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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  v.                       :
                                           :
THOMAS A. GOODEN,                          :       No. 232 EDA 2017
                                           :
                       Appellant           :


         Appeal from the Judgment of Sentence, August 25, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0002482-2015


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 16, 2018

     Appellant, Thomas Gooden, appeals from the August 25, 2016

judgment of sentence entered by the Court of Common Pleas of Philadelphia

County following his conviction of homicide by vehicle, accidents involving

death or personal injury, accidents involving death or serious injury—not

properly licensed, involuntary manslaughter, three counts of aggravated

assault by vehicle, and four counts of recklessly endangering another

person. After careful review, we affirm.

     The trial court provided the following factual and procedural history:

           On July 13, 2013, at about 2:43 a.m., [appellant]
           was driving his automobile on Lincoln Drive near
           Morris Street in Philadelphia. At a curve in the
           roadway, [appellant] lost control of his vehicle (a
           Subaru), which crossed into the opposite bound lane
           and collided with a vehicle (a Nissan) driven by
           Angela Terry.     As a result of the collision,
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              [appellant’s] passenger, Ashley Gant Madison, was
              killed and another passenger, Bria Staley, was
              injured.     Angela Terry and her passenger,
              Harvey Stratton, were injured. A third vehicle, (a
              Honda) was involved in the accident, but [appellant]
              was not charged with offenses relating to the third
              vehicle.

              A jury convicted [appellant] of accident involving
              death or personal injury, accident involving death—
              not properly licensed, homicide by vehicle,
              involuntary   manslaughter,     three    counts   of
              aggravated assault by vehicle, and four counts of
              recklessly endangering another person. [Appellant]
              received an aggregate sentence of eight to
              16 years[’ imprisonment.]

Trial court opinion, 6/2/17 at 1-2 (citations omitted).              Appellant filed a

timely notice of appeal to this court. The trial court ordered appellant to file

a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and appellant timely complied.             The trial court filed an

opinion pursuant to Pa.R.A.P. 1925(a).

        Appellant raises the following issue for our review:

              Did the lower court err in denying [appellant’s]
              Frye[1] motion pursuant to Pa.R.E. 702 where no
              scientific basis existed for the assumptions
              underlying the calculation of [appellant’s] speed by
              the Commonwealth’s accident reconstruction expert?

Appellant’s brief at 3.

        Appellant   specifically   avers    that    the   Commonwealth’s      accident

reconstruction      expert,   Philadelphia       Police   Officer   William   Lackman


1   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).



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(“Officer Lackman”), “employed no methodology at all” when he reached the

“assumption that [appellant], ‘[drove] the curve as he was supposed to have

been [sic] in the curve.’”      (Appellant’s brief at 11.)     Appellant further

contends that the manner in which Officer Lackman reached his conclusion is

“deeply flawed and simply cannot meet the Frye standard.”               (Id.)   Put

another way, at the Frye hearing, appellant’s counsel contended that “the

methodology that [appellant] exceeded that critical speed as the cause of

the accident and then also the methodology used to exclude other possible

causes [are] not scientifically accepted.” (Notes of testimony, 12/21/15 at

3-4.)

        When reviewing a trial court’s admission of expert testimony under the

Frye standard,2 we are held to the following:

              as to the standard of appellate review that applies to
              the Frye issue, [our supreme court] has stated that
              the admission of expert scientific testimony is an
              evidentiary matter for the trial court’s discretion and
              should not be disturbed on appeal unless the trial

2   The Frye standard is as follows:

              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 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, 293 F. at 1014.


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           court abuses its discretion. See Commonwealth v.
           Zook, 615 A.2d 1, 11 (Pa. 1992), cert. denied, 507
           U.S. 974 (1993). 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 as
           to be clearly erroneous. Paden v. Baker Concrete
           Constr., Inc., 658 A.2d 341, 343 (Pa. 1995).

Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).               The Grady

court re-affirmed Pennsylvania’s adoption of the Frye standard, as it applies

only to an expert’s methodology. Id. at 1047.

           With respect to application of the Frye standard, our
           [supreme court] has “made it clear that Frye is not
           implicated every time science comes into the
           courtroom; rather, it applies only to proffered expert
           testimony        involving       novel        science.”
           Commonwealth v. Dengler, 890 A.2d 372, 382
           (Pa. 2005); see also Grady, 839 A.2d at 1045
           (finding Frye is applicable to novel science, as well
           as where scientific methods are utilized in [a] novel
           way).     Our [supreme court] has noted that a
           “reasonably broad meaning should be ascribed to the
           term ‘novel,’” and “a Frye hearing is warranted
           when a trial 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.” Betz v. Pneumo
           Abex LLC, et al., 44 A.3d 27, 53 (Pa. 2012).
           Further, what constitutes novel scientific evidence is
           usually decided on a case-by-case basis as there is
           some flexibility in the construction, as “science
           deemed novel at the outset may lose its novelty and
           become generally accepted in the scientific
           community at a later date, or the strength of the
           proponent’s    proffer    may     affect   the    Frye
           determination.” Dengler, 890 A.2d at 382. As [our
           supreme court] noted in Dengler:




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                   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 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.

             Id. at 380-381 (quoting Frye) (citation omitted).

Commonwealth v. Walker, 92 A.3d 766, 790 (Pa. 2014).

      As noted by the trial court, Officer Lackman based his opinion on the

following:

             1.    Position of stopped vehicles;
             2.    Damage to the asphalt in the roadway;
             3.    Interview with [appellant];
             4.    Interview with police officers on the scene;
             5.    Observing damage to the vehicles;
             6.    Photographing the vehicles;
             7.    Calculating the impact;
             8.    Calculating the point of maximum engagement;
             9.    The location of scattered automobile parts;
             10.   Calculating the trajectory of the vehicles;
             11.   Mathematical formulation to calculate the
                   critical speed of the curve; and
             12.   Obtaining the coefficient of friction.

Trial court opinion, 6/2/17 at 4 (citations omitted). Based upon our review

of the record, we agree with the trial court’s conclusion that it was

“immaterial” whether appellant’s speed exceeded 75 miles per hour when he

attempted to negotiate the curve on Lincoln Street; rather, the critical fact


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was that appellant “was driving twice the speed limit on a wet night on a

curved   roadway.”     (Id.    at   9.)     Indeed,   appellant’s   own   expert,

James Halikman, testified that appellant was traveling over 50 miles per

hour—twice the posted speed limit of 25 miles per hour.               (Notes of

testimony, 12/21/15 at 112.)

     We therefore find that the trial court did not abuse its discretion when

it admitted Officer Lackman’s expert testimony.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/16/18




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