J-S90026-16

                             2017 PA Super 69

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

HUGO M. SELENSKI

                        Appellant                  No. 1068 EDA 2016

        Appeal from the Judgment of Sentence September 21, 2009
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0001225-2006

BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

OPINION BY SOLANO, J.:                             FILED MARCH 16, 2017

     Appellant Hugo M. Selenski appeals from his judgment of sentence

following this Court’s remand for an evidentiary hearing pursuant to

Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), which abolished

Pennsylvania’s per se ban of the admission of expert testimony regarding

eyewitness identifications in criminal cases.    The question presented is

whether, under Walker, the trial court properly declined to admit such

expert evidence in a case in which it found that an eyewitness identification

was not the sole or primary evidence of the defendant’s guilt. After careful

consideration, we affirm.

     On July 10, 2009, a jury convicted Appellant of multiple offenses,

including kidnapping, robbery, attempted burglary, criminal conspiracy, theft

by unlawful taking, simple assault, false imprisonment, and terroristic
J-S90026-16

threats1 — all with respect to a home invasion and attack on a jeweler

named Samuel Goosay. The trial court recounted the facts adduced at trial

as follows:

              On January 27, 2003, two men broke into Mr. Goosay’s
        residence just after dinner wearing ski masks and brandishing a
        gun. The men handcuffed Mr. Goosay and placed duct tape over
        his eyes while threatening him and questioning him about the
        alarm code to his jewelry store and $20,000 in cash. Mr. Goosay
        gave the men a partial code and one of them went, in Mr.
        Goosay’s car, to the jewelry store where he attempted and failed
        to break in and disarm the alarm. During this time, the other
        man stayed with Mr. Goosay.         At some point during the
        altercation, the metal handcuffs initially used to bind Mr.
        Goosay’s hands were switched to plastic flex cuffs.

              Mr. Goosay was seated on the bed while the man who had
        stayed behind ransacked the master bedroom. At this time, Mr.
        Goosay was able to push the duct tape over one eye and see
        that his assailant had left the gun on top of a nearby dresser.
        Mr. Goosay grabbed the gun and a fight ensued where the
        assailant overtook Mr. Goosay, obtained the gun, and sat Mr.
        Goosay back on the bed to put a flex cuff around his ankles.
        While the assailant was putting the flex cuff on his ankles, Mr.
        Goosay saw the assailant’s face without the ski mask. The
        assailant commented that it did not matter that Mr. Goosay saw
        his face because the assailant was not “from around here” and
        that Mr. Goosay would “never recognize [him]” and will “never
        know who [he] is.”

              Shortly thereafter, the alarm company at Mr. Goosay’s
        jewelry store called his home phone and indicated that police
        were being dispatched to the store because the alarm had been
        triggered. Upon receiving this information, the assailant hit Mr.
        Goosay in the head and quickly left. Mr. Goosay removed some
        of his restraints and telephoned the police. The police collected
        the flex cuffs and duct tape from inside Mr. Goosay’s house as
        well as pictures of footprints in the snow outside Mr. Goosay’s
____________________________________________

1
    18 Pa.C.S. §§ 2901, 3701, 901, 3502, 903, 3921, 2701, 2903 and 2706.

                                           -2-
J-S90026-16

     home. Among the footprints was one from a New Balance
     sneaker.

           During the time this case was being investigated, police
     located human remains on [Appellant’s] property in Luzerne
     County. Two bodies, those of Michael Kerkowski, Jr. and Tammy
     Fasset, were found buried behind [Appellant’s] residence. Police
     determined that Kerkowski was a small business owner and
     Fasset was his girlfriend. Both victims were bound with flex
     cuffs: Fasset was bound around her hands, ankles, and neck
     and Kerkowski was bound around his hands.            Additionally,
     Kerkowski had duct tape over his eyes.           Upon searching
     [Appellant’s] garage, home, and the vehicle he used, police
     located flex cuffs, duct tape, ski masks, metal handcuffs, a black
     BB pistol, and New Balance sneakers.

           The flex cuffs on [Appellant’s] property and those used to
     bind Mr. Goosay were found to be from a common source. The
     New Balance sneakers that were found in [Appellant’s] garage
     were identified by [Appellant’s] ex-girlfriend, Tina Strom, as
     belonging to [Appellant]. Moreover, an expert in the field of
     footwear impressions concluded that the prints left outside Mr.
     Goosay’s home could have been left by [Appellant’s] sneakers
     because “the physical size, the general state of wear, and the
     lack of accidental characteristics” on [Appellant’s] sneakers
     matched the same on the impression in the snow.

            During the trial, both the Commonwealth and [Appellant]
     presented      evidence    regarding   Mr.    Goosay’s   pretrial
     identifications of [Appellant]. Six months after the incident,
     Corporal Shawn Noonan showed Mr. Goosay a photo array that
     contained a picture of [Appellant] from 2001. Mr. Goosay failed
     to identify [Appellant] in this first array. Approximately two
     years later, Agent Scott Endy showed Mr. Goosay another photo
     array containing a picture of [Appellant] from May of 2003. Mr.
     Goosay was able to identify [Appellant]. Mr. Goosay was also
     able to identify [Appellant] at trial.

Trial Court Opinion, 3/4/16, at 2-4 (citations to notes of testimony and

footnotes omitted).

     Prior to trial, Appellant sought to contest Mr. Goosay’s identification of

him as the perpetrator by presenting an expert witness on eyewitness

                                    -3-
J-S90026-16

identification and on factors that can lead to inaccurate identification.

Because Pennsylvania law at that time precluded such testimony, the trial

court declined to permit this evidence.    After three days of trial, a jury

convicted Appellant of the aforestated charges, and on September 21, 2009,

the trial court sentenced Appellant to an aggregate 32½ to 65 years’

incarceration.

      Appellant filed a direct appeal in which he challenged the trial court’s

exclusion of the expert testimony on eyewitness identification, and this Court

affirmed his judgment of sentence. Commonwealth v. Selenski, 18 A.3d

1229 (Pa. Super. 2011).      Appellant then petitioned for allowance of an

appeal to the Supreme Court.       During the pendency of his petition, on

May 28, 2014, the Supreme Court rendered its decision in Walker, which

reversed the longstanding ban on expert eyewitness identification testimony.

The Supreme Court subsequently granted Appellant’s petition and remanded

his case to this Court.   Commonwealth v. Selenski, 100 A.3d 206 (Pa.

2014). The Supreme Court’s per curiam order stated:

      AND NOW, this 29th day of August, 2014, the Petition for
      Allowance of Appeal is GRANTED, LIMITED TO Petitioner’s first
      issue, as stated by Petitioner:

      Does the constitutional right to present a defense include the
      right to offer proven science bearing on the understanding of
      human memory and perception, and police practices in the
      identification process, where those advances are unknown to
      laypersons?

      Further, the Superior Court’s order affirming the judgment of
      sentence is VACATED, and the matter is REMANDED to the
      Superior Court for further consideration in light of

                                    -4-
J-S90026-16

     Commonwealth v. Walker, ––– Pa. ––––, 92 A.3d 766 (2014).
     In all other respects, the Petition for Allowance of Appeal is
     DENIED.

Selenski, 100 A.3d at 206.

     Upon receipt of the Supreme Court’s order, this Court received new

briefs and heard argument and then remanded the case to the trial court “so

that it may perform its traditional gatekeeper function with regard to the

proposed expert testimony.” Commonwealth v. Selenski, 117 A.3d 1283,

1285 (Pa. Super. 2015).      Notably, the Commonwealth’s brief emphasized

that “the [Supreme] Court maintained that such testimony generally would

only be permitted ‘where the Commonwealth’s case is solely or primarily

dependent     upon   eyewitness   testimony.’”     Commonwealth’s     Br.   in

Commonwealth v. Selenski, No. 352 EDA 2010, at 9 (Pa. Super. Jan. 26,

2015) (quoting Walker, 92 A.3d at 787). The Commonwealth argued that

this is not a case in which expert testimony would be allowed under Walker

because “Selenski was convicted following the jury’s careful consideration of

the Commonwealth’s entire case, which included testimony from law

enforcement officers, who participated in the investigation of this crime,

testimony from Selenski’s former girlfriend, physical evidence, scientific

analysis of the physical evidence, crime scene photographs, as well as

photographs taken during the execution of the search warrant on Selenski’s

home, in addition to the eyewitness identification by the victim, Mr. Goosay.”

Id. at 6. In our opinion, however, we summarized the evidence relating to

Mr. Goosay’s identification of Appellant, see Selenski, 117 A.3d at 1283,

                                    -5-
J-S90026-16

and then said we would “decline the invitation of the parties to bypass the

trial court” and would not determine Walker’s applicability ourselves in the

first instance. Id. at 1285-86.

        In the trial court on remand, Appellant moved to present expert

testimony by Dr. Jennifer Dysart, who proposed to detail “13 factors that can

be relevant to eyewitness identifications” and to opine, “after reviewing

partial records from this case and [Appellant’s] case in Luz[e]rne County,

[that] 9 of these 13 factors apply in [Appellant’s] case.” Trial Ct. Op. at 6. 2

The trial court concluded that Appellant’s motion “logically necessitates a

decision regarding whether a defendant is entitled to a new trial based on

the admission of expert testimony not allowed at his first trial.” Id.

____________________________________________

2
    In his brief, Appellant explains:

        At the hearing, Dr. Dysart testified to two categories of factors
        that can affect eye witness identification accuracy: estimator
        variables, the factors that happen during the event and at the
        crime scene, and system variables, which are factors that are
        related to police procedure.       Dr. Dysart testified to four
        estimator variables that are present in Mr. Selenski’s case:
        effects of brief exposure on memory, post-event memory
        contamination, effects of delay on memory, and effects of stress
        on memory. Dr. Dysart also testified to six system variables
        that are present in this case: the use of a simultaneous rather
        than a sequential lineup, the use of a non-blind lineup
        procedure, pre-identification instruction bias, witness confidence
        and accuracy, post-identification feedback, and unconscious
        transference.

