Com. v. Brown, M.

2026 Pa. Super. 18

• Court: Superior Court of Pennsylvania
• Decided: February 2, 2026
• Docket: 1593 MDA 2024
• Status: Published
• Author: Beck

Opinion

J-A24012-25 2026 PA Super 18

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL J. BROWN : : Appellant : No. 1593 MDA 2024

Appeal from the Judgment of Sentence Entered October 4, 2024 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000278-2023

BEFORE: DUBOW, J., KUNSELMAN, J., and BECK, J.

OPINION BY BECK, J.: FILED: FEBRUARY 2, 2026

Michael J. Brown (“Brown”) appeals from the judgment of sentence

entered in the Tioga County Court of Common Pleas (“trial court”) following

his convictions of homicide by vehicle and related summary offenses. On

appeal, he raises claims based upon alleged juror misconduct and the trial

court’s evidentiary rulings. After careful review, we agree that a juror failed

to provide accurate information on the juror questionnaire form, and, under

the circumstances of this case, that failure deprived Brown of his ability to

intelligently decide whether to exercise a peremptory strike. We therefore

vacate his judgment of sentence on the homicide by vehicle conviction and

remand for a new trial.

At approximately 10:30 p.m. on February 11, 2023, Brown, an off-duty

Pennsylvania State Police (“PSP”) Trooper, decided to illegally cross a double

yellow line to pass a vehicle operated by Benjamin DeWalt (“DeWalt”). A dip J-A24012-25

in the road prevented Brown from seeing Christine Woodward (“Woodward”)

driving in the opposing lane. Approximately two-and-a-half seconds after he

crossed into the other lane, Brown saw Woodward’s headlights. Both drivers

took evasive action but collided with each other. Woodward’s vehicle caught

on fire, resulting in her death.

The jury convicted Brown of homicide by vehicle.1 Brown filed a timely

appeal and a court-ordered concise statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Brown raises five issues for our

review.

1. Whether the trial court committed an error of law by holding that [Brown] waived his right to raise issues of juror misconduct by not employing a paralegal to investigate, both before trial and during trial, the veracity of empaneled jurors; response in juror information questionnaires and to the court’s voir dire questions, and to continuously monitor jurors[’] social media accounts throughout the trial to ensure compliance with the trial court’s prohibitions on social media usage, thus requiring that a new trial be granted?

2. Whether the lower court erred in denying [Brown]’s Motion to Vacate Verdict and Grant New Trial Due to Multiple Indefensible Episodes of Juror Misconduct?

3. Whether the lower court abused its discretion by prohibiting the Commonwealth’s expert accident reconstruction from testifying:

a. In his expert opinion, [Brown]’s actions did not rise to the level of “recklessness” as required by the [h]omicide [b]y [v]ehicle statute;

____________________________________________

1The trial court found Brown guilty of four of the five summary offenses with which he had been charged.

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b. That the findings of PSP accident reconstruction, as distinguished from his expert opinion, do not support the charge of [h]omicide [b]y [v]ehicle;

c. That the scientific data recovered from [Brown]’s airbag control module indicates that [Brown] was not engaged in “aggressive driving”; and

d. That contrary to written PSP accident reconstruction protocol, the lead PSP investigator charged [Brown] with [h]omicide [b]y [v]ehicle without consulting with the lead reconstructionist about whether the reconstruction findings support the … charge.

4. Whether the lower court abused its discretion by denying [Brown]’s Motion in Limine to prevent the Commonwealth from admitting into evidence ground level daytime photographs of the accident scene given that the crash occurred at 10:45 P.M. on a dark, desolate, rural road, with no artificial light present[?]

5. Whether the lower court abused its discretion by allowing the Commonwealth to introduce into evidence a safe driving PowerPoint taught to cadets at the [PSP] Academy?

Brown’s Brief at 5-7 (footnotes omitted).

Juror Misconduct Claims

Brown’s first two issues concern his post-trial motion for a new trial

based on several instances of alleged juror misconduct. Id. at 27-45. The

trial court concluded that Brown waived the claims by failing to uncover this

information and raise the pertinent information before the jury reached a

verdict. Trial Court Opinion, 12/4/2024, at 9-11. Brown’s first issue focuses

on the propriety of that ruling. Brown’s Brief at 27-33. In his second issue,

Brown assails the trial court’s alternative ruling that the substantive

allegations of misconduct do not warrant relief. Id. at 33-45. We address

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the claims together as the waiver analysis is linked to the nature of the

information discovered.

We briefly set forth the relevant factual allegations. Prior to jury

selection, prospective jurors filled out the standard juror information

questionnaire mandated by Rule of Criminal Procedure 632. Jury selection

took place on May 28, 2024, and trial began immediately thereafter. The jury

reached its verdict on May 31, 2024, and the trial court set sentencing for

August 9, 2024. Brown filed a motion on July 23, 2024, seeking a new trial

based on his discovery that three of the jurors provided incorrect answers on

their questionnaires.2 Brown alleged that he learned this information after the

verdict.

First, Juror #99, who became jury foreman, answered “No” on the

standard form to the question, “Do you have any children?” The motion

attached material establishing that Juror #99 is the biological father of three

children, born in August 2013, May 2015, and July 2018. See Motion,

7/23/2024, at Exhibit H. Brown additionally alleged that Juror #99 had an

outstanding arrest warrant from Oregon for charges of reckless driving and

2 Brown further alleged that Juror #79 engaged in misconduct during the trial based upon two Facebook posts he made on May 30, 2024. The first contained an image referencing “verdict deniers” and the other had an image saying, “Today’s secret word is: GUILTY.” Motion, 7/23/2024, at 11. Brown argued this shows the juror made up his mind before deliberations began. Id. The trial court found that the juror was presumably referencing the verdict reached that day against then-former President Trump. See Trial Court Opinion, 12/4/2024, at 15. Based upon our resolution of this matter, we need not address this allegation.

