Opinion
J-13-2016 No. 33 WAP 2014
07-19-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. RYAN D. SAFKA, Appellant
[MO: Baer, J.] Appeal from the Order of the Superior Court entered June 2, 2014 at No. 1312 WDA 2012, affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered June 26, 2012 at No. CP-02-CR-0013937-2010. DISSENTING OPINION JUSTICE DONOHUE
With this decision, the esteemed Majority improperly authorizes trial courts hearing criminal trials without a jury to disregard the Commonwealth's decision to rest on its evidence. In my opinion, in a non-jury criminal trial, the trial court may not, after the evidence has closed, re-open the record on its own initiative to provide the Commonwealth with a second chance at proving its case. Both due process and the Pennsylvania Rules of Criminal Procedure demand that the Commonwealth carry its heavy burden of proof during trial. The Majority here not only eviscerates this fundamental principle, but does so on a per se (and thus unreviewable) basis, as it establishes no standards or limitations on the exercise of this newfound power. For these overarching reasons, I respectfully dissent.
In the present vehicular manslaughter case, the Commonwealth had the burden beyond a reasonable doubt to prove to the trial court, as factfinder, that Appellant had been driving recklessly or with gross negligence. Absent evidence of the involvement of drugs or alcohol, the Commonwealth sought to prove that the accident occurred because Appellant was driving at a reckless or grossly negligent speed well in excess of the posted limit of 50 miles per hour (mph). The Commonwealth's evidence as to speed primarily consisted of testimony from Pennsylvania State Trooper Mark Kern, an accident reconstructionist. Trooper Kern offered two kinds of testimony at trial. First, he offered testimony based on his assessment of the damage done to Appellant's vehicle and the road surface shortly after the accident (the "non-EDR evidence"). Second, he testified about data he extracted from the car's Event Data Recorder ("EDR").
Regarding the non-EDR evidence, Trooper Kern testified that "[b]ased upon the tire marks alone," he "estimated ... a minimum speed of 49 miles an hour needed to produce that set of tire marks at that distance." N.T., 2/6/2012, at 63. Later, he clarified that "[t]he speed I gave you on those numbers, the 49 [mph] to 60 [mph] that we spoke about from the tire marks, is the distance from the concrete median -- the speed from the median to -- the jersey barrier to the guardrail area." Id. at 87. He further testified that the "minimum speed at the exit point of that guardrail was approximately 67 [mph]." Id. at 62.
In significant contrast, Trooper Kern testified that the EDR data showed that the car was moving at a speed of 106 mph at five seconds before the airbags deployed and decreased incrementally down to 70 mph at one second before the airbags deployed. Id. at 71. The trial court allowed Trooper Kern to testify about the EDR data despite defense counsel's oral motion in limine at the start of trial arguing for the exclusion of the EDR data because it lacked any indicia of reliability, including the lack of certification or calibration as required for radar devices and breathalyzers. Id. at 12. In response to the motion in limine, the trial court explained that it would rule on the EDR data's admissibility and/or weight "in the normal course of when it comes in." Id. During Trooper Kern's testimony, it became immediately apparent that he could neither authenticate the EDR evidence nor offer any basis to establish its reliability. Trooper Kern indicated that while he knew how to download EDR data, he could not explain how EDR modules work from a technical standpoint, either generally or in specific circumstances like the one at issue here. Id. at 94 ("All I know is ... I know there has to be a deployment event for it to be activated in most cases and under certain circumstances it is able to capture specific data. And then I know how to download that information into a printable report."). Trooper Kern further testified that, to his understanding, there is no uniformity within the automotive industry regarding how much data is recorded by an EDR, and that EDR devices are not calibrated or certified for accuracy by any independent agency. Id. at 67, 89-90, 95-96.
The Majority insists that Appellant should have filed a pre-trial challenge to the accuracy and reliability of the EDR evidence, and that Appellant's failure to do so led to the trial court's "struggle to determine, on its own," whether to admit the EDR evidence. Majority Op. at 3, 20 n.19. It is beyond cavil, however, that at trial the party seeking the introduction of evidence must, absent a pre-trial stipulation, lay a proper foundation for its admission. See, e.g., Commonwealth v. Edwards, 903 A.2d 1139, 1155-57 (Pa. 2006). In this case, it was the Commonwealth's failure to provide evidentiary support for the introduction of the EDR data that lead to the trial court's "struggle" over admissibility. Any notion that a party must put opposing counsel on notice of its obligation to lay a foundation for its evidence is unfathomable to me. The Commonwealth knew, or certainly should have known, of its obligation to proffer the necessary evidence to provide a sufficient foundation for introduction of its EDR evidence, regardless of whether or not the Appellant affirmatively challenged its introduction pre-trial.
