Com. v. Michaux

• Decision Date: 20 February 1987
• Citation: 520 A.2d 1177,360 Pa.Super. 452
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Chris Lamont MICHAUX, Appellant.
• Court: Pennsylvania Superior Court

Page 1177

520 A.2d 1177

360 Pa.Super. 452

COMMONWEALTH of Pennsylvania, Appellee, v. Chris Lamont MICHAUX, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 4, 1986.

Filed Jan. 12, 1987.

Reargument Denied Feb. 20, 1987.

Mark S. Galper, Monessen, for appellant.

Judith K. Ciszek, Asst. Dist. Atty., Greensburg, for Commonwealth, appellee.

Before CAVANAUGH, WIEAND and JOHNSON, JJ.

WIEAND, Judge:

Chris Lamont Michaux was convicted by a jury of burglary and criminal conspiracy and was sentenced to serve a term of imprisonment of not less than two nor more than four years. The conviction was based entirely upon circumstantial evidence, including evidence that a police bloodhound had tracked and identified Michaux as one of the perpetrators of the burglary. In this appeal, Michaux argues that (1) the evidence was insufficient to prove his guilt beyond a reasonable doubt; (2) the testimony that a bloodhound had trailed and identified him was inadmissible hearsay, the admission of which violated his right to confront witnesses against him; (3) the trial court erred in allowing the dog tracking evidence to be received because a proper foundation for the receipt of the evidence had not been laid; and (4) the trial court erred when it ruled that Michaux's expert witness could not testify on the subject of dog tracking. Although these issues are novel and interesting, we conclude that the trial was free of error and the evidence sufficient to support the guilty verdicts. Therefore, we affirm the judgment of sentence.

During the early morning hours of February 9, 1984, Kayton J. Emerick observed three men enter the Brush and Hostoffer Appliance Store on Main Street in the Borough of Mount Pleasant. ¹ Emerick called the police, and Officer Richard McElfresh was dispatched to the scene. McElfresh arrived at the store at or about 5:19 a.m. and stopped his vehicle behind a burgundy Chrysler parked directly in front of the store. McElfresh observed that the motor of the automobile had been left running and that the first three letters on the license plate were FWK. The last three digits of the license plate were covered by a rag. Shortly after McElfresh's arrival, an individual exited the store carrying a television set. McElfresh was subsequently able to identify this person as Anthony Van Settle. When Van Settle saw the police officer, he dropped the television, shouted something in the direction of the store, and dove into the front seat of the Chrysler automobile. Two other men immediately ran from the store and entered the automobile, which then sped away. McElfresh did not get a good look at these two men, but did notice that they were wearing dark clothing. McElfresh pursued the vehicle for several miles, heading in a westerly direction on Route 31. He lost sight of the vehicle, however, when he was forced to slow his vehicle to negotiate a sharp curve in the vicinity of the Gulisek Construction Company. A short time later, McElfresh came upon the same vehicle, abandoned in a ditch not far from the construction company. The officer could see no one in the vicinity of the abandoned vehicle; however, he observed footprints in the snow leading toward a wooded area. McElfresh called for assistance; he requested specifically a bloodhound team from the Greensburg Fire Department.

Approximately forty-five minutes later, the bloodhound team arrived and assumed control at the scene. Officer John Seighman of the Greensburg Fire Department scented his bloodhound, "Jake," on the front seat of the Chrysler automobile. Jake then began to follow one of the three sets of footprints leading into the woods. When the footprints disappeared, Jake continued into the woods, through a group of thickly clustered pine trees, and back onto Route 31.

In the meantime, Officer McElfresh, who had remained at the abandoned car, observed an individual, later identified as Michaux, walking toward him on Route 31. McElfresh approached Michaux and, after observing that he had pine needles in his hair and weeds protruding from his collar, took him into custody. Shortly thereafter, Officer Seighman and his dog arrived back at the scene of the abandoned vehicle. They approached in the same direction from which Michaux had come. Jake sniffed several of the people present, but stopped when he came to Michaux and nosed him "like a vacuum cleaner." Seighman interpreted this to mean that Jake had found the person whose scent he had been following.

In addition to this evidence, the Commonwealth produced the testimony of Kevin Hutchinson, the operator of a light truck which had been called to the scene. Hutchinson testified that he drove the light truck from the abandoned automobile toward Mount Pleasant, looking for the suspects along the road. Immediately beyond the group of pine trees, he had made a u-turn and had parked the truck along the side of the road. Hutchinson stated that no one had come toward him from the direction of Mount Pleasant during the time in which he was standing by his truck. Michaux, therefore, had made his appearance along the road at a point between Hutchinson and the abandoned Chrysler.

