of the testimony recited herein. In this respect, although closing arguments are
generally not considered evidence, Appellant’s closing provides a convenient synthesis
of the substantive evidentiary disputes he advanced at trial. Moreover, while there may
be some divergent views regarding the precise contours of what constitutes
contradicted evidence, the gravamen of that aspect of the harmless error framework is
that the appellate courts should not attempt to replicate the jury’s role in weighing the
parties competing advocacies when assessing the comparative import of improperly
admitted evidence. See Young, 561 Pa. at 86, 748 A.2d at 194[J-58-2016][M.O. – Wecht, J.] - 4
conflicts with the clean-shaven appearance that Appellant possessed at the relevant
time, as indicated by other testimony and evidence, see N.T., Oct. 6, 2014, at 1386.5
Additionally, as to Appellant’s failure to attend the meeting on the day of the
murder, although his fiancée proffered a general expectation that he would be there,
she ultimately seemed to waver on that assertion. See N.T., Oct. 6, 2014, at 1402-03,
1415-16. Other testimony indicated that Appellant’s attendance depended on his
employment schedule, since the 2 or 3 p.m. start time of the meetings conflicted with his
usual work hours. See id. at 1212, 1297, 1399.
Turning, then, to the second-generation Kel-Tec barrel recovered from
Appellant’s home, to the degree that its admission was in error, I believe it was not
harmless, since the Commonwealth characterized that evidence as a significant
component of the ballistics evidence, upon which it placed great emphasis. See N.T.,
Oct. 7, 2014, at 1535 (“The ballistics tell us everything.”); see id. at 1564 (“Gun, DNA,
guilty.”). The Commonwealth highlighted in closing that Appellant purchased the
second-generation barrel following the murder and allegedly modified it in an attempt to
make it compatible with his registered firearm. The prosecution suggested that these
actions reflected a consciousness of guilt and emphasized that these facts were
important parts of the “game of connect the dots” drawn from the circumstantial
evidence. Id. at 1528; see also id. at 1538 (“All of that [gun related] evidence connects,
all of it fits . . ..”). Thus, it is difficult, in properly evaluating only the uncontroverted
evidence, to divorce the second-generation gun barrel discovered in Appellant’s home
5
Further complicating this analysis is the fact that Appellant’s counsel used his own hair
length as a reference point for one of the neighbor’s description of the person’s hair.
See N.T., Oct. 1, 2014, at 533. The lack of a contemporaneous record as to counsel’s
hair length highlights the problem in attempting to resolve, on appeal, conflicting
evidence for purposes of a harmless error analysis.
[J-58-2016][M.O. – Wecht, J.] - 5
from the jury’s potential assessment of guilt, and I would conclude that the admission of
that evidence could not be viewed as harmless.
Regarding Appellant’s Frye hearing request, the majority correctly observes that
Appellant conceded the general reliability of discrete aspects of the Y-STR testing
regime, including the laboratory processes for acquiring and comparing samples, the
manner in which the database samples are collected, and the “counting” method for
interpreting Y-STR results. Brief for Appellant at 40-41 (discussing these accepted
practices). I also agree with the view that Appellant’s claim relative to Y-STR’s
discriminatory weakness -- namely, its inability to statistically discern a DNA contributor
from all other persons, as can be done with autosomal DNA testing -- largely implicates
the weight of the evidence and is for the jury to assess. See Majority Opinion, slip op.
at 43 & n.14.6
6
Some courts have expressed concerns that omitting a statistical analysis of DNA
testing may mislead the jury or render the evidence inadmissible on relevancy grounds.
See Commonwealth v. Mattei, 920 N.E.2d 845, 856 (Mass. 2010) (“If the jury are not
provided with similar statistical evidence where the DNA test result is a ‘nonexclusion,’
there is a real risk that jurors will be misled into thinking that these DNA test results are
similarly significant and that the nonexclusion evidence is similarly conclusive as to the
‘matched’ contributor's identity, when in fact the actual meaning of such results can vary
substantially.”); Deloney v. State, 938 N.E.2d 724, 730 (Ind. Ct. App. 2010) (“Therefore
DNA evidence that does not constitute a match or is not accompanied by statistical data
regarding the probability of a defendant's contribution to a mixed sample is not relevant
. . . and should not be admitted.” (citation omitted)); State v. Tester, 968 A.2d 895, 907
(Vt. 2009) (“To say that two patterns match, without providing any scientifically valid
estimate (or, at least, an upper bound) of the frequency with which such matches might
occur by chance, is meaningless.”) (quoting NATIONAL RESEARCH COUNCIL, DNA
TECHNOLOGY IN FORENSIC SCIENCE 74 (Nat’l Academies Press 1992)). Here, the
Commonwealth’s expert concluded that Appellant, “his paternally male relatives and an
unknown number of males in the general population” could not be excluded as
contributors to the sample taken from the victim’s fingernail. N.T., Sept. 30, 2014, at
408. She further testified that, statistically, the probability of finding Appellant’s Y-STR
profile at random is one out of every 1,724 Caucasian males. See id. at 445-46.