Nevertheless, following the Commonwealth's case-in-chief, the trial court initially stated it would deny Appellant's motion in limine, and "would consider the [EDR] evidence admissible," noting its obligation as factfinder to "determine what weight to give it." N.T., 2/7/2012, at 139. During closing arguments, however, defense counsel again argued that the EDR data was unreliable and, in response, the trial court began to backtrack on its admissibility ruling, asking the Commonwealth:
At this point, the trial court noted that it would treat Appellant's motion in limine as a motion for judgment of acquittal and denied that motion as well. N.T., 2/7/2012, at 139.
Don't we need to have a baseline here for someone, perhaps from Chrysler Motors, to come in and say, this is what the [EDR] module is, this is how it works, this is how it gathers the data? He just gathered the data.Id. at 152. Even more directly, the trial court asked the Commonwealth, "How do we know this [EDR] data is accurate?," id. at 153, and openly questioned whether the non-EDR evidence alone (which, unlike the EDR device, did not establish a top speed far in excess of the posted speed limit) was sufficient to prove Appellant's recklessness or gross negligence:
If the [c]ourt were to agree with [defense counsel] that the [EDR] module is not sufficiently reliable, then we would have to go back to the other issue of the speed. ... And the problem there is that the accident reconstruction expert said a minimum speed of 49 miles an hour, which is still below the speed limit. ... Where does the court gather a speed from the evidence absent the [EDR] module?Id. at 156.
The Commonwealth also introduced non-EDR evidence in the form of testimony from Brendon Johnson, Appellant's front seat passenger the night of the crash. Based upon the significance it placed on the EDR data, the trial court clearly placed little or no weight on Johnson's testimony, perhaps because he did not have a driver's license and had never driven a car. Id. at 124.
After closing arguments, the trial court indicated that it was taking the case under advisement and would render a verdict the next morning. Id. at 158. The next morning, however, the trial court explained that it was not prepared to return a verdict because it had doubts related to the admissibility of the EDR data, as raised in Appellant's motion in limine. See id. at 159. The court noted that "the sole issue upon which this case rested is one of speed and what constitutes recklessness or gross negligence." Id. at 160-61. It added that "the case law ... requires that the Commonwealth set forth evidence of recklessness or gross negligence," and that the Commonwealth relied upon the EDR evidence purportedly establishing that the car's speed reached between 70 and 106 mph to satisfy its burden. Id. "We presume, because there is no testimony [in] that regard" that the EDR "records data from the vehicle." Id. Referring to its own legal research, the trial court noted it found "no Pennsylvania case law which permits" the use of the EDR data. Id. at 163. As such, it concluded that "there is no precedent for introducing" the evidence indicating speeds up to 106 mph. Id.
Finally, effectively reversing its prior decision to consider what weight to give to the evidence, the trial court ruled that the Commonwealth had not authenticated the EDR evidence. Specifically, the trial court emphasized that "ultimately, where we are here is that were a jury in the box, I would not at this point have permitted the Commonwealth to introduce the evidence of the event data recorder. ... But the problem I have is now as the judge of the law how do I tell the judge as the fact finder how to consider it. And I do not believe that I have sufficient data on the record to do that." Id. at 164.
Rather than entering a judgment of acquittal in favor of Appellant, the court instead announced that it would sua sponte re-open the evidentiary record for additional testimony regarding the reliability of the EDR data. Id. On February 14, 2012, Appellant filed a petition for habeas corpus and entry of verdict (the "Habeas Petition"), in which he again challenged the admissibility of the EDR evidence given the Commonwealth's failure to introduce any foundational evidence in support of its reliability. Habeas Petition, 2/14/2012, ¶¶ 2-8. Appellant objected to the re-opening of the record on constitutional grounds, argued that the Commonwealth had not proven its case with regard to recklessness at the time it rested, and demanded entry of a verdict without re-opening the record. Id. ¶¶ 9-13, Wherefore Clause.
With due deference to the Majority, its contention that "the trial court was ready to render a guilty verdict before deciding to give Appellant another opportunity to explore the issue" is entirely without support in the record. Majority Op. at 14 n.14. To the contrary, as set forth herein, the record plainly reflects that the trial court was far from "ready to render a guilty verdict," as it considered the EDR evidence to be dispositive of Appellant's criminal liability and it lacked "sufficient data on the record" to admit that evidence. N.T., 2/7/2012, at 164 ("were a jury in the box, I would not at this point have permitted the Commonwealth to introduce the evidence of the event data recorder"). Any reasonable review of the certified record reflects that the trial court re-opened the evidentiary record for the benefit of the Commonwealth (to meet its burden of proof), and not, as the Majority claims, for the benefit of Appellant.
