J-A12002-14

                            2014 PA Super 211

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
           v.                           :
                                        :
JACK BELANI,                            :
                                        :
                       Appellee         :     No. 943 EDA 2013

               Appeal from the Order Entered March 1, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0012541-2010.


COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
           v.                           :
                                        :
WENJUE LIU,                             :
                                        :
                       Appellee         :     No. 957 EDA 2013

               Appeal from the Order Entered March 1, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0012540-2010.

BEFORE: SHOGAN, STABILE and PLATT*, JJ.

OPINION BY SHOGAN, J.:                       FILED SEPTEMBER 25, 2014

     Appellant, the Commonwealth of Pennsylvania, appeals from the

orders entered on March 1, 2013, precluding the admission of DNA evidence




__________________
*Retired Senior Judge assigned to the Superior Court.
J-A12002-14



at the trials of Appellees, Jack Belani and Wenjue Liu. 1 We are constrained

to reverse.



evidence that would tie Appellees to a robbery during which Appellee Liu

shot the victim in the leg. The trial court summarized the facts as follows:

      [O]n July 24, 2008, [Appellees], along with another co-

      armed robbery. The Commonwealth further alleges that both
      Belani and Liu were armed and were wearing stockings over
      their heads, and that Liu ultimately shot the complainant in the
      leg. Belani was not arrested until November 5, 2009. Liu was
      arrested the following day.     After a preliminary hearing on
      October 7, 2010, [Appellees] were held for court on robbery,
      aggravated assault, conspiracy, and related charges arising from
      the July 24, 2008 incident. After a number of continuance


      on July 2, 2012, the Commonwealth presented the court with a

      purposes of conducting a DNA analysis and comparison.          See


1
     The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order     terminates     or    substantially   handicaps     the    prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa. Super. 2013)
(citing Pa.R.A.P. 311(d)). In Commonwealth v. Gordon, 673 A.2d 866
(Pa. 1996), our Supreme Court held that the Commonwealth may appeal the
grant of a defense motion in limine which excludes Commonwealth evidence
and has the effect of substantially handicapping the prosecution. As the trial
court ruling excludes Commonwealth evidence, and the Commonwealth has
certified that the effect of the ruling substantially handicaps the prosecution,
we find that this appeal is properly before this Court. Commonwealth v.
Moser, 999 A.2d 602 (Pa. Super. 2010) (citing, inter alia, Commonwealth
v. Matis
                                                                               -
faith certification; we are not permitted to conduct such an inquiry. Moser,
999 A.2d at 605 n.2 (collecting cases).


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J-A12002-14



     July 2, 2012 Order. The court signed the order that same day.
     On September 6, 2012, at the trial readiness conference, the
     Commonwealth advised the court that it would not be prepared
     to proceed to trial on September 10th because Belani had
     submitted his DNA sample later than expected.       The court
     granted the continuance request and listed the matters for a
     waiver trial on December 14, 2012.2
           2
               The case was no longer being called as a jury trial.

          On the December 14, 2012 trial date, defense counsel
     argued two motions. The first was a motion to dismiss pursuant
     to Pennsylvania Rule of Criminal Procedure 600(g). The court
     denied the motions to dismiss on March 1, 2013. The second
     motion was an oral motion made in the alternative to preclude
     the Commonwealth from introducing DNA evidence at trial. The

     report as few as three days before trial and had not been
     afforded sufficient time to have their own expert(s) review the
     findings. The Commonwealth countered that it had been duly
     diligent in ensuring that the DNA analysis would be finalized in
     time for trial and had forwarded the resulting findings to defense
     counsel the day after receiving them.

           The court also was informed for the first time on December
     14th that the Commonwealth was demanding a jury trial. The

     advisement and scheduled a January 28, 2013 hearing. The
     purpose of the hearing was to afford the Commonwealth the
     opportunity to present testimony explaining the delay in
     finalizing the DNA analysis. On January 28th, the hearing was
     continued to February 7, 2013, because the Commonwealth had
     subpoenaed its witnesses for the wrong time. The testimony
     presented on February 7, 2013[,] revealed the following:

           The samples submitted for screening and DNA analysis
     were taken from three sources: (1) stockings recovered in July
     2008, (2) two swabs from Liu, and (3) two swabs from Belani.
     The stockings were submitted to the Evidence Intake
     Department of
     Science Center on August 2, 2012. They were analyzed by
     Forensic Scientist Francis Pabayatty of the Trace Lab division on