[J-58-2016][M.O. – Wecht, J.] - 6
However, as the majority acknowledges, Appellant raised challenges to other
aspects of the Y-STR DNA methodologies that suggest the need for a Frye hearing.
See id., slip op. at 44 n.15.7 Specifically, Appellant contested the reliability of the
7
Relative to these other challenged aspects, the majority appears to limit its review of
Appellant’s Frye-based contentions to only those that were well developed at oral
argument, effectively concluding that all other grounds for relief raised in his Omnibus
Pretrial Motions and supporting brief were waived. See Majority Opinion, slip op. at 44
n.16 (explaining that “[w]e hold only that [Appellant’s] proffer at the hearing was
insufficient to demonstrate novelty” (emphasis added)); see also id. at 43
(characterizing the hearing as “his opportunity to demonstrate the necessity for a Frye
hearing”). Although the majority disclaims any finding of waiver, see id. at 43 n.14, it
later concedes that Appellant forwarded preserved, on-the-record claims pertaining to
the DNA evidence that are not addressed in the majority opinion. See id. at 44 n.16
(“There may be challenges to other aspects of the Y-STR DNA methodologies.
[Appellant] identified some of those issues in his original pre-trial motion as well as in
his brief to this court.”). Thus, I believe that the majority’s narrowing approach
contravenes established precepts pertaining to issue preservation and waiver and
overlooks one of Appellant’s primary grounds supporting a Frye hearing.
As to the latter, although conceding that the Y-STR databases were not novel in their
creation, Appellant challenged the methodology of applying them during the hearing.
See N.T., Jan. 2, 2014, at 46 (“[I]t’s a different methodology in the way that you are
actually analyzing the data.”). In this respect, it seems that the trial court may not have
fully grasped this distinction, as it expressed confusion and continually returned to the
notion of how the database is “put together, is created.” Id. at 44, 46 (“THE COURT:
. . . I’m not a scientist. I could be wrong about [how the databases are created.] What I
hear you saying is -- I don’t know what I hear you saying, to be frank with you.”); see
also Majority Opinion, slip op. at 43 (observing that the trial court repeatedly questioned
Appellant regarding the manner in which the Y-STR database was created).
Additionally the majority’s narrow review appears to be in substantial tension with the
Court’s precedent, which holds that all grounds for relief presented in a pretrial motion
are preserved for appellate review. See Commonwealth v. Mitchell, 464 Pa. 117, 123,
346 A.2d 48, 51 (1975). Further, Rule 575 of Criminal Procedure mandates waiver only
when an issue is not raised in a pretrial motion. See Pa.R.Crim.P. 575(A)(3); see also
Pa.R.Crim.P. 578 (requiring pretrial requests for relief to be included in one omnibus
motion). Accordingly, it is inapposite to limit review to only those aspects of the
omnibus motion that were explicitly raised at the hearing, particularly as, in this matter,
the trial judge repeatedly directed queries to the creation of the databases, rather than
(continued…)
[J-58-2016][M.O. – Wecht, J.] - 7
statistical conclusions derived from the Y-STR DNA testing. See Brief for Appellant at
47.8
In requesting a Frye hearing, Appellant argued that the relevant literature
suggests that the Y-STR database is too small to arrive at an accurate, scientifically
reliable statistical probability; that rare Y-STR profiles may not be sufficiently
represented; and that local databases should be employed to account for profile
frequency differences based on locale, concerns that are not present with the
autosomal DNA database. See Defendant’s Omnibus Pretrial Motions at ¶¶60-61
(citing Lutz Roewer, Y Chromosome STR Typing in Crime Casework, FORENSIC SCI.,
MED., & PATHOLOGY, June 2009, at 77-84); Defendant’s Brief in Support of Defendant’s
Omnibus Pretrial Motions at 25 (citing W ISCONSIN STATE PUBLIC DEFENDERS, TRYING STR
CASES 3 (undated); JOHN BUCKLETON, CHRISTOPHER M. TRIGGS & SIMON J. W ALSH,
FORENSIC DNA EVIDENCE INTERPRETATION 324 (2004)). He also emphasized the
differences in test kits, databases, and the nature of the results between autosomal
DNA testing and Y-STR testing. These issues, he contended, lead to “legitimate
concerns by experts in the field concerning the reliability of the conclusions from Y-STR
(…continued)
other pertinent aspects of Appellant’s presentation. See, e.g., Majority Opinion, slip op.
at 43 (“Repeatedly, [Appellant] was forced by the trial court’s questioning to concede
that the Y-STR databases were not created in a novel fashion that would differentiate
the scientific methods of creating these databases from others.”).
