OPINION BY ALLEN, J.:
D.Y. ("Appellant") appeals from the dispositional order entered after he was adjudicated delinquent on charges of burglary, criminal trespass, theft by unlawful taking, receiving stolen property and criminal mischief.
On April 1, 2009, an adjudicatory hearing convened, during which Appellant and the Commonwealth stipulated to the following facts. Between 6:00 and 7:00 p.m. on October 10, 2008, Rasheedah Francis returned to the home she shared with her husband and daughter at 1520 North 60th Street in Philadelphia. When Ms. Francis arrived, she found her front door wide open, her back door damaged, and a back window open. The house had been ransacked, and jewelry, electronics and cash totaling $14,000 had been stolen.
The Commonwealth thereafter presented the only two witnesses to testify at the hearing: Philadelphia Police Detective Roseanna Filippello, and Fingerprint Technician Clifford Parson.
Detective Filippello testified to being called to Ms. Francis' home on the evening of October 10, 2008, and lifting fingerprints from the glass pane of the open back window. N.T., 4/1/09, at 9-12. Detective Filippello sent the lifted fingerprints to the latent print section of the Philadelphia Police Department to be compared with fingerprints kept on record. Id. at 14-15.
Fingerprint Technician Clifford Parson testified to working in the Philadelphia Police Department for fifteen years, where he analyzed and observed crime scene prints. Id. at 17. Technician Parson explained that in this case, he received the fingerprints collected by Detective Filippello, and entered them in the automatic fingerprint identification system, where the prints came back as a positive match for a "ten print card."
On December 3, 2010, a three-judge panel of this Court filed an opinion in which the majority reversed Appellant's adjudication. The Commonwealth filed an application for reargument en banc. By per curiam order on February 1, 2011, this Court granted the Commonwealth's application for reargument, withdrew its December 3, 2010 decision, directed the case to be listed before an en banc panel, and instructed the parties to refile the briefs previously filed, together with supplemental briefs, or prepare and file substituted briefs. Both parties filed substituted briefs.
Appellant disputes the admissibility of the evidence presented by the Commonwealth through the testimony of the fingerprint technician. Appellant asserts that the juvenile court improperly admitted Technician Parson's hearsay testimony. Appellant expressly presents the following issue:
Appellant's Substituted Brief at 3.
Similarly, the Commonwealth frames the issue:
Commonwealth Substituted Reply Brief at 1.
At the outset, we note that the admission of the fingerprint technician's hearsay testimony is the sole issue before us. We agree with the Commonwealth that "the questions of whether the fingerprint examiner's testimony was sufficient to prove [Appellant's] identity as the burglar beyond a reasonable doubt and whether [Appellant's] constitutional rights would be somehow violated by a finding that the burden of proof was met in this case are not before this Court." Commonwealth Substituted Reply Brief at 1. Citing Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa.Super.2008) and Commonwealth v. Constant, 925 A.2d 810, 824 (Pa.Super.2007), the Commonwealth accurately notes that these issues were not raised in Appellant's original or supplemental Pa. R.A.P. 1925(b) statements, nor were they developed by Appellant in his briefs. Id. We further note that when the Commonwealth rested its case, Appellant did not make a motion for dismissal. Nor did Appellant file an optional post-dispositional motion as provided for in Pa.R.J.C.P. 520(A)((1) "The parties shall have the right to make a post-dispositional motion. All requests for relief from the court shall be stated with specificity and particularity, and shall be consolidated in the post-dispositional motion." (2) Issues raised before or during the adjudicatory hearing shall be deemed preserved for appeal whether or
Although Appellant has waived any challenge to the sufficiency of the evidence, we direct Appellant to Commonwealth v. Meals, 590 Pa. 110, 912 A.2d 213 (2006), in which our Supreme Court affirmed the trial court's reliance on expert testimony to determine that the defendant was a sexually violent predator. Our Supreme Court in Meals found the defendant's sufficiency challenge to be meritless, and in its analysis opined that defendant's sufficiency claim was truly a weight claim. The Pennsylvania Supreme Court reasoned:
Meals at 223-224 (citation and footnote omitted).
