Admissibility of Expert Testimony regarding Memory and Perception

Commonwealth v. Brown,  2021 WL 1235213 (Pa. Super.) (unreported), allocatur granted Sept. 13, 2021, appeal docket 29 EAP 2021

This case arises from an altercation between Dante Brown and Ryan Lowery, an off-duty Pennsylvania state police officer, in a McDonald’s drive-thru. Superior Court summarized the relevant background as follows:

Lowry admitted that, earlier that night, he started drinking alcohol around 8:45 p.m. and stopped drinking around 1:30 a.m. He explained that he consumed about five ten-ounce cans of Miller Lite beers and four to six shots of whiskey. Lowry testified that when he pulled into McDonald’s, he “abruptly” stopped in line behind [Brown]’s vehicle, a 2002 Chevy Trailblazer. Immediately thereafter, [Brown] exited his vehicle and accused Lowry of striking his SUV. Although Lowry did not observe any damage on [Brown]’s vehicle, he apologized and offered [Brown] forty dollars to pay for his and his passenger’s meal. The two briefly argued, and [Brown] returned to his vehicle. After a few minutes, [Brown] again exited his vehicle, aggressively approached Lowry, and demanded $100.

After a second argument ensued, Lowry stepped out of his vehicle to confront [Brown].  Lowry[,] who was an armed, off-duty Pennsylvania State Trooper at the time[,] testified that he removed his holstered handgun from his waistband, opened the rear driver’s–side door, and threw the weapon on the floorboard. Lowry closed the door and put his hands in a “fighting stance.” [Brown] quickly circled around Lowry’s vehicle, dove across the back seat, and grabbed Lowry’s firearm. Lowry immediately attempted to retrieve the weapon. The two “tussled” for control of the firearm, but [Brown] maintained his possession of the weapon. [Brown], who was still holding the gun, ran to his vehicle and fled the scene. Lowry returned to his vehicle and followed [Brown].

An independent eyewitness, Darryl Barkley (“Barkley”), testified to a nearly identical set of facts. Barkley stated that he pulled into the McDonald’s drive-through directly behind Lowry. Barkley testified that when he arrived, Lowry and [Brown] were speaking to each other with “escalated” voices. Barkley saw both men return to their vehicles. A few minutes later, [Barkley] saw [Brown] and Lowry engaged in a second argument outside of Lowry’s vehicle. [Barkley] testified that he saw Lowry lift his shirt, which enabled him to see Lowry’s holstered gun. Upon realizing that Lowry was armed, [Barkley] called 9-1-1. 

[Barkley] continued to observe the altercation as he spoke to the emergency dispatcher. He testified that he saw Lowry remove his firearm and throw it in his car, before approaching [Brown] in a “fighting stance.” [Barkley] explained that [Brown] briefly “approached” Lowry but quickly circled around him, opened the car door, and grabbed Lowry’s gun. [Barkley] then witnessed the two men “tussl[e]” for control of the weapon, When Lowry and [Brown] drove out of the McDonald’s parking lot, [Barkley] followed. [Barkley] stayed on the phone with the 911 dispatcher and provided details on the evolving location of the chase.

All three vehicles drove from McDonald’s, turned onto Richmond Street, and continued west on Tioga Street. The chase ended when the parties saw police vehicles with activated overhead lights driving east on Tioga Street. Once all three vehicles stopped and police arrived, [Barkley] pointed to [Brown]’s vehicle and told officers that he was “the guy” with the gun. Officer William Eiser (“Officer Eiser”) and Officer Joseph Payeski (“Officer Payeski”) ordered [Brown] and his female passenger (who identified herself as [Brown]’s girlfriend) out of the vehicle. Officer Payeski recovered Lowry’s firearm from the driver’s seat of [Brown]’s vehicle and placed it on property receipt #3302541. Officer Payeski also completed an accident report, noting that there was “no visible damage” to either vehicle.

Slip op. at 1-3 (internal record citations omitted). Officers arrested Brown and Lowry. Lowry was charged with a DUI for which he successfully completed a diversionary program. Brown was charged with carrying a firearm without a license, carrying a firearm in public in Philadelphia, and persons not to possess a firearm.  The Commonwealth filed a motion in limine to preclude Brown from admitting the expert testimony of Dr. Guzzardi that due to Lowry’s level of intoxication, Lowry’s recollection of the incident must be considered unreliable and distorted. The trial court granted the motion on the basis that the offered expert testimony was an impermissible assessment of witness credibility and thus inadmissible. The trial court further noted that there was nothing unique about Lowry’s intoxication or the underlying facts that required scientific, technical, or other specialized knowledge, explaining:

Moreover, this court determined that the proposed expert testimony was simply not necessary to show “how intoxicated [Lowry] really was,” as nothing about the underlying facts was beyond the understanding of a lay juror. It was undisputed that Lowry consumed several alcoholic drinks before the underlying incident. In his statement to Internal Affairs, Lowry admitted to drinking “a bucket of iced beers and a few shots of whiskey.” (N.T. 11/13/19 at 134). At the conclusion of the underlying episode, Lowry was arrested for a suspected DUI. (Id. at 90). Later, he submitted to a breathalyzer test, which revealed a .18 BAC. (Id. at 140-41). Moreover, the Commonwealth was willing to stipulate that nearly three hours after the underlying incident, Lowry’s BAC was .18—more than twice the legal limit. See (Comm. Mot. at 5 n.2); 75 Pa.C.S.A. § 3802(a)(2).

Slip op. at n. 5. 

Brown appealed to Superior Court, arguing that the trial court conflated credibility and reliability and that Dr. Guzzardi would have testified as to whether Lowry’s recollections could be reliable. Specifically, Brown submitted that Dr. Guzzardi would have testified that “Lowry must have imbibed more alcohol than he admitted; if Lowry’s BAC was .18 at 5:23 a.m., it would have been higher at the time of the incident, and the higher the BAC, “the more likely, from a scientific standpoint, that Lowry cannot accurately recall events” and that the expert’s testimony would “have highlighted that Lowry’s memory would have been impaired, thereby supporting the proposition that Lowry was likely belligerent and a threat” to Brown. Slip op. at 7. Brown further noted that such testimony is based on specialized knowledge that is not possessed by the layperson, relying on Commonwealth v. Uhrinek, 544 A.2d 947, 952 (Pa. 1988) in which the Supreme Court held that evidence of a deceased pedestrian’s intoxication was admissible in a homicide by vehicle prosecution if relevant to the defendant’s defense.

Superior Court affirmed the trial court’s exclusion of Dr. Guzzardi’s expert testimony, reasoning that:

As the trial court properly noted, Dr. Guzzardi’s ultimate conclusion, that Lowry’s recollections were unreliable, is an overt assessment of Lowry’s credibility and is prohibited under Pennsylvania law. Trial Court Opinion, 7/17/20, at 7 (citing Alicia, 92 A.3d at 760). Indeed, “expert testimony will not be permitted when it attempts in any way to reach the issue of credibility, and thereby usurp the function of the factfinder.” Commonwealth v. Delbridge, 855 A.2d 27, 42 (Pa. Super. 2003) (emphasis added). See also Commonwealth v. Crawford, 718 A.2d 768, 773 (Pa. 1998) (finding that expert’s testimony that a witness’s memories of an event could not be accurate was an “inadmissible assessment of [the witness’s] credibility.”). We also note that the intoxicating effect of alcohol is known and recognized by the average lay person. We have held that “expert testimony is not necessary in a DUI-alcohol case … the Commonwealth may present any form of proof, including the defendant’s behavior, the nature of the accident itself, and any other relevant evidence (which may or may not include blood alcohol tests.).” Commonwealth v. DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010).

As found by the trial court, Lowry was “indisputably inebriated” during the incident, and “the intoxicating effects of alcohol are widely and commonly understood, and there was nothing unique about Lowry’s intoxicant or the underlying facts that required an expert’s scientific, technical, or other specialized knowledge.” Trial Court Opinion, 7/17/20, at 8, 9 (citing Pa.R.E. 702 and Commonwealth v. Griffith, 32 A.3d 1231, 1238 (Pa. 2011) (acknowledging that “in some [DUI] cases, depending on the specific facts and circumstances, expert testimony may be helpful,” but the use of expert testimony is not required to establish a defendant’s inability to drive safely.”)). Appellant has failed to show that the trial court abused its discretion when it granted the Commonwealth’s motion in limine to preclude the expert testimony of Dr. Guzzardi.

Slip op. at 8-10 (emphasis in original). In so holding, Superior Court concluded that Uhrinek does not apply, given the specific scope of the court’s holding: “that evidence of a deceased pedestrian’s intoxication is admissible in a homicide by vehicle prosecution if relevant to the defendant’s theory of the cause of the accident and if supported by expert testimony, even absent any showing that decedent was ‘unfit to walk.’” Slip op. at n. 4.

The Pennsylvania Supreme Court granted allocatur limited to the following issue:

Did the Superior Court err as a matter of law when it affirmed the trial court’s grant of the Commonwealth’s motion in limine to preclude the admission of expert testimony regarding blood alcohol content and its effect upon memory and perception on the grounds that it was an impermissible assessment of witness credibility?


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