Appellant’s Brief at 10.

                                           -6-
J-S90026-16

       In considering this issue, the trial court held an evidentiary hearing.

At the beginning of the hearing, the court said it would “conduct first what

under the new law we’ll say will be a Fry[e3] hearing and then further

analysis under Walker.” N.T., 10/20/15, at 6. After hearing testimony by

Dr.   Dysart,    the   court    concluded      that   Dr.   Dysart’s   testimony   was

inadmissible. In making that determination, the trial court made no ruling

regarding the admissibility of the testimony under Frye.4 Instead, the court

held that, under Walker, the testimony was inadmissible because Mr.

Goosay’s eyewitness identification “was not the sole or primary evidence

against [Appellant] at trial” and there was sufficient non-identification

evidence to convict Appellant beyond a reasonable doubt. Trial Ct. Op. at 6,

8, 10. The court stated:

             As with all evidence, expert testimony must first be
       relevant to the case in order to be admissible. See Pa.R.E. 402
       (“All relevant evidence is admissible, except as otherwise
       provided by law. Evidence that is not relevant is inadmissible.”);
       see also Commonwealth v. Cook, 952 A.2d 594, 602 (Pa.
       2008). Indeed, the Supreme Court addressed this very issue in
       Walker, finding that “the use of expert testimony regarding
       eyewitness testimony when relevant does not improperly intrude
       upon the jury’s credibility determinations.” Walker, 92 A.3d at
       788 (emphasis added). The Supreme Court specifically stated
____________________________________________

3
 Under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the proponent
of expert testimony must show that the expert’s methodologies are
generally accepted in the relevant scientific community. Grady v. Frito-
Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003).
4
  The Commonwealth did not challenge the evidence’s admissibility under
Frye. Commonwealth Brief at 11 n.2.

                                           -7-
J-S90026-16

     that cases in which this type of expert testimony would be
     relevant are “where the Commonwealth’s case is solely or
     primarily dependent upon eyewitness testimony.” Id. at 787
     (emphasis added).       After careful review of the record, the
     testimony from the hearing, and the parties’ briefs, we find
     [Appellant’s] proffered expert testimony on eyewitness
     identification does not meet the relevancy standard expressed in
     Walker and thus renders the testimony of Dr. Dysart
     inadmissible at trial.

            In Walker, the only evidence presented by the
     Commonwealth was the eyewitness identifications of Walker
     from alleged victims. Id. at 791. The Supreme Court noted that
     these identifications could have been tainted by some of the
     factors that Dr. Dysart discussed in relation to [Appellant’s]
     case. Id. (for example, stress, instruction bias, and post-
     identification confidence).     Unlike Walker, however, the
     Commonwealth’s case against [Appellant] consisted of an
     abundance of circumstantial evidence which placed [Appellant] in
     Mr. Goosay’s home on January 27, 2003. Thus, we need not
     reach the relevance of each factor discussed by Dr. Dysart
     because the Commonwealth presented sufficient evidence at trial
     to convict Defendant of the crimes charged.

            In its brief, the Commonwealth argues that this case does
     not fit into the Walker framework because the Commonwealth
     did not rely on Mr. Goosay’s eyewitness identification since there
     was other, corroborating evidence. [Appellant] argues primarily
     for the relevance of each factor discussed by Dr. Dysart.
     However, in his reply brief, [Appellant] addresses the overall
     relevance of Dr. Dysart’s testimony and disagrees with the
     Commonwealth because he claims no “direct evidence” other
     than Mr. Goosay’s eyewitness identification was presented
     against him. In essence, the issue is whether the evidence
     presented against [Appellant] at trial, absent Mr. Goosay’s
     eyewitness identification, was sufficient to convict Defendant.
     See Walker, 92 A.3d at 787.

            In determining whether sufficient evidence was presented
     at trial to warrant a conviction, the appellate courts apply the
     following standard: “whether viewing all evidence admitted at
     trial in the light most favorable to the verdict winner, there is
     sufficient evidence to enable the fact-finder to find every
     element of the crime beyond a reasonable doubt.” [Citation
     omitted.] “This standard is equally applicable to cases where the

                                   -8-
J-S90026-16

      evidence is circumstantial rather than direct so long as the
      combination of the evidence links the accused to the crime
      beyond a reasonable doubt.” [Citation omitted.] Moreover,
      Pennsylvania has long recognized that convictions can be based
      entirely on circumstantial evidence. . . .

             Viewing the evidence in the light most favorable to the
      Commonwealth as verdict winner, testimony on eyewitness
      identification would be irrelevant to this case.           The
      Commonwealth’s case against [Appellant] did not solely or
      primarily depend on Mr. Goosay’s identification. . . . Even
      without Mr. Goosay’s eyewitness identification, we find the
      combination of evidence links [Appellant] to the crimes against
      Mr. Goosay beyond a reasonable doubt, thus placing this case
      outside the category of cases contemplated by the Supreme
      Court in Walker.

Id. at 6-7, 10 (footnotes and citations to briefs omitted).        The court

therefore denied Appellant’s request for a new trial at which he could

introduce the expert evidence.

      Appellant then filed this timely appeal in which he presents a single

issue for our review:

      DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING
      [APPELLANT’S] REQUEST FOR AN EYEWITNESS IDENTIFICATION
      EXPERT AND A NEW TRIAL WHEN THE EXPERT TESTIMONY
      REGARDING EYEWITNESS IDENTIFICATION MEETS THE TWO-
      PRONGED TEST ISSUED BY THE COURT IN COMMONWEALTH
      V. WALKER?

Appellant’s Brief at 5.

      Appellant asserts that the trial court abused its discretion in denying

his request for a new trial at which he could present Dr. Dysart’s testimony.

In this regard, we observe that an abuse of discretion “is not merely an error

of judgment”; rather, discretion is abused “if in reaching a conclusion[,] the

                                    -9-
J-S90026-16

law is over ridden or misapplied, or the judgment exercised is manifestly

unreasonable,” or it is “the result of partiality, prejudice, bias or ill-will, as

shown by the evidence or the record.” Walker, 92 A.3d at 772-73.

                 Relevance and Discretion under Walker

      Because the trial court based its decision to exclude Dr. Dysart’s

expert testimony on language in the Supreme Court’s opinion in Walker, we

first consider whether the trial court correctly interpreted and applied the

Walker decision.     To our knowledge, no reported Pennsylvania appellate

decisions have construed Walker since that case was decided.

      Walker was a watershed decision that abandoned Pennsylvania’s prior

rule that expert testimony regarding eyewitness identifications in criminal

trials is per se impermissible.       The case turned primarily on two assault

victims’ identifications of the defendant from photo arrays. The defendant

sought to present expert testimony that would cast doubt on the reliability of

the victims’ identifications, but the trial court disallowed the testimony under

Pennsylvania’s per se rule, and the defendant ultimately was convicted. In a

lengthy opinion, the Supreme Court reversed.

      The Supreme Court noted that “[e]yewitness evidence may be

extremely    probative   of   guilt    and   is   often   times   crucial   to   the

Commonwealth’s case against a defendant,” but that “there is no doubt that

wrongful conviction due to erroneous eyewitness identification continues to

be a pressing concern for the legal system and society.” Walker, 92 A.3d at

                                        - 10 -
J-S90026-16

779-80.   After surveying empirical research and recent non-Pennsylvania

court decisions that counseled in favor of abandoning Pennsylvania’s per se

rule, the Court turned to “practical concerns” raised by the Commonwealth

in opposition to permitting expert testimony, including “the possibility of the

use of such expert testimony in numerous cases.” Id. at 787. In response,

the Court stated:

            Initially, we envision that allowing such expert testimony
      would be limited to certain cases. As discussed below, such
      testimony would only be permitted where relevant. Pa.R.E. 401.
      While we need not precisely define such situations,
      generally       speaking,     it   would       be  where     the
      Commonwealth’s case is solely or primarily dependent
      upon eyewitness testimony.                Thus, contrary to the
      Commonwealth’s suggestion that permitting expert testimony
      would impact thousands of cases, we believe the scope of
      removing the per se ban on such testimony would be limited,
      and, again, at the discretion of the trial judge.

Id. at 787-88 (emphasis added).        The trial court focused heavily on the

emphasized sentence in this paragraph when it declined to admit the expert

evidence in Appellant’s case.

      The Supreme Court described its holding in Walker as follows:

      [W]e believe an absolute ban on expert testimony in this area is
      no longer the best approach in determining how to assist the
      finder of fact where mistaken identification is at issue.
      Importantly, our decision today is limited to this unique area of
      the law, where, as noted above, the case law from other
      jurisdictions and the research is compelling. Thus, we believe
      that it is time to take the step of joining those jurisdictions which
      allow the admission of expert testimony on relevant factors
      concerning eyewitness identification, at the discretion of the trial
      court, subject to an abuse of discretion appellate standard of
      review.

                                     - 11 -
J-S90026-16

92 A.3d at 788.   The Court then delineated some “further aspects of our

limited decision.” Id. The Court explained that the evidence must: involve

explanations and inferences not within the range of ordinary knowledge;

help the trier of fact understand the evidence or determine an issue; under

Frye, be based on a scientific methodology that is generally accepted in the

relevant scientific community; under Rule 401 of the Rules of Evidence, be

relevant; and under Rule 403, have a probative value that is not outweighed

by the danger of such adverse consequences as undue prejudice or delay.

Id. at 788-92. With respect to relevance, the Court stated:

     Relevance is defined as evidence having “any tendency to make
     a fact more or less probable tha[n] it would be without the
     evidence; and the fact is of consequence in determining the
     action.” Pa.R.E. 401(a), (b). Here, there was no direct evidence
     against Walker other than eyewitness identifications. Thus, the
     eyewitness identifications were central to Walker’s conviction.
     Moreover, Appellant was the subject of cross-racial identification,
     made by witnesses that were under stress, and who were robbed
     at gunpoint. The police in this appeal did not instruct the
     witnesses when viewing the array that their assailant may or
     may not have been included in the array, and finally, while one
     witness equivocated during her identification of Appellant during
     the array and lineup, she declared with confidence her
     identification at trial. . . . Thus, we believe at least in these
     limited circumstances, expert testimony on these aspects of
     eyewitness identification could be highly relevant.

