Commonwealth v. Walker

Citation92 A.3d 766
CourtUnited States State Supreme Court of Pennsylvania
Decision Date28 May 2014
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Benjamin WALKER, Appellant.

92 A.3d 766

COMMONWEALTH of Pennsylvania, Appellee
Benjamin WALKER, Appellant.

Supreme Court of Pennsylvania.

Argued March 7, 2012.
Decided May 28, 2014.

[92 A.3d 769]

Karl Baker, Esq., Philadelphia, for Benjamin Walker.

Nyssa E. Taylor, Esq., Defender Association of Philadelphia, for Benjamin Walker.

Nicole Jeanne Aiken, Esq., David Richman, Esq., Pepper Hamilton LLP, Philadelphia, Howard D. Scher, Esq., Philadelphia, Jill Rogers Spiker, Esq., Buchanan Ingersoll & Rooney, P.C., for The Innocence Network and The Pennsylvania Innocence Project.

Jules Epstein, Esq., Kairys, Rudovsky, Messing & Feinberg, Philadelphia, for Pennsylvania Association of Criminal Defense Lawyers.

Eric Johnson Mahr, Esq., Wilmer, Cutler, Pickering, Hale and Dorr, L.L.P., for American Psychological Association.

Hugh J. Burns Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.



Justice TODD.

In this appeal by allowance we address the question of whether a trial court may, in its discretion, permit expert testimony in the area of eyewitness identification, and, in doing so, we reconsider our current decisional law which absolutely bans such expert testimony. For the reasons that follow, we hold that, in Pennsylvania, the admission of expert testimony regarding eyewitness identification is no longer per se impermissible, and join the vast majority of jurisdictions which leave the admissibility of such expert testimony to the discretion of the trial court. Thus, we reverse the order of the Superior Court, and remand the matter to the trial court for reconsideration of such expert testimony, including the possibility of a Frye hearing in light of our decision today.1

The origins of this appeal stem from two armed robberies which occurred within two weeks of each other in October 2005 in Philadelphia. As found by the trial court, at 1:00 a.m. on October 15, 2005, three Drexel University students, Jenna Moreno, Courtney Howe, and Caitlyn Costello, were walking south on 36th Street at the intersection of Baring Street. At this intersection is a church with a lighted archway. A man alleged to be Appellant, Benjamin Walker, approached the women, drew a black handgun approximately 6–8

[92 A.3d 770]

inches in length, cocked it, and demanded that the women give him their money. After the women explained that they had no money, the assailant demanded their cell phones. Each complied, giving the man their cell phones and digital cameras.

The victims immediately went to campus security who escorted them to a police station to provide a statement and identify their assailant. Two days later, the victims met with Philadelphia Police Detective William Farrell to determine if they could identify the assailant from two photo arrays. Each photo array was composed of eight individuals. Included in the photo arrays were Appellant, along with another suspect, and other individuals closely resembling Appellant and the other suspect. The three victims were separated and provided a photo array one at a time. Moreno and Howe identified Appellant out of the photo arrays. Three months later, on January 18, 2006, Moreno identified Appellant in an in-person lineup.

The second robbery occurred on October 28, 2005. At approximately 3:00 a.m., University of Pennsylvania students Jonathan Ghitis and Kristina Leone were walking west on Pine Street between 40th and 41st Streets. This section of Pine Street is residential in character with several lampposts lining the street. Again, a man alleged to be Appellant and a co-conspirator walked toward the students. As the men approached the couple, Appellant separated from his co-conspirator, and flashed a silver handgun, approximately 6–8 inches in length. Leone began to scream. Appellant threw her to the ground and ordered her to be quiet. At the same time, Appellant's co-conspirator threw Ghitis down onto steps of a nearby residence. The men demanded whatever the victims had. Immediately, Leone gave Appellant her pocketbook, and Ghitis gave Appellant's co-conspirator his wallet, watch, and cell phone. Leone continued to cry and scream, and, so, Appellant, although already in possession of her pocketbook, repeatedly struck her on the back of her head with his gun. Appellant ordered Ghitis to calm Leone, which he did. Appellant let Leone go, and shortly thereafter, Appellant and his co-conspirator fled the scene.

