Commonwealth v. Serge

Justice NEWMAN.

Michael Serge (Appellant) appeals the sentence of life imprisonment entered by the Court of Common Pleas of Lackawanna County (trial court) following his conviction for first-degree murder, 18 Pa.C.S. § 2502(a). We granted allowance of appeal in this case to consider the admissibility of a computer-generated animation (CGA) illustrating the Commonwealth's theory of the homicide. For the reasons discussed herein, we hold that the trial court properly admitted the CGA as demonstrative evidence.

FACTS AND PROCEDURAL HISTORY

On the morning of January 15, 2001, Appellant shot his wife, Jennifer Serge (Victim), three times, killing her inside their home in Scott Township, Lackawanna County. Appellant was arrested that morning and charged with one count of first-degree murder, 18 Pa.C.S. § 2502(a), and one count of third-degree murder, 18 Pa.C.S. § 2502(c).

On June 18, 2001, prior to trial, the Commonwealth filed a Motion in limine, seeking to present the prosecution's theory of the fatal shooting through a CGA based on both forensic and physical evidence. [Footnote 1] On September 14, 2001, following an evidentiary hearing, the trial court granted the Commonwealth's Motion in limine provided that certain evidentiary foundations were established at trial. . . . The trial court required the Commonwealth to authenticate the animation as both a fair and accurate depiction of expert reconstructive testimony and exclude any inflammatory features that may cause unfair prejudice. To safeguard against potential prejudice, the trial court required the pre-trial disclosure of the CGA.

=====FOOTNOTE 1=====

A CGA is a drawing, or drawings, created by a computer that, when assembled frame-by frame, produce the image of motion. The image is merely a graphic representation depicting the previously formed opinion of a witness or witnesses, in this case the Commonwealth experts. . . . Presently, the CGA is akin to the traditionally permitted drawings used by crime scene reconstructionists to show bullet path trajectory. Accordingly, a CGA is only as credible as the underlying testimony that it represents and the computer plays no part in calculating an outcome or presenting its own conclusions. Conversely, computer-generated simulations do not depict witness opinion; rather, the computer program, based upon the data entered, draws a conclusion. As such, a computer simulation presents not only the testimony of an expert regarding the programming and data input but also a conclusion of the computer based upon the formulas programmed to use the raw data entered. For example, scientists use computer simulations to predict the effects of earthquakes on a building's structure by inputting factors such as: (1) wind; (2) magnitude of earthquake; (3) proximity of earthquake; (4) building materials; (5) building height; (6) amplitude of the earthquakes waves; and so forth. However, the simulation creates a result that nobody can testify to with personal knowledge nor is it the representation of an individual's opinion. Rather it is the outcome of the program's mathematical formulas based on the various inputted data and the laws of physics as entered by the programmers. As noted by Justice Castille in his concurring Opinion, the program used for either a CGA or a simulation is a human product and may be subjected to scrutiny regarding its programming bias and soundness in principles of both math and physics. At that point, a proper determination of the appropriate weight to be assigned to its output can occur. Further, as discussed infra, jury instructions may help in reducing or eliminating the potential for a jury to assign undue weight to a CGA by clarifying that it is, in actuality, a graphic representation of biased testimony of one party and not a product of neutral infallible artificial intelligence. Today, we address only the admissibility of CGA evidence as defined above and not that of computer simulations.

=====Footnote End=====

At his jury trial held January 29, 2002 to February 12, 2002, Appellant alleged that he had acted in self-defense as his wife attacked him with a knife. . . .

The Commonwealth countered that the killing was intentional, and that Appellant, a former Lieutenant of Detectives with the Scranton Police Department, “used his decades of experience as a police officer to tamper with the crime scene to stage a self-defense setting.” . . . In particular, the Commonwealth asserted that Appellant had moved his wife's body and strategically positioned her near a knife that he had placed on the floor, as depicted in the CGA.

On February 7, 2002, during its case-in-chief, the Commonwealth presented a CGA as demonstrative evidence to illustrate the expert opinions of its forensic pathologist, Gary W. Ross, M.D. (Dr. Ross), and crime scene reconstructionist, Trooper Brad R. Beach (Trooper Beach). The CGA showed the theory of the Commonwealth based upon the forensic and physical evidence, of how Appellant shot his wife first in the lower back and then through the heart as she knelt on the living room floor of their home. More importantly, the animation showed the location of Appellant and his wife within the living room, the positioning of their bodies, and the sequence, path, trajectory, and impact sites of the bullets fired from the handgun.

