J-S41009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

AARON FRAZIER,

                            Appellant                  No. 2712 EDA 2015


         Appeal from the Judgment of Sentence Entered August 7, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006136-2013


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 05, 2016

        Appellant, Aaron Frazier, appeals from the judgment of sentence of an

aggregate term of life imprisonment without the possibility of parole

(LWOP), imposed after a jury convicted him of first-degree murder,

conspiracy, attempted murder, carrying a firearm without a license, carrying

a firearm on a public street in Philadelphia, and possessing an instrument of

crime.     On appeal, Appellant challenges evidentiary rulings made by the

court, as well certain jury instructions the court provided.        After careful

review, we affirm.

        The trial court summarized the facts of this case, as follows:

              In June of 2012, [Appellant], Aaron Frazier, was on
        juvenile probation, subject to GPS electronic monitoring. As part
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S41009-16


     of his juvenile probation, [Appellant] was restricted from
     entering a zone between Second Street in the east to Broad
     Street in the west, and Fisher Street in the north to Louden
     Street in the south.

           On several occasions over the course of July 2012, the
     tracking device within [Appellant’s] GPS ankle bracelet indicated
     that [he] passed through the restricted area. [Appellant’s]
     probation officers, James Cooney and Ron Kwiatkowski, warned
     [Appellant] multiple times that such action violated his probation
     terms.

           In late July of 2012, [Appellant] was arrested on the 5400
     block of Marvine Street for violation of his parole by crossing into
     the restricted area. On August 1, 2012, the Honorable Lori
     Dumas placed [Appellant] under house arrest, to be served at
     [his] home at 1260 Newkirk Street in North Philadelphia. During
     this hearing, Judge Dumas admonished [Appellant] for
     continually violating the terms of his probation and reminded
     him that he was being monitored electronically.

           On August 27, 2012, [Appellant’s] GPS monitoring bracelet
     issued an alert indicating that [he] had cut off the device. On
     September 4, 2012, Probation Officer Kwiatkowski sought to
     apprehend [Appellant] at 1260 Newkirk Street, but found that
     [Appellant] had absconded. The GPS ankle bracelet was never
     recovered.

            On the evening of September 5, 2012, Rashian Morris was
     sitting on the front porch of his home at 241 Duncannon Street.
     His home, located three buildings west of the intersection of
     American Street and W. Duncannon Street, rested within the
     restricted area subject of [Appellant’s] original juvenile
     probation.

           Shortly before midnight of September 6, 2012, David
     Street and the decedent, Willie Withers, arrived at 241 W.
     Duncannon Street, and the two men proceeded to smoke
     cigarettes on the front porch of the home with Morris. After
     approximately fifteen minutes, Street, who lived next door at
     243 W. Duncannon, entered his home to use the bathroom,
     while Morris and the decedent remained outside. Shortly
     thereafter, Morris observed three men approach the intersection
     of American Street and W. Duncannon Street, heading
     southbound via American Street. Morris observed that two of the


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     men were near his height, while a third man was significantly
     shorter.

           The three men approached 241 W. Duncannon Street from
     the corner, and stopped at the home immediately next door to
     Morris and the decedent, 239 W. Duncannon Street. The three
     men huddled up near the front gate of 239 W. Duncannon
     Street, and appeared to have a discussion for approximately
     three minutes. The three men then broke the huddle and each
     pointed a handgun in the direction of Morris and the victim.
     Morris recognized [Appellant] as the shortest of the three men.
     Morris further observed [Appellant] wearing a distinctive red-
     hooded sweatshirt and standing in between the other
     perpetrators.

           Morris and the decedent immediately got up and ran
     towards the front door of 241 W. Duncannon. As he attempted
     to escape into the home, Morris heard the three perpetrators fire
     more than twenty shots. Once inside, Mr. Morris and the victim
     ran up the stairs and stopped in the hallway near the upstairs
     bathroom.

           Just prior to the shooting, Debra Foster, Morris’ mother,
     and her husband James Foster[,] were in the upstairs bedroom
     of 241 W. Duncannon preparing to sleep. At approximately
     12:10 [a.m.], Mrs. Foster heard the gunshots outside her home,
     got out of bed, and approached the upstairs bathroom. As Mrs.
     Foster entered the hallway, she observed Morris and the
     decedent run up the stairs. Mrs. Foster asked the two what had
     happened outside; Morris told her that they had been shot at on
     the porch. At that time, Mr. and Mrs. Foster observed the victim
     clutching his chest. Mr. Foster asked the victim if he had been
     shot. The victim did not respond to Mr. Foster’s questions, and
     stood in the upstairs hallway in silence.

