Com. v. Ross, P.

J-S55007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL AARON ROSS :
:
Appellant : No. 1738 WDA 2018
Appeal from the Order Dated November 6, 2017
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002038-2004
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 21, 2019
Paul Aaron Ross (Appellant) appeals from the order denying his request
for a Frye hearing.1 After careful consideration, we vacate the trial court’s
order denying Appellant’s request for a Frye hearing and remand to the trial
court for proceedings consistent with this decision.
This appeal arises from the June 27, 2004 murder of Tina Miller at Canoe
Creek Lake in Canoe Creek State Park. Appellant was arrested and charged
with Ms. Miller’s murder. On November 23, 2005, a jury found Appellant guilty
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* Retired Senior Judge assigned to the Superior Court.
1 A Frye hearing, named after the decision in Frye v. United States, 293 F.
1013 (D.C. Cir. 1923), “is a hearing held for the trial court to determine
whether the general scientific community has reached a general acceptance
of the principles and methodology used by the expert witness.”
Commonwealth v. Walker, 92 A.3d 766, 769 n.1 (Pa. 2014).
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of first-degree murder, aggravated assault, involuntary deviate sexual
intercourse, unlawful restraint, simple assault, false imprisonment, and
indecent assault.2
A prior panel of this Court summarized the post-trial procedural history:
At the sentencing phase of the trial, the jury rejected imposition
of the death penalty. The trial court then proceeded to sentence
[Appellant] to life in prison plus 24 to 48 years. [Appellant] filed
post-trial motions, which the trial court denied on January 30,
2006. On February 10, 2006, [Appellant] filed a timely notice of
appeal, but [Appellant’s] counsel failed to file an appellate brief
and the appeal was consequently dismissed. On September 26,
2008, [Appellant] filed a PCRA petition seeking the reinstatement
nunc pro tunc of his direct appeal rights, which the trial court
granted on August 14, 2009.
Commonwealth v. Ross, 57 A.3d 85, 90 (Pa. Super. 2012) (en banc).
On October 12, 2012, an en banc panel of this Court vacated Appellant’s
judgment of sentence and remanded for a new trial. Id. at 105. On November
17, 2015, the Pennsylvania Supreme Court denied the Commonwealth’s
petition for allowance of appeal.
On March 1, 2016, Appellant filed pre-trial motions in which he sought,
inter alia, the exclusion of any expert evidence relating to bite mark
identification and a Frye hearing. At trial, the Commonwealth intends to
introduce the testimony of Dr. Dennis Asen (Dr. Asen) and Dr. Lawrence
Dobrin (Dr. Dobrin). Dr. Asen and Dr. Dobrin are both dentists and practice
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2 18 Pa.C.S.A. §§ 2501(a), 2702(a)(1), 3123(a)(1), 2902(a)(1), 2701(a)(1),
2903(a), 3126(a)(2).
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in the field of forensic odontology (the study of the structure of teeth). Dr.
Asen and Dr. Dobrin intend to testify that the mark on Ms. Miller’s left breast
was caused by a human bite, and when they compared five sets of teeth
molds, including one from Appellant, Dr. Asen and Dr. Dobrin could exclude
four of the molds from having made the bite mark, but not Appellant’s.
On December 2, 2016, following the filing of several supplemental
motions by Appellant and objections by the Commonwealth, the trial court
heard oral argument on Appellant’s request for a Frye hearing. On March 8,
2017, after the parties submitted additional briefs on Appellant’s request for
a Frye hearing, the trial court entered an order concluding that bite mark
identification evidence is not novel and therefore a Frye hearing was not
warranted. The court further provided that the Commonwealth’s experts were
to adhere to the guidelines set forth by the American Board of Forensic
Odontologists (ABFO).
On April 5, 2017, Appellant filed a motion to amend the March 8, 2017
order to include language relating to Pennsylvania Rule of Evidence 702(c), so
that the trial court could address whether the expert methodology is generally
accepted in the relevant field. Appellant also requested that the court certify
for immediate appeal its decision not to hold a Frye hearing on the bite mark
identification evidence. On November 6, 2017, the trial court entered an
amended order once again denying Appellant’s request for a Frye hearing.
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The trial court also included in the order language addressing Rule 702(c) and
granting Appellant’s request for certification of immediate appeal.
On December 5, 2017, Appellant filed a petition for permission to file an
interlocutory appeal with this Court, which we denied by per curiam order on
May 7, 2018. On June 1, 2018, Appellant filed a petition for allowance of
appeal to the Pennsylvania Supreme Court. On November 20, 2018, our
Supreme Court granted Appellant’s petition for allowance of appeal, vacated
this Court’s order denying Appellant’s petition for permission to file an
interlocutory appeal, and remanded the case to this Court for disposition.