Similarly, Appellant in this case could have introduced evidence to contradict the fingerprint expert's evidence presented by the Commonwealth. He did not. In fact, Appellant did not avail himself of the opportunity to present any evidence on behalf of his defense. It is well-settled that "the trier of fact, while passing on the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence." See In re J.M., 5 A.3d 323, 330 (Pa.Super.2010) (citation omitted). We have explained:
Commonwealth v. Brown, 23 A.3d 544, 557 (Pa.Super.2011) (citations omitted). Clearly the juvenile court in this case acted within its discretion in crediting the expert testimony of Fingerprint Technician Parson. We therefore proceed to address the admission of the fingerprint technician's testimony.
Our careful review of both the record and applicable law indicates that the juvenile court properly admitted the fingerprint technician's testimony. The Commonwealth qualified Mr. Parson, a fingerprint technician, as an expert in analyzing crime scene fingerprints. N.T., 4/1/09, at 19. Technician Parson worked for as a fingerprint expert with the Philadelphia Police Department for fifteen years, and during that time received specialized
In this particular case, Technician Parson compared latent fingerprints taken from the scene of the burglary at Ms. Francis' home with a "ten print card" on file with the Philadelphia Police Department, and determined that the fingerprints taken from Ms. Francis' home belonged to Appellant. The only issue is whether the trial court abused its discretion in permitting Technician Parson to testify to an alleged hearsay statement—i.e. that Appellant's name and fingerprints were on the ten print card. We find that because Technician Parson was an expert and relied upon the hearsay statement to form his opinion, he was properly permitted to testify to the hearsay statement under Pa. R.E. 703 and 705.
The governing authority in this case is Pa.R.E. 703 and Pa.R.E. 705.
In its entirety, Pa.R.E. 703 states:
Id.
"In Pennsylvania . . . Pa.R.E. 705 requires an expert witness to testify as to the facts or data upon which the witness's opinion is based, whether or not the facts or data would otherwise be admissible in evidence." Id., Comment; see Pa.R.E. 705 ("[T]he expert must testify as to the facts or data on which the opinion or inference is based."). "When an expert testifies about the underlying facts and data that support the expert's opinion and the evidence [is] inadmissible, the trial judge, upon request, shall . . . instruct the jury to consider the facts and data only to explain the basis for the expert's opinion, and not as substantive evidence." Pa.R.E. 705, Comment.
With regard to Pa.R.E. 703, this Court has stated:
Boucher v. Pa. Hosp., 831 A.2d 623, 628 (Pa.Super.2003). See Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 504 A.2d 896, 900-01 (1986) (permitting expert to testify to hearsay statements when those statements were reasonably relied upon by the expert in forming his opinion); Id. at 900 (quoting McCormick on Evidence § 324.2 (3d ed.1984) ("An expert witness may . . . base an opinion on facts or data that are not `admissible in
Here, Technician Parson compared the ten point card to the latent fingerprints, and thus, the ten point card was perceived by Technician Parson first-hand. See Pa. R.E. 703 ("The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by . . . the expert at or before the hearing."). There was no dispute that fingerprint experts such as Technician Parson reasonably rely on ten point cards to establish the identity of the person whose fingerprints were left at the scene of a crime. Accordingly, under Pa.R.E. 703 and 705, Technician Parson was permitted to testify that Appellant's name and fingerprints were on the ten point card, even though this testimony may have been hearsay. See Boucher, 831 A.2d at 628 ("Such material may be disclosed at trial even though it might otherwise be hearsay. . . . [H]earsay is admissible because the expert's reliance on the material provides its own indication of the material's trustworthiness[.]"); Maravich, 504 A.2d at 900-01.
"Once expert testimony has been admitted, the rules of evidence then place the full burden of exploration of facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel's cross-examination." Ratliff v. Schiber Truck Co., 150 F.3d 949, 955 (8th Cir.1998) (citation omitted). "It is thus the burden of opposing counsel to explore and expose any weaknesses in the underpinnings of the expert's opinion." Id. (citations omitted).
In this case, Appellant had the opportunity to impeach Technician Parson on cross-examination. In addition, Appellant could have challenged the evidence upon which Technician Parson relied for purposes of his expert opinion, i.e., that the fingerprints on the ten print card belonged to Appellant. After identifying Appellant as a match from the Automated Fingerprint Identification System ("AFIS") to the latent fingerprints lifted from the open back window of Ms. Francis' burglarized home, Technician Parson was cross-examined as follows:
N.T., 4/1/09, at 27-31, 35.
In considering Appellant's appeal, the juvenile court commented:
Trial Court Opinion, 7/13/09, at 2.