8
I also have difficulty with the majority’s statement that Appellant did not challenge the
“statistical conclusions stemming from the use of the counting method.” Majority
Opinion, slip op. at 38. In this regard, Appellant consistently contested the reliability of
the statistical results in his pretrial motions, supporting brief, and in oral argument to the
trial court, although his claims were not expressly premised on the general use of the
counting method. See Defendant’s Omnibus Pretrial Motions at ¶¶60-62; Defendant’s
Brief in Support of Defendant’s Omnibus Pretrial Motions at 25-27; N.T., Jan. 2, 2014, at
42-43, 45, 47-48.
[J-58-2016][M.O. – Wecht, J.] - 8
DNA testing in the area of forensic science.” Defendant’s Brief in Support of
Defendant’s Omnibus Pretrial Motions at 27.
The Court has emphasized that the term “novel” is to be ascribed a “reasonably
broad meaning.” Betz v. Pneumo Abex, LLC, 615 Pa. 504, 545, 44 A.3d 27, 53 (2012);
see also Commonwealth v. Walker, 625 Pa. 450, 489, 92 A.3d 766, 790 (2014) (citing
Grady v. Frito-Lay, Inc., 576 Pa. 546, 557, 839 A.2d 1038, 1045 (2003), for the precept
that “Frye is applicable to novel science, as well as where scientific methods are utilized
in novel way”). In this respect, Appellant’s claim regarding the reliability of the Y-STR
statistical analysis echoes prior reservations the Court has expressed regarding
emerging DNA forensic evidence.
Suffice to say that the scientific processes carried out in a laboratory to
compare DNA samples are now routine and fully accepted in the scientific
community . . .. What has not yet achieved universal agreement is the
less objective selection of the appropriate population for statistical
purposes and the actual statistical analysis which is to be applied to the
physical analysis carried out in the laboratory. About the statistical
treatment of the physical evidence there remains disagreement and
continuing theoretical development. . . . What is not universally agreed is
what conclusions can validly be drawn from the matches observed in the
samples.
Commonwealth v. Crews, 536 Pa. 508, 520, 640 A.2d 395, 400-01 (1994) (emphasis
added).9 This Court has traditionally viewed statistical probabilities premised on DNA
analysis as an inquiry separate from the processes related to DNA sampling. See, e.g.,
id. at 520, 640 A.2d at 400-01; Blasioli, 552 Pa. at 151, 713 A.2d at 1118.
Moreover, commentators observe that some courts have improperly extended
the acceptance of prior DNA testing in admitting emerging sampling methodologies
9
Ultimately, the Court largely resolved questions pertaining to the statistical analysis of
autosomal DNA testing in Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117(1998).
[J-58-2016][M.O. – Wecht, J.] - 9
without a pretrial hearing, specifically highlighting Y-STR interpretation as an area of
concern. See DAVID H. KAYE, DAVID E. BERNSTEIN & JENNIFER L. MNOOKIN, THE NEW
WIGMORE: A TREATISE ON EVIDENCE: EXPERT EVIDENCE §9.5.1 (2nd ed. 2017 Cumulative
Supp.) (“Courts accepting Y-STR DNA testing as admissible sometimes seem to
suggest that the result follows immediately from the fact that tests of other STR loci are
admissible. . . . But the interpretation of Y-STRs requires an understanding of the
different pattern of inheritance of these alleles and data on their frequencies. These
matters generally must pass through the Frye or Daubert gate.” (footnotes omitted));
DAVID L. FAIGMAN ET AL., 4 MODERN SCIENTIFIC EVIDENCE §30:30 (2016-17 ed.) (“[I]t is a
mistake to suggest, as have several courts, that Y-STR testing results should be
admitted simply because a court has previously admitted STR results.” (footnote
omitted)); see also State v. Roman Nose, 649 N.W.2d 815, 822 (Minn. 2002) (“That the
RFLP method of testing DNA has gained general acceptance does not permit evidence
obtained from significantly different methods of DNA testing[, here, PCR-STR testing,]
to be admitted without holding a hearing on [general acceptance].” (alterations added)).
There seems to be some potential that such an error played a role in the trial court’s
rejection of Appellant’s claims in the present matter, given the narrow fixation on
comparing the manner in which autosomal and Y-STR DNA database sampling is
performed. See, e.g., Majority Opinion, slip op. at 43 (observing that the trial court
repeatedly inquired about the novelty of creating the Y-STR database as compared to
other DNA databases).