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driving under the influence, and attached as exhibits a November 30, 2021

charging document and an outstanding arrest warrant. Id., Exhibits E, G.

Brown argued that Juror #99 should have disclosed his fugitive status in

response to the question, “Is there any other reason you could not be a fair

juror in a criminal case?” but did not.

Second, Juror B.B.3 answered “No” to the question, “Have you or anyone

else close to you ever been charged with or arrested for a crime?” Brown

alleged that B.B. was arrested and charged by the PSP for driving under the

influence. Additionally, the trial judge repeated this question in open court

during jury selection, but Juror B.B. did not respond. The motion represents

that B.B. accepted an alternative rehabilitation disposition in Tioga County

sometime in 2017.

Lastly, Juror #113 answered “No” to the question, “Have you or anyone

close to you ever been the victim of a crime?” The trial judge asked this

question in open court, and Juror #113 did not reply. Brown attached exhibits

establishing that Juror #113’s son had physically assaulted him on May 31,

2020, and was charged with simple assault. Those charges were reduced to

a summary harassment. Then, on or about April 11, 2024, Juror #113 was

again attacked by his son. The son entered a guilty plea to one count of

summary harassment the next day. See id., Exhibits M-P.

3 The juror questionnaire did not list a number for B.B.

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Brown maintained that these misleading answers prevented an

intelligent exercise of his right to use peremptory challenges, which frustrated

the purpose of securing a fair and impartial jury. Specifically, Brown cited

Commonwealth v. Rosario, 182 A.2d 75 (Pa. Super. 1962) (en banc), for

the proposition that a “person’s incorrect answer to clear [v]oir [d]ire

questions mislead counsel and prevent an intelligent exercise of the

defendant’s right of peremptory challenge, a new trial is required.” Motion,

7/23/2024, at 18. Brown argued that this constitutes the necessary prejudice

to order a new trial.

The Commonwealth filed a reply, arguing that Brown must establish

prejudice under the test applicable to claims of after-discovered evidence.

See generally Commonwealth v. Royal, 312 A.3d 317, 322 (Pa. Super.

2024). That test requires proof, among other requirements, that “the

evidence is of such a nature and character that a different outcome is likely”

and that “the evidence could not have been obtained before the conclusion of

the trial by reasonable diligence.” Id. (citation omitted). The Commonwealth

argued that Brown failed to establish these prongs, as he failed to show “how

or when he obtained” the information, “[n]or has he pleaded that the alleged

after-discovered evidence would require a different verdict.” Commonwealth’s

Brief in Response, 7/29/2024, at 3. In support, the Commonwealth cited

Commonwealth v. Kelly, 609 A.2d 175, 175-76 (Pa. Super. 1992), wherein

the defendant learned after trial that a juror was statutorily ineligible to serve

because of a felony conviction. The Kelly Court granted a new trial, holding

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that the “potential for prejudice is apparent ... and the legislature has

disqualified those persons who are presumptively unable to render fair and

competent service.” Id. at 177. Thus, in the Commonwealth’s view, the mere

inability to use a peremptory strike was insufficient.

The Commonwealth argued that prejudice therefore cannot be

presumed. It distinguished Rosario, arguing that we presumed prejudice

“based on particularly egregious facts.” Commonwealth’s Brief in Response,

7/29/2024, at 6. In its view, Rosario does not “hold that trial courts may not

even consider prejudice whenever a juror provides incorrect information; to

the contrary, it expressly recognized that relief may be denied based on a

‘complete lack of prejudice.’” Id. (quoting Rosario, 182 A.2d at 76). The

Commonwealth asserted that the trial court would have to issue credibility

findings regarding each individual allegation of juror misconduct before finding

Brown was prejudiced.

The trial court concluded that Brown waived all juror misconduct claims

by failing to uncover the information before the verdict. The court noted that

Brown “had four days after the trial began” to research the seated jurors and

suggested that a “paralegal could easily have checked” into the jurors’ history

during those four days. Trial Court Opinion, 12/4/2024, at 11.

Alternatively, the trial court determined that, even “accepting [Brown’s]

factual allegations about the jurors as true,” none of the complaints warranted

a finding of prejudice. Id. at 5 (emphasis omitted). The court did not address

Rosario, instead citing for persuasive value the United States Supreme

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Court’s decision in McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548 (1984). The United States Supreme Court, applying federal rules of

evidence, concluded that a new trial is warranted for voir dire defects only if

the undisclosed information would have supported a challenge for cause. Id.

at 556. The trial court concluded that none of the information discovered by

Brown met that standard. See Trial Court Opinion, 12/4/2024, at 12-16.

Finally, the court, applying the after-discovered evidence test encouraged by

the Commonwealth, concluded that Brown failed to show he was prejudiced

as none of the information undermined the verdict. See id., at 10 (“The

verdict was certainly supported by substantial evidence, including defendant’s

admissions.”).

On appeal, the parties reprise their disputes as to waiver and what

constitutes prejudice in the context of juror misconduct. As a threshold

matter, we do not agree with the Commonwealth and trial court that the test

for after-discovered evidence governs. The trial court cited the overwhelming

nature of the evidence supporting the verdict, suggesting that some form of

harmless error applies. However, the values protected by the voir dire

process—i.e., selecting a fair and impartial jury—are not amenable to a

prejudice analysis by reference to the evidence supporting the verdict. As the

Kelly Court recognized, “it would be virtually impossible for a criminal

defendant to prove that a juror’s prior conviction prejudiced his trial. ... [A]nd

because any prejudice suffered ... would not be susceptible to proof, we

conclude that [Kelly] need not prove actual prejudice[.]” Kelly, 609 A.2d at

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177. While Kelly addressed a juror who was statutorily ineligible to serve as

a juror, the same logic applies here with equal force.