            The decedent collapsed in the hallway near the bathroom
     approximately ten minutes after he arrived at the top of the
     stairs. Immediately thereafter, Mr. Foster rushed downstairs and
     called 911. Mr. Foster called 911 from the downstairs telephone
     three times. The first call was received at 12:21 a.m. and lasted
     28 seconds.

           That evening, Officer David Smith was operating a patrol
     vehicle near 241 W. Duncannon Street. At 12:24 a.m. he
     received a report of shots fired at 241 W. Duncannon Street.
     Smith arrived at the scene a minute later and was greeted by

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     Mr. Foster at the front porch of the residence. Upon entering the
     home, Officer Smith discovered and followed a blood-trail from
     the front door, up the stairs, and into the second floor hallway.
     At the top of the staircase, Officer Smith found the decedent's
     body lying face down in a pool of blood near the upstairs
     bathroom. Officer Smith immediately checked the victim for
     vital signs and found him unresponsive.

           At 12:34 a.m., an EMT arrived at 241 W. Duncannon
     Street and pronounced the victim dead. Dr. Edwin Lieberman, an
     expert in forensic pathology, performed an autopsy of the
     decedent. Dr. Lieberman testified that the decedent suffered four
     gunshot wounds to the shoulder, right breastbone, chest cavity,
     and right leg. The chest cavity wound was caused by a bullet
     that entered through the decedent's mid-auxiliary line, fractured
     his fourth rib, and penetrated left lung, left and right superior
     pulmonary veins, aorta, bronchus, and right lung lobe. The bullet
     exited underneath the right shoulder blade. The decedent
     ultimately succumbed to anoxia, onset by massive internal
     bleeding and the collapse of both lungs.

            At 1:40 a.m., Officer Terry Tull of the crime scene unit
     arrived in the area of 241 W. Duncannon Street. Officer Tull,
     alongside Officer Lewis, Officer Perry, and CSI Whitehouse,
     recovered twenty-five fired cartridge cases (“FCCs”) near the
     vicinity of 241 W. Duncannon Street. The investigators also
     recovered bullet specimens from the home's front porch and
     blood samples from within. The investigators also observed
     extensive damage to the glass door, the screen door, and the
     storm gutter of the residence caused by gunfire. Officer Tull also
     determined that the bullet holes found at the scene and the
     location of the FCCs were consistent with shots being fired on
     the sidewalk immediately in front of 239 W. Duncannon Street.

           Officer Raymond Andrejczak of the Philadelphia Firearms
     Identification Unit testified that of all twenty-five FCCs found at
     the scene, eleven FCCs originated from the same .380 cal.
     handgun, seven FCCs originated form the same .22 cal.
     handgun, and seven FCCs originated from the same .9mm
     handgun.

            At 1:50 a.m., Morris was taken down to the Homicide Unit
     for an interview with Detectives Santamala and Pirrone. Morris
     did not identify [Appellant] during this interview. At trial, Morris
     testified that he initially refused to identify the shooter out of


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     fear for his and his family's safety. At 10:20 a.m. the same day,
     Morris provided a second statement to Detectives Harkens and
     Bums. Within that statement, Morris described one of the
     shooters as African-American, between 5’6” and 5’7” in height,
     and wearing a red-hooded sweatshirt at the time of the
     shooting. The Detectives then produced a photographic array
     consisting of eight like males, and Morris identified [Appellant]
     as the shooter. Morris told detectives that although he had never
     met [Appellant], he recognized him from numerous prior
     encounters in the neighborhood.

           On October 11, 2012, [Appellant] was arrested on an
     outstanding absconder's warrant. At the time of arrest,
     [Appellant] possessed a black Metro PCS cell phone, which was
     thereafter held by prison authorities.

           On November 5, 2012, Detective Peterman discovered that
     [Appellant] was in custody and retrieved [his] cell phone from
     prison authorities. On December 5 and December 17, 2012,
     Detective Peterman asked for and received warrants to search
     the contents of [Appellant’s] phone and the [Appellant’s] cellular
     phone account information, respectively. Detective Peterman
     forwarded that evidence to Detective James Dunlap of the
     Philadelphia Police Homicide Unit and Agent Bill Shute of the
     Federal Bureau of Investigation for further investigation.