The trial court thoroughly instructed the jury of the purely demonstrative nature of the CGA both before the animation was presented and during the jury charge prior to deliberation. In particular, the court noted that the CGA was a demonstrative exhibit, not substantive evidence, and it was being offered solely as an illustration of the Commonwealth's version of the events as recreated by Dr. Ross and Trooper Beach. Finally, the court informed the jury that they should not confuse art with reality and should not view the CGA as a definitive recreation of the actual incident.

On February 12, 2002, the jury found Appellant guilty of first-degree murder and the trial court immediately sentenced him to life imprisonment. Appellant filed a timely appeal, challenging several of the jury instructions and evidentiary rulings of the trial court. . . .

DISCUSSION

We determine that, for the reasons below, a CGA is admissible evidence in this Commonwealth. In particular, CGA evidence must be weighed by the same criteria of admissibility; namely, probative value versus prejudicial effect to which all other evidence is subject. Notably, certain concerns prior to admission carry more weight and deserve closer scrutiny when admitting CGA evidence than more traditional forms of evidence.

Appellant argues that the trial court erred in allowing the Commonwealth to present a CGA, which was used to introduce evidence of the Commonwealth's theory of the killing. Appellant alleges that the Commonwealth's use of the CGA: (1) lacked proper authentication; (2) lacked proper foundation; and (3) was, essentially, cumulative and unfairly prejudicial. The Commonwealth counters this argument and posits that the trial court properly admitted the CGA as demonstrative evidence used to explain or illustrate the testimony of its expert witnesses and should be subject to the same rules of admissibility as any other demonstrative evidence.

Society has become increasingly dependent upon computers in business and in our personal lives. With each technological advancement, the practice of law becomes more sophisticated and, commensurate with this progress, the legal system must adapt. Courts are facing the need to shed any technophobia and become more willing to embrace the advances that have the ability to enhance the efficacy of the legal system. However, before we are too quick to differentiate CGA's or create a special test for their admission, it must be noted that the rules for analyzing the admission of such evidence have been previously established. In particular, a CGA should be treated equivalently to any other demonstrative exhibit or graphic representation and, thus, a CGA should be admissible if it satisfies the requirements of Pa.R.E. 401, 402, 403, and 901. . . .

There are three basic types of evidence that are admitted into court: (1) testimonial evidence; (2) documentary evidence; and (3) demonstrative evidence. . . . Presently, at issue is demonstrative evidence, which is “tendered for the purpose of rendering other evidence more comprehensible to the trier of fact.” Id. As in the admission of any other evidence, a trial court may admit demonstrative evidence whose relevance outweighs any potential prejudicial effect. . . . The offering party must authenticate such evidence. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” . . . Demonstrative evidence may be authenticated by testimony from a witness who has knowledge “that a matter is what it is claimed to be.” . . . Demonstrative evidence such as photographs, motion pictures, diagrams, and models have long been permitted to be entered into evidence provided that the demonstrative evidence fairly and accurately represents that which it purports to depict. . . .

The overriding principle in determining if any evidence, including demonstrative, should be admitted involves a weighing of the probative value versus prejudicial effect. We have held that the trial court must decide first if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. . . . This Commonwealth defines relevant evidence as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” . . . Relevant evidence may nevertheless be excluded “if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” . . .

[ . . . ]

The law has been flexible enough to accommodate scientific progress and technological advances in all fields, and should continue to do so. Pa.R.E. 702 permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” Such expert testimony is not limited to that which is purely verbal; rather, it includes pertinent illustrative adjuncts that help explain the testimony of one or more expert witnesses.

Presently, had the Commonwealth's experts, a crime scene reconstructionist and a pathologist, used traditional methods, they may have drawn chalk diagrams or sketches on a blackboard to help explain the basis for their opinions. Instead, they used a CGA to more concisely and more clearly present their opinion. The difference is one of mode, not meaning. The law does not, and should not, prohibit proficient professional employment of new technology in the courtroom. This is, after all, the twenty-first century. As such, we must turn to the traditional factors considered in determining if a particular CGA is admissible.