The trial court’s due diligence conclusions also derived from the after-

discovered evidence test. Again, we find this to be inapplicable to the question

of juror misconduct. In Commonwealth v. Aljoe, 216 A.2d 50 (Pa. 1966),

our Supreme Court held that challenges to a juror’s participation “cannot be

successfully raised after a jury has been sworn except in those cases where a

defendant has been intentionally misled or deceived by the juror or by the

opposite party.” Aljoe, 216 A.2d at 54. Thus, a misleading or deceptive

answer by a juror “excuses” a failure to immediately investigate.

The Rosario case also implicitly rejects the trial court’s due diligence

determination. There, defense counsel asked potential jurors if they were

related to any law enforcement officers. Rosario, 182 A.2d at 75. Each

impaneled juror responded in the negative. Id. The day after the verdict,

defense counsel informed the trial court that two of the jurors “were parents

of troopers of the [PSP]” and that their “misstatements … prevented him from

properly exercising” his peremptory challenges. Id. Counsel informed the

court that “he had not learned of these facts until after the verdict had been

rendered.” Id. While the Rosario Court did not further remark upon this

facet of the case, the failure to uncover the information before trial concluded

was obviously not fatal to his claim of juror misconduct.

The question remains as to what constitutes the correct test for due

diligence and prejudice in the context of an allegation of juror misconduct.

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Brown contends that Rosario is directly on point with respect to due diligence

and prejudice and thus binds this Court. Brown’s Brief at 40. In Rosario, the

Court en banc awarded the appellant a new trial, despite the Commonwealth’s

argument that the case was similar to three cases in which appellants did not

receive new trials. In Travis v. Commonwealth, 106 Pa. 597 (1884), the

defendant discovered after the trial that one of the jurors was related to the

murder victim. In Romesberg v. Merrill, 99 Pa. Super. 197, 199 (1930),

the plaintiff moved for a new trial because a juror was related to the defendant

by marriage.4 Finally, in Commonwealth v. Kopitsko, 110 A.2d 745 (Pa.

Super. 1955), one of the parties requested to unseat a juror during trial upon

discovering he was an attorney, whereas the juror had listed his occupation

as “Insurance” on the juror form.

We concluded that none of the three cases controlled. We agreed that

the juror in Travis gave a false answer, but the record established that the

juror was “totally ignorant of the relationship” and thus it “could not have

prejudiced him” against the defendant. Rosario, 182 A.2d at 76. In

Romesberg, plaintiff’s counsel asked the jurors to disclose any relationship

with the parties involved in the suit, and the juror “did not understand the

question to be an inquiry as to a relationship by marriage and consequently

did not answer.” Id. We concluded that the question posed to the juror “was

not clear and was misunderstood.” Id. Thus, the party waived his complaint

4 The juror’s wife was the first cousin of the defendant.

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because the attorney failed to conduct any questioning on this topic. Id. In

Kopitsko, the Court found no new trial was warranted because the attorney

failed to conduct any follow-up on the listed occupation. Id. Thus, in both

Romesberg and Kopitsko “there was no false answer given,” and in Travis,

there was no possibility of prejudice. Id. The Rosario Court found these

cases to be inapposite, however, as the jurors at issue in that case gave false

answers, which prejudiced the appellant. Id.

Here, under the uncontradicted statement of defense counsel and the assumption of the trial judge, incorrect answers to clear questions misled counsel, without any fault or neglect on his part, and this prevented an intelligent exercise of the defendant’s right of peremptory challenge. This being so, we cannot speculate as to whether the defendant was harmed in fact by this deprivation of his right.

Id.

Brown argues that, as in Rosario, the jurors in the case at bar gave

false answers, and he was prejudiced because he could not intelligently

exercise his peremptory challenges. Brown’s Brief at 40. The Commonwealth

responds that Rosario does not control for two separate reasons:

While this Court acknowledged that a “complete lack of prejudice” could be determinative, it concluded it would not “speculate as to whether the defendant was harmed” where counsel could not intelligently exercise peremptory challenges after being misled. 182 A.2d at 76. Rosario therefore did not deem prejudice unnecessary, but rather presumed it on the basis of particularly egregious facts. Even if defendant’s view of Rosario were correct, moreover, that 1962 decision was effectively overruled by the Supreme Court’s 2010 ruling in [Commonwealth v.]Flor[, 998 A.2d 606 (Pa. 2010),] that relief is available “[o]nly when there has been prejudice[.]” [Flor,] 998 A.2d at 639.

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Commonwealth’s Brief at 13 n.7.

We agree that Rosario required a showing of prejudice, but disagree

with the Commonwealth’s contention that the prejudice in that case flowed

from the “particularly egregious facts” of the undisclosed information, and bias

could therefore be implied and/or presumed. Nothing in the opinion indicates

that the prejudice assessment was linked to the egregiousness of the false

answer. Instead, the Court held that the “incorrect answers to clear questions

misled counsel … and this prevented an intelligent exercise of the defendant’s

right of peremptory challenge.” Rosario, 182 A.2d at 76. Thus, it was the

inability to exercise the right to peremptory challenge in an “intelligent”

manner that caused prejudice to Rosario, not whether the nature of the

undisclosed information naturally lends itself to a conclusion that the juror

harbored bias.

