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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

DYSHAWN TYRONE MACK

                                                 No. 2006 EDA 2016


                   Appeal from the Order June 28, 2016
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0002402-2014


COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

MALIK DION CLARK

                                                 No. 1977 EDA 2016


                  Appeal from the Order June 28, 2016
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0000892-2015


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                           FILED JUNE 13, 2017

     The Commonwealth appeals from the June 28, 2016 order denying, in

part, its motion in limine to preclude Defendants, Dyshawn Tyrone Mack and

Malik Dion Clark, from presenting an eyewitness identification expert, and
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granting, in part, Defendants’ motion in limine to limit the scope of the

expert testimony offered by the Commonwealth regarding Defendants’ gang

affiliation.1 We affirm in part and reverse in part.

       This appeal arises from an altercation which occurred during the early

morning hours on July 6, 2015. At that time, a group of friends were having

a party on Prospect Street in East Stroudsburg, Monroe County. During the

gathering, a group of uninvited individuals, ostensibly including Defendants,

entered the residence.        After being asked to leave, the uninvited guests

attacked the attendees.        Defendants allegedly assaulted Frankie Lomucio,

who sustained severe injuries, including brain damage which left him in a

coma for eight days.         The attack was witnessed by a number of people

within the residence, several of whom subsequently identified Defendants as

Mr. Lomucio’s attackers.

       Based on the         foregoing, Defendants      were   each charged with

attempted murder, aggravated assault, recklessly endangering another

person, simple assault, and conspiracy. The cases were consolidated, and

prior to trial, both the Commonwealth and Defendants filed motions in

limine. The Commonwealth sought to preclude Defendants from offering the

expert testimony of Jonathan P. Vallano, Ph.D., regarding the unreliability of
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1
  Since these consecutively listed appeals emerge from a consolidated case
in the court below and raise identical issues, we consolidate the above-
captioned cases sua sponte for ease of disposition.



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eyewitness identification.   Defendants filed a motion in limine requesting

that the court bar the testimony of a supposed “gang-expert,” Trooper

William Patton, whom the Commonwealth planned to offer during trial.

      On June 28, 2016, the day trial was scheduled to commence, the court

held a hearing on the parties’ motions in limine. Neither party’s expert was

in attendance. The court heard argument and reviewed the expert reports.

The court rejected the Commonwealth’s attempt to entirely exclude

Defendants’ expert on eyewitness testimony, but limited the scope of his

testimony.   Specifically, the court ruled that Dr. Vallano could not testify

regarding any witness’s credibility, that he could not offer testimony for

which there was no professional consensus, that he could not assess the

facts of the case, and that he would be constrained to testimony that was

educational in nature regarding the principles of eyewitness identification.

      The court also granted, in part, Defendants’ motion in limine seeking

to limit Trooper Patton’s testimony to the facts presented during the case

and information available to both parties prior to trial. In his expert report,

Trooper Patton outlined details of an ongoing investigation into gang activity

in Monroe County. He noted that, in his role as a member of that task force,

he has become acquainted with gang activity within the area, and has

cultivated numerous confidential informants with knowledge of the inner-

workings of local gangs. Based on this experience and information that he

obtained from his unnamed contacts, Trooper Patton opined that Appellants

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were affiliated with local gangs.      The court precluded the trooper from

testifying to statements made by unnamed or unidentified sources.          As to

each ruling, the court retained discretion to modify its decisions as the

evidence was presented during trial.

     After the court issued a written order memorializing its determination,

the Commonwealth filed a timely appeal as of right in each action pursuant

to Pa.R.Crim.P. 311(d). As a result, the court dismissed the jury and stayed

the proceedings below. The Commonwealth complied with the court’s order

to file a Rule 1925(b) concise statement of matters complained of on appeal,

and the court filed its Rule 1925(a) opinion. This matter is now ready for

our review.

     The Commonwealth raises two issues for our review:

     1. Did the trial court err in limiting the content and materials on
        which Trooper William Patton could rely on while testifying as
        an expert in gang activity and affiliation, excluding any
        testimony or opinion based on hearsay information gained
        through confidential informants, third parties, or any other
        evidence not otherwise introduced at trial, contrary to
        Pennsylvania Rules of Evidence 703 and 705, along with
        prevailing case law?

     2. Did the trial court err in permitting the testimony of an expert
        on eyewitness identification when the Commonwealth’s case
        does not rest solely on eyewitness identification, and
        [Defendants’] expert’s report is equivocal and contradictory,
        contrary to the dictates of Commonwealth v. Walker, 92
        A.3d 766 (Pa. 2014), and the requirements of Pennsylvania
        Rule of Evidence 702.

Commonwealth’s brief at 7.



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     As a preliminary matter, we must determine whether the issues raised

in this interlocutory appeal are properly before us.   Generally, this Court

exercises jurisdiction only over final orders. 42 Pa.C.S. § 742. However, the

Commonwealth may invoke this Court’s jurisdiction under Rule 311(d). That

Rule provides:

     In a criminal case, under the circumstances provided by law, the
     Commonwealth may take an appeal as of right from an order
     that does not end the entire case where the Commonwealth
     certifies in the notice of appeal that the order will terminate or
     substantially handicap the prosecution.

Pa.R.A.P. 311(d).

     Even when the Commonwealth certifies that an order will terminate or

substantially handicap the prosecution, we do not “accept blindly the

Commonwealth’s certification of substantial hardship.” Commonwealth v.

Woodard, 136 A.3d 1003, 1005 (Pa.Super. 2016) (citation omitted).