At the resumption of the trial on February 21, 2012, the trial court denied Appellant's Habeas Petition. N.T., 2/21/2012, at 169. Following testimony by Richard Ruth, an EDR expert for the Commonwealth, the trial court found Appellant guilty as to all counts charged. N.T., 2/21/2012, at 233. Summarizing the non-EDR testimony, the court noted that "[v]irtually none of that testimony would evidence criminality." Id. at 231. The court continued:
Speeding alone may be negligence. It is only when speed reaches a certain point that one can say that it encompasses criminal liability. Relying on the event data recorder,
however, gives us a speed of 106 miles per hour five seconds before the airbag deployment with no braking. ... [The] [c]ourt finds [-] from the event data recorder [-] admissible, sufficient and compelling scientific evidence upon which the fact finder can rely in determining a verdict. The [c]ourt further finds that, relying upon the evidence of the event data recorder, the Commonwealth has proven the elements of the offenses beyond a reasonable doubt.Id. at 231-32.
The United States Supreme Court has articulated the government's burden in a criminal case in the most certain terms. Due process demands that the government fulfill an affirmative duty to persuade the factfinder of the defendant's guilt:
There is always in litigation a margin of error, representing error in fact-finding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of convincing the factfinder of his guilt. To this end, the reasonable-doubt standard is indispensable, for it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.In re Winship, 397 U.S. 358, 364 (1970) (internal citations and quotations omitted) (emphasis added).
This Court has reinforced the directive with indistinguishable vigor:
It is beyond cavil that an accused in a criminal case is clothed with a presumption of innocence and that the burden of proof in establishing guilt rests with the Commonwealth. The quantum of proof necessary to satisfy this burden, which never shifts from the Commonwealth to the accused, is such that the fact-finder must be convinced beyond a reasonable doubt of the defendant's guilt. We have often stated that this identical burden extends to every material element of the crime charged and that if the Commonwealth fails to carry
this burden beyond a reasonable doubt as to any one element, the accused must be acquitted.Commonwealth v. Bishop, 372 A.2d 794, 796 (Pa. 1977) (internal citations omitted) (emphasis added).
Moreover, our Rules of Criminal Procedure require that the Commonwealth must carry its burden of proof in its case-in-chief and at the close of all the evidence. Rules 606(A)(1) and (2) of the Pennsylvania Rules of Criminal Procedure provide that a criminal defendant may challenge the sufficiency of the evidence either "at the close of the Commonwealth's case-in-chief" or "at the close of all the evidence." Pa.R.Crim.P. 606(A)(1)-(2). At either of these two stages of trial, a criminal defendant may file a motion for judgment of acquittal, which must be granted if the Commonwealth has not introduced sufficient evidence to prove the elements of the charged offenses beyond a reasonable doubt. See generally Smalis v. Pennsylvania, 476 U.S. 140, 141 (1986) (holding that, at a bench trial, the trial court's grant of a demurrer of acquittal at the close of the Commonwealth's case-in-chief, based upon the insufficiency of the evidence presented, was final and not subject to appeal, as reversal could result in further proceedings "devoted to the resolution of factual issues going to the elements of the offense charged") (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 570 (1977)).
In this case, when the parties rested, the trial court, by its own admission, lacked a sufficient basis to permit the introduction of the EDR evidence which, also by the trial court's own admission, was the sole basis upon which it later reached its finding of criminal recklessness/negligence beyond a reasonable doubt. Nevertheless, the trial court denied Appellant's Habeas Petition and instead re-opened the record to admit additional evidence -- upon which it then exclusively relied to find Appellant guilty. This represents an error of law. The trial court had no discretion to sua sponte supplement the record at this stage.
Until now, a criminal defendant's waiver of his right to a jury trial did not constitute the surrender of his right to an impartial factfinder. The bench trial defendant merely agreed to have the trial court play two roles -- its traditional judicial role of deciding evidentiary issues and the jury's traditional role as neutral factfinder. See Commonwealth v. Quarles, 456 A.2d 188, 191 (Pa. Super. 1983) (explaining that, in waiving a jury trial, "[a]ppellant merely relinquished his right to have a jury as a factfinder as opposed to a judge"). At the close of the evidence, the bench trial judge's role as evidentiary gatekeeper expires, just as it would during a jury trial. See Commonwealth v. Henderson, 298 A.2d 891, 892 (Pa. 1973) ("The trial judge, as the trier of fact, is [b]ound by the same legal principles that bind a jury on burden of proof."). From that point forward, the trial judge serves only as the substitute factfinder, weighing the evidence and assessing the credibility of witnesses. Because it is beyond peradventure that a jury is not entitled to request additional evidence during deliberations, a bench trial judge must clearly lack this power as well. See Quarles, 456 A.2d at 191 ("The requirement that the Commonwealth convince the factfinder that a defendant is guilty beyond a reasonable doubt is not unique to a jury trial; this is the identical burden of proof that is applied in a bench trial.").