That said, we agree that Rosario cannot be interpreted to mandate a

presumption of prejudice for every incorrect answer. For example, the

standard questionnaire form asks for the juror’s name, including middle initial.

If a juror listed the wrong initial, included a maiden name, or the name was

misspelled, those would be, in the words of Rosario, “incorrect answers.”

Rosario, 182 A.2d at 76. But those incorrect answers would have no plausible

connection to a party’s “intelligent” use of a peremptory strike.

We therefore interpret Rosario to hold that an incorrect answer to a

clear question, combined with a showing that ignorance of the correct answer

deprived the attorney of information relevant to make an “intelligent”

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assessment of whether to use a peremptory strike, constitutes the necessary

prejudice. Applying Rosario to these facts, we conclude that Juror #99’s

response to the question of whether he had any children prevented the

intelligent exercise of a peremptory strike. Juror #99 provided an incorrect

answer to a question that left no room for ambiguity. In this regard, we

conclude that no evidentiary hearing is needed. As the Kelly Court ruled, the

falsity of the answer controls.

In the present case, the unambiguous question was asked, and Mr. Thomas, with full understanding of the meaning of the question, answered it falsely. Although the trial court’s factual finding that Mr. Thomas did not intend to mislead or deceive is entitled to deference, “have you ever been convicted of a crime?” is not a subjective question.

Kelly, 609 A.2d at 177.5

Perhaps this false answer would not prevent an intelligent use of strikes

under other facts, such as a burglary of a commercial establishment with no

victims. But, as Brown contends, he may well have chosen to strike Juror #99

had he known the juror had three young children. See Brown’s Brief at 17

n.11 (“Given that this juror is the father of three … minor children, how

testimony about this death would affect this juror’s ability to be fair and

5 The trial court accepted that Juror #99’s answer was false, and the Commonwealth does not question the veracity of the materials submitted by Brown in connection with his motion for a new trial. We decline to remand for a hearing on this point because the basis the information is not disputed, and the question itself left no room for misunderstanding as the options were simply “Yes” or “No.”

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impartial is highly relevant information … when considering whether to

exercise a peremptory challenge on this juror.”). The evidence at trial

established that Woodward, a mother of three children, died a horrific death,

as she was conscious after the collision and screamed for help as the vehicle

burned.6 An “intelligent” use of peremptory strikes would extend to potentially

striking jurors who have young children and would naturally sympathize with

the victim. See id.; Motion, 7/23/2024, at 8 n.5 (noting that Woodward was

the mother of three minor children and thus whether a juror had children “is

also absolutely critical information” in the use of peremptory strikes).

Therefore, under the facts of this case, the incorrect answer prevented an

intelligent use of peremptory strikes and this constituted prejudice requiring

a new trial.

Turning to due diligence, precedent supports the trial court’s conclusion

that there is a due diligence component to the determination of whether an

appellant is entitled to a new trial based upon alleged juror misconduct. While

not framed in these terms, the Romesberg and Kopitsko Courts applied a

form of due diligence analysis in concluding that no new trial was warranted.

The “Insurance” answer in Kopitsko was generic and the Court concluded

that counsel could have simply asked additional questions to determine what

type of work the juror did in that field. Kopitsko, 110 A.2d at 747 (noting

6 Brown tried to extract Woodward from her vehicle.

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that “trial counsel did not exercise his right to examine the prospective jurors

on their voir dire”). Counsel’s failure to do so was fatal to his request for a

new trial. Id. Similarly, in Romesberg, the question posed as to whether

the jurors had any “relationship” to the parties in the suit was ambiguous and

the Court indicated that a more precise question may have uncovered the

answer later discovered. Romesberg, 99 Pa. Super. at 200 (“It would seem

to have been the duty of the attorneys for the plaintiff to satisfy themselves

upon this question and to give the jurors a chance of understanding the

question.”). Thus, these cases support a finding that a due diligence analysis

requires consideration of whether there was any reason to conduct an

investigation or ask additional questions of the juror.

The question in the case at bar, included on the questionnaire, was

straightforward and unambiguous, as was Juror #99’s answer. We do not

agree with the trial court’s determination that Brown was required to divert

resources in the midst of trial to research the issue, and, in any event, the

record does not contain any facts to support that Brown actually had the

resources to do so. To the extent a diligence assessment weighs finality of

the criminal process against the defendant’s rights, again, Rosario dictates

that the former must yield as the information was also discovered post-trial

and prior to appeal.

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Because we agree Rosario applies to Juror #99’s answer about having

children, Brown is entitled to a new trial.7 We therefore need not address any

of the remaining claims of juror misconduct or false answers.

Remaining Issues

We find it appropriate to address two of the remaining three issues

remaining on appeal. “Usually the prudent practice of this Court is to avoid

commenting on all of an appellant’s issues if one issue constitutes reversible

error.” Interest of D.R., 216 A.3d 286, 291 (Pa. Super. 2019). However,

an exception exists for issues that are likely to recur. See, e.g., Adams v.

Rising Sun Med. Ctr., 257 A.3d 26, 39 (Pa. Super. 2020) (“Having concluded

that a new trial is necessary, we need not reach Administratrix's remaining

issues except to the extent that they are likely to recur or are relevant to the

disposition of the cross-appeal.”); Commonwealth v. Semenza, 127 A.3d

7 The Commonwealth cites Commonwealth v. Flor as a case implicitly overruling Rosario. In Flor, the capital defendant argued on appeal that the jury was impartial based on the fact several jurors cheered after sentencing. Flor, 998 A.2d at 638-39. Our Supreme Court rejected the claim, as “not every act of juror misconduct warrants the declaration of a mistrial. Only when there has been prejudice to the accused does an act of juror misconduct require the granting of a new trial.” Id. at 639.

