Commonwealth v. Selenski

117 A.3d 1283, 2015 Pa. Super. 126, 2015 Pa. Super. LEXIS 287, 2015 WL 3397058
CourtSuperior Court of Pennsylvania
DecidedMay 27, 2015
Docket352 EDA 2010
StatusPublished
Cited by8 cases

This text of 117 A.3d 1283 (Commonwealth v. Selenski) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Selenski, 117 A.3d 1283, 2015 Pa. Super. 126, 2015 Pa. Super. LEXIS 287, 2015 WL 3397058 (Pa. Ct. App. 2015).

Opinion

OPINION BY

DONOHUE, J.:

Appellant, Hugo Marcus Selenski (“Sel-enski”), appeals from the judgment of sentence entered by the Court of Common Pleas, Monroe County, on September 21, 2009. This case returns to this Court on remand from the Pennsylvania Supreme Court. For the reasons that follow, we remand this case to the trial court.

A summary of the relevant facts and procedural history is as follows. On January 27, 2003, Samuel Goosay (“Goosay”), a jewelry store owner, was assaulted and burglarized in his home by two masked individuals. Goosay was restrained with flex ties and had duct tape placed over his eyes. At one point, Goosay was able to remove the duct tape from one of his eyes, and saw the face of one of the individuals. After informing police of the incident, Goo-say reviewed two photo arrays that included Selenski’s photograph. Goosay was unable to identify Selenski at that time. In January 2005, however, Goosay reviewed another photo array and identified Selen-ski.

On October 27, 2006, Selenski was charged with one count of each of the following: kidnapping to facilitate a felony, 18 Pa.C.S.A. § 2901(a)(2); robbery— threat of immediate or serious injury, 18 Pa.C.S.A. § 3701(a)(1)(h); criminal attempt — burglary, 18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 3502(a); criminal conspiracy engaging-robbery, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3701(a)(2); criminal conspiracy engaging — burglary, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3502(a); theft by unlawful taking — movable property, 18 Pa.C.S.A. § 3921(a); criminal conspiracy engaging — theft by unlawful taking — movable property, 18 Pa. C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3921(a); simple assault, 18 Pa.C.S.A. § 2701(a); and false imprisonment, 18 Pa.C.S.A. § 2903(a). Selenski was also charged with *1284 two counts of each of the following: terror-istic threats with intent to terrorize another, 18 Pa.C.S.A. § 2706(a)(1); criminal conspiracy engaging — simple assault, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 2701(a); and criminal conspiracy engaging — robbery—threat of immediate or serious injury, 18 Pa.C.S.A. § 903(a)(1), 18 Pa.C.S.A. § 3701(a)(1)(h). 1

On June 22, 2007, prior to trial being scheduled, Selenski filed a motion in limine seeking to admit “expert testimony from Dr. Solomon Fulero [ (“Dr. Fulero”) ], a leading expert on human memory, concerning the psychological factors that influence the accuracy of eyewitness identifi-eations[.]” Selenski’s Motion in Limine, 6/22/07, at 1-2. The trial court denied Selenski’s motion on June 25, 2007.

On July 3, 2007, Selenski filed a motion for reconsideration and a memorandum in support of the motion. The trial court denied the motion on July 5, 2007. Selen-ski thereafter filed a notice of appeal to this Court on July 26, 2007. On August 7, 2008, -a panel of this Court quashed Selen-ski’s appeal as interlocutory. Our Supreme Court denied Selenski’s petition for allowance of appeal on March 11, 2009.

A jury trial commenced on July 8, 2009. On July 10, 2009, at the conclusion of trial, the jury found Selenski guilty of all charges. The trial court sentenced Selen-ski on September 21, 2009 to an aggregate term of thirty-two and one-half years - to sixty-five years of incarceration.

Following the denial of his post-sentence motions, Selenski filed a timely notice of appeal to this Court on February 1, 2010, raising four issues for review. On April 20, 2011, a panel of this Court affirmed Selenski’s judgment of sentence. In its published Opinion, the panel held, in relevant part, that Selenski’s claim that the trial court violated his constitutional right to present a defense by “precluding expert testimony on the subject of human memory and perception as it relates to the identification process” did not merit relief. Commonwealth v. Selenski, 18 A.3d 1229, 1232-33 (Pa.Super.2011). In reaching its decision on this issue, the panel concluded that Selenski failed to identify an abuse of discretion as the trial court adhered to established case law, noting “the longstanding principle guarding the jury’s function of deciding credibility by prohibiting expert testimony on the reliability of eyewitness identifications.” Id.

On May 20, 2011, Selenski filed a petition for allowance of appeal to the Pennsylvania Supreme Court. On August 29, 2014, our Supreme Court vacated this Court’s decision, granted Selenski’s petition limited to the question concerning the trial court’s exclusion of the aforementioned expert testimony, and remanded the case to this Court for consideration of Selenski’s claim in light of Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766 (2014). See Commonwealth v. Selenski, - Pa. -, 100 A.3d 206 (2014). On remand, we are asked to address the following issue:

Does the constitutional right to present a defense include the right to offer proven science bearing on the understanding of human memory and perception, and police practices in the identification process, where those advances are unknown to laypersons?

Selenski’s Brief at 6.

For over twenty years, Pennsylvania case law placed a per se ban on expert testimony regarding the reliability of eye *1285 witness identification, holding that such testimony would “intrude upon the jury’s basic function of deciding credibility.” See Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1182 (1993); Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 631 (1995). Recently, our Supreme Court in Walker reversed course, holding that “the admission of expert testimony regarding eyewitness identification is no longer per se impermissible in our Commonwealth[.]” See Walker, 92 A.3d at 792-93. In so doing, the Walker Court joined the trend among state and federal courts to permit testimony regarding the fallibility of eyewitness identification in light of “advances in scientific study ... that eyewitnesses are apt to erroneously identify a person as the perpetrator of a crime when certain factors are present.” Id. at 782-83.

The Supreme Court indicated that “such expert testimony would be limited to certain cases[,]” and trial courts must exercise their traditional role in determining the admissibility of expert testimony, including pursuant to Rules 401, 403, and 702 of the Pennsylvania Rules of Evidence. Id. at 787, 789-91. In particular, the Walker Court explained:

We now allow for the possibility that such expert testimony on the limited issue of eyewitness identification as raised in this appeal may be admissible, at the discretion of the trial court, and assuming the expert is qualified, the proffered testimony relevant, and will assist the trier of fact.

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Cite This Page — Counsel Stack

Bluebook (online)
117 A.3d 1283, 2015 Pa. Super. 126, 2015 Pa. Super. LEXIS 287, 2015 WL 3397058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-selenski-pasuperct-2015.