J-A01029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL MILLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1014 EDA 2020

Appeal from the Judgment of Sentence Entered February 6, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0004971-2018

BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY OLSON, J.: FILED APRIL 15, 2021

Appellant, Nathaniel Miller, appeals from the February 6, 2020 judgment 

of sentence imposing life imprisonment without parole and a concurrent, 

aggregate 31⁄2 to 7 years’ incarceration after a jury convicted Appellant of 

first-degree murder, firearms not to be carried without a license, carrying a 

firearm on public streets in Philadelphia, Pennsylvania, and possession of an 

instrument of crime.

1

 Counsel for Appellant, James F. Berardinelli, Esquire

(“Attorney Berardinelli”), also filed a motion to withdraw averring that he is 

prohibited from continuing to represent Appellant in this matter due to a 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, and 907(a), respectively.
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conflict with his current employment.

2

 We grant Attorney Berardinelli’s motion 

to withdraw and affirm Appellant’s judgment of sentence.

A review of the record demonstrates that on February 6, 2020, a jury 

convicted Appellant of the aforementioned crimes stemming from the shooting 

death of the victim. That same day, the trial court sentenced Appellant to life 

imprisonment without parole for his first-degree murder conviction, as well as

31⁄2 to 7 years’ incarceration for carrying a firearm without a license and 1 to 

2 years’ incarceration for carrying a firearm on public streets of Philadelphia. 

No further penalty was imposed for possession of an instrument of crime. The

trial court imposed Appellant’s term-of-years sentences to run concurrently to 

Appellant’s life sentence.

Appellant filed a post-sentence motion on February 13, 2020, which the 

trial court subsequently denied. This appeal followed.3

Appellant raises the following issue for our review:

Did the [trial] court err in permitting [the] Commonwealth 

expert[, Detective] Thorston Lucke[,4] to testify as to hearsay 

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2 Attorney Berardinelli avers that in December 2020, he became Chief of the 

Appellate Unit for the Montgomery County Public Defenders’ Office and, as 

such, is prohibited from further representing Appellant in this matter. See

Motion to Withdraw, 11/22/20.

3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.

4 Detective Lucke was accepted at trial as an expert in video analysis and 

recovery upon stipulation by the parties and following direct voir dire of his 

qualifications before the jury. N.T., 2/5/20, at 100-101.
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statements [made by Detective] James Sloane regarding the time 

off-set of video evidence presented where such statements were 

not merely a factor upon which the expert formed his opinion but 

rather were introduced for the sole purpose of establishing the 

existence of the time off-set listed on the reports?

Appellant’s Brief at 3.5

Appellant’s issue challenges the admissibility of evidence for which our 

standard of review is well-settled.

Questions concerning the admissibility of evidence are within the 

sound discretion of the trial court[,] and we will not reverse a trial 

court's decision concerning admissibility of evidence absent an 

abuse of the trial court's discretion. An abuse of discretion is not 

merely an error of judgment[ but, rather, is] 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. If in reaching a 

conclusion the trial court overrides or misapplies the law, 

discretion is then abused[,] and it is the duty of the appellate court 

to correct the error.

Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation 

omitted), appeal denied, 244 A.3d 1222 (Pa. 2021).

Pennsylvania Rule of Evidence 703 states,

An expert may base an opinion on facts or data in the case that 

the expert has been made aware of or personally observed. If 

experts in the particular field would reasonably rely on those kinds 

of facts or data in forming an opinion on the subject, they need 

not be admissible for the opinion to be admitted.

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5 We direct Appellant’s counsel to Pennsylvania Rule of Appellate Procedure 

2135(c), which requires that lettering be no smaller than 14-point font in the 

text of the brief. Pa.R.A.P. 2135(c); see also Pa.R.A.P. 124.
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Pa.R.E. 703. “If an expert states an opinion[,] the expert must state the facts 

or data on which the opinion is based.” Pa.R.E. 705. Pennsylvania courts 

have long-permitted “an expert witness to rely on, and disclose, data which is 

not in evidence in order to form his[, or her,] expert opinions, assuming the 

materials relied on are of the type reasonably relied on by experts in their 

respective fields.” Primavera v. Celotex Corp., 608 A.2d 515, 518 

(Pa. Super. 1992), citing Commonwealth v. Thomas, 282 A.2d 693, 

698-699 (Pa. 1971), appeal denied, 622 A.2d 1374 (Pa. 1993); see also 

Commonwealth v. Brown, 139 A.3d 208, 218 (Pa. Super. 2016) 

(reiterating, that an expert’s independent conclusions based upon 

inadmissible evidence are admissible), aff’d, 185 A.2d 342 (Pa. 2018); Adams 

v. Rising Sun Med. Ctr., ___ A.3d ___, 2020 WL 7705969, at *11 n.13 

(Pa. Super. Filed December 29, 2020) (slip opinion) (stating, that an expert 

may express a conclusion or opinion that is based upon material not in 

evidence “where such material is of a type customarily relied on by an expert 

in his, or her, profession and he, or she, is not acting as a mere conduit of the 

[material not in evidence]”).

