Com. v. Clemat, P.
2019 Pa. Super. 273
| Pa. Super. Ct. | 2019Background
- Undercover detectives arranged a prostitution appointment with Derrian Regan at a Scranton hotel; Regan was arrested after accepting $160.00. While being transported, officers observed Pierre Clemat walk toward the hotel and discard a plastic bag into nearby bushes. Officers recovered 22 individual twist baggies containing a total of 54 grams of fentanyl from that bag.
- A custodial search of Clemat yielded two iPhones and $1,460 cash; Regan told detectives she dates Clemat and he supplies her heroin.
- Lab testing identified the substance as fentanyl; Detective Harold Zech (narcotics expert) testified that the quantity, packaging, absence of user paraphernalia, cash, and multiple phones supported an intent to deliver rather than personal use.
- A jury convicted Clemat of PWID (50–100 g fentanyl) and possession of drug paraphernalia. The trial court imposed consecutive aggravated-range sentences aggregating 90–180 months plus five years probation.
- Clemat appealed raising: (1) juror bias (juror had a friend who recently died of an overdose); (2) multiple challenges to Detective Zech’s expert testimony (untimely disclosure, qualification, scope, hypotheticals, and personal involvement); and (3) sentencing error (impermissible double-counting of guideline factors).
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| 1. Challenge juror for cause (juror had friend who recently died of overdose) | Juror 20’s recent loss created probable bias and required dismissal for cause | Juror explicitly assured impartiality; demeanor and answers showed no fixed opinion; peremptory strikes available | Denied — trial court acted within discretion; juror’s assurances sufficed (no abuse of discretion) |
| 2. Expert disclosure (Rule 573 timeliness) | Commonwealth did not timely disclose Detective Zech as an expert (disclosure came Friday before trial) causing unfair surprise | Zech was listed in the Joint Trial Statement at pretrial conference; defense had notice and did not request continuance | Denied — disclosure was adequate and no abuse of discretion |
| 3. Qualification of Detective Zech as expert (Rule 702) | Testimony concerned matters within ordinary jurors’ knowledge; expert unnecessary | Zech had 10+ years narcotics experience, undercover work, 1,000 cases, prior expert testimony and training; topics (packaging, mixtures, tools of trade) beyond lay knowledge | Denied — trial court properly admitted expert opinion under Rule 702 |
| 4. Expert witness personally involved in arrest | Zech’s involvement in arrest tainted his expert role / created conflict | Zech did not testify as investigating eyewitness; he gave opinion testimony; a witness may give both lay and expert testimony if appropriate | Denied — admissible; no bar to expert who also has investigative role |
| 5. No expert report produced / testimony beyond any report | Defense prejudiced by lack of pretrial expert report and inability to prepare cross | Court has discretion to require a report; no motion made for report; joint statement sufficiently identified subject matter; defense cross-examined Zech | Denied — no showing of prejudice; no report required under circumstances |
| 6. Hypothetical questions invaded jury’s province (ultimate issue) | Hypotheticals allowed Zech to answer the ultimate issue reserved for jury | Hypotheticals were grounded in trial evidence and permitted; experts may opine on ultimate issues (Rule 704) | Denied — hypotheticals supported by record and admissible |
| 7. Sentencing: impermissible double-counting (used weight/type of drug twice) | Court relied on factors already in guidelines (weight/type), improperly aggravating sentence | Court considered weight/type among multiple factors (lack of ties to community, supervision status, criminal history, lack of remorse), used guideline factor to supplement other extraneous info | Denied — aggravated-range sentence supported; not sole basis on guideline factors; no abuse of discretion |
Key Cases Cited
- Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011) (standard for striking juror for cause)
- Commonwealth v. Chambers, 685 A.2d 96 (Pa. 1996) (trial judge best positioned to assess juror credibility)
- Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009) (prior victim relationship not dispositive of juror impartiality)
- Commonwealth v. Zook, 615 A.2d 1 (Pa. 1992) (purpose and admissibility of expert testimony)
- Commonwealth v. Kirkland, 831 A.2d 607 (Pa. Super. 2003) (expert testimony in narcotics cases to show intent to deliver)
- Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013) (broad discretion to admit expert evidence)
- Commonwealth v. Galvin, 985 A.2d 783 (Pa. 2009) (expert hypotheticals must be supported by record)
- Commonwealth v. Petrovich, 648 A.2d 771 (Pa. 1994) (expert may opine on hypothetical if facts later supported)
- Commonwealth v. Galloway, 771 A.2d 65 (Pa. Super. 2001) (surprise alone insufficient for new trial absent prejudice)
- Commonwealth v. Henry, 706 A.2d 313 (Pa. 1997) (no relief for expert testimony exceeding report absent prejudice)
- Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006) (trial court may use guideline factors as part of broader sentencing justification)
- Commonwealth v. Fullin, 892 A.2d 843 (Pa. Super. 2006) (aggravated sentence justified where case is atypical of offense)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (standards for appellate review of discretionary sentencing)