Commonwealth v. Belani

• Decision Date: 25 September 2014
• Docket Number: Nos. 943 EDA 2013,s. 943 EDA 2013
• Citation: 2014 PA Super 211,101 A.3d 1156
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Jack BELANI, Appellee. Commonwealth of Pennsylvania, Appellant v. Wenjue Liu, Appellee.

101 A.3d 1156

2014 PA Super 211

COMMONWEALTH of Pennsylvania, Appellant

v.Jack BELANI, Appellee.

Commonwealth of Pennsylvania, Appellant

v.Wenjue Liu, Appellee.

Nos. 943 EDA 2013

Superior Court of Pennsylvania.

Argued April 8, 2014.

Filed Sept. 25, 2014.

Reargument Denied Nov. 24, 2014.

Peter Carr, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Carson B. Morris, Philadelphia, for appellee.

BEFORE: SHOGAN, STABILE and PLATT^* , JJ.

Opinion

OPINION BY SHOGAN, J.:

Appellant, the Commonwealth of Pennsylvania, appeals from the orders entered on March 1, 2013, precluding the admission of DNA evidence at the trials of Appellees, Jack Belani and Wenjue Liu.¹ We are constrained to reverse.

The Commonwealth assails the trial court's orders excluding DNA 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-conspirator, went to the complainant's apartment to commit an 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 requests from Belani's attorney, the case was scheduled for a “must be tried” jury trial on September 10, 2012. Prior to trial, on July 2, 2012, the Commonwealth presented the court with a proposed order for [Appellees'] blood or oral swab samples for purposes of conducting a DNA analysis and comparison. See 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 defense argued that they had received the Commonwealth's DNA 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 court held its decisions on [Appellees]' motions under 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 the Philadelphia Police Department's Forensic Science Center on August 2, 2012. They were analyzed by Forensic Scientist Francis Pabayatty of the Trace Lab division on August 28, 2012. Liu's swabs were also submitted to the 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 August 31, 2012. Mr. Pabayatty analyzed Belani'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 “priority” matters.

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 therefore unable to explain the delay between Mr. Pabayatty's 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 the report to the District Attorney's Office that same day. Mr. Hawkins could not point to any notation in his file that these matters were to be treated with “priority” status. He did 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).

On March 1, 2013, the court granted [Appellees'] motion 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 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 granted the Commonwealth's November 21, 2013 motions to consolidate the 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?

Commonwealth's Brief at 3.

In excluding the DNA evidence, the trial court's reasoning, at the most basic level, is that if the Commonwealth had sought testing earlier, it would have received its expert's report sooner. The trial court determined that the 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 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 Commonwealth immediately provided its expert's findings to defense counsel 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-settled. 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. Moser, 999 A.2d at 605. “A trial court has broad discretion to determine whether evidence is admissible,” and a trial court's ruling regarding 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. Huggins, 68 A.3d 962, 966 (Pa.Super.2013), appeal denied, ––– Pa. ––––, 80 A.3d 775 (2013) ; Commonwealth v. Minich, 4 A.3d 1063 (Pa.Super.2010) (citations and quotations omitted). If the evidentiary question is purely one of law, our review is plenary. Moser, 999 A.2d at 605 n. 4 (citing Schroeder v. Jaquiss, 580 Pa. 381, 861 A.2d 885, 889 (2004) ).

The Commonwealth maintains that Pa.R.Crim.P. 573 does not require that the Commonwealth perform DNA testing at any particular time; thus, it was improper to exclude the DNA results a week before trial, even if the Commonwealth could have received the results sooner.

Pa.R.Crim.P. 573(B)(1)(e), provides, in relevant part, as follows:

Rule 573. Pretrial Discovery and Inspection

* * *

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to

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