Appellant references a chain-of-custody case, Commonwealth v. Pedano, 266 Pa.Super. 461, 405 A.2d 525 (1979), as authority for his position. Appellant's Substituted Brief at 21-22. Pedano is readily distinguishable because it is a chain-of-custody case which addresses the admissibility of demonstrative evidence, namely a fingerprint roll card. Here, the Commonwealth never sought to introduce the ten print card into evidence, and thus, Pedano is inapplicable. Indeed, Pedano does not discuss, let alone address, the sole issue in this case—whether an expert may disclose hearsay testimony when that testimony formed a basis for the expert's opinion.
Although chain-of-custody and hearsay are both evidentiary principles, they are entirely distinct. Chain-of-custody refers to the manner in which evidence was maintained from the time it was collected to its submission at trial, see Commonwealth v. Alarie, 378 Pa.Super. 11, 547 A.2d 1252 (1988), while hearsay is an out-of-court statement offered at trial or hearing to prove the truth of the matter asserted, see Commonwealth v. Bujanowski, 418 Pa.Super. 163, 613 A.2d 1227 (1992). Again, the issue in this case is hearsay; Appellant never raised a chain-of-custody issue. Appellant did not challenge chain-of-custody at the adjudicatory hearing, nor by post-disposition motion, nor in his Pa. R.A.P. 1925(b) statements. Any challenge to chain-of-custody by Appellant has therefore been waived.
Given the foregoing, we conclude that the juvenile court did not abuse its discretion in admitting Technician Parson's expert testimony over Appellant's hearsay objections. We discern no error by the juvenile court and therefore affirm the juvenile court's adjudication and entry of dispositional order.
Order affirmed.
Judge LAZARUS files a Dissenting Opinion.
DISSENTING OPINION BY LAZARUS, J.:
I respectfully dissent. The majority emphasizes that D.Y.'s issue on appeal is solely whether the trial court erred in admitting the hearsay testimony of a fingerprint technician at the adjudicatory hearing. The Commonwealth similarly frames the issue as one of hearsay and deems any other issue waived on appeal. While hearsay was, no doubt, one of the objections lodged by counsel at D.Y.'s adjudicatory hearing, counsel also objected on the basis that the source of the ten print card linking D.Y. to the latent fingerprints at the burglary scene was not presented at trial. N.T. Adjudicatory Hearing, 4/1/2009, at 22. In fact, the fingerprint
Here, I believe that D.Y. has properly preserved the issue regarding whether the Commonwealth established that the fingerprints on the ten print card were, in fact, his fingerprints. By challenging the Commonwealth's failure to establish the source of the ten print card, D.Y. has made a veiled chain-of-custody argument. However, as veiled as it may be, I believe that D.Y.'s challenge to admitting the evidence regarding the ten print card is still preserved for our review.
In my opinion, the Commonwealth's failure to either call the officer who rolled the fingers of the individual onto the ten print card or offer the ten print card with D.Y.'s purported signature as evidence at the hearing is fatal to its case. Without a foundation or source of the prints on the card, there is a fatal gap in the evidence linking D.Y. to the charged offenses.
In Commonwealth v. Pedano, 266 Pa.Super. 461, 405 A.2d 525 (1979), defense counsel objected to the lack of a foundation with regard to how an officer (expert officer), who was also a fingerprint expert witness like Technician Parson, was able to identify a fingerprint "roll"
Id. (emphasis added).
To me, this case is on all fours with Pedano and should be controlled by its holding. In fact, I believe that the link between the fingerprint evidence in this case is even more tenuous than that in Pedano because, here, not only was the ten print card not admitted into evidence or presented at the adjudicatory hearing, but the officer who conducted the fingerprinting for the ten print card did not testify at D.Y.'s hearing.
Finally, the fact that D.Y.'s counsel objected to the admission of the fingerprint evidence on the basis of hearsay does not compel a different result on appeal. Even the trial judge in Pedano noted that the expert officer's testimony that relied upon the roll card to match those fingerprints to the latent fingerprints of the defendant would be classified as hearsay if no proper foundation existed to establish that that card was the same fingerprint roll card taken of the defendant five months earlier. Like Pedano, the Commonwealth's sole evidence linking D.Y. to the instant offense was fingerprint testimony, the source of the ten print card is critical. Without having either the officer who rolled the
Accordingly, I would reverse D.Y.'s adjudication and remand for a new adjudicatory hearing in the juvenile court.