           At trial, Detective Dunlap, a qualified expert in cell phone
     analysis, testified that he had received the Metro PCS records for
     [Appellant’s] phone for the period covering August 31, 2012
     through December 17, 2012. Detective Dunlap testified that he
     and Agent Shute analyzed the historical cell data of [Appellant’s]
     phone. This analysis allowed them to isolate fifteen calls made
     from [Appellant’s] phone between 11:54 p.m. on September 5,
     2012 and 1:12 a.m. on September 6, 2012, and to cross
     reference that data with cellular tower records to determine the
     approximate location of [Appellant’s] phone at the time the call
     was made. Detective Dunlap's analysis determined that on
     September 6, 2012 at 12:00 a.m., [Appellant’s] phone was
     several blocks north of the crime scene; at 12:10 and 12:11
     a.m., at around the time of the murder, [Appellant’s] phone was
     in the vicinity of 241 W. Duncannon; and at 12:14 a.m., after
     the murder occurred, [Appellant’s] phone was several blocks
     west of the crime scene.

     …


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           Both at trial and during a preliminary hearing held on May
      8, 2013, Morris identified [Appellant] as the shooter wearing a
      red-hooded sweatshirt at the time of the murder.

            Prior to trial, [Appellant] proffered a motion in limine,
      wherein he sought to admit the testimony of Dr. Suzanne
      Mannes on the issues of exposure, time, weapon focus, stress,
      the effect of lighting on a witness’ testimony, and unconscious
      transference. During a pretrial hearing held on August 3, 2015,
      Dr. Mannes testified that the common person has only a
      superficial understanding of how lighting could affect an
      eyewitness’ ability to identify a suspect. Dr. Mannes provided no
      evidence to support her assertion.        This Court granted the
      motion in part and permitted Dr. Mannes to testify on the
      variables of exposure time, weapon focus, and stress, and
      barred her from testifying on lighting and unconscious
      transference.

             At trial, Dr. Mannes testified that factors such as exposure
      time, weapon focus, stress, distance, potential bias,
      identification instructions, and potential differences in sequential
      and simultaneous line-ups each have an effect on an eyewitness’
      ability to remember and possibly identify an assailant. Dr.
      Mannes did not testify on the issue of lighting.

Trial Court Opinion (TCO), 11/6/15, at 2-8 (citations to the record omitted).

      Following Appellant’s jury trial in August of 2015, he was convicted of

the above-stated offenses.    On August 7, 2015, he was sentenced to an

aggregate term of LWOP for his first-degree murder conviction.        Appellant

filed a timely post-sentence motion, which was denied.         He then filed a

timely notice of appeal, and also timely complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   The trial court filed an opinion on November 6, 2015.         Herein,

Appellant presents four issues for our review:

      I. Whether the lower court erred in granting the
      Commonwealth’s motion to introduce other crimes evidence


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      where the prior bad acts in question ([Appellant’s] cutting of a
      GPS monitor) had no established nexis [sic] to the incident
      giving rise to the charges in this case?

      II. Whether the lower court err[ed] in giving a conscious[ness] of
      guilt instruction for conduct that occurred before the murder in
      question and was not connected to the murder in any way?

      III. Whether the lower court err[ed] in denying [Appellant’s]
      motion in limine to introduce the expert testimony of Dr.
      Suzanne Mannes relating to the effects of lighting on the
      reliability of [eyewitness] identification?

      IV. Whether the lower court erred in not giving the
      [identification] instruction proffered by the defense and instead
      using its own as the court’s instruction failed to advise the jury
      as to when it must treat an eyewitness’ testimony “with
      caution,” a requisite of Pennsylvania law. In addition, the court’s
      instruction failed to explain how the jury was to consider issues
      such as “stress,” as the court’s instruction as worded permitted
      jurors to use such factors to conclude that the identification was
      more reliable, a position contrary to science?

Appellant’s Brief at 3-4.

      In Appellant’s first issue, he asserts that the court erred by permitting

the Commonwealth to introduce prior bad acts evidence, namely that he

removed his GPS ankle monitor several days before the murder. Appellant

contends that this evidence was improperly admitted because it was

irrelevant, as “[t]he record … is devoid of any evidence that [Appellant’s]

GPS device was removed as part of a plan related to the shooting in

question or was integral to it in any other way.” Appellant’s Brief at 16.

Appellant also baldly asserts, without any supporting argument, that the

prior bad acts evidence was “grossly prejudicial.” Id.

      Initially, we note that,




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             [t]he standard of review employed when faced with a
      challenge to the trial court's decision as to whether or not to
      admit evidence is well settled. Questions concerning the
      admissibility of evidence lie within the sound discretion of the
      trial court, and a reviewing court will not reverse the trial court's
      decision absent a clear abuse of discretion. Abuse of discretion is
      not merely an error of judgment, but rather where the judgment
      is manifestly unreasonable or where the law is not applied or
      where the record shows that the action is a result of partiality,
      prejudice, bias or ill will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (internal

citations omitted).

      Additionally, this Court has explained:

      Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that a defendant acted in
      conformity with those past acts or to show criminal propensity.
      Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
      admissible when offered to prove some other relevant fact, such
      as motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
      In determining whether evidence of other prior bad acts is
      admissible, the trial court is obliged to balance the probative
      value of such evidence against its prejudicial impact.

Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010) (some

internal citations omitted).

      Here, the trial court admitted the evidence that Appellant removed his

GPS ankle bracelet days before the murder, concluding that such evidence

was relevant to show his “intent, preparation, premeditation, and as part

and parcel of the history and natural development of the case.” TCO at 9.

The trial court explained:

             The    Pennsylvania    Supreme     Court’s    holding    in
      Commonwealth v. Tedford, 567 A.2d 610 (Pa. 1989)[,] is
      illustrative on this issue. In Tedford, the trial court permitted

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     the introduction of evidence that the appellant participated in a
     prison work release program and was granted a furlough at the
     time he raped and murdered his victim. [Id.] at 621. On the
     night of the murder, the appellant broke a pre-arranged social
     engagement and at the time of the engagement was originally
     scheduled, he raped and murdered his victim at the office where
     he was employed. Id. at 622. The Pennsylvania Supreme Court
     reasoned that the jury could, and did, infer that the appellant,
     while on furlough, broke his prior engagement in order to
     commit murder at his place of work. Id. The Supreme Court
     ultimately held that the bad acts evidence of the work release
     program and the furlough were properly admitted to establish
     premeditation, opportunity, and the appellant’s intent to rape
     and murder his victim. Id.

            Evidence of [Appellant’s] prior bad acts was admissible in
     this case for the same reasons provided in Tedford: to show
     premeditation, opportunity, plan, and intent.         The facts
     demonstrate that [Appellant] was restricted from entering a
     zone between Second Street and Broad Street east to west; and
     Fisher Street and Louden Street north to south. Probation
     authorities were alerted each time [Appellant] passed nearby or
     within the restricted area, and each time he did, probation
     authorities reminded [Appellant] that he was being monitored.
     These facts indicate that [Appellant] was not only on notice of
     the restriction, but that probation authorities knew when
     [Appellant] entered the restricted area and where he was
     located. [Appellant] cut off his GPS tracking device on August
     27, 2012, which prevented the Commonwealth from further
     monitoring his movements. The shooting occurred within the
     restricted area.

            These   inferences,   taken   together,   establish   that
     [Appellant] removed the GPS device for the purpose of entering
     the restricted area. Through that, the jury could make the
     reasonable inference that [Appellant] sought to enter the
     restricted area undetected to commit an act within. In this case,
     that act was the murder of Willie Withers. If [Appellant] was still
     being monitored at the time of the murder, he would have been
     denied the opportunity to kill the decedent. These combined
     inferences    demonstrate    premeditation    and    [Appellant’s]
     opportunity, plan and intent to commit murder. The evidence
     was therefore properly admitted.



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            The challenged evidence was also admissible because it
      forms the chain and sequence of events that form the history of
      the case as part of its natural development. The challenged
      evidence shows the jury that [Appellant’s] arrest for absconding
      led to the confiscation of his phone. Analytical data from that
      phone provided the jury with cellular tower analysis that placed
      [Appellant] near the crime scene at the time of the shooting. If
      this major link in the chain of evidence were removed, the jury
      would be deprived of the complete story and be forced to
      deliberation in a vacuum.

TCO at 10-12 (citations to the record and one case citation omitted).

      Additionally, the trial court stressed that it provided the jury with a

cautionary instruction, directing that they were to consider the evidence that

Appellant was on probation and cut off his GPS monitor “for a limited

purpose, that is, for the purpose of tending to show … planning, and/or

meditation and/or intent to commit the crimes charged.” Id. at 12 (quoting

N.T. Trial, 8/6/15, at 41-43). The court instructed the jury that it “must not

regard this evidence as showing that [Appellant] is a person of bad character

or criminal tendencies from which you might be inclined to infer guilt.” Id.

      Considering the reasons provided by the trial court for admitting the

prior bad acts evidence, and the cautionary instruction the court provided to

the jury, we conclude that Appellant has failed to demonstrate that the court

abused its discretion in admitting this evidence.      Accordingly, Appellant’s

first claim is meritless.

      In his second issue, Appellant challenges the court’s decision to

provide a ‘consciousness of guilt’ jury instruction.

      The standard of reviewing trial court instructions to the jury is
      well settled:


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         When reviewing a challenge to a part of a jury instruction,
         the Court must review the jury charge as a whole to
         determine if it is fair and complete. A trial court has broad
         discretion in phrasing its charge and can choose its own
         wording so long as the law is clearly, adequately, and
         accurately presented to the jury for its consideration. Only
         where there is an abuse of discretion or an inaccurate
         statement of the law is there reversible error.