Therefore, despite the relative novelty of CGA evidence, the evaluation of its admissibility relates back to this long-standing evaluation of probative value versus prejudicial value. . . . As a preliminary matter, a CGA should be deemed admissible as demonstrative evidence if it: (1) is properly authenticated pursuant to Pa.R.E. 901 as a fair and accurate representation of the evidence it purports to portray; (2) is relevant pursuant to Pa.R.E. 401 and 402; and (3) has a probative value that is not outweighed by the danger of unfair prejudice pursuant to Pa.R.E. 403. However, new factors must be considered when evaluating a CGA. In particular, in determining the admissibility of a CGA the courts must address the additional dangers and benefits this particular type of demonstrative evidence presents as compared with more traditional demonstrative evidence. As a result, the court must, as discussed infra, issue limiting instructions to the jury explaining the nature of the specific CGA.

It should be noted that conspicuously absent among the factors to be considered in determining the relevancy and prejudice of evidence is the potency of the evidence. Thus, although the use of illustrative demonstrative evidence by an expert, such as a CGA, may help explain his or her opinion and make the testimony more persuasive than it otherwise might have been, it is not proper grounds for excluding this relevant evidence.

Here, both the trial court and the Superior Court determined that the Commonwealth had satisfied all foundational requirements for admitting the animation and therefore it was properly admitted as demonstrative evidence. After applying the three-prong test noted above, we agree.

[ . . . ]

At trial, and in his brief, Appellant argues that various depictions within the CGA are unsupported by any evidence. In particular, Appellant contends that the CGA was littered with choices unsupported by either the record or the opinions of Trooper Beach and Dr. Ross. These alleged liberties taken by the Commonwealth included: (1) depicting the victim as kneeling during one of the gun shots; (2) placing the victim's left arm on the floor during the second shot; (3) the position of Appellant; (4) the two-handed grip on the gun by Appellant; (5) the combat-style crouch by Appellant; and (6) the appearance of a knife in the final scene of the CGA. Appellant emphasizes the fact that one image within the CGA shows the victim on her knees before Appellant fires the third bullet. Contradicting Appellant's contention, Matzkanin testified that the poses, although not guaranteed to be 100% accurate, were within the confines of the findings and suggestions of the expert opinions of both Dr. Ross and Trooper Beach. Specifically, Dr. Ross testified that, concerning the distance between Appellant and the victim, based upon the lack of soot or gunpowder, the bullet path or trajectory for the various wounds, and that, as a result of the first shot, the victim would have collapsed to the floor in a kneeling position. . . . In addition, Dr. Ross noted that he was able to surmise that the victim was kneeling and facing Appellant because of an abrasion on her left cheek consistent with falling onto her eyeglasses from a distance of approximately eighteen to twenty-four inches. . . .

Moreover, the depictions of the physical locations of Appellant and the victim were necessary within the overall framework of the presentation. Clearly, reconstruction will not reveal the exact pose of each finger, hair, distances precise to the micrometer, or other minor aspects of the individuals involved. As noted in the instructions to the jury, and during the cross-examination of Matzkanin and Trooper Beach, Appellant highlighted the alleged inconsistencies within the presentation and any flaws, thereby reducing the credibility the jury might assign to the CGA. However, the CGA is still properly authenticated as a demonstrative piece of evidence illustrating the opinions of the Commonwealth's expert witnesses. As noted by the trial court, any continued objection to how the video was created is merely appropriate fodder for cross-examination.

Appellant had many opportunities to, and did, cross-examine Matzkanin and to try to undermine the credibility of the video and the opinions of the expert witnesses. The cross-examination highlighted the purpose of a CGA. Specifically, Appellant's trial counsel asked Matzkanin if he had any idea if the measurements were accurate and whether errors in the report would render the CGA incorrect. . . . In addition, Matzkanin was questioned about a knife that appeared in the last scene of the animation, but never appeared in the victim's hands. Despite attempting to emphasize an apparent facial illogicality to this sequence, the CGA was merely representing the theory of the Commonwealth. In particular, it was the contention of the Commonwealth that Appellant placed the knife there after firing the shots in an attempt to stage the crime scene and create a claim of self-defense. The Commonwealth also theorized that Appellant had moved the victim's right arm because the blood evidence indicated to Dr. Ross that Appellant had moved the arm of the victim after death in an attempt to create a self-defense claim. . . . Appellant, through cross-examination, highlighted the information that actually was either unfounded or that represented an arbitrary choice where the data was unknown, such as the exact positions of each body part. In accordance with the purpose of the CGA, the trial court instructed the jury that the CGA did not represent fact, but the theory of the Commonwealth and was meant to demonstrate the opinions of the Commonwealth experts.