The Majority's outcome in this case is necessarily premised on an unstated assumption that a criminal defendant who waives his right to a jury trial also necessarily waives any requirement that the Commonwealth prove its case against him beyond a reasonable doubt by the close of the evidence. Today's ruling calls into serious question the continued viability of Rule 606(A) of our Rules of Criminal Procedure, since in response to any motion for judgment of acquittal based upon the insufficiency of the Commonwealth's evidence, the trial court, rather than grant the motion, may instead sua sponte re-open the record to provide the Commonwealth with a second bite at the proverbial apple. Moreover, because (as discussed infra) the Court places no standards on the trial court's apparently unlimited power to re-open the record to assist the Commonwealth in its efforts to satisfy its evidentiary burden, presumably the record could be re-opened on multiple occasions as the trial court, in its sole (and unreviewable) discretion, determines to be necessary to secure a conviction.
The Majority claims to derive support for its holding from "Pennsylvania's well-established rule that, upon request by a party, a court may re-open the record to prevent" a miscarriage of justice, characterizing the instant case as "analogous" to this rule. See Majority Op. at 2 (citing Commonwealth v. Baldwin, 58 A.3d 754, 763 (Pa. 2012)) (emphasis added); see also Commonwealth v. Tharp, 575 A.2d 557, 559 (Pa. 1990 (granting the motion of a party to re-open the record). Where the Majority perceives an analogy, I observe a patent distinction. Unlike the Majority's holding, Baldwin's rule preserves the constitutional mandate that the Commonwealth is responsible for proving its case. Baldwin, 58 A.3d at 760. Baldwin is premised on the notion that a party, as an advocate, has determined that it may not prevail without introducing additional evidence, and has therefore requested that an exception be made to "the rule generally limiting testimony to the evidence-taking stage of a trial." Id. at 760-61, 764. This rationale neither suggests, nor is even consistent with, the notion that a trial court, in its role as an impartial factfinder (and thus plainly not an advocate for either side), may re-open the record to take additional evidence.
In Baldwin, we affirmed the Superior Court's holding that the trial court did not abuse its discretion in refusing to re-open the record to allow the defendant to testify, where defendant had voluntarily waived his right to testify and provided no excuse for his change of tack. Baldwin, 58 A.3d at 760-64.
As reviewed hereinabove, the trial court here repeatedly indicated, at various times during the trial, that it questioned the reliability of the EDR evidence and the Commonwealth's failure to authenticate it. The Commonwealth, however, persisted in its decision not to introduce any testimony regarding its accuracy (even though the EDR data identified a speed nearly 40 mph greater than Trooper Kern's non-EDR evidence). Nor did the Commonwealth make a motion to the court to re-open the record following closing arguments, even though the trial court again signaled during closing arguments its discomfort with the Commonwealth's lack of foundation for the introduction of the EDR evidence. Instead, the trial court, on its own accord, announced it would re-open the record after the parties had rested and closed. N.T., 2/7/2012, at 152-56. As even the Majority acknowledges, there is no discussion, either in Baldwin or elsewhere in current Pennsylvania jurisprudence, condoning the decision of a trial court to re-open the evidentiary record sua sponte. See Majority Op. at 17. Baldwin is simply not on point.
It bears emphasizing that, in Baldwin, this Court affirmed the application of a multi-factor standard of review to determine whether a trial court abused its discretion in deciding whether or not to re-open a record. See Baldwin, 58 A.3d at 763-64 (noting that the "same factors apply to either party making the request"). In determining whether "re-opening the case is necessary to prevent a miscarriage of justice," this Court in Baldwin indicated that the trial court should consider, inter alia, the following factors: the timing of the request to re-open; the nature of the proffered testimony; the reason for the party's failure to present such evidence during its case-in-chief; the relative weight of the proffered testimony against the potential for disruption or prejudice; and reasonableness of the party's excuse for failing to present such evidence sooner. Id. at 763-64. Although, for the reasons previously set forth, I disagree with the Majority's reliance on Baldwin as support for the authority of a non-jury trial judge to sua sponte re-open the evidentiary record, if Baldwin is to be our guide, so too should its multi-factor analysis.
