J-A09030-15

                              2015 PA Super 126

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
HUGO MARCUS SELENSKI,                   :
                                        :
                  Appellant             : No. 352 EDA 2010

        Appeal from the Judgment of Sentence September 21, 2009,
                  Court of Common Pleas, Monroe County,
             Criminal Division at No. CP-45-CR-0001225-2006

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.:                              FILED MAY 27, 2015

      Appellant, Hugo Marcus Selenski (“Selenski”), appeals from the

judgment of sentence entered by the Court of Common Pleas, Monroe

County, on September 21, 2009. This case returns to this Court on remand

from the Pennsylvania Supreme Court.      For the reasons that follow, we

remand this case to the trial court.

      A summary of the relevant facts and procedural history is as follows.

On January 27, 2003, Samuel Goosay (“Goosay”), a jewelry store owner,

was assaulted and burglarized in his home by two masked individuals.

Goosay was restrained with flex ties and had duct tape placed over his eyes.

At one point, Goosay was able to remove the duct tape from one of his eyes,

and saw the face of one of the individuals.   After informing police of the

incident, Goosay reviewed two photo arrays that included Selenski’s
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photograph.      Goosay was unable to identify Selenski at that time.                In

January 2005, however, Goosay reviewed another photo array and identified

Selenski.

      On October 27, 2006, Selenski was charged with one count of each of

the following: kidnapping to facilitate a felony, 18 Pa.C.S.A. § 2901(a)(2);

robbery     –   threat   of   immediate    or   serious   injury,   18   Pa.C.S.A.   §

3701(a)(1)(ii); criminal attempt – burglary, 18 Pa.C.S.A. § 901(a), 18

Pa.C.S.A. § 3502(a); criminal conspiracy engaging – robbery, 18 Pa.C.S.A. §

903(a)(1), 18 Pa.C.S.A. § 3701(a)(2); criminal conspiracy engaging –

burglary, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3502(a); theft by

unlawful taking – movable property, 18 Pa.C.S.A. § 3921(a); criminal

conspiracy engaging – theft by unlawful taking – movable property, 18

Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3921(a); simple assault, 18 Pa.C.S.A.

§ 2701(a); and false imprisonment, 18 Pa.C.S.A. § 2903(a). Selenski was

also charged with two counts of each of the following: terroristic threats with

intent to terrorize another, 18 Pa.C.S.A. § 2706(a)(1); criminal conspiracy

engaging – simple assault, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. §

2701(a); and criminal conspiracy engaging – robbery – threat of immediate

or serious injury, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3701(a)(1)(ii).1



1
   In August 2006, the Commonwealth also charged Selenski and another
individual with two murders in a nearby county. The victims in that case
were also small business owners restrained by flex ties and duct tape. See
Commonwealth v. Selenski, 986 A.2d 150 (Pa. 2009).


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      On June 22, 2007, prior to trial being scheduled, Selenski filed a

motion in limine seeking to admit “expert testimony from Dr. Solomon

Fulero [(“Dr. Fulero”)], a leading expert on human memory, concerning the

psychological     factors   that   influence   the   accuracy    of   eyewitness

identifications[.]”   Selenski’s Motion in Limine, 6/22/07, at 1-2.     The trial

court denied Selenski’s motion on June 25, 2007.

      On July 3, 2007, Selenski filed a motion for reconsideration and a

memorandum in support of the motion. The trial court denied the motion on

July 5, 2007.    Selenski thereafter filed a notice of appeal to this Court on

July 26, 2007. On August 7, 2008, a panel of this Court quashed Selenski’s

appeal as interlocutory.    Our Supreme Court denied Selenski’s petition for

allowance of appeal on March 11, 2009.

      A jury trial commenced on July 8, 2009.         On July 10, 2009, at the

conclusion of trial, the jury found Selenski guilty of all charges.     The trial

court sentenced Selenski on September 21, 2009 to an aggregate term of

thirty-two and one-half years to sixty-five years of incarceration.

      Following the denial of his post-sentence motions, Selenski filed a

timely notice of appeal to this Court on February 1, 2010, raising four issues

for review.     On April 20, 2011, a panel of this Court affirmed Selenski’s

judgment of sentence. In its published Opinion, the panel held, in relevant

part, that Selenski’s claim that the trial court violated his constitutional right

to present a defense by “precluding expert testimony on the subject of



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human memory and perception as it relates to the identification process” did

not merit relief. Commonwealth v. Selenski, 18 A.3d 1229, 1232-33 (Pa.