The situation addressed in Flor is quite different. The Rosario case protects the right to select a jury and eliminate jurors who may harbor bias, which is by its nature difficult to prove or unearth. A case like Flor, meanwhile, involves actual comments and behavior that can be assessed for their prejudicial impact. Rosario remains good law and we are bound to follow it. See Commonwealth v. Harris, 269 A.3d 534, 539 (Pa. Super. 2022) (“As we often recognize, a prior published opinion issued by a panel of this Court constitutes binding precedential authority.”).

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1, 13 (Pa. Super. 2015) (“we will address Semenza’s second issue on appeal,

a challenge to the jury instruction defining corruption of minors, so that it does

not arise again on remand”); see also 5 C.J.S. Appeal and Error § 831

(“Questions not necessary to the final determination of an appeal may be

considered if ... the unnecessary issues are likely to recur during further

proceedings.).

We opt to exercise our discretion as to two of the remaining claims

raised, as the issues are likely to recur, were the subject of extensive litigation,

and have been extensively briefed. The other remaining issue involves a claim

that was not properly preserved for appeal, and we therefore decline to

address it.

Testimony of Corporal Gary Beadle

In his third issue, Brown argues that the trial court erred by barring

testimony on several matters. Brown’s Brief at 45-62. The following principles

are germane to our review:

When reviewing a decision to admit or to exclude expert opinion testimony, we use an abuse-of-discretion standard. See Commonwealth v. Powell, 171 A.3d 294, 307 (Pa. Super. 2017), appeal denied, 183 A.3d 975 (Pa. 2018). Abuse of discretion only “occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or ill-will.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005). In other words, a reasonable judgment by the trial court is not an abuse of discretion, even if this Court disagrees with that judgment.

Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 881 (Pa. Super. 2019).

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Brown argues several points in connection with this claim, all of which

relate to Corporal Gary Beadle’s opinion that Brown should not have been

charged with homicide by vehicle. Corporal Beadle expressed this opinion at

Brown’s preliminary hearing, at which he opined that Brown’s conduct was not

reckless.

The Commonwealth filed a motion in limine seeking to preclude Corporal

Beadle or any other expert from opining on whether Brown’s conduct satisfied

the elements of the crime. The Commonwealth argued that any testimony on

that point was inadmissible for three independent reasons. First, that

“Corporal Beadle is qualified only to offer his opinion of how the crash

occurred, and that opinion must be based on his scientific, technical, and

specialized knowledge of reconstructing crash scenes.” Motion in Limine,

3/4/2024, at 3-4. The Commonwealth averred that his written report was

properly limited to “conclusions ... explain[ing] how the crash occurred, based

on ‘evidence and information available at the time’ and made to a ‘reasonable

degree of investigative and scientific certainty.’” Id. at 4 (quoting expert

report). Unlike his preliminary hearing testimony, that report did not “say

anything about recklessness.” Id. The Commonwealth maintained that

Corporal Beadle’s opinion that Brown did not act recklessly was beyond his

expertise.

Second, the Commonwealth argued that to the extent his opinion

constituted lay testimony and not subject to expert qualification, it was

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similarly inadmissible since lay witnesses cannot render an opinion on legal

issues. Id. at 5-6.

Lastly, the Commonwealth argued that the opinion, regardless of

whether it should be classified as lay or expert, should be barred as unhelpful.

The Commonwealth argued that the facts were largely undisputed and “the

only real issue for the jury to decide is whether defendant’s conduct meets

the legal standard for recklessness.” Id. at 7. The motion posited that

“Corporal Beadle’s opinion of what he thinks the jury’s answer to the question

should be is neither necessary nor helpful. He has no more specialized training

or knowledge in the area of legal recklessness than the jurors do.” Id. at 8.

The trial court agreed that each of the three theories separately

warranted barring the testimony. See Trial Court Opinion, 12/4/2024, at 16-

17.

Brown argues that the trial court abused its discretion in finding each

theory applied. First, regarding Corporal Beadle’s ability to opine on

recklessness, Brown disagrees that his opinion on recklessness was beyond

his expertise. The Commonwealth qualified Corporal Beadle as an expert in

the field of accident reconstruction, and Brown submits he was permitted to

testify whether Brown, based on his review of the data, operated his vehicle

in a reckless manner. Brown cites Rule of Evidence 704, which states that

“[a]n opinion is not objectionable just because it embraces an ultimate issue.”

Pa.R.E. 704. See Brown’s Brief at 56-58. Brown observes that the federal

counterpart codifies an exception to that rule for criminal cases: “[A]n expert

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witness must not state an opinion about whether the defendant did or did not

have a mental state or condition that constitutes an element of the crime

charged or of a defense. Those matters are for the trier of fact alone.”

Fed.R.Evid. 704(b). Our Supreme Court, however, declined to adopt this

exception since it is inconsistent with Pennsylvania law. See Pa.R.E. 704,

cmt. (citing Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976)).

Therefore, in his view "our Supreme Court contemplated the admission of

expert testimony on an ultimate issue relating to the mens rea element of the

crime charged.” Brown’s Brief at 57-58.

Separately, while maintaining that Corporal Beadle was not “ever asked

to opine on a legal issue,” id. at 48 (quotation marks omitted), to the extent

his testimony would touch on legal issues Brown offers as persuasive value a

comparative cite to Browne v. Commonwealth, 843 A.2d 429 (Pa. Cmwlth.

2004). Id. In that case, the Commonwealth Court affirmed a trial court’s

decision to exclude testimony from a township engineer as to the legal effect

of a particular ordinance. Browne, 843 A.2d at 431. The Commonwealth

Court held that the trial court did not err because “whether the defendants

complied with [the o]rdinance ... is not relevant to the question of whether

the defendants acted negligently” in constructing berms. Id. at 434.