Id. at 791.

     Finally, at the end of its opinion, the Court summarized:

     We now allow for the possibility that such expert testimony on
     the limited issue of eyewitness identification as raised in this
     appeal may be admissible, at the discretion of the trial court,
     and assuming the expert is qualified, the proffered testimony
     relevant, and will assist the trier of fact. Of course, the question

                                    - 12 -
J-S90026-16

     of the admission of expert testimony turns not only on the state
     of the science proffered and its relevance in a particular case,
     but on whether the testimony will assist the jury. Trial courts
     will exercise their traditional role in using their discretion to
     weigh the admissibility of such expert testimony on a case-by-
     case basis. It will be up to the trial court to determine when
     such expert testimony is appropriate. If the trial court finds that
     the testimony satisfies Frye, the inquiry does not end. The
     admission must be properly tailored to whether the testimony
     will focus on particular characteristics of the identification at
     issue and explain how those characteristics call into question the
     reliability of the identification. We find the defendant must make
     an on-the-record detailed proffer to the court, including an
     explanation of precisely how the expert’s testimony is relevant to
     the eyewitness identifications under consideration and how it will
     assist the jury in its evaluation. The proof should establish the
     presence of factors (e.g., stress or differences in race, as
     between the eyewitness and the defendant) which may be
     shown to impair the accuracy of eyewitness identification in
     aspects which are (or to a degree which is) beyond the common
     understanding of laypersons.

     . . . What we do is remand for the possibility of a Frye hearing in
     this matter, leaving open admissibility questions such as
     relevance and probative value. . . .

     Thus, we hold that the admission of expert testimony regarding
     eyewitness identification is no longer per se impermissible in our
     Commonwealth, and join the majority of jurisdictions which
     leave the admissibility of such expert testimony to the discretion
     of the trial court. We reverse the order of the Superior Court
     which, based upon our prior case law, banned this type of
     testimony. As the trial court determined that a Frye hearing
     was not permissible, relying upon our prior case law, we remand
     to the trial court for full consideration of such expert testimony,
     including the possibility of a Frye hearing, consistent with our
     decision today.

Walker, 92 A.3d at 792–93.

     In excluding the testimony of Dr. Dysart, the trial court stated that the

testimony would not be relevant under Walker because “[t]he Supreme

Court specifically stated that cases in which this type of expert testimony

                                   - 13 -
J-S90026-16

would be relevant are ‘where the Commonwealth’s case is solely or primarily

dependent upon eyewitness testimony.’” Trial Ct. Op. at 6 (quoting Walker,

92 A.3d at 797 (emphasis added by trial court)). The court held that this

test was not met because there was “an abundance of [non-identification]

circumstantial evidence which placed [Appellant] in Mr. Goosay’s home” on

the day of the crime. Id. at 7.

      In reaching this conclusion, however, the court conflated its analysis of

relevance under Walker with the question whether there was sufficient non-

identification evidence to support Appellant’s conviction, making exclusion of

the proffered expert evidence harmless. See Trial Ct. Op. at 8 (“In essence,

the issue is whether the evidence presented against [Appellant] at trial,

absent Mr. Goosay’s eyewitness identification, was sufficient to convict

[Appellant]”). In doing so, the court explained that although the evidentiary

issue under Walker normally would be considered as “a pretrial matter,” it

now was before the court in connection with a request for a new trial after

Appellant’s conviction, and that this post-trial posture called for Walker to

be applied with a retrospective look at the sufficiency of the evidence that

supported the conviction. See id. at 6.

      In the end, the trial court held that this case is “outside the category

of cases contemplated by the Supreme Court in Walker,” and the expert

evidence therefore was inadmissible. Trial Ct. Op. at 10. The court did not

explicitly state whether it interpreted Walker to foreclose admission of

                                    - 14 -
J-S90026-16

expert identification evidence in cases failing to meet the “solely or primarily

dependent” test of relevance that it derived from the Supreme Court’s

opinion, and it did not discuss whether it had authority to admit the evidence

if that test was not met. However, the court clearly interpreted the passage

it quoted from Walker, 92 A.3d at 797, as authority for declining to admit

expert identification evidence where the “solely or primarily dependent” test

is not met, and it therefore declined to admit the evidence, which would

have required the grant of a new trial.

       In his brief to this Court, Appellant does not directly address the trial

court’s interpretation of Walker.5             Rather, the bulk of Appellant’s brief

presents a lengthy argument about why the proffered testimony by Dr.

Dysart would meet the two requirements for admissibility that were

identified at the end of the Walker opinion:               satisfaction of the Frye

standard, and demonstration of how the proffered evidence relates to the

eyewitness identification by Mr. Goosay and would assist the jury.              See

Appellant’s Br. at 12-40.       Then, in a short section at the end of his brief,

Appellant argues that the trial court abused its discretion in holding the

expert evidence irrelevant “because the remaining circumstantial evidence

presented by the Commonwealth, without the eyewitness identification, was
____________________________________________

5
  Appellant does not interpret the trial court’s decision differently than we do
or contend that the trial court made an error of law in the way that it
interpreted Walker. Indeed, Appellant does not identify the trial court’s
interpretation of Walker as an issue in this appeal.

                                          - 15 -
J-S90026-16

not sufficient to prove Mr. Selenski’s guilt beyond a reasonable doubt.” Id.

at 40 (underlining in heading omitted); see id. at 40-43. Appellant states:

             In its opinion, the trial court erroneously denies Mr.
      Selenski’s request for eyewitness identification expert and new
      trial, finding that Dr. Dysart’s testimony is inadmissible as
      irrelevant because Mr. Goosay’s eyewitness identification was
      not the sole or primary evidence presented against Mr. Selenski
      at trial. (Trial Court Opinion at 6). While it is well established
      that a criminal conviction may be based entirely on
      circumstantial evidence, the circumstantial evidence presented
      must be sufficient to prove that defendant guilty beyond a
      reasonable doubt. [Citations omitted.] In the instant case, the
      circumstantial evidence presented against Mr. Selenski does not
      meet that standard.

Appellant’s Brief at 40-41. Like the trial court, Appellant therefore appears

to conflate the standard for determining relevance under Walker with a test

requiring the non-identification evidence to be sufficient to prove guilt.

      In response, much of the Commonwealth’s brief reprises the argument

that the Commonwealth made to this Court at the time of the Supreme

Court’s remand, asserting that the circumstantial evidence of Appellant’s

guilt is sufficient to justify exclusion of Dr. Dysart’s expert testimony. See

Commonwealth Brief at 12-13.         The Commonwealth insists that expert

identification evidence should not be admitted unless it meets the “solely or

primarily dependent” test of relevance that it distills from the Supreme

Court’s   language,   and   the   Commonwealth     takes   specific   issue   with

Appellant’s focus on whether the non-identification evidence at Appellant’s

trial was sufficient to prove his guilt beyond a reasonable doubt, arguing that

Walker does not permit use of such a standard. Id. at 13-14.

                                     - 16 -
J-S90026-16

       We have reviewed the Supreme Court’s opinion in Walker in light of

the parties’ competing positions.              Having done so, we first reject any

suggestion by Appellant that the test of admissibility under Walker is

whether the non-identification evidence in the case would be sufficient to

convict the defendant beyond a reasonable doubt. Nothing in the Walker

decision suggests such a standard.                 The trial court’s opinion injected

confusion on this issue by conflating the test of relevance under Walker

with the standard of evidentiary sufficiency that is used to decide a request

for post-trial relief.6   Although we agree with the trial court that the post-

trial posture of this case requires the assessment of relevance under Walker

to be done retrospectively, the fact that this issue is before the court

following Appellant’s conviction does not justify use of a relevancy standard

different from that specified by the Supreme Court.

       Second, although we agree with the Commonwealth that Walker

permits exclusion of expert testimony about eyewitness identifications on

grounds of relevance if the case is not “solely and primarily dependent” on

the identifications, see Walker, 92 A.3d at 787, we do not read Walker to

____________________________________________

6
  The trial court’s opinion is unclear. Because the ultimate question before
the court was whether the exclusion of Appellant’s expert identification
evidence entitled Appellant to a new trial, the court may have engaged in a
harmless error inquiry to determine whether exclusion of the expert
evidence justified relief. The question on which we remanded, however, was
whether the expert evidence was admissible, and the trial court should have
analyzed that evidentiary question separately.

                                          - 17 -
J-S90026-16

require such exclusion. The Supreme Court did not explicitly say that the

expert evidence would be relevant only if it met a “solely or primarily

dependent” test. Rather, the Court stated that the expert evidence could be

permitted only in cases where it was relevant, and added:       “we need not

precisely define such situations.” See id. In addition, the Court qualified its

statement that the evidence would be relevant in cases “solely or primarily

dependent upon eyewitness testimony” by saying that the Court was

“generally speaking.” See id. The Court said that such limited use of the

testimony was what “we envision,” id., not what it was requiring.

      The “solely or primarily dependent” test is notably more stringent than

the general test of relevance set forth in Evidence Rule 401, which the

Supreme Court quoted with approval later in its Walker opinion:           “any

tendency to make a fact more or less probable than it would be without the

evidence; and the fact is of consequence in determining the action.” See 92

A.3d at 791.    The Court’s “solely or primarily dependent” language was

particularly appropriate to the facts of Walker, which turned almost entirely

on the victims’ eyewitness identification, but the Court nevertheless used the

more general test of Rule 401 when discussing those facts. See id.