Commonwealth v. Myers, 722 A.2d 1074, 1076 (Pa. Super. 1998)

(internal citation omitted).

      Appellant argues that the court erred by instructing the jury that his

removal of the GPS ankle bracelet could be considered as evidence of his

consciousness of guilt. Specifically, the court instructed the jury:

           You have heard evidence that [Appellant] was on probation
      and cut off his GPS bracelet prior to the alleged crime.

            This evidence is before you for a limited purpose, that is,
      for the purpose of tending to show consciousness of guilt[.]

             The credibility, weight, and effect of this evidence is for
      you to decide. Generally speaking, when a crime has been
      committed and a person thinks he is, or may be, accused of
      committing it, and he flees or conceals himself, such flight or
      concealment does not necessarily show consciousness of guilt …
      in every case. A person may flee or hide for some other motive
      and may do so even though innocent. Whether evidence of
      flight or concealment in this case should be looked at as tending
      to prove guilt depends upon the facts and circumstances of this
      case and especially upon motives that may have prompted the
      flight or concealment.

            You may not find [Appellant] guilty solely on the basis of
      evidence of flight or concealment.

N.T. Trial, 8/6/15, at 41-43.

      Appellant asserts that this instruction,

      focused on [Appellant’s] removal of his GPS bracelet, ‘prior to,’
      the shooting in question as opposed to [conduct] occurring after

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      the crime.    It was simply impossible for this action to be
      indicative of consciousness of guilt for the shooting since the
      shooting had not yet occurred. As a result, the trial court’s
      consciousness of guilt instruction was clearly erroneous.
      Commonwealth v. Babbs, 499 A.2d 1111 (Pa. Super. 1985)
      (consciousness of guilt instruction erroneous since no necessary
      connection between failure to appear for trial and consciousness
      of guilt).

Appellant’s Brief at 18.

      The only case Appellant cites in support of his argument is irrelevant

to the specific issue he raises. In Babbs, this Court held that the failure of a

defendant to appear for trial, without evidence of flight or concealment, is

insufficient to permit the fact-finder to infer consciousness of guilt. Babbs,

499 A.2d at 1114.       Here, Appellant did not fail to appear for trial, and he

offers no discussion of how the facts of Babbs are analogous to this case.

Thus, his reliance on Babbs is unconvincing.

      Nevertheless, we acknowledge that our Supreme Court has stated, in

the context of assessing an ineffective assistance of counsel claim, that “a

defendant cannot be conscious of guilt regarding a crime which has not yet

been committed.”       Commonwealth v. Paddy, 800 A.2d 294, 323 (Pa.

2002).    Thus, Paddy supports Appellant’s argument that the court’s

instruction was improper, as it focused only on his act of removing the GPS

bracelet prior to the murder.

      However, we cannot conclude that the court’s instruction constitutes

reversible error.     First, there was evidence offered at trial to support a

consciousness    of    guilt   jury   charge.    Namely,   the   Commonwealth



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demonstrated that Appellant knew the GPS ankle bracelet was conducting

ongoing monitoring of his location.     By cutting off that bracelet, Appellant

was not only concealing his location so he could commit the murder, but he

was also concealing himself following the murder, especially because he did

not reattach the bracelet after the shooting. These facts demonstrate active

concealment on the part of Appellant that began before the murder, but also

continued after the crime was committed.         Thus, a consciousness of guilt

instruction was warranted, and the technically inaccurate instruction given

does not warrant reversal. See Commonwealth v. Bruce, 717 A.2d 1033,

1037-38 (Pa. Super. 1998) (emphasis added) (“Generally, the trial court can

use a flight/concealment jury charge when a person commits a crime, knows

that he is a suspect, and conceals himself, because such conduct is evidence

of consciousness of guilt, which may form the basis, along with other proof,

from   which   guilt   may   be   inferred.”)   (citation   omitted);   see   also

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1276 (Pa. 1990) (“We

will not rigidly inspect a jury charge, finding reversible error for every

technical inaccuracy, but rather evaluate whether the charge sufficiently and

accurately apprises a lay jury of the law it must consider in rendering its

decision.”).

       Additionally, even if the consciousness of guilt instruction was not

appropriate, we are confident that the court’s providing that jury charge did

not control the outcome of Appellant’s case.          See Commonwealth v.

Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006) (“In examining the

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propriety of the instructions a trial court presents to a jury, our scope of

review is to determine whether the trial court committed a clear abuse of

discretion or an error of law which controlled the outcome of the case.”)