On appeal, Appellant presents the following issues for review:
1) WHETHER THE SUBSTANTIAL EVIDENCE [APPELLANT]
PROPOSED TO PRESENT AT A MOVED-FOR FRYE HEARING
DISCREDITING BITE MARK ANALYSIS COMES FROM AND IS PART
OF THE RELEVANT SCIENTIFIC COMMUNITY FOR FRYE
PURPOSES THUS ENTITLING HIM TO A FRYE HEARING; OR
WHETHER PENNSYLVANIA COURTS MUST LIMIT THEIR
RELIABILITY INQUIRY TO THE VIEWS OF CURRENT
PRACTICTIONERS OF THE PARTICULAR TECHNIQUE AT ISSUE?
2) WHETHER THE SUBSTANTIAL EVIDENCE PROFFERED BY
[APPELLANT] AT THE MOVED-FOR FRYE HEARING PRESENTED A
LEGITIMATE DISPUTE REGARDING THE RELIABILITY OF BITE
MARK ANALYSIS THUS ENTITLING HIM TO A FRYE HEARING; AND
SUCH THAT THE TRIAL COURT’S ADMISSION OF THE SAME
WITHOUT A FRYE HEARING WAS IN ERROR?
Appellant’s Brief at 5.
Both of Appellant’s issues related. Therefore, we address them
together. We begin with our standard of review:
As a general rule, this Court’s standard of review of a trial court’s
evidentiary ruling, including a ruling whether expert scientific
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evidence is admissible against a Frye challenge, is limited to
determining whether the trial court abused its discretion. Grady
v. Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003); Zieber v.
Bogert, 773 A.2d 758, 760 n.3 (Pa. 2001) (citing
Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000)). “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 so as to be clearly erroneous.”
Grady, 839 A.2d at 1046 (citing Paden v. Baker Concrete
Constr., Inc., 658 A.2d 341, 343 (Pa. 1995)).
Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005) (citations
modified).
Appellant argues that the trial court abused its discretion in denying his
request for a Frye hearing on the admissibility of the Commonwealth’s bite
mark identification evidence. This Court recently articulated the legal
standards implicated by a Frye analysis:
The Frye standard originally was intended to prevent the
situation in which a party would seek to introduce scientific
evidence that was so new that it would be impossible to “produce
rebuttal experts, equally conversant with the mechanics and
methods of a particular technique.” [U.S.] v. Addison, 498 F.2d
741, 744 (D.C. App. 1974). Frye contemplated a judicial inquiry,
informed by experts, into the general acceptance of the scientific
methods used. The standard required that “the thing from which
the [expert’s] deduction is made must be sufficiently established
to have gained general acceptance in the particular field in which
it belongs.” Frye, supra at 1014. At issue in Frye was
admissibility of the systolic blood pressure deception test,
commonly known as the lie detector test. The trial court excluded
the evidence, and the court affirmed that ruling on appeal,
explaining:
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
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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, supra at 1014. Pennsylvania adopted the Frye standard in
Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977), a case
involving the propriety of the trial court’s admission of voice print
identification evidence through an expert, Lieutenant Nash, of the
Michigan State Police. Our High Court, applying Frye, reasoned
that
[t]he requirement of general acceptance in the scientific
community assures that those most qualified to assess the
general validity of a scientific method will have the
determinative voice. Additionally, the Frye test protects
prosecution and defense alike by assuring that a minimal
reserve of experts exists who can critically examine the
validity of a scientific determination in a particular case.
Since scientific proof may in some instances assume a
posture of mystic infallibility in the eyes of a jury of laymen,
the ability to produce rebuttal experts, equally conversant
with the mechanics and methods of a particular technique,
may prove to be essential.
Topa, supra at 1282 (quoting Addison, supra at 744). The
Topa Court went on to conclude that the testimony of one expert
could not satisfy this standard, citing commentaries questioning
the reliability of sound spectrographs and voiceprints and
demonstrating that it was not generally accepted within the field
of acoustical science.
Thus, the Frye standard originally was intended to prevent a party
from introducing scientific evidence that was so new that it would
be impossible to “produce rebuttal experts, equally conversant
with the mechanics and methods of a particular technique.”
Addison, supra at 744. Frye contemplated a judicial inquiry,
informed by experts, into the general acceptance of the scientific
methods used.