The CGA is not meant to represent the theories of both parties; rather, as noted by both the trial court and Matzkanin, the sole purpose of the CGA and role of Matzkanin was to represent the findings of Trooper Beach and Dr. Ross. Matzkanin made no active decisions, rather, he merely interpreted the data and made corrections to the CGA based on the recommendations given to him by the two experts. The CGA is, ultimately, a representation of the expert opinions and demonstrative evidence. The line of questions presented by Appellant highlighted the alleged uncertainty regarding specific facts within the CGA and alerted the jury to the possible lack of credibility of Trooper Beach, Dr. Ross, and, by extension, the CGA. However, the jury ultimately found the testimony of the Commonwealth experts, and the CGA, to be credible. As such, the foundation was properly laid and the CGA was, in fact, what the Commonwealth purported it to be, a depiction of the various testimonies of the Commonwealth witnesses concerning their theory about the chain of events. . . . As such, the CGA was properly authenticated pursuant to Pa.R.E. 901.

Because the CGA was properly authenticated, we must turn to the second prong of the three-part test, which involves a question of its relevancy. The CGA was relevant because it clearly, concisely, and accurately depicted the Commonwealth's theory of the case and aided the jury in the comprehension of the collective testimonies of the witnesses without use of extraneous graphics or information.

The Pennsylvania Rules of Evidence define relevant evidence as, “having any tendency to make the existence of the fact that is of consequence to the determination of the action more probable or less probable than would be without the evidence.” . . . As stated by the Superior Court, “The animation's relevance under Pa.R.E. 401 lay in its clear, concise, and accurate depiction of the Commonwealth's theory of the case, which included the rebuttal of Appellant's self-defense theory, without use of extraneous graphics or information.”. . . In addition, it melded the theories of the various Commonwealth experts into a concise presentation that removed the testimony from the abstract into a concise and clear explanation of the individual testimony and how that testimony fits within the overall framework and consistency of all of the expert testimony.

Appellant argues that, in the alternative, even if the CGA is relevant, it is cumulative. However, as noted by the Superior Court, although the evidence did not offer anything inherently original, it presented a clear and precise depiction of the Commonwealth's theory and evidence as presented by its experts. Pursuant to Pa.R.E. 702, demonstrative depictions of the testimony of an expert have long been allowed into evidence, including drawings or depictions of bullet trajectories as here. Therefore, the cumulative argument carries no weight. Rather, the question is whether the evidence presented by the CGA is relevant and whether its probative value outweighs its prejudicial effect. . . .

Accordingly, we must turn to the third and final prong, prejudice. It is within this prong that a CGA has the potential danger due to the visual nature of the presentation. Various jurisdictions that have been faced with the issue of CGA-evidence have noted the potentially powerful impact based upon its visual nature, but, nonetheless, have permitted CGA evidence. . . . Despite this potential power, even inflammatory evidence may be admissible if it is relevant and helpful to a jury's understanding of the facts and the probative value outweighs the prejudicial effect. . . .

Presently, the content of the CGA was neither inflammatory nor unfairly prejudicial. Any prejudice derived from viewing the CGA resulted not from the on-screen depiction of the Commonwealth's theory, but rather was inherent to the reprehensible act of murder. The possible unnecessary and prejudicial aspects of a CGA were not present. In particular, the CGA did not include: (1) sounds; (2) facial expressions; (3) evocative or even life-like movements; (4) transition between the scenes to suggest a story line or add a subconscious prejudicial effect; or (5) evidence of injury such as blood or other wounds. Instead, much like a two-dimensional hand drawing of bullet trajectories, the CGA merely highlighted the trajectory of the three bullets fired, concluding from ballistics and blood splatter that the body had been moved after the victim died as part of Appellant's attempt to stage his self-defense. The CGA was devoid of drama so as to prevent the jury from improperly relying on an emotional basis. . . . This, combined with the instruction given the jurors about how they were to utilize both animations, persuades us that the trial court did not [err in permitting the CGA].”) The major difference between a traditional chart or drawing of bullet trajectories and the instant presentation lays in the three-dimensional nature that enabled the Commonwealth experts to present their exact theory and the underlying mathematics used in formulating its case. In particular, the ability to rotate the view allowed the Commonwealth's experts to explain the exact path of the bullets and show why the evidence suggested that it was not a killing in self-defense. As such, it was a clearly relevant and helpful tool for an expert to present an informed opinion to the jury. . . .