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J-A12002-14




     Evidence Intake Department on August 2, 2012. The swabs
     were then assigned to Mr. Pabayatty on August 24, 2012, and he
     analyzed them on August 28, 2012. Belani, however, did not
     submit his swabs to the Evidence Intake Department until
                                                       s samples on
     September 5, 2012. Mr. Pabayatty had completed his analysis
     of all swabs by September 5th, and entered an electronic request
     that a member of the DNA Identification Lab review the matters.
     In the meantime, Mr. Pabayatty prepared a report of his own
     findings, which was reviewed by his department and finalized on
     November 17, 2012. Mr. Pabayatty testified that nothing in his
     paperwork indicated that the cases had been marked as


            Forensic Scientist David Hawkins of the DNA Identification
     Lab was assigned to the matters on October 9, 2012, and began
     his work on that assignment on October 17, 2012. Mr. Hawkins
     testified that he is capable of beginning his analysis once the
     Trace Lab has completed its preliminary analysis, and was

     September 5, 2012 preliminary findings and his own assignment.
     Mr. Hawkins was told that the trial date was December 14, 2012,
     and was confident that he would be able to provide his analysis
     by that time, as the process generally takes eight to twelve
     weeks. Mr. Hawkins completed his findings and preliminary
     report by November 9, 2012. The final review of the findings
     and report was completed on December 6, 2012. Mr. Hawkins
     forwarded th
     day. Mr. Hawkins could not point to any notation in his file that

     testify, however, that he spoke with the assigned Assistant
     District Attorney Andrei Govorov on or about November 27,
     2012, and was asked to complete his report by the end of the
     following week (i.e., one week in advance of trial).


     to exclude the DNA evidence.

Trial Court Opinion, 8/22/13, at 1 4 (internal citations and some footnotes

omitted).     The   Commonwealth    filed   timely   notices   of   appeal   and



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J-A12002-14



concurrently filed statements pursuant to Pa.R.A.P. 1925(b) despite the fact

that the trial court had not yet ordered them.   On December 6, 2013, we



cases on appeal.2

     The Commonwealth presents the following single issue for our review:

           Did the lower court err when, in contravention of
     controlling precedent, it excluded DNA evidence on the ground
     that testing had not been performed further in advance of trial?




basic level, is that if the Commonwealth had sought testing earlier, it would



Commonwealth failed to disclose its expert findings to defense counsel

sufficiently in advance of trial, such that defense counsel did not have time

to secure their own experts to review the evidence. The court determined

that the prosecutor understood that the DNA analysis would take six to eight

weeks.   Based upon that timeline, the trial court concluded the results

should have been finalized and disclosed by late October or early November,

2012, thereby allowing defense counsel sufficient time to retain their own

experts to conduct an independent review and analysis before the December



2
   As the trial court has filed identical Pa.R.A.P. 1925 (a) opinions in both
cases on the same date, our reference to the trial court opinion is



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J-A12002-14



14, 2012 bench trial. Trial Court Opinion, 8/22/13, at 5. Instead, the final

reports were not completed until December 6, 2012, more than twelve

weeks    after    submission     of   the   final   sample.    Id.      Although    the



when it received them on December 6th, the defense did not have sufficient

time to secure its own expert analysis. Id. at 5 6.

      We have reviewed the record, including the notes of testimony, and

considered the arguments of the parties, the reasoning of the trial court, and

the applicable law. For the reasons which follow, we reverse.

      In evaluating the denial or grant of a motion in limine, our standard of

review is well-

deny a motion in limine, we apply an evidentiary abuse of discretion

standard of review.        Moser




unless   that    ruling    reflects   manifest      unreasonableness,   or   partiality,

prejudice, bias, or ill-

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal

denied, 80 A.3d 775 (Pa. 2013); Commonwealth v. Minich, 4 A.3d 1063

(Pa. Super. 2010) (citations and quotations omitted).             If the evidentiary




                                            -6-
J-A12002-14



     July 2, 2012 Order. The court signed the order that same day.
     On September 6, 2012, at the trial readiness conference, the
     Commonwealth advised the court that it would not be prepared
     to proceed to trial on September 10th because Belani had
     submitted his DNA sample later than expected.       The court
     granted the continuance request and listed the matters for a
     waiver trial on December 14, 2012.2
           2
               The case was no longer being called as a jury trial.