Although the Commonwealth contends that Commonwealth v. Chmiel, 612 Pa.
333, 30 A.3d 1111 (2011), approving of the admission of mitochondrial DNA testing (the
female counterpart to Y-STR testing), should control here, that matter did not involve
any statistical analysis. The opinions from other jurisdictions cited by the
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Commonwealth in support of Y-STR testing, see Brief for Appellee at 41-43 (collecting
cases), do not address Appellant’s concerns with the limits of the database. See also
KAYE, THE NEW WIGMORE §9.5.1 (cautioning against reliance on other courts’ decisions,
since, “[e]specially in the early days of a scientific technique, imbalanced hearings are
not uncommon[,]” and observing that “a history of usage -- especially without any
hearings on the necessary foundational research and with no meaningful appellate
review of the trial rulings -- is a weak indicator of scientific acceptance”).
Accordingly, I believe Appellant advanced a novel issue regarding the reliability
of the statistical analysis employed in Y-STR testing and that the trial court erred in
refusing a Frye hearing on the matter. Accord State v. Harris, 2009 WL 1683988, at *9
(Minn. Ct. App. June 16, 2009) (unpublished) (“The Y–STR testing method, however,
has not been considered by the supreme court, and thus the district court must hold an
evidentiary hearing to determine whether experts in the field share the expert's view that
Y–STR testing is generally accepted or scientifically reliable.”).
Additionally, I am of the view that, if admission of the Y-STR evidence was
improper, that error could not be considered harmless. See Young, 561 Pa. at 85, 748
A.2d at 193 (recognizing that an error is harmless if (1) it did not prejudice the defendant
or the prejudice was de minimis, (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially similar to the
erroneously admitted evidence, or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the error so
insignificant by comparison that the error could not have contributed to the verdict).
Appellant substantively contested most aspects of the Commonwealth’s case, as
previously discussed. See N.T., Oct. 7, 2014, at 1483, 1488-89, 1492, 1493, 1496-97,
1500-01, 1504 (summarizing the various shortcomings of the Commonwealth’s case).
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Further, even acknowledging that Y-STR testing’s discriminatory weakness was
detailed at trial, I view the Y-STR evidence as more than minimally prejudicial, and no
other similar evidence was presented. See Commonwealth v. Topa, 471 Pa. 223, 232,
369 A.2d 1277, 1282 (1977) (“[S]cientific proof may in some instances assume a
posture of mystic infallibility in the eyes of a jury of laymen . . ..” (quoting United States
v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974)).
Although concluding that the improper admission of evidence was not harmless
ordinarily requires a new trial, an error in failing to conduct a Frye hearing does not
irreducibly mandate that proceedings begin anew, since the propriety of the admission
relies on the result of that evidentiary screening in the first instance. In this respect, I
would follow the approach adopted by other jurisdictions: rather than summarily
subjecting the parties to a new trial in these circumstances, they have vacated the
verdict and remanded for a Frye hearing with orders to reinstate the conviction should
the challenged evidence be found admissible, or institute a new trial if the evidence was
inadmissible. See, e.g., People v. Leahy, 882 P.2d 321, 335-36 (Cal. 1994); Brim v.
State, 695 So.2d 268, 275 (Fla. 1997); Montgomery Mut. Ins. Co. v. Chesson, 923 A.2d
939, 950-51 (Md. 2007).10 As the Court of Appeals of Maryland explained, “it would be
a grave injustice were we to reverse the judgment and vacate the verdict, and then the
trial court, after a Frye-Reed hearing, determined properly that [the expert’s] testimony
was generally accepted within the scientific community.” Montgomery Mut. Ins. Co.,
923 A.2d at 951 (alteration added). I am of the view that the approach endorsed by
10
This procedure has been employed by the Superior Court, albeit in an unpublished
opinion. See Commonwealth v. George, 2015 WL 5970739, at *6 (Pa. Super. Sept. 25,
2015) (unpublished) (citing Commonwealth v. Arenella, 306 Pa.Super. 119, 454 A.2d
243 (1982) (adopting a similar strategy with respect to independent testing of an illicit
substance) (subsequent history omitted)).
[J-58-2016][M.O. – Wecht, J.] - 12
these courts promotes an efficient use of limited judicial resources and reflects respect
for the jury’s decision without infringing upon any substantial rights of the defendant.
Thus, in this case, I would vacate the conviction and remand for a Frye hearing with an
instruction to reinstate the verdict if it is found that the Y-STR evidence was properly
admitted, or to order a new trial if it was not appropriately before the jury.
Accordingly, I respectfully dissent.
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