The rule governing expert testimony is born, in part, out of the premise 

that “the expert is assumed to have the mastery to evaluate the 

trustworthiness of the data upon which he[,] or she[,] relies, both because 

the expert has demonstrated his[, or her,] expert qualifications and because 

the expert regularly relies on and uses similar data in the practice of his[,] or 

her[,] profession.” Primavera, 608 A.2d at 519. The data relied upon by the 
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expert in reaching his, or her, conclusions and opinions must be “the kind of 

data used daily by experts in making judgments, reaching diagnoses, and 

taking action.” Id. at 519-520. “[T]he rule permitting experts to express 

opinions relying on extrajudicial data depends on the circumstances of the 

particular case and demands the exercise, like the admission of all expert 

testimony, of the sound discretion of the trial court.” Id. at 521.

At trial, the Commonwealth offered the expert testimony of Detective 

Lucke in the field of video analysis and recovery to establish Appellant’s 

presence at the scene of the shooting. In turn, the opinions offered by 

Detective Lucke relied, in part, on observations relating to differences between 

the time-stamp appearing on the surveillance video and so-called “real time.”

6

This time differential information was relayed to Detective Lucke through a 

report prepared by Detective Sloane. On appeal, Appellant contends that the 

trial court erred in permitting Detective Lucke to testify regarding a 5 minute 

and 55 second off-set or difference between the time depicted on the 

surveillance video and the “real time” as noted by Detective Sloane at the 

moment the surveillance video was recovered. Appellant’s Brief at 10. 

Appellant asserts that Detective Lucke acted as “a conduit for Detective 

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6 Detective Lucke described “real time” as the actual or official time as 

determined by, and obtained from, “a series of atomic clocks at [the United 

States] Naval Observatory in Washington D.C.” N.T., 2/5/20, at 105. We 

take judicial notice that the United States Naval Observatory “serves as the 

official source” of “a standard of time for the entire United States.” See

https://www.usno.navy.mil/ (visited, 3/19/21).
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Sloane’s extrajudicial conclusion” that the time depicted on the surveillance 

video was 5 minutes and 55 seconds behind the real time. Id. Appellant 

argues that, the Commonwealth was required to present the testimony of 

Detective Sloane, and not simply rely upon Detective Lucke’s recitation of 

underlying data, in order to introduce into evidence this off-set of time 

between the time-stamp on the surveillance video and the real time. Id. 

Appellant asserts that, without the off-set of time evidence, Appellant’s 

“[ankle] monitor did not place him at the scene [of the shooting] at the time 

the shooting was depicted in the [surveillance] video.” Id.

In permitting Detective Lucke to testify regarding the off-set of time 

between the time depicted on the surveillance video and the real-time, the 

trial court explained,

At trial, Detective Lucke testified that, according to Detective 

Sloane's report, the time off-set between [the] real-time and the 

time as it [appeared on the surveillance video] was five minutes[ 

and] fifty-five seconds. Detective Sloane made this determination

by comparing the time as it appeared on [the surveillance video]

to the actual time [recorded] by the United States Naval 

Observatory's [a]tomic [c]lock, a technique Detective Lucke 

teaches and frequently uses in his own investigations. While this 

statement appears to be inadmissible hearsay on its face, [within]

the context of Detective Lucke's expert testimony, the statement 

was a fact upon which Detective Lucke formed his expert opinion.

In examining Detective Lucke's testimony as a whole, it is clear 

that he was called to [testify] for the [] purpose of establishing 

that the [] surveillance [video] recovered from the [minimart 

depicted] the sequence of events occurring outside the [minimart]

immediately before and after the instant homicide. The 

[surveillance] video in question clearly shows [Appellant]

approaching the location of the shooting, wearing clearly 

identifiable boots and an ankle monitor, before moving 
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off-camera. The same [surveillance video] captured [Appellant]

fleeing the scene, still identifiable by his boots and ankle monitor 

but now carrying a firearm, eighteen seconds after he first 

disappear[ed] from view.

However, the time[-]stamp as it appeared on the [surveillance] 

video did not comport with the time as demonstrated by the other 

evidence presented by the Commonwealth. Because of this, 

Detective Lucke utilized the hearsay evidence of Detective 

Sloane's [report regarding] the time off-set, as is permissible by 

experts, to help form his opinion. Detective Sloane's technique in 

using the United States Naval Observatory's [a]tomic [c]lock to 

determine the actual time [the video was recorded] is a regularly 

used practice in the field of [] surveillance [video] recovery. 

Detective Lucke employs the exact same technique in resolving 

timing discrepancies appearing on surveillance [video] in virtually 

all of his own investigations.