      The importance of eyewitness identification evidence in criminal cases

varies from case to case. On one end of the spectrum are those cases that

turn solely on such evidence.    Close to that pole are cases in which there

may be some other inculpatory evidence, but the eyewitness evidence is

                                    - 18 -
J-S90026-16

that on which the case is primarily dependent.       At the opposite end are

cases where there is no eyewitness identification at all. And in between, of

course, is a broad range of cases in which eyewitness evidence is just one

element of the prosecution’s case, with varying importance depending on the

other evidence presented and the perspective of the fact-finder receiving the

evidence.   Walker makes clear that cases at the first pole, where the

eyewitness evidence is critical, are appropriate for expert eyewitness

testimony. Common sense dictates that cases at the other end, where there

is no eyewitness testimony, need no such expert. But Walker sets forth no

hard and fast rules about the extent to which a trial court may exercise

discretion to admit or decline to admit expert evidence in that broad swath

of cases that lies between the two poles.

      In this respect, we observe that the Supreme Court in Walker

repeatedly emphasized the broad discretion that is vested in trial courts

regarding the admission of such expert testimony.         The Court held that

eyewitness identification expert evidence would now be allowed “at the

discretion of the trial court, subject to abuse of discretion appellate review.”

92 A.3d at 788.    In the same paragraph in which it “envision[ed]” limited

use of the expert testimony in cases “solely or primarily dependent upon

eyewitness testimony,” the Court predicted that the impact of its decision

“would be limited, and, again, at the discretion of the trial judge.”    Id. at

788. Toward the end of its opinion the Court repeated that it was allowing

                                     - 19 -
J-S90026-16

for the admission of such evidence “at the discretion of the trial court.” Id.

at 792.    And the Court then emphasized:              “Trial courts will exercise their

traditional role in using their discretion to weigh the admissibility of such

expert testimony on a case-by-case basis. It will be up to the trial court to

determine when such expert testimony is appropriate.” Id. It was in this

context that our remand decision in this case declined the Commonwealth’s

invitation to hold that the Supreme Court’s “solely or primarily dependent”

language      absolutely     foreclosed        admissibility   of   expert   eyewitness

identification evidence in this matter, and we instead returned this case to

the trial court to “perform its traditional gatekeeper function with regard to

the proposed expert testimony” in the first instance. Selenski, 117 A.3d at

1285.7

       We understand Walker to hold that expert evidence about eyewitness

identifications is most clearly relevant where a case is solely or primarily
____________________________________________

7
  See also Commonwealth v. Alicia, 92 A.3d 753, 765 (Pa. 2014)
(dissenting opinion), in which then-Justice Saylor, who had joined the
majority opinion in Walker, observed:

       In Walker . . ., “this Court lifted the absolute prohibition against
       expert testimony concerning eyewitness identifications, investing
       judgment about the admissibility of such evidence within the
       sound discretion of trial judges. . . . I believe Walker represents
       an exercise in judicial modesty.            After Walker, . . . in
       appropriate cases — where the science is sound and the
       evidence is deemed probative and necessary — we will not
       inflexibly block litigants’ attempts to educate jurors about
       matters we are learning may be further from the realm of
       everyday experience than our predecessors had envisioned.

                                          - 20 -
J-S90026-16

dependent on the identifications, but that a trial court has discretion to

determine that the evidence is relevant in other situations too, weighing its

admissibility “on a case-by-case basis.”      Walker, 92 A.3d at 792.        The

Court’s “solely or primarily dependent” language did not establish a special

new definition of relevance for this class of cases that forecloses admissibility

in all other situations. Rather, the language simply identified cases where,

“generally speaking,” relevance would be most clear. The trial courts retain

power to exercise their discretion to determine that expert evidence also is

relevant in other situations, so long as persuasive proof of relevance is

presented under Rule 401; by the same token, they retain broad discretion

to determine that expert evidence should not be admitted in those other

situations if the standards of Rule 401 are not met. As the Supreme Court

observed, in most cases that do not turn solely or primarily on eyewitness

identifications, trial courts are most likely to conclude that proffered expert

identification evidence is not relevant.

      In addition, as the Supreme Court in Walker emphasized, trial courts

retain broad discretion under Evidence Rule 403 to weigh the probative

value of the proffered evidence against concerns about such things as unfair

prejudice, jury confusion, delay, and the inefficiencies resulting from

presentation of cumulative evidence. The scales in that balance necessarily

weigh less in favor of admitting the evidence when its relevance to the case

— and, thus, its probative value — is weaker. Therefore, in those cases that

                                     - 21 -
J-S90026-16

are not solely or primarily dependent on eyewitness identifications, a trial

court may more readily exclude proffered expert evidence about such

identifications upon a showing of countervailing concerns.           The expert

evidence may not be “per se excluded . . . merely because the trial might

be simpler without it,” Walker, 92 A.3d at 791, but the court may accord

greater importance to concerns about delay and “wasting time,” Pa. R. Evid.

403, where eyewitness evidence is less critical to the case.          Thus, this

analysis too is likely to result more often in the exclusion of proffered expert

evidence in cases that do not turn solely or primarily on eyewitness

identifications.

                    Application of Walker to This Case

                            Whether This Case Was
           Solely or Primarily Dependent on Identification Evidence

      The trial court concluded that this case was not solely or primarily

dependent on Mr. Goosay’s identification of Appellant, and that the proffered

expert testimony by Dr. Dysart therefore was not clearly relevant under that

formulation of the relevance standard that it derived from the Walker

opinion. We have concluded that an assessment of relevance under Walker

is not limited to application of a “solely or primarily dependent” test.

However, because we agree that the Appellant’s expert identification

evidence clearly would be relevant under Walker if this case were solely or

primarily dependent on identification evidence, we begin by considering

whether the trial court erred in its examination of that question.

                                     - 22 -
J-S90026-16

       In determining whether this case was solely or primarily dependent on

identification evidence, the trial court engaged in a retrospective review of

the record to determine the importance of Mr. Goosay’s identification when

compared with the other evidence in the case. Our review of that record —

three days of trial in which several witnesses other than Mr. Goosay testified

— causes us to agree with the trial court that this case did not turn solely or

primarily on Mr. Goosay’s identification of Appellant. We summarize just a

portion of the non-identification evidence here.

       First, although Mr. Goosay identified Appellant as one of his assailants

at trial, his testimony also included other details that linked the crimes to

Appellant, including Mr. Goosay’s description of the assailant’s use of gray

duct tape and “flex cuffs,”8 which, as discussed below, were later found at

Appellant’s residence. See N.T., 7/8/09, at 20-89, 176-78. But much of the

case was based on forensic evidence presented by law enforcement

witnesses.

       For example, Pennsylvania State Trooper Jody Radziewicz testified that

he is a trained forensic analyst and was called to Mr. Goosay’s home on the

night of the home invasion to photograph, collect, and secure evidence.

N.T., 7/8/09, at 91-94, 114. Trooper Radziewicz took impressions from two

____________________________________________

8
 Trooper Edward Urban explained that, “depending on your profession, you
may refer to [a flex cuff] as a cuff, a tie, or a zip tie.” N.T., 7/8/09, at 202-
03.

                                          - 23 -
J-S90026-16

sets of footprints, one made by New Balance sneakers, and another by work

boots, in the snow around Mr. Goosay’s home.        Id. at 97-98.    Christina

Strom, Appellant’s ex-girlfriend, testified that she had lived with Appellant,

and she identified a pair of size 10½ New Balance sneakers recovered from

Appellant’s home as belonging to Appellant.           Id. at 131-34, 138.

Pennsylvania State Police Sergeant Kevin Deskiewicz, who was qualified as

an expert in the field of impression evidence, then testified that he analyzed

two pairs of Appellant’s size 10½ New Balance sneakers in connection with

photographs of two distinct sneaker impressions from the Goosay home.

N.T., 7/9/09, at 32. He identified one of the pairs “as a possible source for

the crime scene impressions.” Id. at 35. His analysis included the “tread

design, the physical size, the general state of wear, and the lack of

accidental characteristics.” Id. at 40.

      Trooper Radziewicz also photographed the “flex cuff or wire tie and a

piece of duct tape that was found in the living room of the Goosay

residence” and identified as evidence the actual flex cuffs, duct tape, and

glove recovered from the Goosay home, all of which were admitted into

evidence.   N.T., 7/8/09, at 103, 106-07, 111-12. Another State Trooper,

Edward Urban, testified to being a trained forensic analyst who was called in

June of 2003 to the property where Ms. Strom and Appellant resided. He

said he found handcuffs in a desk drawer of that house, along with “a set of

white flex cuff or flex tie type material.” Id. at 195-96. He described the

                                    - 24 -
J-S90026-16

“flex cuff as kind of a half-moon around a pack of Camel cigarettes.” Id. at

196.      Ms. Strom identified the “handcuffs” or “flex ties” admitted into

evidence through Trooper Radziewicz, and said, “we’ve had them around the

house in different areas, and at one time I saw them under the floor mat in

my Honda on the passenger side.” Id. at 142. After she found them under

the floor mat, she asked Appellant what they were, but he did not reply. Id.

at 143. John Evans, a forensic science supervisor at the Harrisburg Regional

Crime Laboratory who was qualified as an expert in the field of trace

evidence, N.T., 7/9/09, at 4, 15, testified that he “was asked to compare to

see whether there was a common source between the [flex ties] in the

photographs [from Mr. Goosay’s home] and the one in the evidence

envelopes [from Appellant’s home].” Id. at 7-8. His conclusion was that “to

a reasonable degree of scientific certainty,” the “ties in the photographs

could share a common origin with the two ties in the manila envelopes.” Id.

at 16.

         Kimberly Smith testified that she worked at the dry cleaners located

near Mr. Goosay’s jewelry store. On the evening of the home invasion, she

was in the parking lot when she noticed Mr. Goosay’s car pull up. A man who

was not Mr. Goosay exited the vehicle and approached Mr. Goosay’s jewelry

store, where she saw him “jiggling with the lock on the door.” N.T., 7/8/09,

at 125-26. She “was calling the security guard over [when she] heard the

alarm beep.”     Id. at 126.   When the police arrived, Ms. Smith “noticed a

                                     - 25 -
J-S90026-16

white vehicle that was parked horizontally on the parking spaces. And as I

flagged the security guard over, that car had sped away around to the back

of the building.” Id. at 127, 129. Ms. Strom testified that she, Appellant,

and Appellant’s friend Paul Weakley all drove a white Honda Accord. N.T.,

7/8/09, at 143-44. She also testified that in January of 2003 — around or

after the time of the invasion of Mr. Goosay’s home — she saw that Mr.