Brown argues that Browne is an example of a case where an expert is

called to offer a pure legal opinion. Brown’s Brief at 48. In contrast, Corporal

Beadle “would testify to an expert opinion on [Brown]’s lack of recklessness,”

which was “based on correlating the scientific evidence of what [Brown] could

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see at the moment he elected to pass with the ‘mens rea’ element of the

charge.” Id. Therefore, according to Brown, the expert testimony is based

on his expertise in the arena of accident reconstruction. Id. at 58. Brown

posits that his opinion would be helpful because of the expertise “required to

recover and interpret scientific data” from Brown’s vehicle. Id.

Finally, Brown contends the trial court’s conclusion that the testimony

would be unhelpful “is simply erroneous” since it "fails to acknowledge the

depth and breadth of the technical data that [Corporal] Beadle analyzed ... to

determine if [Brown] was able to see and had knowledge of the risk when he

elected to pass.” Id.

We agree with the trial court’s third reason offered in support of barring

the testimony—that the testimony was unnecessary and unhelpful:

Third, and very importantly, testimony as the [sic] whether [Brown]’s actions constitute “recklessness” were not necessary to help the jury. The jury was more than capable of hearing the testimony, determining the facts, hearing the definition of “recklessness,” and applying the law to the facts to render a verdict. “[A]s with lay opinions, the trial judge has discretion to admit or exclude expert opinions on the ultimate issue depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice.” McManamon v. Washko, 906 A.2d 1259, 1278 (Pa. Super. 2006) (citations omitted).

Trial Court Opinion, 12/4/2024, at 16 (third bracketing in original).

The record reflects that Corporal Beadle’s written report did not explore

the issue; as such, his preliminary hearing testimony offers the best source

for what his testimony would have been. On cross-examination, Corporal

Beadle stated, “[t]here was ... no way that [] Brown could see any headlights”

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until two-and-a-half seconds from impact. N.T., 9/20/2023, at 200. Brown

then asked the corporal about his report. “Throughout ... the entire conclusion

section ... at no time did you conclude to a reasonable degree of scientific

certainty that … Brown was reckless or grossly negligent in his actions that

evening; is that correct?” Id. Over objection, Corporal Beadle agreed with

Brown that, “at the point at which [Brown] entered the eastbound passing

lane, being in a straightaway with a clear view with no visibility of oncoming

traffic, that he, at that point, did not engage in reckless conduct or grossly

negligent conduct[.]” Id. at 202 (agreeing with this language).

The Commonwealth again objected, arguing that whether to file charges

“is not a decision for this witness.” Id. The court disagreed, and asked, “So,

again, just for the [c]ourt being clear, you did not conclude that there was

any gross negligence on the part of the defendant ... with your analysis?” Id.

at 203. Corporal Beadle replied, “Correct, Your Honor. I did not conclude

that.” Id. Later, Brown asked, “Can you explain, once again, to [the

Commonwealth’s attorney] why you, in your expertise, do not believe [Brown]

to be reckless?” Id. at 209. Corporal Beadle gave a lengthy answer,

explaining, in part, that by the time Brown would have been able to see

Woodward’s headlights “the steering wheel analysis ... shows [] Brown reacted

to that stimulus.” Id. at 210. Corporal Beadle then explained he “look[ed]

up case law,” and cited this Court’s decision in Commonwealth v. Sanders,

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259 A.3d 524 (Pa. Super. 2021) (en banc), to support his view that conviction

is precluded:

[CORPORAL BEADLE]: It’s a 2017 homicide by vehicle case, but it went before the Pennsylvania Superior Court in 2021, and that’s where they are defining reckless and gross negligence. And in it, they say in order to have reckless or gross negligence, you have to be made aware of the known hazard and then continue your actions in spite of those known actions. And that’s what I used as a fraction [sic] --

THE COURT: And that’s what came up with your answer?

[CORPORAL BEADLE]: Correct.

THE COURT: As to why you feel it’s not reckless?

[CORPORAL BEADLE]: Correct, Your Honor.

Id. at 214. Following a brief discussion, the corporal elaborated that his

opinion was based on his conclusion that “Brown could not have seen the

known hazard when he started the passing maneuver. When he did become

aware of the known hazard, namely Ms. Woodward, he took evasive action.”

Id. at 215. Thus, he concluded that Brown was not reckless.

Corporal Beadle’s opinion ignores the Commonwealth’s overarching

theory that Brown acted recklessly by passing DeWalt’s vehicle despite the

double yellow line and his knowledge of a dip in the road blocking visibility of

oncoming traffic. See N.T., 9/20/2023, at 242-43 (“The point that the

defense is missing, the point that Corporal Beadle is missing ... the risk is not

