J-A14016-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMONT CHERRY
Appellant
No. 245 MDA 2012
Appeal from the Judgment of Sentence December 21, 2011
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003610-2009
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J.
FILED JULY 12, 2013
Appellant, Lamont Cherry, appeals from the judgment of sentence
entered December 21, 2011, by the Honorable Tina Polachek Gartley, Court
of Common Pleas of Luzerne County. We affirm.
Following a jury trial on October 20, 2011,1 Cherry was convicted of
third degree murder in the death of one-year-old Zalayia McCloe.
On
December 21, 2011, the trial court sentenced Cherry to a term of 20 to 40
years’ imprisonment.
Thereafter, the court denied Cherry’s post-sentence
motion on January 10, 2012. This timely appeal followed.
On appeal, Cherry raises the following issue for our review:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
A first jury trial, which concluded on January 14, 2011, was declared a
mistrial.
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Did the trial court abuse its discretion when over defense
objection, it allowed a police officer to comment on a defendant’s
credibility?
Appellant’s Brief, at 2.
We note that the “[a]dmission of evidence is within the sound
discretion of the trial court and will be reversed only upon a showing that the
trial court clearly abused its discretion.” Commonwealth v. Washington,
63 A.3d 797, 805 (Pa. Super. 2013) (citation omitted).
“An abuse of
discretion is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown
by the evidence of record.” Commonwealth v. Serrano, 61 A.3d 279, 290
(Pa. Super. 2013) (citation omitted).
Instantly, Cherry argues the trial court erred when it permitted WilkesBarre Police Officer Christopher Hardy to testify, over defense objection, that
Cherry seemed “evasive” when questioned at the scene of Zalayia’s death.
The pertinent exchange between the Assistant District Attorney and Officer
Hardy was as follows:
Q: Patrolman Hardy, when you spoke to the Defendant, did you
have the opportunity to observe his demeanor?
A: Yes.
Q: And how would you describe his demeanor?
A: He was very calm. He was quiet. He didn’t provide any
more information than I asked for. He was very quick and short
in his answers. I’d label him as evasive. Multiple times he said
no, he didn’t know what happened…. While speaking with him,
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he wouldn’t make eye contact. He stood off-center to me,
looking away, just overly calm and disinterested.
N.T., Jury Trial, 10/17/11 at 174-175.
Cherry essentially argues on appeal that, in describing Cherry as
evasive, Officer Hardy usurped the jury’s duty to assess the credibility of
witnesses.
However, the cases Cherry cites in support of his argument,
Commonwealth v. Seese, 517 A.2d 920 (Pa. 1986), and Commonwealth
v. Balodis, 747 A.2d 341 (Pa. 2000), are inapposite. The decisions in both
Seese and Balodis condemned the use of expert witness testimony to
enhance or otherwise comment on the credibility of a witness. It is certainly
true “[o]ur Supreme Court has repeatedly held that expert testimony cannot
be used to bolster the credibility of a witness.” Commonwealth v.
Constant, 925 A.2d 810, 822 (Pa. Super. 2007) (citing Commonwealth v.
Minerd, 562 Pa. 46, 753 A.2d 225, 230 (2000)).
“Whether the expert’s
opinion is offered to attack or to enhance, it assumes the same impact—an
‘unwarranted appearance of authority in the subject of credibility which is
within
the
facility
of
the
ordinary
jury
to
assess.’”
Id.
(citing
Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1182 (1993)).
Here, however, Officer Hardy testified not as an expert witness, but as a lay
witness.
Pursuant to Pennsylvania Rule of Evidence 701, Opinion Testimony
by Lay Witness, lay witness testimony in the form of an opinion is limited
to one that is:
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(a) rationally based on the witness's perception
(b) helpful to clearly understanding the witness's testimony or
to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701.
“A lay person may testify to distinct facts observed by him
concerning the apparent physical condition or appearance of another.”
Commonwealth v. Counterman, 553 Pa. 370, 404, 719 A.2d 284, 301
(1998) (citation omitted).
In Commonwealth v. Boczkowski, 577 Pa.
421, 846 A.2d 75 (2004), the Supreme Court affirmed the admissibility of
opinion testimony as to Defendant’s “serious” manner as “opinion on a
matter falling within the realm of common knowledge, experience or
understanding.”
Id., 577 Pa. at 459, 846 A.2d at 97.
We agree with the Commonwealth that it was properly within the trial
court’s sound discretion to admit testimony that Cherry sounded “evasive”
as falling within
understanding.
the
realm of common knowledge,
experience
and
Officer Hardy’s testimony as to Cherry’s demeanor during
questioning was based upon his personal observation. More importantly, we
do not find Officer Hardy’s characterization impermissibly intruded upon the
duty of the jury to determine credibility of witnesses, but rather provided
relevant context to Cherry’s physical appearance and demeanor shortly
following Zalayia’s death. Therefore, Cherry’s allegation of error merits no
relief.
Judgment of sentence affirmed.
Judgment Entered.
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Deputy Prothonotary
Date: 7/12/2013
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