(citation omitted).       An eyewitness to the murder repeatedly identified

Appellant as being one of the three shooters who gunned down the victim,

and data recovered from Appellant’s cell phone confirmed that he was in the

location of the shooting when it occurred, and quickly left the area

afterwards.       Accordingly,     even    if   the   court   erred   by   providing   a

consciousness of guilt instruction, that charge did not control the jury’s

verdict in the case and, therefore, does not warrant a new trial.

       In Appellant’s third issue, he argues that the trial court erred by

precluding his expert, Dr. Suzanne Mannes, from testifying about “the

effects of lighting on the reliability of eyewitness testimony.”            Appellant’s

Brief at 19.1    “Under our Rules of Evidence, expert testimony is permitted

when the expert's scientific, technical, or other specialized knowledge is
____________________________________________


1
  We note that “[f]or over twenty years, Pennsylvania case law placed a per
se ban on expert testimony regarding the reliability of eyewitness
identification, holding that such testimony would ‘intrude upon the jury's
basic function of deciding credibility.’” Commonwealth v. Selensky, 117
A.3d 1283, 1284-85 (Pa. Super. 2015) (citations omitted). However, in
Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), our Supreme Court
“reversed course, holding that ‘the admission of expert testimony regarding
eyewitness identification is no longer per se impermissible in our
Commonwealth[.]’” Selensky, 117 A.3d at 1285 (quoting Walker, 92 A.3d
at 792–93). Rather, “trial courts must exercise their traditional role in
determining the admissibility of [such] expert testimony, including pursuant
to Rules 401, 403, and 702 of the Pennsylvania Rules of Evidence.” Id.



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beyond that of the average layperson and will help the fact-finder to

understand the evidence or determine a fact in issue.” Commonwealth v.

Alicia, 92 A.3d 753, 760 (Pa. 2014) (citing Pa.R.E. 702(a) and (b), and

Commonwealth v. Lopez, 854 A.2d 465, 470 (Pa. 2004)).

      Preliminarily, we reiterate that the trial court allowed Dr. Mannes to

offer expert testimony regarding how an eyewitness’ ability to remember

and identify an assailment is impacted by “factors such as exposure time,

weapon focus, stress, distance, potential bias, identification instructions, and

potential differences in sequential and simultaneous line-ups….” TCO at 8.

However, the trial court precluded Dr. Mannes from offering “expert

testimony on the effect of lighting on eyewitness testimony….”       Id. at 19.

The court explained its ruling as follows:

            At the pre-trial hearing, [Appellant] failed to establish how
      expert testimony on the effects of lighting either assists the jury
      or how such effects are beyond the understanding of the average
      person.     During his cross-examination of Dr. Mannes, the
      Commonwealth elicited that the effect of shadows and darkness
      on a witness’ ability to identify a human face was within a
      layperson’s understanding. N.T. 8/3/2015 at 35-36. While Dr.
      Mannes opined that the layperson’s understanding was
      superficial, she provided no further facts or evidence to support
      her assertion. Id. at 36-37. [Appellant] therefore failed to meet
      his burden.

            Common sense indicates that human beings have better
      vision in good lighting than in bad lighting. In the instant case,
      the shooting occurred near a well-lit corner. N.T. 8/4/2015 at
      55, 119, 175. At trial, defense counsel investigated factors such
      as the location of the lighting, the distance between the shooter
      and the eyewitness, and the time of day. Id. at 121-123, 199-
      200.    The jury was therefore aware of the issues of fact
      surrounding the quality of lighting at the time of the shooting.


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      Whether [Rashian] Morris accurately identified [Appellant] as a
      shooter, given the quality of lighting at the time of the shooting,
      is a factual determination left to the jury.           [Appellant’s]
      argument is therefore without merit.

TCO at 19-20.

      On appeal, Appellant attacks the court’s conclusion that he failed to

present sufficient evidence to demonstrate that Dr. Mannes has a specialized

knowledge, beyond that of the average layperson, regarding the effect of

lighting on eyewitness testimony.     Appellant contends that such evidence

was set forth in a report authored by Dr. Mannes, which he attached to his

motion seeking to admit her expert testimony. Specifically, Appellant quotes

the following portion of Dr. Mannes’ report:

      iii. Lighting - We know that low levels of lighting are associated
           with poor eyewitness identification, but more important to
           visibility is contrast. Thus, knowledge about the amount of
           illumination (measured in lux) coming from the available
           sources of light does not determine the quality of vision. In
           order to evaluate this, the amount of light that is reflected
           from the individual and his or her surrounding context,
           luminance (measured in candela), must be measured. This
           quantity can be adequately captured using a luminance
           photometer. From what we know about light and color, we
           also know that black faces will reflect less light than white
           faces and produce lower levels of luminance regardless of
           lighting conditions…. Research has shown that a change in
           the shadow cast upon an individual’s face (i.e. a change in
           illumination direction) can impair identification…. Pairs of the
           same (or different) faces were shown to participants with the
           task of saying the faces either were or were not a match. The
           faces were illuminated from either the same or a different
           direction.     When the illumination direction was different,
           ability to say the faces were the same declined to 85%.

