A guilty verdict for a home invasion robbery has been remanded to the county court level by a Pennsylvania state Superior Court on the basis that the defendant was improperly denied the opportunity to call an expert witness to the stand. Defendant Hugo Selenski was convicted in 2009 for robbing the home of Samuel Goosay, a local jeweler, in 2003. After being handed a 32.5-65 year prison sentence, Selenski began a lengthy appeals process. The case was remanded in August 2014 by the state Supreme Court to the Superior Court. Following the ruling that lawyers can, in certain circumstances, call an expert witness to testify about human memory and perception in an eyewitness context.
After initially denying the appeal, the Superior Court decided to remand the case back to the Monroe County Court it was first heard in. Following the remand, the county court will now have to apply the “Frye test” to determine whether the expert testimony should be allowed. The Frye test is an evidentiary test which is used when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness. To pass the Frye test, scientific evidence presented to the court must be “generally accepted” by a meaningful segment of the associated scientific community.
In this case, Selenski’s defense team sought to use Dr. Solomon Fulero, a now deceased expert on human memory, to challenge the recollection of Samuel Goosay, the victim who identified Selenski as the robber. On the night of the robbery, Goosay was accosted by two men wearing ski masks in his home. After blindfolding and binding Goosay with duct tape, one of the robbers headed to Goosay’s jewelry store while the other stayed behind to steal Goosay’s valuables. It was at this point that Goosay claims that he was able to remove the duct tape he was blindfolded with during the robbery. He then noticed Selenski, who had removed his mask, sifting through his valuables. Mr. Selenski, on the other hand, denies that he was the man Goosay claims to have seen.
Selenski’s defense team believes Dr. Fulero’s testimony discounting the reliability of Goosay’s memory would have been pivotal in this case. Therefore it justifies a new trial. There are a couple of facts that raise questions regarding Goosay’s memory from that night. Firstly, Goosay was blindfolded during the entire episode, with the exception of his brief peak. Thus making it less likely he might correctly identify the person sifting through his belongings. Secondly, Goosay did not identify Selenski until 18 months following the robbery. This was when he saw Selenski’s photo in media reports concerning a double-homicide Selenski was accused of and his consequent escape from state prison.
The short glimpse Goosay got of Selenski, combined with the lengthy duration between the incident and recognition of Selenski, help explain why the defense felt as if Fulero’s testimony on human memory would have been useful and favorable for their case. Because Fulero has since passed-away, the defense would need to find an expert capable of providing similar testimony as Fulero if the Monroe County court ends up determining that this type of evidence passes the Frye test.
Selenski is already in the midst of appealing two life sentences after being convicted of a double-homicide in February 2015.