In the years since the adoption of the Frye standard, this Court
has clarified that “Frye only applies to determine if the relevant
scientific community has generally accepted the principles and
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methodology the scientist employs, not the conclusions the
scientist reaches.” Trach v. Fellin, 817 A.2d 1102, 1112
(Pa.Super. 2003) (en banc).
Walsh v. BASF Corp., 191 A.3d 838, 842-43 (Pa. Super. 2018), appeal
granted, 203 A.3d 976 (Pa. 2019).3
The above principles have been incorporated into Pennsylvania Rule of
Evidence 702, which states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;
(c) The expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702 (emphasis added).
Appellant argues that the trial court erred in determining a Frye hearing
was unnecessary in this case. Appellant asserts that the court wrongly
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3 This case was argued before our Supreme Court on October 15, 2019, and
is awaiting disposition. See Walsh v. BASF Corp., 203 A.3d 976 (Pa. 2019).
The issue before our Supreme Court is whether, in conducting a Frye analysis,
“trial courts are not permitted to act as ‘gatekeepers’ to ensure the relevance
and reliability of scientific studies offered by experts to support their opinions
by scrutinizing whether those studies actually support their opinions.” Id. at
978. While the Supreme Court may overturn our Walsh decision, their
disposition will have no bearing on the outcome of this case or the general
standards triggering the necessity of a Frye hearing that were thoughtfully
set forth in the Walsh decision.
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concluded that the methodology employed by the Commonwealth’s experts in
conducting their bite mark identification analysis was generally accepted in
the scientific community of forensic odontology. Additionally, Appellant
contends that the trial court should have examined whether the expert’s
methodology for bite mark identification analysis was generally accepted in
the broader scientific community, as opposed to limiting its examination to
the field of forensic odontology. Appellant maintains that bite mark
identification analysis has applications in several different scientific
communities, and several of these communities have determined that bite
mark identification analysis is not reliable and has little or no evidentiary
value.
In support of his argument, Appellant relies on our Supreme Court’s
decision in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012). At issue in
Betz was the admissibility of expert opinion evidence relating to the “any-
exposure” theory of legal causation, i.e., “that each and every exposure to
asbestos – no matter how small – contributes substantially to the development
of asbestos-related diseases.” Id. at 30. As part of its analysis, the Supreme
Court had to first address, as a threshold issue, whether the trial court was
correct in concluding that a Frye hearing was necessary to determine the
admissibility of the “any-exposure” evidence. Id. at 52-55.
In concluding that the trial court’s decision to conduct a Frye hearing
was correct, the Supreme Court explained:
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There is inherent tension among the various measures for
admissibility of expert testimony. The threshold common law test
requires merely some reasonable pretension to specialized
knowledge. See, e.g., Miller v. Brass Rail Tavern, Inc., 664
A.2d 525, 528 (Pa. 1995). Our evidentiary rules, on the other
hand, suggest trial courts may take a greater role in assessing
whether the testimony will assist the trier of fact to understand
the evidence or determine a fact in issue, see Pa.R.E. 702, and in
screening evidence to avoid unfair prejudice, confusion of the
issues, or misleading of the jury, see Pa.R.E. 403. For better or
for worse, however, in the context of the more conventional
realms of science, the Pennsylvania decisions tend to downplay
the courts’ screening function. See, e.g., Commonwealth v.
Nazarovitch, 436 A.2d 170, 172 (Pa. 1981) (“[C]ourts will go a
long way in admitting expert testimony deduced from a well-
recognized scientific principle or discovery[.]” (quoting Frye, 293
F. at 1014)). A manifestation of this trend is that challenges
generally are vetted through the Frye litmus, which winnows the
field of the attacks by application of the threshold requirement of
novelty. See Grady, 839 A.2d at 1043-44.
Various reasons underlie the preference to limit the courts’
involvement in determining the admissibility of scientific evidence.
There is the concern that liberality in allowing challenges would
substantially increase the number of challenges (and cases in
which lengthy pre-trial proceedings would ensue). The
competency of trial judges to accept or reject scientific theories
remains a legitimate subject of controversy. Additionally, a claim
or defense in many cases may rise or fall based upon expert
testimony and, therefore, there is some reluctance on the part of
courts to deprive litigants of their day in court.
On the other hand, this Court has recognized the influential
nature of expert testimony on complex subjects, and the potential
that distortions have to mislead laypersons. See id. at 1045;
Topa, 369 A.2d at 1281-82. It would be naïve, in this regard, to
assume that the possibility for distortion is limited to the very
newest realms of science. Cf. Grady, 839 A.2d at 1045
(explaining that Frye applies not only to novel science, but also
where scientific methods are utilized in a novel way).