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that he saw her car at the point that he saw it. The risk is that he ignored the

fact you can't see traffic coming in the opposite direction.”).8

We note that our courts have not definitively addressed whether an

expert may ever testify to a pure legal conclusion when offering an opinion on

the “ultimate issue.” We accept, solely for purposes of this argument, that an

expert may do so.9 Notwithstanding, that Corporal Beadle tied his opinion to

an analysis of how Sanders would apply to the facts of the case establishes

that Corporal Beadle’s view involves a pure question of law. The Sanders

decision was based upon a challenge to the sufficiency of the evidence to

support a SEPTA driver’s conviction, and the law is crystal clear that “[a]

sufficiency challenge is a pure question of law.” Commonwealth v. Jacoby,

170 A.3d 1065, 1076 (Pa. 2017). Corporal Beadle’s invocation of Sanders,

and his explanation thereof, leaves no doubt that his opinion that Brown

8 Brown concedes that he was aware of the dip in the road based upon his familiarity with that route of travel, but argues, by reference to his statement to investigators, that he did not know that the dip interfered with his ability to see oncoming traffic. Brown’s Brief at 54 n.16 (“[Brown] consistently responded while he was aware of the ‘dip,’ he was not aware that easterly approaching vehicles would be hidden or disappear from view of westerly approaching vehicles.”). In this regard, Corporal Beadle’s opinion appears to be largely based on crediting Brown’s statement. Id. at 59 (arguing that Corporal Beadle’s “opinion corroborates [Brown]’s statement” that he had no knowledge of the risk when he began to pass). 9 But see 3 Wharton’s Criminal Evidence § 13:9 (15th ed.) (“[E]ven in those

states that generally allow experts to give an opinion as to an ultimate issue in the case, most courts do not permit an expert to testify to a legal conclusion.”).

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should not have been charged rests on his own view that the evidence would

be legally insufficient.

Brown resists this straightforward conclusion by arguing Corporal Beadle

“was [n]ever asked to ‘opine on a legal issue.’” Brown’s Brief at 48. He frames

Corporal Beadle’s testimony in terms of “correlating the scientific evidence of

what [Brown] could see at the moment he elected to pass with the ‘mens rea’

element of the charge[.]” Id. This distinction is unavailing. Every sufficiency

question involves an assessment of the facts of the case, and the two concepts

thus cannot be neatly divorced. Corporal Beadle’s conclusion reduces to a

claim that Brown would inevitably prevail on a challenge to the sufficiency of

the evidence to support his conviction.10

Brown’s remaining arguments are equally unpersuasive. He argues that

Sanders authorized the admission of the testimony because the officer in that

case “testified that in his expert opinion, [Appellant] operated her bus in a

reckless, careless, and negligent manner, which caused the crash.” Brown’s

Brief at 49 (quoting Sanders, 259 A.3d at 527) (alteration in original). Brown

overlooks that Sanders argued that the trial court erred in admitting that

testimony. Sanders, 259 A.3d at 528 (“The court committed error in allowing

the Commonwealth’s crash reconstruction expert to testify that defendant ...

10This alone shows the testimony would be unhelpful and confusing. If Corporal Beadle’s opinion is correct, all Brown has to do is ask this Court to deem the evidence insufficient beyond a reasonable doubt.

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operated her bus in a reckless manner.”) (quoting brief). We declined to

address the claim based upon our conclusion that the evidence was insufficient

to support his conviction. Id. Thus, the Sanders decision does not speak to

this issue.

Similarly, Brown cites this Court’s recognition in Commonwealth v.

Matroni, 923 A.2d 444, 446 (Pa. Super. 2007), that the Commonwealth’s

expert “expressed his unequivocal expert opinion that the cause of the

collision between Matroni’s car and the tractor trailer was Matroni’s reckless

driving, including speeding and erratic lane changes.” Id. at 448. However,

the opinion does not mention whether Matroni objected to this testimony, as

the Commonwealth did in this case. We simply summarized the evidence

presented at trial, and Matroni did not argue that the trial court erred in

admitting the opinion. Thus, Matroni lends him no support.

As Corporal Beadle intended to offer an opinion on a pure legal issue,

the remaining question is whether the trial court abused its discretion in

excluding the evidence. We agree with the trial court that “[t]he jury was

more than capable of hearing the testimony, determining the facts, hearing

the definition of ‘recklessness,’ and applying the law to the facts to render a

verdict,” and that Corporal Beadle’s opinion on that issue risked confusion.

Trial Court Opinion, 12/4/2024, at 16. The court thus did not abuse its

discretion.

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This Court’s decision in Commonwealth v. Barnhart, 722 A.2d 1093

(Pa. Super. 1998), involved a somewhat analogous situation. Barnhart acted

as an accountant for a county facility. Id. at 1094. The facility discovered

some discrepancies and performed an auditing, which led to the

Commonwealth charging Barnhart with stealing over fifty thousand dollars

through false entries. Id. at 1094-95. The trial court allowed Barnhart to

present expert testimony “regarding the accounting skills needed to conceal

the relevant theft, and [Barnhart] was further permitted to testify that, based

on her limited education and work experience, she did not possess those

necessary skills.” Id. at 1097. The court refused to admit expert testimony

that Barnhart “could not have understood how to commit the alleged crime”

based on her lack of expert knowledge. Id. The trial court reasoned that

such testimony “would unduly infringe on the jury’s province to determine this

ultimate issue, particularly where [Barnhart] could testify on this issue and

the jury would be required to assess her credibility.” Id. We determined that

the trial court did not abuse its discretion:

Pennsylvania law allows expert opinion testimony on the ultimate issue, but gives the trial judge discretion to admit or exclude such ultimate issue testimony depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice. See Kozak v. Struth, 531 A.2d 420 (Pa. 1987). Given the facts of this case, we cannot find that the lower court abused its discretion in so ruling, since expert testimony on this point would have resulted in a confusing mix of fact and opinion on an ultimate issue for which the jury did not require an expert’s clarification.