In Commonwealth v. Hoffman, 52 Pa.Super. 272, 279 (1912), this Court held that where a proper foundation has been laid, "testimony as to trailing by a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime with which he is accused." This is in accord with the majority view. See: United States v. Carroll, 710 F.2d 164 (4th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 526, 78 L.Ed.2d 709 (1983); Hodge v. State, 98 Ala. 10, 13 So. 385 (1893); State v. Coleman, 122 Ariz. 130, 593 P.2d 684 (1978); Holub v. State, 116 Ark. 227, 172 S.W. 878 (1915); People v. Craig, 86 Cal.App.3d 905, 150 Cal.Rptr. 676 (1978); State v. Wilson, 180 Conn. 481, 429 A.2d 931 (1980); Cook v. State, 374 A.2d 264 (Del.1977); Starkes v. United States, 427 A.2d 437 (D.C.App.1981); Tomlinson v. State, 129 Fla. 658, 176 So. 543 (1937); Mitchell v. State, 202 Ga. 247, 42 S.E.2d 767 (1947); State v. Netherton, 133 Kan. 685, 3 P.2d 495 (1931); Daugherty v. Commonwealth, 293 Ky. 147, 168 S.W.2d 564 (1943); State v. Green, 210 La. 157, 26 So.2d 487 (1946); Roberts v. State, 298 Md. 261, 469 A.2d 442 (1983); Commonwealth v. LePage, 352 Mass. 403, 226 N.E.2d 200 (1967); People v. Harper, 43 Mich.App. 500, 204 N.W.2d 263 (1972); Hinton v. State, 175 Miss. 308, 166 So. 762 (1936); State v. Fields, 434 S.W.2d 507 (Mo.1968); State v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978); People v. Centolella, 61 Misc.2d 723, 305 N.Y.S.2d 279 (1969); State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965); State v. Iverson, 187 N.W.2d 1 (N.D.), cert. denied, 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971); State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907); Buck v. State, 77 Okl.Cr. 17, 138 P.2d 115 (1943); State v. Harris, 25 Or.App. 71, 547 P.2d 1394 (1976); State v. Brown, 103 S.C. 437, 88 S.E. 21 (1916); Copley v. State, 153 Tenn. 189, 281 S.W. 460 (1926); Parker v. State, 46 Tex.Cr. 461, 80 S.W. 1008 (1904); State v. Bourassa, 137 Vt. 62, 399 A.2d 507 (1979); Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982); State v. Loucks, 98 Wash.2d 563, 656 P.2d 480 (1983); State v. McKinney, 88 W.Va. 400, 106 S.E. 894 (1921); Annotation, Evidence of Trailing by Dogs in Criminal Cases, 18 A.L.R.3d 1221, § 3 (1968). But see: People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804 (1914); Ruse v. State, 186 Ind. 237, 115 N.E. 778 (1917); State v. Grba, 196 Iowa 241, 194 N.W. 250 (1923); State v. Storm, 125 Mont. 346, 238 P.2d 1161 (1951); Brott v. State, 70 Neb. 395, 97 N.W. 593 (1903).

These courts are agreed that before evidence of dog trailing may be received, however, the training and reliability of the dog, the qualifications of the person handling the dog, and the circumstances surrounding the trailing by the dog must be shown. See: Annotation, supra at § 5. While the specific requirements differ in some respects from state to state, most courts are in substantial agreement that the proponent of the evidence must show that (1) the handler was qualified, both by training and experience, to use the dog; (2) the dog was adequately trained to track humans; (3) the dog, by virtue of experience, was reliable in tracking humans; (4) the dog was placed on track at a place where circumstances showed the guilty party to have been; and (5) the trail had not become so stale or contaminated that it was beyond the dog's ability to follow. See: Orr v. State, 236 Ala. 462, 183 So. 445 (1938); State v. Coleman, supra; Holub v. State, supra; People v. Craig, supra; State v. Wilson, supra; Cook v. State, supra; Starkes v. United States, supra; Tomlinson v. State, supra; Mitchell v. State, supra; State v. Netherton, supra; Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143 (1898); State v. Green, supra; People v. Norwood, 70 Mich.App. 53, 245 N.W.2d 170 (1976); Hinton v. State, supra; State v. Steely, 327 Mo. 16, 33 S.W.2d 938 (1930); State v. Taylor, supra; People v. Centolella, supra; State v. Rowland, supra; State v. Iverson, supra; State v. Dickerson, supra; Buck v. State, supra; Commonwealth v. Hoffman, supra; Copley v. State, supra; Parker v. State, supra; State v. Bourassa, supra; Epperly v. Commonwealth, supra; State v. Louks, supra; State v. McKinney, supra.

Even where evidence of dog tracking is properly received, however, most courts hold that standing alone it is not sufficient to support a conviction. See: State v. Fixley, 118 Kan. 1, 233 P. 796 (1925); Meyers v. Commonwealth, 194 Ky. 523, 240 S.W. 71 (1922); State v. Green, supra; Terrell v. State, 3 Md.App. 340, 239 A.2d 128 (1968); People v. McPherson, 85 Mich.App. 341, 271 N.W.2d 228 (1978); Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); State v. Cheatham, 458 S.W.2d 336 (Mo.1970); Buck v. State, supra; State v. Taylor, supra; ...