Rather, we will look to the issue in question to determine whether it

implicates the Commonwealth’s constitutional responsibility to prove each

element of the crime beyond a reasonable doubt, and thereby, significantly

handicaps the prosecution’s case. See Commonwealth v. Cosnek, 836

A.2d 871 (Pa. 2003).       In this vein, the High Court held that the

Commonwealth’s right to      interlocutory   appeals “does not extend to

appealing the admission of defense evidence.”       Id. at 876; See also

Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (clarifying the holding

in Cosnak, and applying Rule 311(d) to certain non-evidentiary rulings

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terminating or substantially handicapping the Commonwealth’s case);

Woodard, supra (citing Cosnak and examining White in finding Rule

311(d) did not apply to denial of motion to consolidate).

       Here, the Commonwealth attached a certification to its notice of appeal

contending that the court’s order terminated or substantially handicapped its

case. Before this Court, the Commonwealth raised a challenge against the

court’s decision to limit the testimony of its expert, Trooper Patton.       The

Commonwealth also disputed the admission of testimony by Defendants’

expert on eyewitness identification.

       First, insofar as the Commonwealth raises a claim against the

admission of Defendants’ expert testimony, we find that issue is not properly

before us in light of our High Court’s holding in Cosnek, supra, that defense

evidence does not hamper the Commonwealth’s ability to present its case or

meet    its   evidentiary   burden.    Cosnek,    supra.     Second,    as   the

Commonwealth’s first issue suggests that the trial court erred in limiting the

scope of its own expert testimony, which assails the Commonwealth’s ability

to meet its evidentiary burden, we find that we can exercise jurisdiction over

that claim pursuant to Rule 311(d) and the Commonwealth’s certification.

Hence, we will consider the merits of the Commonwealth’s first issue alone.

       Our standard of review of the denial or grant of a motion in limine is as

follows:




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        When ruling on a trial court’s decision to grant or deny a motion
        in limine, we apply an evidentiary abuse of discretion standard of
        review. The admission of evidence will not be disturbed on
        appeal unless that ruling reflects manifest unreasonableness, or
        partiality, prejudice, bias, or ill-will, or such lack of support to be
        clearly erroneous.

Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa.Super. 2016) (citation

omitted).

        The Commonwealth argues that, under Pa.R.E. 703,2 Trooper Patton

was permitted to testify regarding facts he was made aware of in

formulating his expert opinion, including hearsay information provided by

confidential    informants.        The     Commonwealth     maintains    that     such

foundational information was required under Rule 705,3 and moreover, that

both rules clarify that when an expert does testify to otherwise inadmissible

evidence, the trial court may “instruct the jury to consider the facts and data

only to explain the basis for the expert’s opinion, and not as substantive

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2
    Pennsylvania Rule of Evidence 703 reads,

        An expert may base an opinion on facts or data in the case that
        the expert has been made aware of or personally observed. If
        experts in the particular field would reasonably rely on those
        kinds of facts or data in forming an opinion on the subject, they
        need not be admissible for the opinion to be admitted.

Pa.R.E. 703.
3
  Pennsylvania Rule of Evidence 705 reads, “If an expert states an opinion
the expert must state the facts or data on which the opinion is based.”
Pa.R.E. 705.



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evidence.”    Commonwealth’s brief at 16; Pa.R.E. 703 & 705, comment.

Under the Commonwealth’s understanding of the court’s ruling, the court

erred since Trooper Patton would be prohibited from rendering his expert

opinion because it was based, in part, on hearsay.

      In its Rule 1925(a) opinion, the trial court clarified its evidentiary

ruling, admitting that it was “not as crisp as it could be,” and attributed any

confusion caused by the order to the late filing of the motions and the failure

of the Commonwealth’s expert to be present to answer questions regarding

his one-page report.    Trial Court Opinion, 9/15/16, at 15-16.       The court

explained the terms of its order, observing that it did not bar Trooper Patton

from offering “opinions and conclusions based on his own knowledge,

experience, education, training, and investigation into gang activity in the

area.” Id. at 15. It stated that its ruling “did not unduly limit or restrict the

bases, hearsay or otherwise[,] on which the gang expert could reach his own

opinions or render his own conclusions about relevant matters,” including,

“the meaning and significance of the conduct in which [Defendants] and the

others with whom they crashed the party engaged[.]” Id. 15-16. Rather,

the court merely proscribed Trooper Patton from recounting statements

made by confidential informants regarding Defendants’ gang affiliation as a

“surrogate fact witness for information . . . he may have uncovered in his

own investigations[.]” Id. at 16.




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      Here, contrary to the Commonwealth’s position, the trial court clarified

that it did not forbid Trooper Patton from offering his expert opinion.

Nonetheless, the court’s order is not the model of clarity, and insofar as it

can be read to bar Trooper Patton from offering his expert opinion, we find

that the trial court erred in that regard. However, the trial court explained

that it intended to constrain the trooper only from repeating hearsay

statements made by confidential informants for substantive purposes.

See Trial Court Opinion, 9/15/16, at 16; Pa.R.E. 703 & 705, comment.

      Assuming Trooper Patton is qualified as an expert at trial, his potential

testimony is subject to standard evidentiary principles, including Rules 703

and 705. As properly outlined above, Rule 703 permits an expert to “base

an opinion on facts or data in the case that the expert has been made aware

of or personally observed.”   Pa.R.E. 703.    Such facts or data need not be

admissible; however, the rule explicitly requires that other experts in the

particular field must “reasonably rely on those kinds of facts or data in

forming an opinion[.]” Id. Thus, if the trial court accepts Trooper Patton’s

qualifications, he will be permitted to explain how he ultimately arrived at his

expert opinion that Appellants were affiliated with a gang, subject to these

constraints. Insofar as the court’s order barred that result, it was an abuse

of discretion.

      Order affirmed in part and reversed in part. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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