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Corporal Beadle’s opinion risked the same confusion by presenting the

jury with a mix of the facts of his analysis of the vehicular data combined with

his opinion on the ultimate issue of Brown’s guilt. Corporal Beadle’s opinion

further risked invading the province of the jury to decide the facts. As noted,

Corporal Beadle sought to offer an opinion that Brown was not reckless based

exclusively on what Brown did upon seeing Woodward’s headlights, not, as

was the Commonwealth’s theory, based on his decision to pass Woodward at

that location in the first place. Therefore, allowing Corporal Beadle to present

his opinion that knowledge of the dip was legally irrelevant would tend to

usurp the jury’s exclusive duty to decide disputed factual issues. See

Commonwealth v. Montavo, 653 A.2d 700, 705 (Pa. Super. 1995)

(“Significantly, expert testimony should not invite the jury to abdicate its

responsibility to ascertain and assess the facts and, instead, defer to the

expert’s opinion.”) (citation omitted).

Therefore, even accepting that Corporal Beadle could lawfully opine on

these matters, the trial court did not abuse its discretion by determining

Corporal Beadle’s view of how the law should apply to a disputed set of facts

was unhelpful.

Photographs

Brown’s fourth issue addresses the trial court’s decision to admit several

daytime photographs showing the road from both directions, including the dip

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in the road where the accident occurred. Brown’s Brief at 64-68. Our standard

of review is well-established.

The admission of evidence is solely within the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Manivannan, 186 A.3d 472, 479–80 (Pa. Super. 2018)

(citation omitted).

“The threshold inquiry with admission of evidence is whether the

evidence is relevant.” Commonwealth v. Yale, 249 A.3d 1001, 1022 (Pa.

2021) (citation omitted). By rule, “[a]ll relevant evidence is admissible,

except as otherwise provided by law. Evidence that is not relevant is not

admissible.” Pa.R.E. 402. Evidence is relevant if “(a) it has any tendency to

make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” Pa.R.E. 401.

Relevant evidence may be excluded if the prejudicial value is outweighed by,

among other things, its probative value. Pa.R.E. 403.

Brown claims that the photographs fail the threshold relevancy test

because the crash occurred at night and the pictures “do not represent what

the ... drivers saw at the time immediately preceding the accident.” Brown’s

Brief at 66. Brown additionally submits that the trial court’s conclusion that

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photographs of the intersection were relevant misses the point because “the

trial court forgets that the Commonwealth introduced multiple daytime aerial

photos” showing the intersection without objection. Id. at 67. He submits

that the photographs were prejudicial because “ground level daytime photos

have no probative value, and any probative value one might think they have

is certainly outweighed by how such photographs would confuse and mislead

the jury, thereby again causing irreparable prejudice to [Brown].” Id. at 68.

The trial court determined that “the daytime photos were admitted to

show the scene as [Brown] would have seen it two times each day as he

traveled to and from work.” Trial Court Opinion, 12/4/2024, at 19. The court

opined that the evidence was thus relevant to “[Brown]’s awareness of the

material risk that exists or will result from his conduct.” Id. at 20 (quotation

marks and citation omitted).

We agree with the trial court that the photographs were relevant to the

Commonwealth’s theory of recklessness. Familiarity with the road is a

relevant factor in ascertaining mens rea. See, e.g., Commonwealth v.

Moyer, 171 A.3d 849, 854 (Pa. Super. 2017) (when affirming Moyer’s

homicide by vehicle conviction, the Court “consider[ed] that [Moyer] was

familiar with the intersection and had driven through it many times” and

therefore “infered [sic] that she knew she was turning onto a busy street and

knew that a building partially obscured the view of cross traffic on one side”).

Brown admitted to investigators that he regularly traveled that same route.

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See N.T., 5/30/2024, at 6 (“[Brown] acknowledged that his primary route

from his home to work every day was utilizing [the road], specifically the

segment of road where the crash occurred.”). Thus, the photographs were

relevant to show the dip, which, in turn, was relevant to whether Brown acted

recklessly when he chose to pass DeWalt’s vehicle. The trial court did not err

in concluding that the probative value of this evidence outweighed any

prejudicial effect, and the jury was well aware that the crash occurred at night.

Testimony of Corporal Geoffrey Bush

Brown’s fifth and final claim is that the trial court erred by allowing the

Commonwealth to introduce evidence during the testimony of Corporal

Geoffrey Bush, who provided driving instruction to Brown when he was a PSP

cadet. Brown’s Brief at 69-71. He confirmed that Brown received a hard copy

of a PowerPoint presentation provided to the cadets. The Commonwealth

introduced slides from this training, including material addressing defensive

driving and the dangers of nighttime driving. See N.T., 5/29/2024, at 176-

80. Brown sought to exclude these slides in pretrial motions.

The Commonwealth argues that the claim is waived because it was not

raised in Brown’s Rule 1925(b) statement. We agree that this claim was not

included in his concise statement of matters complained of on appeal, nor was

it fairly suggested by any issue raise therein, and is therefore waived on that

basis. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the [s]tatement

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and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived”).

While this issue will likely recur, we decline to exercise our discretion to

review this issue. Evidentiary issues are subject to an abuse of discretion

standard, Commonwealth v. Rivera, 983 A.2d 1211, 1228 (Pa. 2009), and

we lack the benefit of the trial court’s rationale as a result of Brown’s failure

to include the claim in his concise statement. Moreover, the briefing on this

issue is necessarily without reference to the trial court’s reasoning. We are in

no position to disapprove the ruling as Brown requests, since we cannot

“specifically explain how the trial court abused its discretion.”

Commonwealth v. DiStefano, 265 A.3d 290, 298 (Pa. 2021). The briefing

is therefore inadequate for this Court to conduct a review of the claim. See

Drum v. Shaull Equip. & Supply Co., 787 A.2d 1050, 1059 (Pa. Super.

2001) (opting to address issue likely to recur on remand where the issue

“ha[d] been briefed adequately”).

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Conclusion

Judgment of sentence for homicide by vehicle vacated. Case remanded

for a new trial on that charge. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 2/2/2026

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