The Majority relies on Baldwin but fails to apply it and does not require that a non-jury trial court consider its factors when it sua sponte opens the record to take further evidence. If applied, the Baldwin factors strongly weigh against re-opening the record in this case. Given its clear evidentiary obligations, as well as the trial court's numerous comments regarding the lack of foundation for the introduction of the EDR evidence, the Commonwealth had no excuse for failing to present the testimony of an EDR expert during its case-in-chief. Nor did the Commonwealth present a motion asking to re-open the record when the trial court made clear its lack of confidence in the Commonwealth's EDR evidence during closing arguments. The Commonwealth plainly made a decision to stand on its proof. The prejudice to Appellant was palpable, as it resulted in his conviction rather than his acquittal.
Perhaps most distressingly, the Majority gives no indication as to what "miscarriage of justice" it believes the trial court prevented in this case. I can only surmise that the Majority did not articulate the "miscarriage of justice" prevented here because it is not possible to identify one. Absence of conviction is not a "miscarriage of justice," but merely the consequence of the Commonwealth's failure to meet its burden of proof of a defendant's guilt beyond a reasonable doubt. By failing to apply the Baldwin multi-factor test, or to otherwise establish any limitations whatsoever on the non-jury trial court's authority to re-open an evidentiary record, the result of today's decision is that a trial court's ability to do so, sua sponte at its unfettered discretion, is both unrestrained and not subject to appellate review. While the Majority states that a trial court does not abuse its discretion if it "believes that preventing a miscarriage of justice requires re-opening the record," Majority Op. at 19, in the absence of a Baldwin multi-factor type analysis, no basis exists for appellate review of the exercise of discretion. Certainly no such basis exists for determining whether the trial court abused its discretion in this case, as the Majority has not even identified the miscarriage of justice allegedly prevented here, much less applied the Baldwin multi-factor test intended to guide the trial court's decision.
It is manifestly clear from the trial transcript that before the trial court re-opened the record for additional testimony about the EDR data, it did not believe the EDR data was admissible. N.T., 2/7/2012, at 164. The trial court also admitted that the non-EDR evidence was insufficient to convict Appellant. Id. at 231 (acknowledging that "[v]irtually none of [the non-EDR] testimony would evidence criminality"). It is also clear from the record, following additional testimony from the Commonwealth's EDR expert, that the trial court only then found "the EDR admissible, sufficient and compelling scientific evidence upon which the fact finder can rely in determining a verdict," and that "relying upon the evidence of the EDR, the Commonwealth has proven the elements of the offenses beyond a reasonable doubt." Id. The trial court's subsequent assertion in its 1925(a) opinion that it does "not agree that the additional evidence was the difference between verdicts of not guilty and guilty" is entirely contradicted by the trial court's numerous comments on the record. Trial Court Opinion, 12/27/12, at 7. I would therefore hold that, even pursuant to Baldwin, the Majority's holding is unsupported.
Notably, during post-trial proceedings, counsel for Appellant questioned the court as to whether "[t]he evidence contained in the [EDR] and its admission played a critical role in the [c]ourt's decision." The trial court responded, "That would be correct. I even said that." N.T., 6/26/2012, at 9.
Finally, the Majority cites Pennsylvania Rules of Evidence 611(a) and 104 to establish that a judge in a non-jury trial has the authority to control the order and presentation of evidence and "should be empowered to hear any relevant evidence to resolve questions of admissibility." Majority Op. at 18. The Majority also points to Rules 614(a) and 706 to establish that the trial court is empowered "to call a witness on its own" and "appoint an expert witness and call that witness to testify." See Majority Op. at 18. True enough. But there is simply no support for the Majority's conclusion, based on these rules, that "the trial court's discretion to re-open the record is not cabined by a party's request to do so," nor limited to the evidence-taking phase of a trial, which ends when the parties rest. Id.
By way of clarification, Rule 706 does not actually affect the scope of the trial court's power to appoint experts; it "provides only the procedures for obtaining the testimony of experts after the court has appointed them." See Pa.R.E. 706, Comment. --------
In summary, I believe it is error to confer authority upon a trial court to re-open the evidentiary record sua sponte. Accordingly, I would reverse the decision of the Superior Court, vacate the judgment of sentence, vacate the trial court's denial of Appellant's Habeas Petition, and remand for the trial court to enter a verdict based on the evidence of record at the time the Habeas Petition was filed -- after the parties rested and before the evidentiary record was improperly re-opened. On remand, I would trust the trial court to candidly assess its record expressions of concern when the parties rested their cases respecting the lack of foundation for the EDR evidence and the insufficiency of the non-EDR evidence.
I respectfully dissent.