We therefore agree with Appellants that a reasonably broad
meaning should be ascribed to the term “novel.” Furthermore,
we conclude that a Frye hearing is warranted when a trial
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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.
Accord id. We believe a narrower approach would unduly
constrain trial courts in the appropriate exercise of their discretion
in determining the admissibility of evidence. See id. at 1046.
Id. at 52-53 (emphasis added, footnote omitted, citations modified).
Additionally, in Betz, the Supreme Court rejected the notion that the
defendants could not challenge the methodology of the plaintiff’s expert
pathologist with the testimony of risk assessors, toxicologists, and
epidemiologists. Id. at 54. The Court reasoned that the expert pathologist’s
“any-exposure” opinion “was not couched in terms of a methodology or
standard peculiar to the field of pathology[,]” and “was plainly grounded on
risk assessment.” Id. at 54-55. Thus, the Supreme Court determined that
the subjects at issue “are not within the particular expertise of a pathologist,
but, rather, are interdisciplinary in character.” Id. at 55.
In this case, the trial court reached two conclusions in denying
Appellant’s request for a Frye hearing. First, the trial court determined that
“[b]ite mark evidence is currently generally accepted in the relevant scientific
community of forensic odontologists.” Trial Court Opinion, 11/6/17, at 5. The
court explained:
The American Board of Forensic Odonotologists (ABFO) has
promulgated guidelines regarding the approved methodology
concerning bite mark evidence. This [c]ourt notes that the
aforementioned methodology rejects the notion that human
dentitions are unique to the individual. Any evidence proffered by
the Commonwealth to suggest that an individual can be identified
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by a bite mark, rather than merely excluded or not excluded as
having made the mark, would be inadmissible.
Id.
Second, the trial court rejected Appellant’s reliance on Betz, finding that
case distinguishable:
It is true that the Pennsylvania Supreme Court allowed the Betz
defendants to address the methodology of a pathologist through
the testimony of risk assessors, toxicologists, and epidemiologists.
However, Betz can be distinguished from the instant case. The
Betz Court found that the pathologist’s opinion was not “couched
in terms of a methodology or standard peculiar to the field of
pathology.” [Betz, 44 A.3d at 54]. Rather, the pathologist’s
opinion was “plainly grounded on risk assessment” and was
“interdisciplinary in character.” Id. at 55. The Betz Court based
its decision not upon the role of pathologists generally, but upon
the specific methodology employed by the individual pathologist
in question. Betz does not make a broad assertion that
Pennsylvania law “mandates a broader definition of the relevant
scientific community” where the methodology of a pathologist is
at issue. Here, the Commonwealth does not seek to offer the kind
of broad-scale scientific testimony that was at issue in Betz.
Id. at 6.
After careful consideration, we find support for Appellant’s position that
a Frye hearing was warranted in this case. First, with respect to the trial
court’s conclusion that bite mark identification analysis has general
acceptance in the field of forensic odontology, Appellant offered evidence
indicating that there is a lack of consensus among forensic odontologists on
whether bite mark identification analysis is reliable and valid. While there is
no dispute that the ABFO has established standards and a methodology for
conducting bite mark identification analysis, see Commonwealth’s Third Brief
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in Opposition to Appellant’s Request for a Frye Hearing, 2/21/17, Exhibit B,
Appellant presented numerous reports to the trial court indicating that
practitioners within the community of forensic odontology question whether
this methodology reliably enables forensic odontologists to identify an injury
as a human bite mark.
For example, Appellant presented evidence from a presentation by Dr.
David Senn, DDS, Vice-President of the American Board of Forensic
Odontology, to the National Academies: Committee on Identifying the Needs
of the Scientific Community. See Defendant’s Post-Argument Supplement to
“Defendant’s Motion in Limine: Frye Test – Bite Mark Evidence” (hereinafter
Defendant’s Post-Argument Supplement), 1/17/17, Exhibit 4 (Presentation to
the National Academies: Committee on Identifying the Needs of the Forensic
Science Community – Forensic Odontology Bite Marks (hereinafter Senn
Presentation), 4/23/07, at 31-34). While Dr. Senn opined that bite mark
identification analysis was important to the investigation and adjudication of
certain crimes, id. at 45, Dr. Senn identified several “major problems” with
bite mark identification analyses, including: “[t]he uniqueness of the human
dentition has not been scientifically established”; “[t]he ability of the dentition,
if unique, to transfer a unique pattern to human skin and maintain that
uniqueness has not been scientifically established”; “[a] clear statement of
the type, quality, and number of class and individual characteristics or other
features required to indicate that a bite mark has reached a threshold of
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evidentiary value has not been established”; and “Forensic Odontology
certifying organizations have not created or administered bite mark analysis
proficiency tests for their board certified members.” Id. at 31-34.
