J. S 0 7 0 43 /1 8

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: THOMAS A. GOODEN

, : No. 232 E DA 20 17

: Appellant :

Appeal from the Judgment of Sentence, August 25, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP

- 51

- CR

- 0002482

- 2015

BEFORE: BENDER, P.J.E.

, PANELLA , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 16, 2018

Appellant, Thomas Gooden, appeals from the August 25, 2016

judgment of sentence entered by the Court of Common Pleas of Philadelphia

County following his conviction of homicide by vehi cle, accidents involving

death or personal injury, accidents involving death or serious injury

— not

properly licensed, involuntary manslaughter, three counts of aggravated

assault by vehicle, and four counts of recklessly endangering another

person. After careful review, we affirm.

The trial court provided the following factual and procedural history:

On July 13, 2013, at about 2:43 a.m., [appellant] was driving his automobile on Lincoln Drive near Morris Street in Philadelphia. At a curve in the roadway, [appellant] lost control of his vehicle (a Subaru), which crossed into the opposite bound lane
and collided with a vehicle (a Nissan) driven by Angela Terry. As a result of the collision,J. S 0 7 0 43 /1 8

- 2

- [appellant’s] passenger, Ashley Gant Madison, was
killed and anoth er passenger, Bria Staley, was injured. Angela Terry and her passenger, Harvey Stratton, were injured. A third vehicle, (a Honda) was involved in the accident, but [appellant] was not charged with offenses relating to the third
vehicle.

A jury convicted [appellant] of accident involving death or personal injury, accident involving death

— not properly licensed, homicide by vehicle, involuntary manslaughter, three counts of aggravated assault by vehicle, and four counts of recklessly endange ring another person. [Appellant] received an aggregate sentence of eight to
16 yea rs[’ imprisonment.]

Trial court opinion, 6/2/17 at 1

- 2 (citations omitted). Appellant filed a

timely notice of appeal to this court. The trial court ordered appellant to file

a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and appellant timely complied. The trial court filed an

opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issue for our review:

Did the lower co urt err in denying [appellant’s] Frye [ 1 ] motion pursuant to Pa.R.E. 702 where no scientific basis existed for the assumptions underlying the calculation of [appellant’s] speed by the Commonwealth’s accident reconstruction expert?

Appellant’s brief at 3.

Appellant specifically avers that the Commonwealth’s accident

reconstruction expert, Philadelphia Police Officer William Lackman

1 Frye v. United States , 293 F. 1013 (D.C. Cir. 1923).J. S 0 7 0 43 /1 8

- 3

-

(“Officer Lackman”)

, “employed no methodology at all” when he reached the

“assumption that [appellant], ‘[ drove] the curve as h e was supposed to have

been [sic] in the curve.’” (Appellant’s brief at 11.) Appellant further

contends that the manner in which Officer Lackman reached his conclusion is

“deeply flawed and simply cannot meet the Frye standard.” ( Id. ) Put

another way, at the Frye hearing, appellant’s counsel contended that “the

methodology that [appellant] exceeded that critical speed as the cause of

the accident and then also the methodology used to exclude other possible

causes [are] not scientifically accepted.” (No tes of testimony, 12/21/15 at

3

- 4.)

When reviewing a trial court’s admission of expert testimony under the

Frye standard

, 2 we are held to the following:

as to the standard of appellate review that applies to
the Frye issue, [our supreme court] has stated that the admission of expert scientific testimony is an evidentiary matter for the trial court’s discretion and should not be disturbed on appeal unless the trial

2 The Frye standard is as follows:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a
well

- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye , 293 F. at 1014.J. S 0 7 0 43 /1 8

- 4

- court abuses its discretion. See Commonwealth v.
Zook , 615 A.2d 1, 11 (Pa. 1992), cert. deni ed , 507 U.S. 974 (1993). An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill

- will, or such lack of support as to be clearly erroneous. Paden v. Baker Concrete Constr., Inc. , 658 A.2d 341, 343 (Pa. 1995).

Grady v. Frito

- Lay, Inc. , 839 A.2d 1038, 1046 (Pa. 2003). The Grady

court re

- affirmed Pennsylvania’s adoption of the Frye standard, as it applies

only to an expert’s methodology. Id. at 1047.

With respect to application of the Frye standard, our [supreme court] has “made it clear that Frye is not implicated every time science comes into the courtroom; rather, it applies onl y to proffered expert testimony involving novel science .” Commonwealth v. Dengler , 890 A.2d 372, 382 (Pa. 2005); see also Grady , 839 A.2d at 1045 (finding Frye is applicable to novel science , as well as where scientific methods are utilized in [a] novel

w ay). Our [supreme court] has noted that a “reasonably broad meaning should be ascribed to the
term ‘ novel ,’” and “a Frye hearing is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted
scientific methodology in a conventional fashion in reaching his or her conclusions.” Betz v. Pneumo Abex LLC, et al. , 44 A.3d 27, 53 (Pa. 2012). Further, what constitutes novel scientific evidence is usually decided on a case

- by

- case basis as there is
some flexibi lity in the construction, as “science deemed novel at the outset may lose its novelty and become generally accepted in the scientific community at a later date, or the strength of the proponent’s proffer may affect the Frye determination.” Dengler , 890 A. 2d at 382. As [our supreme court] noted in Dengler :J. S 0 7 0 43 /1 8

- 5

- Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the evidential force of the princ iple must be recognized, and while

court s will go a long way in admitting expert testimony deduced from a well

recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Id. at 380

- 381 (quoting Frye ) (citation omitted).

Commonwealth v. Walker , 92 A.3d 766, 790 (Pa. 2014).

As noted by the trial court, Officer Lackman based his opinion on the

following:

1. Position of stopped vehicles;

2. Damage to the asphalt in the roadway;
3. Interview with [appellant] ; 4. Interview with police officers on the scene ; 5. Observing damage to the vehicles ; 6. Photographing the vehicles ; 7. Calculating the impact ; 8. Calculating the point of maximum engagement ; 9. The location of scattered automobile parts ; 10. Calculating the trajectory of the vehicles ; 11. Mathematical formulation to calculate the critical speed of the curve ; an d

12. Obtaining the coefficient of friction.

Trial cou rt opinion, 6/2/17 at 4 (citations omitted)

. Based upon our review

of the record, we agree with the trial court’s conclusion that it was

“immaterial” whether appellant’s speed exceeded 75 miles per hour when he

attempted to negotiate the curve on Lincoln Street; rather, the critical factJ. S 0 7 0 43 /1 8

- 6

-

was that appellant “was driving twice the speed limit on a wet night on a

curved roadway.” ( Id. at 9. ) Indeed, appellant’s own expert,

James Halikman, testified that appellant was traveling over 50 miles per

hour

— twice t he posted speed limit of 25 miles per hour. (Notes of

testimony, 12/21/15 at 112.)

We therefore find that the trial court did not abuse its discretion when

it admitted Officer Lackman’s expert testimony.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/16/18