         The position of the light source in relation to the object being
         observed is also important. If an object is backlit (the source
         of light coming from behind the object[)], then there will be

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          little opportunity for the light to reflect off of the front of the
          object and it will be less visible.

Motion in Limine - Exhibit B (Dr. Mannes’ report), 7/6/15, at 4-5. Appellant

asserts that this portion of Dr. Mannes’ report demonstrates that her

      scientific findings were well beyond the knowledge of a layperson
      and, moreover, were highly relevant since Rashian Morris made
      his observations at night, on a dark[] street in which the
      shooters were huddled and thus turned to him at various angles.
      Nevertheless, the lower court precluded this testimony. This
      was clearly erroneous since this scientific testimony would
      obviously have aided the trier of fact.

Appellant’s Brief at 19-20 (citation omitted).

      Appellant has failed to convince us that the trial court abused its

discretion in precluding this specific expert testimony. Certainly, the above-

quoted portion of Dr. Mannes’ report utilizes scientific terms that would be

beyond the knowledge of the average layperson.               However, Appellant

curiously omits, from the above-quoted portion of the report, Dr. Mannes’

conclusory paragraph, in which she states:

      CONCLUSION: In this case the witness clearly specifies that it
      was dark out when the incident occurred. The witness claims
      that the porch light was not on giving no light that would
      illuminate  [Appellant’s]  face.     Additionally,  the    dark
      circumstances under which the event was witnessed are different
      from other daytime circumstances under which [Appellant] may
      have been viewed.

Motion in Limine - Exhibit B (Dr. Mannes’ report) at 5.

      Dr. Mannes’ conclusory paragraph in her report did not address how

Morris’ identification was impacted by the fact that the “shooters were

huddled and thus turned to him at various angles[,]” as Appellant contends



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on appeal.    Instead, Dr. Mannes’ conclusions suggest that because it was

dark at the time of the shooting, and there was no light to illuminate

Appellant’s face, Morris’ identification may be less reliable than an

identification made during daylight hours.     Clearly, such an inference is

within the knowledge of a layperson.      Additionally, Dr. Mannes offered no

further testimony at the pretrial hearing to support her assertion that a

layperson has only a ‘superficial’ understanding of the impact of lighting on

an eyewitness’ identification.   See TCO at 19.    Based on this record, we

ascertain no abuse of discretion in the court’s decision to preclude Dr.

Mannes’ expert testimony on this issue.

      In Appellant’s final claim, he argues that the trial court erred by not

providing his proposed jury instruction pertaining to how the jury should

assess Rashian Morris’ identification testimony. To begin, we reiterate that,

      [i]n reviewing a challenge to the trial court's refusal to give a
      specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court's decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the appellant was prejudiced by that refusal.



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Brown, 911 A.2d at 582-83 (quoting Commonwealth v. Thomas, 904

A.2d 964, 970 (Pa. Super. 2006) (quotation and citations omitted)).

      In his brief, Appellant sets forth the instruction provided by the trial

court, as well as his proposed jury instruction. See Appellant’s Brief at 11-

14.   First, the instruction provided by the trial court included, in pertinent

part, the following:

      In his testimony[,] Rashian Morris identified the defendant as
      the person who committed the crimes.           In evaluating this
      testimony in addition to all the instructions that I just gave you
      about judging the testimony of witnesses, there are additional
      factors to consider because a witness can sometimes make a
      mistake when trying to identify a criminal, so you use all those
      other factors that I have given you and then you can review the
      following: You should ask whether the witness was able to
      observe and had an adequate opportunity to observe the person
      or persons who committed the crime or crimes charged in this
      case.

            Many factors affect whether a witness has an adequate
      opportunity to observe a person or persons committing a crime.
      These factors include the length of time during which the witness
      observed the person or persons, the distance between the
      witness and the person or persons alleged to have done the
      crime, the lighting conditions, how closely the witness was
      paying attention to the person or persons, whether the witness
      was under stress while observing the person or persons who
      committed the crime, whether the witness knew the person or
      persons from prior experience and whether the person or
      persons committing the crime were of different races.

                                       …

            You may also consider the testimony of Dr. Mannes who
      gave testimony about factors bearing on stress, distance,
      exposure time, weapon focus, potential bias and identification
      instructions and potential differences in sequential and
      simultaneous lineups. You must consider that testimony in



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      accordance with the instructions that I gave you concerning
      expert testimony.

