Opinion
J-S19034-18 No. 48 EDA 2017
07-02-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. ISSA BENOIT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 16, 2009 in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012147-2007 BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Issa Benoit, appeals from the judgment of sentence imposed on January 16, 2009, following his jury conviction of attempted murder, aggravated assault, firearms not to be carried without a license, carrying firearms on the public streets of Philadelphia, and possession of an instrument of crime. After remand, sentence was finalized on December 8, 2016, when the trial court denied Appellant's motion in limine to admit expert testimony on the unreliability of eyewitness identification. Appellant also challenges the discretionary aspects of the sentence. We affirm on the basis of the trial court opinion.
As counsel properly appealed from the judgment of sentence, this is a direct appeal, not an appeal from a PCRA order, and we have amended the caption accordingly.
This case returns to us after a preceding panel affirmed the judgment of sentence, rejecting a challenge to the sufficiency of the evidence. ( See Commonwealth v. Benoit , No. 692 EDA 2015, 2016 WL 783865, at *5 (Pa. Super. filed February 29, 2016) (unpublished memorandum)). However, the panel remanded the case to the trial court for consideration of Appellant's challenge to eyewitness identification, pursuant to Commonwealth v. Walker , 92 A.3d 766, 769 (Pa. 2014). ( See id.). The Walker Court abolished Pennsylvania's per se prohibition against the admission of expert testimony regarding eyewitness identifications in criminal cases, leaving the admissibility of such expert testimony to the discretion of the trial court. Here, prior to our Supreme Court's decision in Walker , the trial court had denied Appellant's proffer of expert testimony on eyewitness identification, under then-controlling authority.
See e.g., Commonwealth v. Spence , 627 A.2d 1176, 1182 (Pa. 1993) (holding expert opinion not allowed to intrude on jury's basic function of deciding credibility).
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. ( See Trial Court Opinion, 8/17/17, at 3-5). Therefore, we need not restate them at length here. For the convenience of the reader, we note briefly that Appellant's jury conviction arose, among other things, out of Appellant's firing his handgun point blank at one of two Philadelphia police officers on the Narcotics Strike Force who had put Appellant under surveillance from a minivan for about fifteen minutes while he engaged in the apparent sale of narcotics.
On January 16, 2009, the trial court sentenced Appellant to an aggregate term of not less than seventeen nor more than thirty-four years of incarceration, to be followed by three years of probation. Following the trial court's denial of Appellant's motion for a new trial and to admit expert testimony on eyewitness identification, Appellant timely appealed. He filed a court-ordered statement of errors on April 6, 2017. The trial court filed an opinion on August 17, 2017.
Appellant filed a timely post-sentence motion, which was denied. His direct appeal rights were reinstated after his then-counsel failed to file a brief.
Appellant raises three questions for our review:
[1.] Is the Appellant is [sic] entitled to a new sentence hearing when the trial court imposed a sentence which was outside the sentence guidelines and the trial court in its statement of the reasons for the sentence showed partiality toward the complainant and trial court also considered arrests that did not result in convictions, the climate in the city and what was happening to police officers which were matters that the defendant [sic] was not responsible for or could control?
[2.] Did the trial court err in denying [A]ppellant a new trial where [A]ppellant could present expert witness testimony regarding the unreliability of eye-witness identification in the circumstances of this case when the Commonwealth's entire case rested solely on the eyewitness testimony?
[3.] Did the trial court err in asserting that because of the delay from the trial to a retrial the Commonwealth would not be able to get a fair trial if the [c]ourt allowed expert witness
testimony as to the eyewitness identification in this case when prejudice to the Commonwealth's case is not one of the factors that a court is allowed to consider in deciding if this testimony is admissible?(Appellant's Brief, at 2).
We note, as aptly observed by the Commonwealth, that Appellant's brief does not comply with this Court's font requirements. ( See Commonwealth's Brief, at 5 n.3); see also Pa.R.A.P. 124(a)(4) (Lettering shall be no smaller than 14 point in the text and 12 point in footnotes). Counsel for Appellant also fails to provide any standard of review, confuses scope of review with standard of review, and mis-cites the scopes of review he does provide. ( See Appellant's Brief, at 1).
The trial court properly identifies the applicable standards of review including review of challenges to the admission of expert testimony. We add the following observations from controlling authority only for further clarity.
The admission of expert testimony is a matter committed to the discretion of the trial court and will not be disturbed absent an abuse of that discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.Nobles v. Staples , Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations and internal quotation marks omitted). Pennsylvania Rule of Evidence 702 permits expert testimony on subjects concerning knowledge beyond that possessed by a layperson. See Pa.R.E. 702(a). "[I]t is the job of the trial court to 'assess the expert's testimony to determine whether the expert's testimony reflects the application of expertise or strays into matters of common knowledge.' " Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014) (citations omitted).
Trial courts will exercise their traditional role in using their discretion to weigh the admissibility of such expert testimony on a case-by-case basis. It will be up to the trial court to determine when such expert testimony is appropriate. . . . The admission must be properly tailored to whether the testimony will focus on particular characteristics of the identification at issue and explain how those characteristics call into question the reliability of the identification. We find the defendant must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert's testimony is relevant to the eyewitness identifications under consideration and how it will assist the jury in its evaluation.Walker , supra at 792 (emphasis added).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that there is no merit to any of the issues Appellant has raised on appeal. The trial court opinion properly disposes of the questions presented. ( See Trial Ct. Op., 8/17/17, at 5-14, concluding: (1) trial court, which had benefit of presentence investigation report, properly exercised its discretion in sentencing Appellant in aggravated range for attempted murder of police officer and related offenses; (2) trial court properly exercised its discretion, after hearing, in deciding that impact of expert's testimony on various Walker factors would not be sufficiently relevant or significant enough to justify new trial, where trained, experienced police officers who specialized in surveillance had extended opportunities to observe Appellant for fifteen minutes, before he approached their van and began shooting; speaking to them before opening fire; and (3) incidental comments of trial court judge confirming credibility of testifying officer with casual reference to personal experience do not establish partiality, prejudice, bias or ill will, and fail to establish manifest abuse of discretion, where trial court expressly based its rulings on objective principles of applicable law).
Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/2/18
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