          On the December 14, 2012 trial date, defense counsel
     argued two motions. The first was a motion to dismiss pursuant
     to Pennsylvania Rule of Criminal Procedure 600(g). The court
     denied the motions to dismiss on March 1, 2013. The second
     motion was an oral motion made in the alternative to preclude
     the Commonwealth from introducing DNA evidence at trial. The

     report as few as three days before trial and had not been
     afforded sufficient time to have their own expert(s) review the
     findings. The Commonwealth countered that it had been duly
     diligent in ensuring that the DNA analysis would be finalized in
     time for trial and had forwarded the resulting findings to defense
     counsel the day after receiving them.

           The court also was informed for the first time on December
     14th that the Commonwealth was demanding a jury trial. The

     advisement and scheduled a January 28, 2013 hearing. The
     purpose of the hearing was to afford the Commonwealth the
     opportunity to present testimony explaining the delay in
     finalizing the DNA analysis. On January 28th, the hearing was
     continued to February 7, 2013, because the Commonwealth had
     subpoenaed its witnesses for the wrong time. The testimony
     presented on February 7, 2013[,] revealed the following:

           The samples submitted for screening and DNA analysis
     were taken from three sources: (1) stockings recovered in July
     2008, (2) two swabs from Liu, and (3) two swabs from Belani.
     The stockings were submitted to the Evidence Intake
     Department of
     Science Center on August 2, 2012. They were analyzed by
     Forensic Scientist Francis Pabayatty of the Trace Lab division on



                                        -3-
J-A12002-14




     Evidence Intake Department on August 2, 2012. The swabs
     were then assigned to Mr. Pabayatty on August 24, 2012, and he
     analyzed them on August 28, 2012. Belani, however, did not
     submit his swabs to the Evidence Intake Department until
                                                       s samples on
     September 5, 2012. Mr. Pabayatty had completed his analysis
     of all swabs by September 5th, and entered an electronic request
     that a member of the DNA Identification Lab review the matters.
     In the meantime, Mr. Pabayatty prepared a report of his own
     findings, which was reviewed by his department and finalized on
     November 17, 2012. Mr. Pabayatty testified that nothing in his
     paperwork indicated that the cases had been marked as


            Forensic Scientist David Hawkins of the DNA Identification
     Lab was assigned to the matters on October 9, 2012, and began
     his work on that assignment on October 17, 2012. Mr. Hawkins
     testified that he is capable of beginning his analysis once the
     Trace Lab has completed its preliminary analysis, and was

     September 5, 2012 preliminary findings and his own assignment.
     Mr. Hawkins was told that the trial date was December 14, 2012,
     and was confident that he would be able to provide his analysis
     by that time, as the process generally takes eight to twelve
     weeks. Mr. Hawkins completed his findings and preliminary
     report by November 9, 2012. The final review of the findings
     and report was completed on December 6, 2012. Mr. Hawkins
     forwarded th
     day. Mr. Hawkins could not point to any notation in his file that

     testify, however, that he spoke with the assigned Assistant
     District Attorney Andrei Govorov on or about November 27,
     2012, and was asked to complete his report by the end of the
     following week (i.e., one week in advance of trial).


     to exclude the DNA evidence.

Trial Court Opinion, 8/22/13, at 1 4 (internal citations and some footnotes

omitted).     The   Commonwealth    filed   timely   notices   of   appeal   and



                                     -4-
J-A12002-14



continuance to obtain their own expert analysis, it was error to completely



         Further, the Commonwealth argues that Commonwealth v. Smith,

599 A.2d 1350 (Pa. Super. 1991), abrogated in part on other grounds by

Commonwealth v. Malinowski, 671 A.2d 674 (Pa. 1996), is directly on

point.     The Commonwealth asserts that in Smith, the Commonwealth

obtained its DNA e

excluded the DNA evidence because the Commonwealth had not diligently

sought to have the testing performed earlier.          On appeal, this Court

reversed, holding that the mere failure to have the testing performed earlier

did not violate Pa.R.Crim.P. 305, and that even if there had been a violation,

a continuance, not exclusion of the evidence, would have been the proper



defense herein did not have sufficient time to secure additional expert

analysis before the start of trial on December 14, 2012, directly contradicts

Smith.

         Appellees respond that the trial court properly excluded the DNA

evidence.     They maintain that the exclusion was not based solely on the



its failure to act with due diligence in expediting the results of the analysis.




                                       -9-
J-A12002-14



Our review of the record does not support a lack of due diligence on the part

of the Commonwealth.