Within his argument concerning prejudice, Appellant, in this appeal, additionally raises the issue that public policy should prevent the presentation of a CGA, which, allegedly, costs between $10,000.00 and $20,000.00 to make. He notes that his entire defense fund, provided by the Commonwealth due to his in forma pauperis status, was limited to $10,000.00. . . . Any additional expenditure would then come from Appellant.

This argument is waived because it was not raised at the trial court level. . . . However, Appellant argues that we should consider this factor because of the implications of permitting the Commonwealth to present expensive CGA productions at trial against an indigent defendant.

Precedent exists concerning the admission of expert testimony that is beyond the means of an indigent defendant. This Court recently addressed the rights of an indigent defendant when the prohibitively expensive expert was a psychiatrist. Specifically, in Commonwealth v. Fisher, 572 Pa. 105, 813 A.2d 761, (2002), this Court opined that in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the U.S. Supreme Court held “that when a capital defendant's mental health is at issue, ‘the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense.’ ”. . . . However, this Court limited access to those funds to circumstances where the defendant's sanity at the time of the offense was a significant factor at trial. “The Court in Ake held that indigent defendants are entitled to cost-free access to psychiatric experts only in very limited circumstances where the defendant's sanity at the time of the offense was a significant factor at trial. In Ake, there was a defense of insanity, not ... questions of mitigation relevant to a sentencing determination.” . . .

This Court in Commonwealth v. Bardo, 551 Pa. 140, 709 A.2d 871 (1998), cert. denied, 525 U.S. 936, 119 S.Ct. 350, 142 L.Ed.2d 289 (1998), held that a defendant does not have an absolute right to a court appointed investigator based on Ake, supra. “ ‘[T]raditionally’ the appointment of an investigator has been a matter vested in the discretion of the court.” . . . In Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61 (1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995), this Court upheld the denial of Commonwealth funds to assist an indigent defendant in hiring experts in the fields of toxicology, neurology, statistics, jury selection, hand writing analysis, and sociology/criminology. This Court opined that:

The decision to appoint an expert witness is within the sound discretion of the trial court and will not be disturbed except for a clear abuse of that discretion. . . . There is no obligation on the part of the Commonwealth to pay for the services of an expert. . . .

Similarly, there can be no obligation to provide the defendant the finances necessary to create a CGA of his or her own. Chief Justice Cappy's concurring Opinion accurately summarizes the ultimate concerns regarding the economic disparity between the Commonwealth and an indigent defendant. . . . Thus, we ultimately conclude that the relative monetary positions of the parties are relevant for the trial court to consider when ruling on whether or not to admit a CGA into evidence. Such a question and determination are within the province of the trial court and should not be overturned absent an abuse of discretion. In particular, the trial court sitting with all facts before it, including the monetary disparity of the parties, must determine if the potentially powerful effect of the CGA and the inability of a defendant to counter with his or her own CGA should lead to its preclusion. Nevertheless, as noted above, this specific argument is waived in the instant matter.

It is argued that the uniquely dangerous aspect of a CGA is in its visual appeal to a jury resulting in an acceptance of the CGA as fact. However, such a danger is vitiated by thorough cautionary instructions that educate the jury on the exact nature and role of a CGA. Presently, the trial court safeguarded against the possibility of jury confusion over the animation or potential prejudice by supplying a thorough and extensive cautionary instruction before playing the CGA. . . .

[ . . . ]

. . . Although limiting instructions may not be necessary, such cautionary instructions limit the prejudice or confusion that could surround a CGA. . . . Additionally, the trial court reiterated the same concerns and instructions during its closing jury charge. In so doing, the trial court duly minimized any possible prejudice by insisting that the jury not make more of the CGA than what it was-an illustration of expert witness testimony. The repetition of the instructions in the case sub judice ensured that the jury comprehended the nature of the CGA and would not mistake it for fact, but could only rely upon it to the extent they credited the underlying testimony.

CONCLUSION

In a question of first impression in this Commonwealth, we hold that a CGA is potentially admissible as demonstrative evidence, as long as the animation is properly authenticated, it is relevant, and its probative value outweighs the danger of unfair prejudice or confusion. Therefore, because in the instant matter: (1) the Commonwealth satisfied all of the foundational requirements for admitting the CGA as demonstrative evidence; (2) the CGA was relevant evidence that enabled the Commonwealth experts to illustrate their opinions and educate the jury on the forensic and physical data; and (3) the alleged prejudicial effect of the CGA does not outweigh its relevance, we conclude that the admission of this evidence was proper. Hence, the admission of a CGA depicting the theory of the Commonwealth in this case was proper. Accordingly, we affirm the decision of the Superior Court.