Weakley was injured, with a “goose egg” and dried blood on his head. Id. at

139.

       Ms. Strom additionally testified that she saw a “black gun” in the

bedroom she shared with Appellant at their house, and saw Mr. Weakley

“shooting a pellet gun” there.   N.T., 7/8/09, at 140, 147.     Pennsylvania

State Trooper Joseph Cocco, a trained forensic analyst, testified that he

“process[ed] vehicles that were involved in this investigation,” searched Ms.

Strom’s white Honda Accord, and found a roll of duct tape and a black pellet

gun. Id. at 175-176. He also found a black pistol. Id.

       Ms. Strom further testified that she began dating Appellant in

September of 2001, and moved in with him “as soon as we started dating.”

N.T., 7/8/09, at 131-132. In May of 2002, Ms. Strom purchased the home

she shared with Appellant for $160,000, with a $10,000 down payment

Appellant gave her even though he was not working at the time. Id. at 136-

137. Ms. Strom “did not know” where the $10,000 came from. Id. at 136.

At the time of trial, Ms. Strom had been charged with money laundering in

                                   - 26 -
J-S90026-16

connection with past activities with Appellant.           Id. at 165.   She said she

would “get money” from Appellant, purchase money orders, and pay her

bills. Id. at 166. She did not know where any of the money came from.

Id. Ms. Strom would go to “like five different post offices” and get money

orders in “whatever amount the post office would let me take.” Id.

       Trooper Urban testified to an earlier investigation of the Luzerne

County property where Appellant resided.               In that investigation, Trooper

Urban uncovered human remains from two individuals: Tammy Fassett and

Michael Kerkowski.        Id. at 189.9         Both individuals had been bound with

“white plastic flex cuff — flex tie type material.” Id. at 190. “Mr. Kerkowski

also had some duct tape that went around his face.” Id. In the garage of

the property, Trooper Urban discovered and photographed “a plastic bin with

sneakers and other material in it from the detached garage.”             Id. at 191-

192.    There were also sweatshirts and ski masks.             Id. at 194.   Another

forensics expert, Pennsylvania State Trooper James Shubzda, testified to

recovering the flex ties from the autopsies of Michael Kerkowski and Tammy

Fassett and photographing and processing them for analysis.              Id. at 208-

211.     In its opinion, the trial court paid particular attention to the

significance of the Kerkowski/Fassett evidence:

____________________________________________

9
  In Appellant’s appeal from his conviction in 2014, we affirmed the trial
court’s admission of the evidence about this earlier matter over Appellant’s
objection.

                                          - 27 -
J-S90026-16

      Additionally, the bodies of Michael Kerkowski, Jr. and Tammy
      Fassett were found buried on Defendant’s property. Both bodies
      were bound with flex ties similar to the way Mr. Goosay had
      been bound and Kerkowski had duct tape over his eyes.
      Kerkowski was similarly a small business owner and his father,
      who knew Defendant, was threatened multiple times by
      Defendant in an effort to obtain money. Other similarities
      between this case and Defendant’s Luz[e]rne County case
      include the following: (1) the assailant in the present case and
      Defendant both used a gun and threats of burning down a home
      to get what they wanted; (2) the assailant in the present case
      and Defendant both demanded specific sums of money; (3) the
      assailant in the present case and Defendant both removed items
      from the scene that could have potentially left DNA evidence;
      and (4) Mr. Goosay was attacked in his home and Kerkowski and
      Fassett appear to have been attacked in Kerkowski’s home.

Trial Ct. Op. at 9-10 (citations and footnote omitted).

      In view of this “abundance of circumstantial evidence” that was

produced at trial, we conclude that the trial court correctly held that “the

Commonwealth’s case against [Appellant] did not solely or primarily depend

on Mr. Goosay’s identification.” Trial Ct. Op. at 7, 10. Indeed, nowhere in

Appellant’s brief does he argue otherwise.          Clearly, in light of all of the

circumstantial   evidence,   the      Commonwealth’s     case    was   not   “solely”

dependent on Mr. Goosay’s eyewitness identification.            And a review of the

record   makes    clear   that   it   was   not   “primarily”   dependent    on   the

identification either.    Rather, the primary evidence in the case was the

forensic evidence linking Appellant to the crime scene and demonstrating

Appellant’s common scheme in Luzerne County.                    While Mr. Goosay’s

identification of Appellant certainly was an element of the Commonwealth’s

case, the bulk of the case was comprised of other evidence.            Accordingly,

                                        - 28 -
J-S90026-16

Appellant’s proffered expert testimony was not relevant and admissible

under the portion of the Walker opinion that set forth the “solely or

primarily dependent” test for determining admissibility.

                     Whether the Proffered Expert Evidence
                     Was Otherwise Relevant and Admissible

      The remaining question is whether the trial court should have admitted

Dr. Dysart’s expert testimony even though this case did not turn solely or

primarily on Mr. Goosay’s identification. As we have observed, the Supreme

Court’s   decision   preserves   trial    courts’    discretion   to   receive   expert

identification evidence if they elect to do so, consistent with Evidence Rules

401 and 403. But Appellant’s brief contains no argument that the trial court

abused its discretion in failing to admit the evidence after determining that

the “solely or primarily dependent” test applied by the trial court was not

met, and, in fact, does not argue that expert identification evidence is

admissible in such situations at all.             Any argument along those lines

therefore is waived.

      Appellant does argue that the non-identification evidence in this case

was “not enough to prove Mr. Selenski’s guilt beyond a reasonable doubt,”

Appellant’s Brief at 43, but, as we have discussed, that is not the

appropriate standard for assessing the evidentiary question under Walker.

In addition, Appellant presents no substantial grounds in support of this

argument.     Appellant challenges the evidence of similarity between the

underlying crimes in this case and the crimes in Luzerne County by

                                         - 29 -
J-S90026-16

referencing a California study that, he says, shows that the use of duct tape

and flex ties has become too ubiquitous to be probative of a common plan or

scheme, see id. at 41-42; but that California study is not in evidence, and it

is far too late to challenge the admissibility of the Luzerne County evidence

now. Appellant also argues about the significance of other isolated facts in

the case. See id. at 42-43. However, the jury, within its province as fact-

finder, heard all of the evidence, which consisted mostly of non-identification

evidence, and weighed it accordingly in rendering its guilty verdicts. Where,

as here, a trial based primarily on non-identification evidence produced a

judgment of sentence that was upheld on direct appeal, there was no basis

for the trial court to exercise discretion to admit proffered expert testimony

on eyewitness identification.

      The trial court determined that the expert witness testimony proffered

by Appellant was not admissible under Walker.        The record supports that

determination.    Based on the foregoing, we find no error or abuse of

discretion by the trial court, and thus affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judge Jenkins did not participate in the consideration or decision of this
case.

                                     - 30 -
J-S90026-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2017

                          - 31 -


253 B.R. 151 (2000)
In re Joseph A. and Phyliss G. DONATO, Debtors.
United States of America, Appellant,
v.
Joseph A. and Phyliss G. Donato, Appellees.
No. 3:00-CV-1169.
United States District Court, M.D. Pennsylvania.
September 26, 2000.
*152 David J. Harris, Wilkes Barre, PA, for debtors.
Christopher R. Zaetta, U.S. Dept. of Justice, Washington, DC, for appellant.

