OPINION BY OLSON, J.:
Appellant, Darnell Brown, appeals from the judgment of sentence entered on March 26, 2015. In this case, we consider whether an autopsy report is testimonial for purposes of the Confrontation Clause. After careful consideration, we hold that the autopsy report in this case was testimonial and the trial court erred in admitting the autopsy report. The trial court also improperly admitted certain expert testimony relating to the opinions expressed in the autopsy report. We hold, however, that the trial court properly admitted expert testimony expressing independent conclusions based on the autopsy report. Accordingly, we conclude that the improper admission of evidence was harmless error and affirm the judgment of sentence.
The factual background and procedural history of this case are as follows. On the evening of December 9, 2012, Appellant and his codefendant, Marcus Stokes ("Stokes"), arrived together at a tattoo party taking place on the 2600 block of North Stanley Street in Philadelphia. At approximately 11:30 p.m., Appellant's revolver fell to the ground after which the revolver was placed in the wheel well of a parked car. Approximately 45 minutes later, Appellant started an argument with Cory Morton ("Morton") over the throwing of a tissue. The verbal confrontation escalated to the point where Appellant punched Morton in the face. Appellant thereafter retrieved his revolver and pointed it at a third-party. Morton stated that Appellant would not shoot the third-party. Appellant then stepped back and shot Morton four times in the chest. Morton died as a result of the gunshot wounds.
On March 25, 2013, Appellant was charged via criminal information with murder,
On November 7, 2014, the jury found Appellant guilty of third-degree murder,
Appellant presents one issue for our review:
Appellant's Brief at 3.
In his lone issue on appeal, Appellant argues that the trial court erred by permitting Dr. Chu to testify as to Morton's cause and manner of death. Specifically, Appellant argues that the admission of Dr. Chu's testimony violated the Confrontation Clause of the Sixth Amendment to the United States Constitution as incorporated by the Fourteenth Amendment.
As a preliminary matter, the trial court found this issue waived based upon Appellant's alleged failure to timely object to Dr. Chu's testimony. See Trial Court Opinion, 7/15/15, at 3-4. At trial, however, Stokes' counsel objected to Dr. Chu's testimony based on the fact that it violated the Confrontation Clause. See N.T., 11/5/14, at 100-101. Appellant's counsel joined in that objection. Id. at 101. Thus, Appellant properly preserved this issue by objecting to Dr. Chu's testimony before the doctor testified at trial.
Turning to the merits of Appellant's lone issue, the Sixth Amendment of the United States Constitution provides that, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]" U.S. Const. Amend. VI. This protection has been incorporated into the Fourteenth Amendment and thus is applicable in state court prosecutions. Pointer v. Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Confrontation Clause, "applies to witnesses against the accused — in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (internal alteration, quotation marks, and citations omitted).
In order to determine if a document or statement created out-of-court is testimonial in nature, our Supreme Court looks at the primary purpose of the document or statement. Yohe, 79 A.3d at 531-532 (citations omitted). A document or statement is testimonial if its primary purpose is "to establish or prove past events potentially relevant to later criminal prosecution." Id. at 531. (citation omitted). A document or statement has such a primary purpose if it is created or given "under circumstances which would lead an objective witness reasonably to believe that the [document or] statement would be available for use at a later trial[.]" Id. (citation omitted). If a document or statement is testimonial, then the witness who prepared it must testify at trial, unless he or she is unavailable and the defendant had a prior opportunity for cross-examination. Michigan v. Bryant, 562 U.S. 344, 354, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) ("[F]or testimonial evidence to be admissible, the Sixth Amendment demands what the common law required: unavailability [of a witness] and a prior opportunity for cross-examination." (internal quotation marks and citation omitted)).
In this case, the fact at issue was whether Morton died from the four gunshot wounds he sustained. The autopsy report admitted into evidence addressed this fact, i.e., it listed Morton's cause of death as being multiple gunshot wounds and the manner of death as homicide. Thus, the autopsy report established past events that were potentially relevant to later criminal proceedings, and thus, was testimonial. Furthermore, an objective witness who prepared an autopsy report on an individual who sustained four gunshot wounds to the chest should reasonably believe that the report would be made available for use at a later trial.
Our conclusion finds support in the statutory scheme governing medical examiners. In Pennsylvania, the medical examiner must issue a certificate attesting to an individual's cause of death "where the circumstances suggest that the death was sudden or violent or suspicious in nature or was the result of other than natural causes[.]" 35 P.S. § 450.503. This is almost always accomplished through performing an autopsy. Although the medical examiner is independent, "[i]n the exercise of his duties as contained in this subdivision, the [medical examiner] shall, so far as may be practicable, consult and advise with the district attorney." 16 P.S. § 1242. Although not all autopsies in Pennsylvania are used in court proceedings, the statutory framework contemplates that the autopsy report will be used in a criminal trial when the circumstances suggest that the death was sudden, violent or suspicious or
Several state and federal courts that have recently considered the issue have likewise held that autopsy reports are testimonial. E.g., United States v. Ignasiak, 667 F.3d 1217, 1232 (11th Cir.2012); West Virginia v. Kennedy, 229 W.Va. 756, 735 S.E.2d 905, 917-918 (2012); United States v. Moore, 651 F.3d 30, 69-74 (D.C.Cir. 2011) (per curiam), aff'd in part sub nom., Smith v. United States, ___ U.S. ___, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013); Cuesta-Rodriguez v. Oklahoma, 241 P.3d 214, 228 (Okla.Crim.App.2010); North Carolina v. Locklear, 363 N.C. 438, 681 S.E.2d 293, 305 (2009); Wood v. Texas, 299 S.W.3d 200, 209-210 (Tex.Crim.App.2009); Massachusetts v. Nardi, 452 Mass. 379, 893 N.E.2d 1221, 1233 (2008).