Justice SAYLOR and BAER join the opinion.

Former Justice NIGRO did not participate in the decision of this case.

Chief Justice CAPPY files a concurring opinion.

Justice CASTILLE files a concurring opinion.

Justice EAKIN files a concurring opinion.

Chief Justice CAPPY concurring.

I join the majority opinion. I write separately to address three points and offer that trial courts need to take the following into consideration upon the Commonwealth's request to admit a CGA in criminal matters.

First, in all future criminal cases, I endorse and would require the Commonwealth to follow the procedure that was followed in this case when it wants to present a CGA as demonstrative evidence. Specifically, I would require the Commonwealth to file a pretrial motion in limine seeking permission to present the CGA. The trial court should then hold a pretrial hearing, during which the Commonwealth would authenticate the CGA, and the court would preview the CGA. At this pretrial stage, the court should pay close attention to ensuring that the admission of such evidence will actually “assist the trier of fact to understand the evidence or determine a fact in issue,” . . ., and to the CGA's potential for prejudice.

Second, I understand that the issue as to whether a defendant should be given the opportunity to present his own computer generated animation (CGA) was waived and therefore, is not properly before us. Nevertheless, I offer the following thoughts. I agree with the majority that the admission of the CGA will be guided by the considerations that normally govern demonstrative evidence, including authentication, relevancy, and weighing the probative value versus the prejudicial impact of that evidence. In reviewing the probative/prejudice prong, I emphasize that the trial court needs to consider whether giving the defendant the opportunity to present his own CGA will mitigate the prejudicial impact of the evidence. In many cases this will require the trial court to give money to the defense to procure a CGA. This monetary disparity between the Commonwealth and defense in obtaining a CGA is a relevant factor when considering the prejudice to the defense. Ultimately, I agree with the majority that this is a discretionary question, best left to the determination of the trial court, but this question cannot be divorced from the inquiry into the prejudicial impact of the CGA.

Lastly, I agree with the majority that in this instance, the trial court properly ensured that the jury understood the purpose of such evidence through its instructions given before the animation was presented and during the jury charge prior to deliberation. I write separately to express my belief that in future cases, such a limiting instruction should be included in all cases involving the admission of a CGA.

Justice CASTILLE concurring in the result.

I concur in the result since I believe that the admission of the computer generated animation (“CGA”) in this case was not an abuse of discretion. The trial court was faced with a novel evidentiary question; it responded in a careful and measured manner, which included issuing detailed cautionary instructions; and my own review satisfies me that there is no basis for awarding appellant relief from his first-degree murder conviction. I also am in general agreement with the approach and analysis in Madame Justice Newman's learned Majority Opinion. However, the question of the admissibility of this sort of evidence as a general matter implicates certain policy and supervisory considerations that I believe go beyond the narrow confines of the ruling below. On that general question, I have some reservations respecting the necessity, helpfulness, and economic utility of CGA evidence.

With respect to the role of the computer in producing computer-generated animations and/or simulations, and the implications of the computer's “conclusion” as discussed in footnote 1 of the Majority Opinion, I write to emphasize that the fact that the computer creates a drawing or image does not mean the product is inherently neutral or trustworthy. The content of the computer's product, whether it be a CGA or a simulation, always depends upon some very subjective human agency-in the creation of the computer program, in the human entry of the data, and in the human review, revision and interpretation of the computer's product. The testimony of the person who created the CGA in this case, Randy Matzkanin, testimony which the Majority summarizes at some length, . . ., made clear that the computer product at issue was intended to reflect not the conclusions of the computer, but the conclusions and opinions of the Commonwealth's flesh and blood forensic witnesses, as related to and interpreted by Mr. Matzkanin. Indeed, this was so much the case that the CGA was modified and manipulated by the programmer until the end-product satisfied the Commonwealth's forensic witnesses' assessment of the criminal act.

The point, though it may appear to be minor, is no less essential. A CGA is not an inherently objective or neutral presentation of the evidence or the theory of the case. As with all human endeavors, the process of creating a CGA offers an opportunity for coloring and manipulating the end-product. As the trial court told the jury, if garbage goes into the production, garbage will come out. Thus, the accuracy of a CGA or computer simulation is always subject to challenge for accuracy and bias, no less than any other evidence.