MEMORANDUM
MUNLEY, District Judge.
Before the court for disposition is an appeal from the Bankruptcy Court which calls upon us to determine the correct valuation method for a piece of real estate located in Clarks Summit, Pennsylvania. The appellant is the United States of America, and the appellees/debtors of the bankruptcy are Joseph A. and Phyliss G. Donato. The matter is ripe for disposition having been fully briefed and argued.[1]
Jurisdiction
We have jurisdiction over the instant bankruptcy appeal pursuant to 28 U.S.C. § 158(a)(1), which provides that the district courts of the United States have jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy courts.
Standard of Review
This court reviews the bankruptcy court's conclusions of law de novo. In re O'Brien Environmental Energy, Inc., 188 F.3d 116, 122 (3d Cir.1999). The bankruptcy court's findings of fact will only be set aside if clearly erroneous. Bank. Rule 8013 ("On appeal the district court...may affirm, modify, or reverse a bankruptcy judge's judgment order, or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses."); In re O'Brien, 188 F.3d at 122.
Background
On September 22, 1995, the debtors filed a petition under Chapter 13 of the Bankruptcy Code. A timely proof of claim was filed by the Internal Revenue Service reflecting a secured claim in the amount of $111,771.85. Record Document (hereinafter "R.Doc.") 14, Internal Revenue Service's Proof of Claim dated March 1, 1996. The secured claim consists of the debtors' unpaid income taxes. Id.
Approximately fourteen acres of real estate located in Clarks Summit, Pennsylvania is owned by the debtors. On December *153 3, 1996, the debtors filed a complaint to determine secured status under 11 U.S.C. §§ 506(a) and (d). The bankruptcy court held a trial on July 27, 1999 regarding the debtors' complaint. The main issue of the trial was the value of the debtors' real estate. Both the United States and the debtors presented expert testimony regarding the value of the subject property. The debtors' experts valued the property at $186,000.00[2], and the expert witness presented by the United States placed the value at $926,000.00[3]. The great disparity in the two valuations is due to the United States valuing the property as if it were to be subdivided and the debtors valuing the property as one parcel. At the conclusion of the trial, Bankruptcy Judge Thomas found that the value of the land was $186,000.00. The matter now before the court is United States' appeal this decision.
Discussion
Under Chapter 13 of the Bankruptcy Code, debtors are provided a mechanism by which to voluntarily create a payment plan to satisfy their debts. See 11 U.S.C. §§ 1301-1330. Debtors can repay both secured and unsecured creditors. If the creditor has a lien on the debtor's property, the claim is secured. 11 U.S.C. § 101. The claim is secured, however, only to the extent of the value of the collateral. 11 U.S.C. § 506(a). In the instant case, the value of collateral, that is the fourteen acres of real estate owned by the debtors, is at issue. The following four parties have liens against the property: 1) the Lackawanna County Tax Claim Bureau has the first position lien for $24,334.35; 2) Abbey Road Ltd. has the second position lien in the amount of $113,019.85; 3) Pioneer American Bank has the third position lien in the amount of $60,030.15; and 4) the United States has the fourth position lien in the amount of $111,771.85. See R. Doc. 12, Stipulation dated November 1, 1999.
As stated above, the claim of a creditor is only secured to the extent of the value of the collateral. Therefore, if the property is valued at the amount the debtors seek, $186,000.00, the United States is not secured at all because the amount of the first three liens, which have greater priority than the United States' lien, is greater than the value of the property. If the value of the property urged by the United States is accepted, $926,000.00, then it is secured for the full amount of the lien.
This matter contains the following three major issues which shall be addressed seriatim: how is the property to be valued; what is the debtors' intended use of the property; and does the debtors' Chapter 13 Plan run afoul of section 1322(a)(3) of the Bankruptcy Code.
A. HOW IS THE PROPERTY TO BE VALUED?
Appellant initially argues that, in general, real property should be valued at its highest and best use. In the instant case, the highest and best use is as a subdivision. In support of its position the appellant cites the following bankruptcy court decisions: In re Sherman, 157 B.R. 987, 992 (Bankr.E.D.Tex.1993); In re Melgar Enterprises, Inc., 151 B.R. 34, 39 (Bankr.E.D.N.Y.1993); and In re Ehrich, 109 B.R. 390, 392 (Bankr.D.S.D.1989). These cases do, in fact, hold that when real estate is being valued, it should be valued at its highest and best use regardless of the debtors' proposed use.
Two of the cases have facts very similar to the instant case. For example, In re Sherman held that pasture land owned by Chapter 13 debtors would be valued based *154 on its highest and best use for rural residential home sites. In re Sherman, 157 B.R. at 991-92. Additionally, the United States Bankruptcy Court for the District of South Dakota concluded that real estate securing a claim should be valued not as ranch land but as subdividable land where the creditor can prove that the land is viable for that purpose. In re Ehrich, 109 B.R. 390, 392. Nonetheless, we do not find these cases persuasive as to the issue in the instant case.
In reaching their conclusions these cases address section 506(a) of the Bankruptcy Code which provides as follows:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
11 U.S.C. § 506(a)(emphasis added).
To courts analyzing this statutory section, there is a tension between the two italicized portions. The first sentence indicates that the creditor's interest in the property should be measured, and the last sentence indicates that the court should examine the debtors' proposed use of the property. The tension arises in when the debtor intends to use the property for something besides its highest and best use, thus affecting the creditor's interest. In the above cited cases, the courts found it to be equitable to examine the "creditor's interest" and determined that the highest and best use is the best valuation method. In other words, the courts found it to be inequitable for debtors to intend to use their property for anything besides the highest and best use because it adversely affects the creditor's interest.
Other cases, however, have rejected the highest and best use method of valuation, and several of these contrary cases are from courts located within the Third Circuit. For example, in Brace v. United States, 163 B.R. 274 (Bankr.W.D.Pa.1994), the issue was whether the debtors' real estate should be valued based on its current and prospective use as a working farm or at its highest and best use as a hobby farm. The court found that the valuation should be based on the use for which the property was designed and intended, that is a working farm. Id. at 277.
In United States v. 147.47 Acres of Land, 352 F.Supp. 1055 (M.D.Pa.1972) Judge William Nealon of the Middle District of Pennsylvania was presented with the issue of valuing land in the context of eminent domain proceedings. Judge Nealon found that if the highest and best use of land is as a residential subdivision it should be valued as such where steps have been taken in the direction of developing the land in that manner. Id. at 1060.
Two lines of cases have developed, therefore in valuing property under section 506(a), those giving more weight to the creditor's interest, by setting the highest and best use value and those giving more effect to the last sentence of 506(a) and assigning paramount importance to the debtor's proposed use of the property. Interestingly, Sherman, supra which chose the highest and best use analysis stated: "It is clear from all the cases this Court could locate which have discussed this issue that there is no definitive appellate court holding giving the Court any guidance as to what the last sentence of 11 U.S.C.A. § 506(a) [dealing with the debtor's proposed use] actually means." Sherman, 157 B.R. 987, 991. Since the Sherman decision was decided, the Supreme *155 Court has provided its analysis of section 506(a) in the case of Associates Commercial Corp. v. Rash, 520 U.S. 953, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997)(hereinafter "Rash").
In Rash, the Supreme Court addressed the proper application of section 506 of the Bankruptcy Code when a bankrupt debtor exercises the "cram down" option for which Code section 1325(a)(5)(B) provides. As quoted above, the last sentence of section 506(a) provides that the value of collateral shall be determined according to the proposed disposition or use of such property. 11 U.S.C. § 506(a). The Court stated that "[a]s we comprehend § 506(a), the `proposed disposition or use' of the collateral is of paramount importance to the valuation question." Associates Commercial Corp. v. Rash, 520 U.S. 953, 962, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997). The Court held that when a debtor seeks to retain and use the creditor's collateral in a Chapter 13 bankruptcy, the collateral is to be valued at its replacement value, that is the amount the debtor would have to pay for comparable property.
More particularly the Court defined "replacement value" as "... the price a willing buyer in the debtor's trade, business, or situation would pay a willing seller to obtain property of like age and condition." Rash, 520 U.S. at 959, n. 2, 117 S.Ct. 1879. The Court further noted that the replacement value is the cost the debtor would incur to obtain a like asset for the same proposed use. Id. at 965, 117 S.Ct. 1879. Once again the Court is emphasizing the importance of the proposed use of the collateral.
Hence, the proposed use of the collateral is of paramount importance according to the Supreme Court and section 506(a). In light of the Rash opinion, we find that to automatically apply the "highest and best" use value to the real estate, without examining its proposed or intended use, is not proper, and reject the cases cited by the appellant which so hold.
Appellant avers that using the Rash Court's replacement value with respect to real estate is not proper because of its nature as real property. First, we note that the Supreme Court, although dealing with a truck in Rash, does not limit its decision only to trucks. The definition used by the Supreme Court does not on its face preclude using it with real estate. The reasoning of the court  that one should examine the underlying proposed use of the collateral  is equally applicable to real estate as to trucks.
Appellant also claims that no reported decision has utilized replacement value with respect to real estate. Appellant's brief at 15. Our research, however, has uncovered several cases doing just that. For example in In re Watkins, 240 B.R. 735 (Bankr.C.D.Ill.1999), the court, relying on Rash uses replacement value with respect to a family farm. The court found that valuing the land as subdivided would be improper because that was not the intended use. Id. at 741. Also, the holding of In re Allen Courtright, 57 B.R. 495 (Bankr.D.Or.1986) is that where debtors intend to retain and use property (here a farm with improvements), the amount in which a secured claim should be allowed under section 506(a) is what it would cost the debtors to replace the property. Id. at 497.
Accordingly, pursuant to Rash and the cases cited above, we must determine what the cost would be for the debtors to obtain like property for the same proposed use. Central to this valuation is a determination of what the proposed use of the property is. Appellant claims that the debtors intend to subdivide the property to pay their creditors and this is evidenced by their Chapter 13 Plan and the trial testimony. Appellees claim that they never intended to subdivide the total parcel.
B. What is the proposed use of the property?
Debtors contend that their Chapter 13 Plan (hereinafter "plan") only provides *156 for the subdivision of their property to the extent necessary to satisfy their debts to Community National Bank (now by succession Abbey Ridge, LTD) and Salvatore Favo.[4] The manner in which the debtors intend to utilize their property is an issue of fact. If the bankruptcy judge made a finding of fact with regard to this issue, then we must apply the more deferential "clearly erroneous" standard of review as opposed to applying the de novo standard. Bank. Rule 8013; In re O'Brien, 188 F.3d 116, 122 (3d Cir.1999).
The bankruptcy judge found as follows: "Here I think it's rather clear the Debtor has bought this property initially probably as some sort of an investment or vacation home, as a horse farm originally. And then because of his financial circumstances was required to start liquidating parcels, and in that sense continued that plan, it is his actual Chapter 13 plan  liquidate enough." R.Doc. 6, Transcript of Hearing, July 27, 1999, at 119. Judge Thomas proceeded to explain: "[Both appraisers] agree that the best use of this property, the highest and best use was a residential development. I'm satisfied that the Rash footnote truly measures what I have to do today. That I have to make a decision as to what price a willing buyer in the Debtor's trade or business or situation would pay a willing seller to obtain this property. Not 28 plots, but the entire parcel, the 14 acre parcel." Id.
Accordingly, the Bankruptcy Judge concluded that the intended use of the property was not as a subdivision but kept together as a single parcel, and he valued it accordingly. After reviewing the record, we cannot find that Judge Thomas's finding is clearly erroneous.
A reading of the plan reveals that the property was only to be subdivided so as to fund the plan, and the United States is not mentioned in the plan. The only secured claims mentioned in the debtors' plan are as follows:
SECURED CLAIMS
The Debtors owe an undetermined prepetition arrearage sum to Community National Bank. This sum will be paid into this Plan. The Debtor, Joseph Donato, may owe certain sums to Salvatore Favo for services rendered on horses owned by the Debtor which remain in the possession of Salvatore Favo. Such claim, if allowed will be paid into this Plan.
R.Doc. 9, Chapter 13 Plan, at 2.
As to unsecured claims the plan provides as follows:
UNSECURED CLAIMS
The Debtors owe in excess of $400,000.00 in general unsecured claims, no portion of which shall be paid in this Plan.
Id.
With respect to subdivision the plan provides as follows:
The Debtors own approximately 15 acres of real estate in Clarks Summit, Lackawanna County, Pennsylvania. The Debtors propose to subdivide such property and sell lots to fund the Plan. One such lot has already been subdivided and is under contract for sale, subject to court approval, for the sum of $75,000.00.
Id.
The debtors' property was to be subdivided to pay the secured claims provided for in the plan, and the only entities mentioned as possessing secured claims are Community National Bank and possibly Salvatore Favo. The United States is not named in the plan at all. Therefore, we cannot find from the plan itself that the debtors intended to subdivide the property in order to satisfy their obligation to the United States.
*157 Moreover, an intention not to subdivide the property is found in the debtors' testimony at the trial. Joseph Donato testified that he had no money to put into subdividing the property. R.Doc. 6, Transcript of hearing, July 27, 1999, at 74. He also testified that he purchased the property to raise horses and build a house. Id. 75. He considered subdividing the property in 1995-96 to get out of his financial obligations. Id. 76. He admitted that he intended to subdivide to fund the Chapter 13 plan, however, he also pointed out that the Internal Revenue Service was not listed in the plan at all, particularly in the section regarding secured creditors. Id. at 81-82. Moreover, he admitted that he did not have the financing to subdivide the property. Id. 82.
From the above-cited evidence, we find that it was not clearly erroneous for the court to find as it did.
C. Section 1322(a)(3)
Lastly, the appellant argues that the debtors' plan is improper because it runs afoul of section 1322(a)(3) of the Bankruptcy Code. We find the appellant's argument to be unconvincing. Section 1322(a)(3) of the Bankruptcy Code provides that if a plan classifies claims, it must provide the same treatment for each claim within a particular class. In the instant case, the plan classifies only two claims as secured. These two claims are treated alike in the plan. Accordingly, the United States' argument is without merit.
Conclusion
We find that the proper way to value the real estate at issue is to examine the debtors' intended use of the property. As the debtors are not intending to subdivide the property, it cannot be valued as subdividable and is properly valued as one parcel. Accordingly, the bankruptcy court did not err when it found the value of the property to be $186,000.00. The bankruptcy appeal will accordingly be denied. An appropriate order follows.
NOTES
[1]  A motion to dismiss the appeal of the United States [5-1] has been filed by the debtors. Their argument is that the United States is appealing Judge Thomas' opinion of July 27, 1999 and such an appeal had to be filed within ten days. The instant appeal was filed more than ten days later on May 30, 2000.