      At the December 14, 2012 hearing,3 when Appellees objected to the

admission of the DNA report that they received December 7, 2012, the

prosecutor noted that when the trial court signed the order requiring

Appellees to provide DNA samples on July 2, 2012, neither defense counsel

objected. N.T., 12/14/12, at 8. The prosecutor stated:

      As your Honor recalls, I had Your Honor sign the order on July
      2nd, 2012, for both Liu and Belani to submit themselves for
      swabs for DNA analysis purposes. There were no objections by
      either defense attorneys . . . .

                                     * * *

      In this case there was no objection raised, neither by [counsel
      for Appellee Belani], neither by [counsel for Appellee Liu]. There
      was no contest. There was no argument for Your Honor not to
      issue the order. I asked for her to sign the order; there was no
      objection raised.

Id. at 8.

      The trial court indicated that as of July 2, 2012, trial was set for

September 10, 2012.       N.T., 12/14/12, at 9.     The prosecution further

explained that while Appellee Liu complied in a timely fashion, Appellee

Belani did not.


3
   The complaints were filed against Appellees in November 2009.           It is
noteworthy that the trial court determined, when denying A

due diligence in bringing the case for trial[,] and the postponements were
                                                                11.


                                      -10-
J-A12002-14



            [THE COMMONWEALTH]: [Appellee Liu] submitted himself
      to Central Detectives to get this testing done in a timely fashion.
      [Appellee Belani] did not. It took three to four attempts of me

      calling my agent to go to Central and for them to be present.

      Central Detectives, he can actually dial that number, be met,
      and transported to the room so it could be done. He failed to do
      it.

            He finally did that in August, late August. When I called

      They would wait for these two defendants, the submission of
      both swabs from both Liu and Belani before they can even do an
      analysis.

            THE COURT: Why?

             [THE COMMONWEALTH]: Well, that [is] the[ir] policy.
      They cannot do testing
      cannot do [it] unless all genetic material, all material they need
      for analysis is submitted. One was not. I was not only duly
      diligent, I was beyond duly diligent, short of going personally.

      himself to go to Centra


            Finally, at some point late in August[,] Belani did submit


      would not be available on 9/10.        The very next day after
      receiving the results, I fax[ed] results to both attorneys, very
      next day.

N.T., 12/14/12, at 10 12.       The trial court opined the results should have

been available at the end of October; the prosecutor explained that since the

trial court granted an extension and assigned a trial date of December 14,

2012, that was the date the laboratory utilized.




                                        -11-
J-A12002-14



            [THE COMMONWEALTH] I told [the lab] that the results I
     need the results before my trial date. They asked me, When is
     your trial date? December 15th. And they asked me, Is that
     realistic, can they expect the results done? They say 6 to 8


          THE COURT: Sure. And that would be two months from
     August. September, October. So even November.


     they analyze.   And I spoke to the supervisor.    I demanded to

     expedited, and I did. But I was told they cannot even assign it



           And I can call I would need about an hour and a half, two

     done in a DNA lab in a more detail[ed] way.


     homicide case, because they have a backlog of cases submitted
     way before me, it takes time.

N.T., 12/14/12, at 13 14.

     When the trial court asked the prosecutor why he waited until July 2,

2012, to request the DNA testing, in that Appellees had been arrested in late



2012. I reviewed it, and I made the determination that that additional piece




                                     -12-
J-A12002-14



continuance to obtain their own expert analysis, it was error to completely



         Further, the Commonwealth argues that Commonwealth v. Smith,

599 A.2d 1350 (Pa. Super. 1991), abrogated in part on other grounds by

Commonwealth v. Malinowski, 671 A.2d 674 (Pa. 1996), is directly on

point.     The Commonwealth asserts that in Smith, the Commonwealth

obtained its DNA e

excluded the DNA evidence because the Commonwealth had not diligently

sought to have the testing performed earlier.          On appeal, this Court

reversed, holding that the mere failure to have the testing performed earlier

did not violate Pa.R.Crim.P. 305, and that even if there had been a violation,

a continuance, not exclusion of the evidence, would have been the proper



defense herein did not have sufficient time to secure additional expert

analysis before the start of trial on December 14, 2012, directly contradicts

Smith.

         Appellees respond that the trial court properly excluded the DNA

evidence.     They maintain that the exclusion was not based solely on the



its failure to act with due diligence in expediting the results of the analysis.




                                       -9-
