Commonwealth v. Purnell

259 A.3d 974

COMMONWEALTH of Pennsylvania, Appellee

v.Sheron Jalen PURNELL, Appellant

No. 71 MAP 2020

Supreme Court of Pennsylvania.

Argued: April 14, 2021

Decided: September 22, 2021

Ronald Eisenberg, Esq., Philadelphia, for Amicus Curiae Pennsylvania District Attorneys Association.

Karl Stewart Myers, Esq., Stradley, Ronon, Stevens & Young, LLP, Melissa Lynn Perry, Esq., Philadelphia, for Amicus Curiae Animal Legal Defense Fund, Assoc. of Prosecuting Attorneys & Lutheran Church Charities.

Nicholas J. Casenta Jr., Esq., Deborah S. Ryan, Esq., Erik Thomas Walschburger, Esq., Chester County District Attorney's Office, for Appellee.

Maria T. Heller, Esq., John R. Merrick, Esq., West Chester, for Appellant.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE BAER

We granted allowance of appeal in this matter to consider the appropriate test to apply to a trial court's determination concerning whether a witness in a criminal case may utilize a "comfort dog" for support during his or her trial testimony. We hold that a trial court should balance the degree to which the accommodation will assist the witness in testifying in a truthful manner against any possible prejudice to the defendant's right to a fair trial. Here, the trial court allowed a witness to testify with the assistance of a comfort dog, and the Superior Court concluded that the trial court did not abuse its discretion in this regard. For the reasons stated below, we agree with the Superior Court and, therefore, affirm that court's judgment.

I. Background

On October 3, 2016, Kevin Jalbert ("Victim") was shot seven times in Coatesville, Pennsylvania, and died as the result of the shooting. Several persons witnessed the incident, including Justin Griest and A.H.¹ Appellant was identified as the shooter, and the Commonwealth charged him with first-degree murder, third-degree murder, and firearms not to be carried without a license.

Prior to Appellant's trial, the Commonwealth filed two motions that are relevant to the instant appeal. First, the Commonwealth filed a motion explaining that, when a Chester County detective interviewed A.H. on the day of the murder, she informed him that she witnessed the shooter pull out his gun and that, before the shooter fled the scene, he saw her and pointed his gun at her. Commonwealth's Motion In Limine for the Admissibility of Witness Intimidation, 11/14/2018, at ¶2. A.H. also reported that she observed a gang in the area of the incident on the day of the shooting. Id.

This motion further explained that, on September 2, 2018, almost two years after the shooting, A.H. was with Justin Griest when he was assaulted at a gas station in Coatesville. Id. at ¶5. When police interviewed A.H. about the assault, she stated that she was afraid to speak about the group who committed the act because they were part of the gang that she saw when Victim was murdered. Id. at ¶6. A.H. also shared that she did not want to testify about the assault because she feared that someone from the gang would shoot her. Id. at ¶7. On November 7, 2018, A.H. provided police with an audio and video recorded statement regarding the assault on Griest and her fear of retaliation. Id. at ¶8. Concerned that A.H. may refuse to testify at Appellant's trial in a manner consistent with the statement that she gave to police on the day of the shooting, the Commonwealth asked the trial court, inter alia , to allow it to present to the jury A.H.’s November 2018 statement regarding the intimidation that she and Griest suffered. Id. at ¶¶ 10-13.

On the same day that the Commonwealth filed this motion in limine , it also filed a motion entitled "Commonwealth's Motion for Special Procedures During the Presentation of the Testimony of Child Witnesses" ("Motion for Special Procedures"). Pertinent to the instant appeal, the Commonwealth requested that a "comfort dog"² be present during A.H.’s trial testimony. Motion for Special Procedures, 11/14/2018, at ¶3. The motion explained that a sheriff's deputy would transport the comfort dog, Melody, to the court and that the dog would enter the courtroom before the jury's entrance. Id. at ¶4. According to the motion, the comfort dog would be placed in the witness stand outside the presence of the jury and would exit the courtroom after the jury left the room. Id.

On November 19, 2018, the trial court held a hearing on several motions, including those described above. During the course of that hearing, it was revealed the A.H. is autistic. N.T., 11/19/2018, at 30. In addition to explaining its motion regarding the comfort dog, the Commonwealth noted that the dog was trained for the purpose of accompanying witnesses in court. Id. at 50. In response to the Commonwealth's motion, Appellant's counsel stated his concern that the jury would see the dog and feel sympathy for A.H. Id. Defense counsel also feared that A.H. may comment on the presence of the dog given her alleged propensity to get distracted. Id. at 50-51.