According to the United States, Judge Thomas did not issue a final order until May 17, 2000 and its appeal was timely filed on May 30, 2000. The debtors concede that if the date of the final order is determined to be May 17, 2000, then the appeal was timely filed. See Appellees' Modification of Motion To Dismiss, pg. 2. After a careful review of the matter, we find that the United States is appealing the order filed May 17, 2000, and thus, the appeal was timely filed on May 30, 2000. Consequently, the debtors' motion to dismiss will be denied.
[2]  See R. Doc. 6, Transcript of hearing, July 27, 1999, at 55.
[3]  The United States' expert valued the land at $1,176,000.00 without consideration to the cost of subdividing the property. According to her estimation, subdivision would cost $200,000.00, bringing the value of the land to $926,000.00 R.Doc. 6, Transcript of Hearing, July 27, 1999, at 87, 92, 95.
[4]  The appellees assert, and the United States does not contest, that Favo's claim is not involved with the subject real estate and, regardless, was determined to be unsecured. See Brief in Reply for Appellees, at 5 n. 1.


/*
 * Copyright (c) 2012, Swedish Institute of Computer Science.
 * All rights reserved.
 *
 * Redistribution and use in source and binary forms, with or without
 * modification, are permitted provided that the following conditions
 * are met:
 * 1. Redistributions of source code must retain the above copyright
 *    notice, this list of conditions and the following disclaimer.
 * 2. Redistributions in binary form must reproduce the above copyright
 *    notice, this list of conditions and the following disclaimer in the
 *    documentation and/or other materials provided with the distribution.
 * 3. Neither the name of the Institute nor the names of its contributors
 *    may be used to endorse or promote products derived from this software
 *    without specific prior written permission.
 *
 * THIS SOFTWARE IS PROVIDED BY THE INSTITUTE AND CONTRIBUTORS ``AS IS'' AND
 * ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
 * IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
 * ARE DISCLAIMED.  IN NO EVENT SHALL THE INSTITUTE OR CONTRIBUTORS BE LIABLE
 * FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL
 * DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS
 * OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
 * HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT
 * LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY
 * OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF
 * SUCH DAMAGE.
 *
 */

package org.contikios.cooja.mspmote;
import java.io.File;
import org.apache.log4j.Logger;
import org.contikios.cooja.Simulation;
import org.contikios.cooja.mspmote.interfaces.CoojaM25P80;
import se.sics.mspsim.platform.z1.Z1Node;

/**
 * @author Fredrik Osterlind, Niclas Finne
 */
public class Z1Mote extends MspMote {

    private static Logger logger = Logger.getLogger(Z1Mote.class);

    public Z1Mote(MspMoteType moteType, Simulation sim) {
        super(moteType, sim);
    }

    @Override
    protected boolean initEmulator(File fileELF) {
        try {
            Z1Node z1Node = new Z1Node();
            registry = z1Node.getRegistry();
            z1Node.setFlash(new CoojaM25P80(z1Node.getCPU()));

            prepareMote(fileELF, z1Node);
        } catch (Exception e) {
            logger.fatal("Error when creating Z1 mote: ", e);
            return false;
        }
        return true;
    }

    @Override
    public String toString() {
        return "Z1 " + getID();
    }

}


Roger Friedman

Roger Friedman is an American film critic and entertainment news journalist. Friedman created and wrote the FOX411 news column on Foxnews.com for 10 years. He is the founder and editor-in-chief of Showbiz 411, an entertainment news and film review column which started with The Hollywood Reporter.

Career

Among Friedman’s activities in celebrity journalism have been writing the “Intelligencer” column at New York magazine and editing Fame magazine, where he wrote cover stories on Paul McCartney, Whitney Houston, Paloma Picasso, Carly Simon, and other stars. He has also written articles which have appeared in Vogue, The New York Times, the New York Daily News, Redbook, Us Weekly, Premiere, The Washington Post, and other publications.

With D. A. Pennebaker and Chris Hegedus, Friedman co-produced Only the Strong Survive, a 2002 documentary film about Memphis soul musicians. The film was shown in the Directors' Fortnight at the Cannes Film Festival, and at the Sundance and Telluride film festivals.

Fox News

Friedman worked for Fox News as a journalist for ten years, starting Fox News's website and creating the popular Fox411 column. Among other things was his coverage of Michael Jackson's child molestation trial in 2005.

In April 2009, Friedman was fired by Foxnews.com after he reviewed the film X-Men Origins: Wolverine based on viewing a bootlegged copy of the movie online. (Friedman later told Gawker.com that he had not downloaded the film, but had streamed it after finding a link to it online.) Friedman's column was perceived as an endorsement of film piracy and illegal file sharing, particularly by the film's distributor, 20th Century Fox, which, like Foxnews.com, is a unit of News Corporation. Ironically, Friedman's review of Wolverine was very favorable, including comments such as "I am, in fact, amazed about how great Wolverine turned out. It exceeds expectations at every turn."

In June 2009, Friedman filed a lawsuit against Fox News Network L.L.C., NewsCorp America, Twentieth Century Fox, and Rupert Murdoch, claiming wrongful termination, tortious interference with his employment contract, and defamation based on statements Fox News and 20th Century Fox made after his firing.

The Hollywood Reporter
Friedman joined The Hollywood Reporter as a senior correspondent in May 2009. He left in March 2010.

Current career at Showbiz 411

Friedman currently writes for Forbes.com and Parade.com, as well their print versions. He started the Showbiz 411 column during his time at The Hollywood Reporter. The blog is an entertainment news website where Friedman and other authors report "everything from Hollywood to the Hudson". The website has become independent since he was fired. Friedman regularly writes about Michael Jackson and complications surrounding his death and estate. In addition, Friedman writes about James Franco, Mariah Carey, and Madonna. Showbiz411 frequently breaks entertainment news stories and is often highlighted on the Drudge Report.

References

External links
Roger Friedman's Showbiz411.com
Roger Friedman 2009 column archive at Foxnews.com

Category:Living people
Category:American male journalists
Category:American film critics
Category:Place of birth missing (living people)
Category:Year of birth missing (living people)
Category:The Hollywood Reporter people