Super. 2011).    In reaching its decision on this issue, the panel concluded

that Selenski failed to identify an abuse of discretion as the trial court

adhered to established case law, noting “the long-standing principle

guarding the jury’s function of deciding credibility by prohibiting expert

testimony on the reliability of eyewitness identifications.” Id.

      On May 20, 2011, Selenski filed a petition for allowance of appeal to

the Pennsylvania Supreme Court. On August 29, 2014, our Supreme Court

vacated this Court’s decision, granted Selenski’s petition limited to the

question concerning the trial court’s exclusion of the aforementioned expert

testimony, and remanded the case to this Court for consideration of

Selenski’s claim in light of Commonwealth v. Walker, 92 A.3d 766 (Pa.

2014). See Commonwealth v. Selenski, 100 A.3d 206 (Pa. 2014). On

remand, we are asked to address the following issue:

            Does the constitutional right to present a defense
            include the right to offer proven science bearing on
            the   understanding     of   human    memory      and
            perception, and police practices in the identification
            process, where those advances are unknown to
            laypersons?

Selenski’s Brief at 6.

      For over twenty years, Pennsylvania case law placed a per se ban on

expert testimony regarding the reliability of eyewitness identification,




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holding that such testimony would “intrude upon the jury’s basic function of

deciding credibility.”    See Commonwealth v. Spence, 627 A.2d 1176,

1182 (Pa. 1993); Commonwealth v. Simmons, 662 A.2d 621, 631

(Pa. 1995).     Recently, our Supreme Court in Walker reversed course,

holding that “the admission of expert testimony regarding eyewitness

identification is no longer per se impermissible in our Commonwealth[.]”

See Walker, 92 A.3d at 792-93. In so doing, the Walker Court joined the

trend among state and federal courts to permit testimony regarding the

fallibility of eyewitness identification in light of “advances in scientific study

… that eyewitnesses are apt to erroneously identify a person as the

perpetrator of a crime when certain factors are present.” Id. at 782-83.

      The Supreme Court indicated that “such expert testimony would be

limited to certain cases[,]” and trial courts must exercise their traditional

role in determining the admissibility of expert testimony, including pursuant

to Rules 401, 403, and 702 of the Pennsylvania Rules of Evidence. Id. at

787, 789-91. In particular, the Walker Court explained:

              We now allow for the possibility that such expert
              testimony on the limited issue of eyewitness
              identification as raised in this appeal may be
              admissible, at the discretion of the trial court, and
              assuming the expert is qualified, the proffered
              testimony relevant, and will assist the trier of fact.
              Of course, the question of the admission of expert
              testimony turns not only on the state of the science
              proffered and its relevance in a particular case, but
              on whether the testimony will assist the jury. Trial
              courts will exercise their traditional role in using their



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            discretion to weigh the admissibility of such expert
            testimony on a case-by-case basis. It will be up to
            the trial court to determine when such expert
            testimony is appropriate. If the trial court finds that
            the testimony satisfies Frye,[2] the inquiry does not
            end. The admission must be properly tailored to
            whether the testimony will focus on particular
            characteristics of the identification at issue and
            explain how those characteristics call into question
            the reliability of the identification.    We find the
            defendant must make an on-the-record detailed
            proffer to the court, including an explanation of
            precisely how the expert’s testimony is relevant to
            the eyewitness identifications under consideration
            and how it will assist the jury in its evaluation. The
            proof should establish the presence of factors (e.g.,
            stress or differences in race, as between the
            eyewitness and the defendant) which may be shown
            to impair the accuracy of eyewitness identification in
            aspects which are (or to a degree which is) beyond
            the common understanding of laypersons.

Id. at 792 (footnote added).

      In the present case, the trial court excluded the proposed expert

testimony based upon the then-existing per se ban against its introduction in

all cases, and not based upon the above-described analysis set forth by the

Walker Court. Accordingly, we remand this case to the trial court so that it

may perform its traditional gatekeeper function with regard to the proposed

expert testimony by Dr. Fulero. These decisions are in the first instance left




2
  The Frye test is an evidentiary test, which is used “when a party wishes to
introduce novel scientific evidence obtained from the conclusions of an
expert scientific witness.” Frye v. United States, 293 F. 1013 (D.C. Cir.
1923); see Commonwealth v. Harrell, 65 A.3d 420, 429 (Pa. Super.
2013).


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J-A09030-15


solely to the sound discretion and province of the trial court, and we decline

the invitation of the parties to bypass the trial court in this case.

      Case remanded to the trial court for proceedings consistent with this

Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2015




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