The trial court acknowledged Appellant's concerns and conceded that it had no experience with comfort dogs in the courtroom. Id. at 51-52. When the court asked the prosecutor whether A.H. needed the assistance of a comfort dog due to her autism, counsel replied that the dog was necessary due to A.H.’s fear for her safety. Id. at 53. The court reserved making a decision on the issue.

On the day that the Commonwealth intended to call A.H. as a witness at trial, the trial court announced its ruling concerning the use of the comfort dog. The court explained that, while it found case law on the issue from other jurisdictions, it was unable to locate any Pennsylvania jurisprudence that addressed the use of comfort dogs in courtrooms. N.T., 11/28/2018, at 4-5. The court then ruled that it would permit the comfort dog to accompany A.H. during her testimony, though the court asserted that it would refer to the animal as a "service dog" to lessen the likelihood that the dog's presence would engender sympathy from the jury. Id. at 5.

The trial court further explained that the dog would be hidden under the witness stand but that it nonetheless was likely that the jury would notice the dog. Id. at 6. The court announced the manner in which it would manage the situation as follows:

Therefore, the plan will be for the sheriff handler assigned to Melody out of the presence of the jury to walk into the courtroom with the witness, with Melody, they'll be situated together on the witness stand. The witness will not be called to the stand. She'll be in the stand when the jury arrives in the courtroom, just like Mr. Griest was for a different reason yesterday. So the jury has participated in that circumstance where a witness has already been on the stand when they come into the courtroom. And the sheriff handler will stand to the side of the witness box, just like we've had numerous uniformed sheriffs in this courtroom throughout the trial, so that won't be of any particular note to the jury, I wouldn't think.

And if I understand from the sheriff handler that Melody if she gets excited has a pretty strong tail wag, so it wouldn't surprise me if there was some tail banging on the jury box, and I'll just simply make a reference to Melody that - I'm not sure what I'll say - glad to know she's still alive or something to that effect.

Id. at 6-7.

At that point, the trial court allowed Appellant to place his objection on the record, and he renewed his complaint that the presence of the dog would distract A.H. and create sympathy for her, prejudicing Appellant. Id. at 7-8. Although Appellant's counsel appreciated that the court would instruct the jury not to feel any sympathy for A.H., he stated his belief that the jury would have a difficult time following that instruction. Id. at 8.

Immediately before A.H. began her testimony, the trial court instructed the jury in the following manner:

Members of the jury, I have permitted out of your view a service dog to be present with this witness within or actually under the witness box. The dog is present there now. The fact that I have permitted the presence of a service dog shall not be considered by you for any purpose. Particularly, you are not to attribute any sympathy to the witness because of this or for any other reason, nor shall you assess the credibility of her testimony differently than that of any other witness simply because of the presence of the service dog.

Id. at 63.

The Commonwealth then began to question A.H. The substance of her testimony is irrelevant to the issues presented in this appeal. We, however, note that there is nothing in the record to suggest that the comfort dog was in any way disruptive to the trial. We also observe that, after A.H. had been questioned for some time on the witness stand, the trial court called for a brief recess to allow A.H. to recover her composure, as she had started to weep. Id. at 98-106.

After the parties presented their evidence and gave their closing arguments, the trial court provided the jury with its general instructions. Pertinent to the instant matter, the court repeated the instruction that it gave to the jury before A.H. testified. N.T., 11/30/2018, at 71. The jury found Appellant not guilty of first-degree murder but guilty of third-degree murder and firearms not to be carried without a license. The trial court sentenced Appellant to 20.5 to 47 years of imprisonment. Appellant filed post-sentence motions, which were denied. He then timely filed a notice of appeal and subsequently a statement pursuant to Pa.R.A.P. 1925(b).

In that statement, Appellant indicated that, on appeal, he intended to argue, inter alia , that the trial court erred by allowing A.H. to testify with the assistance of a comfort dog. The trial court briefly responded to this issue in its Pa.R.A.P. 1925(b) opinion. Trial Court Opinion, 8/23/2019, at 6-7. The court noted that: (1) its legal reasoning for allowing the dog to be present could be found on the...