Commonwealth v. Michaux

JOHNSON, Judge,

concurring:

I agree with the majority opinion that since the witness is the handler and not the dog, and since the handler was subject to cross-examination and confrontation, appellant’s claim of inadmissable hearsay is meritless. There was no 6th Amendment violation.

I also agree, as correctly pointed out by the distinguished trial judge, the Honorable Charles H. Loughran, that appellant has not preserved his claim concerning alleged trial error in refusing to permit defendant’s expert to testify. As the record establishes, the defense sent the expert home without calling him to the stand, and without a ruling having been made. The issue is thus waived.

I join in the majority opinion’s determination that a complete and proper foundation was laid for the dog handler’s testimony and that the training and reliability of the dog in question were satisfactorily established.

Although the majority opinion does not appear to directly address the issue, I also agree with the distinguished trial judge that the pre-trial suppression motion judge did not commit error in refusing to suppress testimony pertaining to the trailing and identification of the defendant by a bloodhound. Judge Loughran correctly determined that these issues were not matters of evidence obtained in violation of defendant’s rights but are properly matters for the trial court.

My disagreement with the majority opinion relates only to the analysis concerning the sufficiency of the evidence and the weight to be accorded the testimony as to trailing by a bloodhound.

The majority opinion would permit an inference that dog tracking evidence must be sufficiently corroborated by other, independent facts before a jury may be permitted to consider such evidence as reliable. Since the facts of this case do not require us to consider whether evidence of dog tracking, standing alone, is sufficient to support a conviction, I cannot join so much of the majority opinion as seems to address itself to that issue.

In Commonwealth v. Hoffman, 52 Pa.Super. 272, 279 (1912), this court set forth the criteria for admission of dog tracking evidence in Pennsylvania:

In order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must be established that the dog in question is possessed of these qualities, and has been trained and tested in their exercise, in the tracking of human beings, by a person who has knowledge and experience in such a matter, and that the test was made by starting the dog at a point where the circumstances tend clearly to show that the alleged guilty party had been, at a time when his presence would instinctively be known to the dog. When so indicated, testimony as to the trailing by a bloodhound may be permitted to go the the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime with which he is accused. It is a circumstance, and the weight to be given to it depends upon the other facts in the case.

The Hoffman court went on to say, 52 Pa.Super. at 280:

The defendant presented a point (seventh assignment) “unless the jury find there is sufficient evidence outside of that furnished by the bloodhound, they will not be justified in convicting the defendant,” was properly refused as it was for the jury to consider that testimony in connection with all the other evidence. It was not conclusive in and of itself, but could be considered as any other circumstance in the case, that was legitimately in evidence.

I find the facts and the law set forth in Hoffman to be sufficient to permit us to decide the case presently before us without resort to the positions taken on this issue in other jurisdictions. Appellant does not ask us to overrule Hoffman, nor would that be appropriate for this three-judge panel.

In its Brief before this court, Appellant argues that the sole evidence linking him to the commission of the crimes charged is testimony as to the tracking and identification of the appellant by a bloodhound. Appellant goes on to argue that “the absence of further corroborating evidence” renders the dog tracking evidence insufficient to provide a basis for his conviction. Brief for Appellant, Summary of Argument, at 16. The majority accepts this assertion suggesting the need for corroborating evidence in the analysis. I believe this to be a misleading approach to the proper resolution of the sufficiency question. It places undue emphasis and primacy on the dog tracking testimony which, in my view, is not required or even suggested under Hoffman.

The Hoffman court expressly stated that testimony as to the trailing of a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime with which he is accused. The court points out that it is a circumstance which could be considered along with all other circumstances and the weight to be given it depends upon the other facts in the case.

The Commonwealth presented evidence which established that two men from the same area of Fayette County were found in close proximity many miles from home at 6:00 A.M. along a rural highway in Westmoreland County. The defendant was found outside a stand of pine trees. He had pine needles in his hair and weeds protruding from his collar. The car which had been used in the burglary had been pursued from the crime scene by a police officer who came upon the car in a ditch near the stand of pine trees. A set of footprints led from the car into the stand. Testimony of one witness indicated that the defendant had not been proceeding down the road for any appreciable distance prior to his apprehension near the stand.

I agree with Judge Loughran’s conclusion that, without regard to the dog tracking evidence, “either defendant fell from the sky onto this desolate patch of highway (Route 31) or he came from inside the stand of pines where he had been hiding.” Opinion by Loughran, J., July 2, 1985, page 16.

In my view, all of the evidence presented and the reasonable inferences deducible therefrom in the present case are sufficient to prove guilt beyond a reasonable doubt. It was for the jury to determine what weight, if any, would be given to the evidence relating to the tracking by a bloodhound.

I, therefore, concur in the result reached by the majority.