Likewise, Appellant presented a report by the President’s Council of
Advisors on Science and Technology, which revealed the following:
Empirical research suggest that forensic odontologists do not
consistently agree even on whether an injury is a human bitemark
at all. A study of the American Board of Forensic
Odontology (ABFO) involved showing photos of 100 patterned
injuries to ABFO board-certified bitemark analysts, and asking
them to answer three basic questions concerning (1) whether
there was sufficient evidence to render an opinion as to whether
the patterned injury is a human bitemark; (2) whether the mark
is a human bitemark, suggestive of a human bitemark, or not a
human bitemark; and (3) whether distinct features (arches and
toothmarks) were identifiable. Among the 38 examiners who
completed the study, it was reported that there was unanimous
agreement on the first question in only 4 of the 100 cases and
agreement of at least 90 percent in only 20 of the 100 cases.
Across all three questions, there was agreement of at least 90
percent in only 8 of the 100 cases.
Defendant’s Post-Argument Supplement, 1/17/17, Exhibit 5 (PRESIDENT’S
COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY, REPORT TO THE PRESIDENT:
FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING SCIENTIFIC VALIDITY OF FEATURE-
COMPARISON METHODS (hereinafter PCAST Report) 84-85 (2016)) (emphasis
added).
The studies proffered by Appellant challenge the trial court’s conclusion
that the ABFO’s methodology for using bite marks to eliminate persons as
suspects is generally accepted in the field of forensic odontology. These
reports reflect that individuals within the forensic odontology community
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question not only whether the ABFO’s methodology can reliably aid experts in
using bite marks to validly identify or exclude individuals as criminal actors,
but also whether the methodology enables experts to identify a wound as a
human bite mark. Therefore, Appellant provided the trial court with
articulable grounds that the Commonwealth’s expert witnesses on bite mark
identification analysis have not applied accepted scientific methodology in
reaching their conclusions. See Betz, 44 A.3d at 53. Accordingly, we
conclude that the trial court abused its discretion in denying Appellant’s
request for a Frye hearing.
We are likewise persuaded by Appellant’s argument that the trial court
should not have limited consideration of the general acceptance of the experts’
methodology in this case to the field of forensic odontology. As several of the
reports Appellant cites reflect, bite mark identification analysis implicates
numerous scientific fields. See generally Defendant’s Post-Argument
Supplement, 1/17/17, Exhibit 2 (NATIONAL ACADEMY OF SCIENCES, COMMITTEE ON
IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCES COMMUNITY, STRENGTHENING
FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009), Exhibit 5
(PCAST Report), Exhibit 11 (Michael J. Saks, et al., Forensic bitemark
identification: weak foundations, exaggerated claims, 3(3) J. LAW BIOSCI. 1
(2016)). As these studies indicate, bite mark identification analysis not only
involves concepts relating to forensic science generally, but also pathology,
biology, statistics, and metrology. See Defendant’s Post-Argument
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Supplement, 1/17/17, Exhibit 11 (Michael J. Saks, et al., Forensic bitemark
identification: weak foundations, exaggerated claims, 3(3) J. LAW BIOSCI. 1
(2016)) (noting that the forensic identification process is “fundamentally
probabilistic” and that it involves the interplay of different scientific disciplines
including blood (pathology), skin (biology and dermatology), and
measurements (metrology)). Because the act of biting a human involves not
only the biter’s teeth, but also the skin, muscle, tissue, and blood with which
the teeth make contact, the notion that bite mark identification analysis
involves scientific disciplines beyond forensic odontology is reasonable.
Finally, we emphasize that our decision in no way represents a
determination as to the general acceptance of the methodology underlying
bite mark identification analysis utilized by the Commonwealth’s experts in
this case. We make no judgment as to the admissibility of the bite mark
identification evidence at issue. Rather, we simply conclude that Appellant
provided the trial court with articulable grounds to believe that the
Commonwealth’s expert witnesses on bite mark identification analysis may
not have applied generally accepted scientific methodology in reaching their
conclusions, and consequently, the trial court erred in concluding that a Frye
hearing was not necessary. While Appellant’s evidence expresses negative
opinions on bite mark identification analysis, we cite it only to support our
conclusion that a Frye hearing is proper for the resolution of these
discrepancies, and to afford both parties the opportunity to present evidence
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in support of their positions. Therefore, we vacate the order denying
Appellant’s request for a Frye hearing and remand this matter to the trial
court for a hearing in accordance with Frye.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2019
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