Moreover, Detective Lucke based his time off-set analysis on 

additional, overwhelming evidence demonstrating that the 

[surveillance video] captured the instant shooting [and] not some 

unrelated, earlier event. There was no other shooting in the area 

of 67th Avenue and [North] 16th Street[, in Philadelphia, 

Pennsylvania,] on the date of the homicide that could have been 

mistaken for the instant shooting. Further, when reviewing the [] 

surveillance [video] recovered from the [minimart], Detective 

Lucke had the benefit of also reviewing geolocation data recovered 

from [Appellant’s ankle] monitor[.]

When cross-referencing the geolocation data with the recovered 

surveillance [video], as demonstrated by Detective Lucke's video 

compilation, it is readily apparent that images of [Appellant]

moving towards[,] and then fleeing [from,] the scene [of the 

homicide] match the uncontroverted geolocation evidence when 

the five minute[ and] fifty-five second time off-set is applied. 

[The] geolocation data [from Appellant’s ankle monitor] recorded 

not only [Appellant’s] location at a certain time - placing him at 

the scene of the crime - but also recorded his speed and direction 

of movement. Between 7:22 p.m. and 7:23 p.m., both [the 

geolocation data from Appellant’s ankle] monitor and the off[-]set 

[] surveillance [video] depict[ed Appellant] walking towards the 

scene of the shooting at a speed of 3 [miles per hour (“mph”)]. It 

is undisputed that, at 7:24 p.m., [Appellant’s] ankle monitor was 

moving eastbound on 67th Avenue at 6 mph in the immediate 

aftermath of the shooting. This was confirmed by the off[-]set 
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[surveillance] video [], which depicted [Appellant] running away 

from the shooting location in an eastward direction, while wearing 

[an ankle] monitor and carrying a firearm.

Trial Court Opinion, 7/8/20, at 10-12.

A review of the record demonstrates that Detective Lucke testified at 

trial that, when analyzing the surveillance video recovered from the scene of 

the homicide to formulate his conclusions and opinions about the depictions 

in the surveillance video, he relied, in part, on Detective Sloane’s report,7

which indicated that the time-stamp on the surveillance video, at the time 

Detective Sloane retrieved the surveillance video from the minimart’s

recording device, was 5 minutes and 55 seconds behind the real-time as 

observed by the United States Naval Observatory’s atomic clock. N.T., 

2/5/20, at 103-106. Detective Lucke considered Detective Sloane’s report 

“together with other evidence that [he] had access to, [including] reports, 

paperwork, [] as well as [geolocation] data from [Appellant’s] ankle monitor 

that corroborated the time [off-set].” Id. at 106. Detective Lucke stated that,

it is common practice in surveillance video recovery to note any time 

differences between the time-stamp on the surveillance video as compared to 

the real-time reported by the United States Naval Observatory’s atomic clock, 

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7 Detective Sloane’s findings regarding the 5 minute and 55 second time 

differential between the time-stamp on the surveillance video and the 

real-time, as set forth in his report, constituted hearsay under Pennsylvania 

Rule of Evidence 801. See Pa.R.E. 801 (defining hearsay as, a statement, 

including a written assertion, that “the declarant does not make while 

testifying at the current trial” and “a party offers in evidence to prove the truth 

of the matter asserted in the statement”).
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at the moment the surveillance video is recovered. Id. at 105. Detective 

Lucke regularly relies on video recovery reports, such as Detective Sloane’s 

report, when analyzing recovered surveillance video to formulate his opinions

and conclusions about the events depicted in surveillance videos. Id. at 

102-103. In addition to reviewing Detective Sloane’s report in the case sub 

judice, Detective Lucke stated that, he spoke with Detective Sloane about the 

surveillance video recovery procedure Detective Sloane utilized and about the 

contents of his report. Id. at 103, 132. Detective Lucke also stated that, he 

examined the data recovered from the video recording device, including the 

system log, in order to determine if the recording device’s time settings had 

been altered. Id. at 133.

Based upon a review of the record, we discern no error of law or abuse 

of discretion in the admission of Detective Lucke’s testimony regarding the 

5 minute and 55 second time differential between the time stamp that 

appeared on the surveillance video and the real-time, as set forth in Detective 

Sloane’s report. The record establishes that Detective Sloane’s report, and 

the information contained therein, was the type of information that Detective 

Lucke regularly and reasonably relied on as an expert in video analysis and 

recovery when formulating his conclusions and expert opinions. Moreover, 

Detective Lucke verified the recovery procedure utilized and the 

trustworthiness of the reported information by speaking with Detective Sloane

and by reviewing the video recording device’s system log. Consequently, 

Appellant’s issue is without merit.
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Judgment affirmed. Motion to withdraw granted.

Judge Strassburger did not participate in the consideration or decision 

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/2021