I. Field of the Invention
The present invention generally relates to wireless communications networks. More particularly, the present invention relates to methods and apparatus for controlling transmission power.
II. Background Art
There are a variety of wireless communication systems having multiple beam communication links. A satellite-based communication system is one such example. Another example is a cellular communication system.
A satellite-based communication system includes one or more satellites to relay communications signals between gateways and user terminals. Gateways provide communication links for connecting a user terminal to other user terminals or users of other communications systems, such as a public switched telephone network (PSTN). User terminals can be fixed or mobile, such as a mobile telephone, and positioned near a gateway or remotely located.
A satellite can receive signals from and transmit signals to a user terminal provided the user terminal is within the “footprint” of the satellite. The footprint of a satellite is the geographic region on the surface of the earth covered by the satellite communications system. In some satellite systems, a satellite's footprint is geographically divided into “beams,” through the use of beam forming antennas. Each beam covers a particular geographic region within a satellite's footprint.
Some satellite communications systems employ code division multiple access (CDMA) spread-spectrum signals, as disclosed in U.S. Pat. No. 4,901,307, issued Feb. 13, 1990, entitled “Spread Spectrum Multiple Access Communication System Using Satellite or Terrestrial Repeaters,” and U.S. Pat. No. 5,691,174, which issued Nov. 25, 1997, entitled “Method and Apparatus for Using Full Spectrum Transmitted Power in a Spread Spectrum Communication System for Tracking Individual Recipient Phase Time and Energy,” both of which are assigned to the assignee of the present invention, and are incorporated herein by reference.
The method for providing CDMA mobile communications was standardized in the United States by the Telecommunications Industry Association in TIA/EIA/IS-95-A entitled “Mobile Station-Base Station Compatibility Standard for Dual-Mode Wideband Spread Spectrum Cellular System,” referred to herein as IS-95. Combined AMPS & CDMA systems are described in TIA/EIA Standard IS-98. Other communications systems are described in the IMT-2000UM, or International Mobile Telecommunications System 2000/Universal Mobile Telecommunications System, standards covering what are referred to as wideband CDMA (WCDMA), cdma2000 (such as cdma2000 1×or 3×standards, for example) or TD-SCDMA.
Cellular communications may also employ CDMA techniques. However, instead of receiving signals from gateways that are relayed through one or more satellites, user terminals receive signals from a fixed position base station that supports multiple sectors, each corresponding to a particular geographic region, similar to having multiple beams.
Gateways and base stations transmit information in the form of wireless signals to user terminals across forward link communications channels. These wireless signals need to be transmitted at power levels sufficient to overcome noise and interference so that the transfer of information occurs within specified error rates. In addition, these wireless signals need to be transmitted at power levels that are not excessive so that they do not interfere with communications involving other user terminals. Faced with this challenge, gateways and base stations employ dynamic forward link power control techniques to establish appropriate forward link transmit power levels.
Conventional forward link power control techniques involve closed loop approaches where user terminals provide gateways and base stations with feedback that specifies particular forward link transmit power adjustments. For example, one such approach involves a user terminal determining signal-to-noise ratios (SNRs) of received forward link traffic signals. Based on these determined SNRs, the user terminal transmits commands that direct the gateway or base station to either increase or decrease the transmit power of traffic signals sent to the user terminal.
These commands are referred to as up/down commands because they direct either a power increase or a power decrease. Up/down commands are transmitted to the gateway or base station across an up/down power control channel. This channel is typically implemented by “puncturing” the up/down commands into frames of user terminal data that are transmitted to the gateway or base station. This puncturing can limit the data rates at which user terminals transmit information to gateways and base stations. Additionally, punctured channels may not be as reliable because punctured commands may introduce a higher bit error rate for a given signal-to-noise ratio.
In addition to transmitting up/down commands, user terminals typically transmit other types of information to gateways and base stations. For example, many user terminals periodically transmit various power measurements and noise measurements to support operations, such as “handoffs” between beams during an active call. To eliminate the less reliable transmission of data rate limiting power adjustment commands, it is desirable for gateways and base stations to utilize such transmitted measurements to control forward link transmit power levels.
In addition, it is desirable to conserve forward link transmission power. Since satellite and cellular communications systems employ multiple beams, transmissions received by user terminals in a particular beam are susceptible to interference from transmissions designated for neighboring beams. A user terminal's interference susceptibility is related to its proximity to adjacent beams. Namely, the closer a user or user terminal is to an adjacent beam, the more susceptible the user is to interference from neighboring beams.
In a satellite-based communications system where the satellites are not stationary, the geographic area covered by a given satellite is constantly changing. As a result, a user terminal positioned within a particular beam of a particular satellite at one point in time can later be positioned within a different beam of the same satellite and/or within a different beam of a different satellite. Furthermore, because satellite communication is wireless, a user terminal is free to move about. As a result, user terminals typically have varying positions within a beam while receiving transmissions across forward link channels. Accordingly, their susceptibility to interference may vary over time.
One technique for reducing interference received by user terminals is to boost the power of signals that are transmitted by satellites and/or cellular base stations to user terminals by a fixed margin. However, since user terminals can experience varying degrees of interference susceptibility, this approach has the drawback of wasting power on users that are not as susceptible to interference as others. In addition, this approach can cause additional interference with other user terminals.
Accordingly, as with the elimination of user terminals needing to transmit closed loop power adjustment commands, techniques for reducing interference while conserving transmit power are desirable, especially in systems having limited power budgets.


1. Field of the Invention
The present invention relates to an air purifier; particularly to an air purifier capable of releasing ozone, negative ions and static electricity.
2. Background of the Invention
As the level of living grows, people ask higher and higher quality of surrounding environment air. On the contrary, due to the increase of population density, industrial production, construction and auto exhaust, dust and the germs increase, the ozone layer is damaged and the negative ions, which are helpful to the human body, decrease correspondingly.
From another point of view, animals also need a high level of air and environment quality. When a livestock farm is full of odors, which might be from garbage, excrement or other contamination, animals will have slow growth. Besides, contamination will pollute the livestock per se: harmful bacteria caused thereby will pollute the meat quality. The dust generated by treading of livestock also harms their growth.


Measurement of adenosine triphosphate and 2,3-diphosphoglycerate in stored blood with 31P nuclear magnetic resonance spectroscopy.
Conditions for blood storage are chosen to assure adequate levels of adenosine triphosphate (ATP) and 2,3-diphosphoglycerate (2,3-DPG). Because of the invasive nature of the techniques, biochemical assays are not routinely used to measure levels of these compounds in stored blood. However, 31P NMR spectroscopy measures phosphorylated intermediates in intact cells and could be used without disruption of the storage pack. We compared levels of ATP and 2,3-DPG measured by 31P spectroscopy and standard enzyme-linked biochemical assays in whole blood (WB) and packed red blood cells (PRBCs) at weekly intervals during a 35-day storage period. NMR demonstrated a marked decrease in 2,3-DPG and an increase in inorganic phosphate after the first week of storage. No significant differences in ATP concentrations were seen in WB during the storage period, but a significant decrease in ATP in PRBCs was documented. There was good agreement in levels of ATP and 2,3-DPG measured by NMR and biochemical techniques. 31P NMR spectroscopy is a noninvasive technique for measuring ATP and 2,3-DPG which has a potential use in quality assurance of stored blood.


This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

Calmer, gentler Virk takes reporting role

This may come as news to many, but there is only one Adnan Virk.

By Chris Zelkovich

Fri., May 2, 2008

This may come as news to many, but there is only one Adnan Virk.

The hyperkinetic, jive-talking guy who delivers scores while entertaining some and driving others to distraction on The Score is the same person who delivered insightful reports and asked intelligent questions during the Raptors' short playoff run.

And we're about to see a lot more of the latter as Virk moves into the spot vacated by the likes of Elliotte Friedman and James Cybulski.

"We want to be able to tell more stories and Adnan is a guy who can really do that," says Score programming head Greg Sansone. "He did an excellent job courtside with the Raptors. It put him in a different light."

Depending on your tastes, that may be good news or bad. Virk's been one of those love-him-or-hate-him guys in his anchor role.

"The people who like me will say it's because I have my own style and I'm irreverent and energetic," says Virk. "Those who don't will say I'm self-indulgent and over-the-top, trying too hard."

Regardless, a different Virk will emerge soon at The Score, reporting and filing features on big events.

"If somebody finds me a little too abrasive as an anchor, they might appreciate me as a reporter," he says.

Virk's career path has followed a non-traditional curve, which in many ways matches his life.

Born in Toronto to Pakistani immigrants, Virk grew up in tiny Morven, Ont., near Kingston.

"My brother and I were the token minorities like Token on South Park," he recalls.

After taking TV at Ryerson, Virk worked as an intern at TSN but longed to be in front of the camera.

He auditioned unsuccessfully for those offbeat between-the-ads commentaries at Omni but showed enough to be offered a spot on the channel's Bollywood Boulevard.

The problem was he was no fan of Bollywood movies, but managed to do the job anyway. Then he moved on to Omniculture, a daily show whose floor director was the cousin of then Score programming head Anthony Cicione.

Virk says he almost drove Cicione crazy with phone calls, "like Robert DeNiro in The King of Comedy."

Virk says being a minority – "a brown guy," he calls it – has worked in his favour.

"I remember Mark Milliere at TSN always told me never to deny my ethnicity," Virk says. "It's such a competitive environment, so whatever edge you have to have to use that.

"Toronto is a changing city and television is a visual medium. Being brown will help you at one point."

When Cicione hired him, Virk says he joked that the channel could always use a minority.

"I kind of laughed it off, but a few years later I asked him if he hired me because of the colour of my skin," Virk says. "If so, I'd find that a little bit disturbing.

"But Anthony told me it didn't hurt, but that my talent and work ethic were the main reasons."

Now that talent and work ethic will be put to the test, which might present a problem for The Score. Both of Virk's predecessors are now working elsewhere.

NEW LOOK: Rogers Sportsnet broke in its new studios at the downtown Rogers complex this week. Everything will now be in HD, says president Doug Beeforth. The facilities will give Sportsnet access to more highlights faster than ever. The centrepiece is Sportsnet Connected's 8-by-74-foot projection screen. . . . TSN has all Canada games at the world hockey championship, with the FAN 590's website providing radio coverage. . . . Despite the Jays' poor start, ratings are up 17 per cent on Sportsnet.

Delivered dailyThe Morning Headlines Newsletter

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com


Downhill skier Ted Liggett he can -- one to the record book today's win at the giant slalom made him the first American -- to ever win two Olympic gold medals in Alpine skiing. The favorite going into this event they -- had struggled through the Sochi games have to this point failing to medal in either the super combined with a super G. That was not the case today he opened a wide lead with a flawless first run. Then protected that skiing a conservative second leg. Other racers saying he was simply impossible to beat American -- Williams is so good she could pull off Olympic -- are two kinds of tracks. Williams already has a cache of gold and silver medals from three Olympic appearances as a sprinter. And she can now add another to that collection Williamson -- made a lot of Myers winning a silver today in bobsled. She becomes only the fifth Olympian to meddle in different events in both the summer and winter games. Jamie grew -- Asia Evans in USA 21 bronze the first time to US -- have medal in women's bobsledding in a huge blow for the host nation the Russian hockey team was eliminated today after losing to Finland 31 in the quarterfinal. For the United States -- -- very different story team USA punish the Czech Republic five to two the US will face Canada in the semis. And also on the ice women figure skaters at the end of the short program as expected -- you know from South Korea is in first place. American Gracie gold in fourth her two American teammates also up in the top ten Russia's yulia that this guy -- the young teen who while the team competition fell during her performance. That's slip up lending her in fifth place. Jim Ryan ABC news Sochi Russia.

This transcript has been automatically generated and may not be 100% accurate.