This immutable fact of life, given the current state of technology, should give pause as this Court considers the general admissibility of this type of evidence. In a case where both parties are well-funded, each will have the resources available to hire the computer professionals necessary to challenge the accuracy of a proffered CGA or to generate a competing animation. In contrast, in a criminal case involving an indigent defendant, the cost of assuring that the defense is able to adequately assess the accuracy of a Commonwealth CGA, or to produce a competing CGA of its own either contesting the accuracy of the Commonwealth's depiction or depicting a defense theory, would have to be borne by the state. If such funding is denied, the burden will fall upon appointed counsel to attempt to school himself in a field in which he most likely is not expert. As this case reveals, the cost of this evidence, in terms of both time and money, is substantial-the fifteen second CGA here apparently cost $10,000-$20,000 and a substantial portion of the trial was consumed in examining how Mr. Matzkanin produced it. Having reviewed the essentially benign end-product, I am not convinced that the cost was worth the expenditure of scarce public financial resources. I recognize that ours is an increasingly image-driven culture. However, such trends need not be indulged at every turn in the courtroom. I fully trust that a jury can “get the picture”-it certainly could have gotten an equivalent picture here-through more balanced, economical and old-fashioned means, such as testimony and diagrams.

With respect to the question of an indigent defendant's entitlement to funds to produce a competing CGA, or his entitlement to have excluded the Commonwealth's CGA if he cannot afford to rebut the animation, the Majority correctly notes that appellant's argument in this regard is waived as it was not raised below. . . . Nevertheless, the Majority goes on in dicta to address the issue, ultimately suggesting that an indigent defendant has no right to public funds to arrange for his own CGA, and that the question of whether the Commonwealth should be permitted to introduce a CGA in a case where the defense cannot afford a counter-CGA should be left to the discretion of the trial judge. . . . I cannot join in the Majority's extended dicta on the point both because it is not properly before this Court and because I, like the Chief Justice, would leave open the prospect that the interests of justice may require providing an indigent defendant with the funds necessary to respond to a CGA produced by the Commonwealth. . . . Furthermore, I should note that the fact that this Court holds that CGAs may be admissible in the discretion of the trial judge does not mean that any party has an enforceable right to introduce the evidence. Thus, given the limited value of this sort of evidence, the wisest course for the trial judge might be to exclude such evidence entirely in those situations where the defense cannot secure an equivalent production.

Justice EAKIN concurring in the result.

I concur with the result of the majority. Like Justice Castille, I do not join the majority's discussion regarding finances because I believe it is waived. . . .I write separately as I think the court's discussion of this irrelevant area is dangerous.

Admissibility of evidence is not a function of finances of the parties. If one side chooses to develop evidence, of this or any type, its admissibility cannot rest on a determination of the relative resources of the other party. Relevance, not money, is what makes something admissible. . . . If a defendant feels the need for unaffordable evidence, such as these animations, an expert, or testing of any kind, he has but to ask the court, which will determine the entitlement under existing principles. The remedy is not to ignore the rules of evidence or to preclude the other side from introducing relevant evidence. Suggesting that disparate resources can comprise a reason to exclude evidence presages the triumph of social sensitivity over legal reason.

Likewise, the majority's discussion of a motion in limine is unnecessary. . . . Again, the matter has not been raised and we have received no advocacy on it, nor has our Rules Committee considered the ramifications of this area. More to the point, relevance, not timing, remains the key to admissibility. If prejudice or unfair surprise is found, evidence may be excluded, . . .; if not, it should not be kept out simply because it was not moved at a certain time. Trials are fluid and ever-changing landscapes; what is planned one moment is of no use the next, and matters never considered gain salience at the most unexpected time. There appears no reason to treat these animations any differently than any other demonstrative tools used to aid understanding.

There are general principles of evidence and its admission that cover these animations as well as any other evidence. Technology advances, and the law must accommodate it, but we need not write a new rule every time a new manifestation of evidence arises. Our existing rules of admissibility, discovery, and motions cover this situation quite adequately. While clearly fancier, in legal concept this animation appears little different from any other drawing or chart-it is a visual aid and nothing more. Time-tested principles will determine its admissibility without a new rule specific only to computer-generated animations or variations, existent or to come. Adding dicta suggesting a special rule because of the form of the visual aid is not warranted or necessary.