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EXPERT TESTIMONY RE: RELIABILITY OF EYEWITNESS TESTIMONY EXCLUDED WHERE IT WAS NOT THE SOLE OR PRIMARY EVIDENCE OF DEFENDANT’S GUILT

The PA Superior Court has decided the case of Commonwealth v. Selenksi, No. 1068 EDA 2016 (March 16, 2016), holding that although it is no longer banned, per se, expert testimony concerning the reliability of eyewitness identification was properly excluded when that identification was not the sole or primary evidence of the defendant’s guilt.

Selenski was convicted of kidnapping, robbery, attempted burglary, criminal conspiracy, theft by unlawful taking, simple assault, false imprisonment, and terroristic threats related to a home invasion and attack on a jeweler named Goosay.

In 2009, two men broke into Goosay’s residence in Monroe County wearing ski masks and brandishing a gun. The men handcuffed Goosay and placed duct tape over his eyes. At some point, Goosay was able to push away the tape and, during a scuffle with one of the intruders, he saw the assailant’s face without the ski mask. The assailant commented that it did not matter that Goosay saw his face because the assailant was not from the area Goosay would never recognize him.

During the investigation, police learned of two bodies buried on Selenski’s property in Luzerne County. Physical evidence discovered as a result of that investigation circumstantially linked Selenski to the Goosay crime.

At trial, evidence was presented showing that Goosay failed to identify a 2001 photo of Selenski contained in a photo array shown to him only six months after the break-in at his home. However, approximately two years later, Goosay was shown another photo array containing a 2003 photo of Selenski. Goosay was able to identify Selenski as the assailant he observed at his home and, he also identified Selenski at his trial.

Prior to trial, Selenski sought to contest Goosay’s identification of him as the perpetrator by presenting an expert witness on eyewitness identification and on factors that can lead to inaccurate identification. Because Pennsylvania law at that time precluded such testimony, the trial court declined to permit this evidence. A jury convicted Selenski and he was sentenced to 32 1/2 to 65 years incarceration.

Selenski ultimately sought allowance of appeal to the PA Supreme Court on that issue and, during the pendency of his petition, the PA Supreme Court rendered its decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), which abolished Pennsylvania’s per se ban of the admission of expert testimony regarding eyewitness identifications in criminal cases.

Accordingly, the PA Supreme Court subsequently granted his petition and remanded his case to the Superior Court. The Superior Court thereafter received new briefs and heard argument and then remanded the case to the trial court, declining the invitation of the Commonwealth and Selesnki to bypass the trial court, stating that it would not, in the first instance, determine Walker’s applicability to the case at hand. Instead, the Superior Court left to the trial court the “traditional gate keeper function with regard to the proposed expert testimony.”

On remand to the trial court, Selenski moved to present expert testimony by Dr. Jennifer Dysart, who proposed to detail 13 factors that can be relevant to eyewitness identifications and to opine, after reviewing partial records from this case and Selenski’s case in Luzerne County, that 9 of the 13 factors applied in Selenski’s case. In an evidentiary hearing, after hearing testimony by Dr. Dysart, the trial court concluded that Dr. Dysart’s testimony was inadmissible.

In making that determination, the trial court did not rule nor did the Commonwealth dispute that Dr. Dysart’s opinions were not generally accepted in the relevant scientific community. Instead, the trial court held that, under Walker, the testimony was inadmissible because Goosay’s eyewitness identification was not the sole or primary evidence against Selenski at trial and there was sufficient non-identification evidence to convict Selenski beyond a reasonable doubt.

Selenski appealed the trials court’s ruling to the Superior Court, asserting that the trial court abused its discretion in denying his request for a new trial at which he could present Dr. Dysart’s testimony.

The Superior Court first considered whether the trial court correctly interpreted and applied the Walker decision. In doing so, it noted that the Walker Court acknowledged that eyewitness evidence may be extremely probative of guilt and is often times crucial to the Commonwealth’s case against a defendant, but that there is no doubt that wrongful conviction due to erroneous eyewitness identification continues to be a pressing concern for the legal system and society. However, the Walker Court also envisioned that allowing such expert testimony would be limited to certain cases and specifically stated that “[w]hile we need not precisely define such situations, generally speaking, it would be where the Commonwealth’s case is solely or primarily dependent upon eyewitness testimony.”

The Superior Court then rejected Selenski’s suggestion that the test of admissibility under Walker is whether the non-identification evidence in the case would be sufficient to convict the defendant beyond a reasonable doubt. Additionally, although the Superior Court agreed with the trial court that the post-trial posture of Selenski’s case requires the assessment of relevance under Walker to be done retrospectively rather than prospectively as would be the case in a pre-trial evidentiary hearing, it did not justify use of a relevancy standard different from that specified by the Supreme Court.

The Superior Court also rejected the Commonwealth’s argument that if a case is not “solely and primarily dependent” on eyewitness identifications, Walker compels exclusion of expert testimony. It noted that, contrary to the trial court’s conclusion otherwise, the Supreme Court did not explicitly say that the expert evidence would be relevant only if it met a “solely or primarily dependent” test. Additionally, it explained that the “solely or primarily dependent” test is notably more stringent than the general test of relevance set forth in Evidence Rule 401, which the Supreme Court quoted with approval later in Walker as “any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.”

The Superior Court then observed that the Walker Court repeatedly emphasized the broad discretion that is vested in trial courts regarding the admission of such expert testimony and that eyewitness identification expert evidence would now be allowed at the discretion of the trial court, subject to abuse of discretion appellate review.

Of significance to the Superior Court was the fact that it had declined the Commonwealth’s invitation to hold that Walker’s “solely or primarily dependent” language absolutely foreclosed admissibility of expert eyewitness identification evidence in Selenski’s case. Rather, it remanded the matter to the trial court to “perform its traditional gatekeeper function with regard to the proposed expert testimony” in the first instance. In other words, it is up to the trial courts to exercise their traditional role in using their discretion to weigh the admissibility of such expert testimony on a case-by-case basis and to determine when such expert testimony is appropriate.

Thus, although expert evidence about eyewitness identifications is most clearly relevant where a case is solely or primarily dependent on the identifications, the trial court has discretion to determine that the evidence is relevant in other situations too, weighing its admissibility on a case-by-case basis. And, as the Walker Court observed, in most cases that do not turn solely or primarily on eyewitness identifications, trial courts are most likely to conclude that proffered expert identification evidence is not relevant.

With the above analytical framework in mind, the Superior Court set out to determine whether the trial court committed error in concluding that Selenski’s case was not solely or primarily dependent on identification evidence because, if it were, his expert identification evidence clearly would be relevant under Walker. After reviewing the three day trial record (outlined in more detail in the Superior Court’s decision) in which several witnesses other than Mr. Goosay testified, the appellate court concluded that “in view of this abundance of circumstantial evidence” the trial court correctly held that the Commonwealth’s case against Selenski did not solely or primarily depend on Goosay’s identification.

Lastly, the question of whether the trial court should have admitted such expert testimony even though a case does not turn “solely or primarily” on the eyewitness identification will be left for another day as the Superior Court deemed that Selenski waived any arguments on whether it was nonetheless admissible under the Rules of Evidence as being otherwise relevant.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-S90026-16o%20-%2010302891416432444.pdf?cb=1

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