             Remember that in considering whether or not to accept the
      eyewitness testimony of Mr. Morris, you must consider all of the
      circumstances under which the identification or identifications
      were made. Furthermore, you should consider all the evidence
      relevant to the question of who committed the crime, including
      the testimony of any other witness from which identity or non-
      identity of the perpetrator of the crimes may be inferred.

N.T. Trial, 8/6/15, at 45-46, 47-48.

      Appellant contends that in its instruction, the court “merely listed the

various factors that could potentially affect the reliability of eyewitness

testimony[,]” but it did not “explain how the jury was to consider such

issues….”    Appellant’s Brief at 21.           For instance, Appellant proposed

instructing the jury as follows:

      Here are some of the factors to consider [in determining whether
      to receive eyewitness testimony with caution]:

            How stressful was the event?[] Scientific studies have
             shown that stress can negatively affect the accuracy of
             memory. In other words, with very high stress, a
             witness’ memory may be fragmented or distorted.

            Was a weapon present? Scientific studies have shown
             that when a weapon is present, two things may happen
             - stress may be increased, and the witness’ attention
             may be on the weapon and thus less on the
             perpetrator’s face.

            How much time passed between the crime and the first
             identification? People don’t forget major events - just
             think, all of us will never forget September 11, 2001.
             But people often forget details of even critical events,
             and scientific studies have shown that can happen
             within a matter of hours. So, the less time between the
             crime and first identification, the better to ensure an
             accurate and reliable identification later; the more time


                                       - 20 -
J-S41009-16


               that has passed, the more chance there is that some
               detail has been forgotten.

Id. at 12.

      Appellant’s argument fails to convince us that the court’s omission of

his more elaborate jury instruction amounted to a fundamental error. See

Brown, 911 A.2d at 583 (“A charge is considered adequate unless the jury

was palpably misled by what the trial judge said or there is an omission

which is tantamount to fundamental error.”). Rather, we agree with the trial

court that,

      [r]ead as a whole, the identification charge [provided by the
      court] is clear, adequate, and accurate statement of the law.
      This court specifically focused the juror[s’] attention upon Morris’
      opportunity to observe [Appellant] and highlighted the factors
      that influence an eyewitness’ ability to identify a perpetrator,
      including lighting conditions, distance, stress, and exposure
      time. This [c]ourt therefore ensured [Appellant] a fair jury
      evaluation of the reliability of Morris’ identification.

TCO at 17-18.       The court also noted that it “clearly directed the jury to

carefully     consider   the   variables   influencing   eyewitness   identification

proffered by Dr. Mannes in her direct testimony….”          Id. Finally, the court

stressed, and we agree, that it was

      not obligated to adopt [Appellant’s] suggested words or phrases.
      By instructing the jury on the factors discussed by Dr. Mannes,
      this [c]ourt illuminated all of the relevant identification factors.
      The jury was therefore free to consider the full range of
      arguments regarding identification during deliberation.         This
      Court committed no error in administering the challenged
      instruction.

Id.




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      Moreover, Appellant has not demonstrated that he was prejudiced by

the instruction provided. See Brown, 911 A.2d at 583 (“The trial court is

not required to give every charge that is requested by the parties and its

refusal to give a requested charge does not require reversal unless the

appellant was prejudiced by that refusal.”) (emphasis added).           Appellant

essentially suggests that the court’s identification instruction was erroneous

because it permitted the jury to decide whether each factor weighed for, or

against, the reliability of Morris’ identification.   See Appellant’s Brief at 21

(“Unlike [Appellant’s] proffered instruction, the court’s charge … failed to

explain how the jury was to consider such issues thereby leaving open the

possibility that [the] fact[-]finder could find Mr. Morris’s testimony more

reliable based on these considerations.”).      Appellant claims that the jury’s

“potential finding” that certain factors demonstrated the reliability of Morris’

identification “would clearly be at odds with the settled science embraced by

the Walker Court.” Id. at 21.

      We disagree. While our Supreme Court in Walker accepted that “the

possibility of mistaken identification is real[,]” and that, “it is now widely

known that eyewitness misidentification is the leading cause of wrongful

conviction across the country[,]” the Court did not hold that every factor

considered by the jury in assessing eyewitness identification evidence must

weigh against finding such evidence reliable.          Walker, 92 A.3d at 781

(citation omitted). Here, the court’s instruction clarified the factors the jury

should consider in determining whether to credit Morris’ identification of

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J-S41009-16



Appellant as one of the shooters; the court properly left it in the province of

the jury to determine if those factors weighed for, or against, the reliability

of that identification. Thus, Appellant has not demonstrated that the court’s

decision not to provide his requested instruction caused him prejudice and

requires a new trial.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2016




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