At 3:30 a.m., after calling the police, both victims gave their account of the events and described their assailant to Detective Philip Lydon of the University of Pennsylvania police department. They met with Detective Lydon at his headquarters three hours later. There, the Detective separated the victims and showed three separate photo arrays of individuals that had similar characteristics to Appellant. Leone looked at the first array and told Detective Lydon that she could not recognize anyone. Upon viewing the second array, Leone immediately identified Appellant, viscerally reacting to his picture. Leone was shown a third array, which included an individual the police suspected was Appellant's co-conspirator, but she could not identify him. Leone spent three to four minutes looking at the arrays. Detective Lydon did not comment to her as to whether Appellant was a suspect after she had made her identification. The same procedure was conducted with Ghitis. He pointed out Appellant from the array, but was less than 100% positive. Again, Detective Lydon did not comment to Ghitis whether Appellant was the suspect after he made his identification. The sole evidence connecting Appellant to the robberies was eyewitness identification by the victims.

Appellant was arrested and charged with various crimes relating to the two robberies, and the charges were consolidated for a single trial. Appellant filed a pre-trial motion in limine to present the

[92 A.3d 771]

expert testimony of Dr. Solomon Fulero regarding the fallibility of human memory, the science as to human recall, and scientific studies related to the reliability of eyewitness testimony generally. In the alternative, Appellant requested a Frye hearing to determine the admissibility of such evidence. After hearing argument, the court denied the motions on September 17, 2007. After trial, the jury acquitted Appellant on all charges relating to the October 15, 2005 robbery involving the three Drexel students, but found Appellant guilty of five charges relating to the October 28, 2005 robbery involving the two University of Pennsylvania students.2 On December 12, 2007, the trial court sentenced Appellant to an aggregate term of incarceration of 17 1/2–35 years, followed by 5 years probation.

Regarding the denial of Appellant's motion to admit expert testimony on human recall, or to hold a Frye hearing, the trial court's threshold determination was that a Frye hearing was not necessary, relying upon Pennsylvania case law which holds that expert testimony concerning eyewitness identification is inadmissible. Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995); Commonwealth v. Bormack, 827 A.2d 503 (Pa.Super.2003). The trial court opined that, not only has our Court explained that an expert would have an unwarranted appearance of authority on the eyewitness's credibility, but that a defendant was free to attack a witnesses' credibility by pointing out inconsistencies through cross-examination and in closing arguments.

The trial court also rejected Appellant's claim that he was denied his constitutional right to present a defense under the United States and Pennsylvania Constitutions by excluding expert testimony, both on eyewitness identification and on suggestiveness of out-of-court identification procedures. The trial court reasoned that, as defendants must comply with the rules of evidence to assure fairness and reliability in the ascertainment of guilt and innocence, and as expert testimony on eyewitness identification is inadmissible, this argument was without merit. The court, thus concluded that it did not infringe upon Appellant's constitutional right to present a defense. Furthermore, the trial court dismissed Appellant's contention that his expert testimony was admissible pursuant to Rule 702 of the Pennsylvania Rules of Evidence. Noting that this Court in Simmons has already spoken to the admissibility of expert testimony, that Rules 401 and 403 require that all evidence be relevant, and that the probative value outweigh its danger of unfair prejudice, the trial court found that Appellant's statistics regarding eyewitness identifications had no bearing on whether the eyewitnesses testifying in this case were mistaken. Thus, the expert testimony, according to the trial court, did not make the fact of the eyewitnesses' identification more or less probable. Finally, according to the trial court, even assuming that the expert's testimony met the threshold for relevance, the probative value of such testimony was nominal, as several witnesses identified Appellant and their encounters with him were more than brief. Again, consistent with Simmons, the trial court reasoned that an expert would have an unwarranted appearance of authority on the eyewitness's credibility.3

[92 A.3d 772]

On appeal, a unanimous three judge panel of the Superior Court affirmed Appellant's judgment of sentence in an unpublished memorandum opinion. With respect to the issue of the trial court's denial of the admission of expert testimony on the subject of eyewitness identification, the Superior Court initially noted that evidentiary rulings and the admission of expert testimony is a matter of discretion for the trial court, and will not be disturbed absent an abuse of discretion. The Superior Court explained that it was mindful that our Court has been “unequivocal” in rejecting expert testimony regarding the reliability of eyewitness identification, as such testimony...

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