In addition to the reasons set forth above regarding the circumstances surrounding Morton's death and the statutory framework in Pennsylvania, we find persuasive one of the Eleventh Circuit's rationales for concluding that autopsy reports are testimonial in nature. As the Eleventh Circuit Court of Appeals stated, "[m]edical examiners are not mere scriveners reporting machine generated raw-data.... [T]he observational data and conclusions contained in the autopsy reports are the product of the skill, methodology, and judgment of the highly trained examiners who actually performed the autopsy." Ignasiak, 667 F.3d at 1232 (internal quotation marks and citation omitted). The Supreme Judicial Court of Massachusetts relied upon a similar rationale in concluding that an autopsy report was testimonial. The court emphasized how most portions of an autopsy report involve judgments and decisions made by the medical examiner performing the autopsy. Nardi, 893 N.E.2d at 1232-1233. As such, "there is little reason to believe that confrontation will be useless in testing medical examiners'[] honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts." Ignasiak, 667 F.3d at 1233 (internal alteration omitted).
The Commonwealth contends that the autopsy report in this case was nontestimonial because it was non-accusatorial. This contention appears to rely on Justice Alito's opinion announcing the judgment of the court in Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a splintered United States Supreme Court held that a DNA report used to compare with a known subject's DNA profile was nontestimonial. In his opinion, Justice Alito stated that the forensic report at issue in Williams was nontestimonial because it did not target a specific individual, i.e., the defendant in that case. Id. at 2243. Five justices, however, rejected Justice Alito's rationale and instead found that a forensic report need not accuse a particular individual in order to be testimonial in nature. Id. at 2262 (Thomas, J. concurring) (Justice Alito's "test lacks any grounding in constitutional text, in history, or in logic."); id. at 2273 (Kagan, J. dissenting) (Justice Alito's test "has no basis in our precedents. We have previously asked whether a statement was made for the primary purpose of establishing past events potentially relevant to later criminal prosecution — in other words, for the purpose of providing evidence."). As a majority of the Court in Williams rejected
The Commonwealth next argues that autopsy reports are nontestimonial because the medical examiner is required to conduct autopsies in a variety of situations, most of which do not ultimately lead to criminal prosecutions. See Phila. Code § 2-102; 16 P.S. § 1237. The Commonwealth notes that, in Philadelphia County, approximately 14% of autopsies relate to homicides while the remaining 86% of autopsies are done for some other reason, e.g., the individual will be buried at sea. See Commonwealth's Brief at 9, citing Medical Examiner's Office Pathology Unit (available at http://www.phila.gov/health/medicalexaminer/Pathology.html, last accessed Dec. 11, 2015).
We reject this argument for several reasons. First, in Yohe our Supreme Court held that whether a document or statement is testimonial depends upon its primary purpose. Yohe, 79 A.3d at 531-532 (citations omitted). Under Pennsylvania law, "where the circumstances suggest that the death was sudden or violent or suspicious in nature or was the result of other than natural causes" the medical examiner must typically perform an autopsy. See 35 P.S. § 450.503. That is what occurred in this case. Thus, under the particular circumstances of this case, it is evident that the primary purpose of the autopsy was not statistical. Instead, the primary purpose of the autopsy report in this case was to prove that Morton died of multiple gunshot wounds and that his death was the result of a homicide.
As we do today, most courts that considered arguments similar to those advanced by the Commonwealth examined the structure of state laws regarding medical examiners and autopsies to determine whether the primary purpose of an autopsy report is to prove a fact for use at trial. We find persuasive the reasoning used by the Supreme Court of West Virginia in Kennedy in rejecting the Commonwealth's contention. Like in Pennsylvania, medical examiners in West Virginia are independent. See Kennedy, 735 S.E.2d at 917. Nonetheless, in West Virginia the use of autopsies in judicial proceedings is contemplated. See id. The Supreme Court of West Virginia relied upon the Eleventh Circuit's decision in Ignasiak in reaching its conclusion that autopsy reports are testimonial. In Ignasiak, the Eleventh Circuit held that "even though not all Florida autopsy reports will be used in criminal trials, the reports in this case are testimonial and subject to the Confrontation Clause." Ignasiak, 667 F.3d at 1232.
The United States Court of Appeals for the District of Columbia Circuit adopted similar rationale in finding autopsy reports testimonial. In explaining why the autopsy reports were testimonial, the court stated:
Moore, 651 F.3d at 73 (internal quotation marks and citation omitted).
The Court of Criminal Appeals of Oklahoma likewise concluded that an autopsy report is testimonial based upon a similar statutory framework and the nature of the death. That court concluded that "a medical examiner's words recorded in an autopsy report involving a violent or suspicious death could constitute statements that the medical examiner should reasonably expect
The Court of Appeals of Texas also looked at the structure of state law and the circumstances surrounding the death when determining an autopsy report was testimonial. Specifically, the court concluded that "the circumstances surrounding [the victim's] death warranted the police in the suspicion that his death was a homicide.... Under these circumstances, it is reasonable to assume that [the medical examiner] understood that the report containing her findings and opinions would be used prosecutorially." Wood, 299 S.W.3d at 209-210.
All of these courts found it irrelevant that not all autopsy reports are used in criminal prosecutions and that a certain (high) percentage of autopsies are done for other reasons. Instead, they found the fact that the statutory frameworks contemplate using autopsy reports in criminal prosecutions compelling. As noted above, we hold today that the statutory framework in Pennsylvania contemplates using autopsies in criminal proceedings.
We acknowledge that there is a sharp split in authority on whether autopsy reports are testimonial. Indeed, the Commonwealth directs our attention to several state and federal courts that have held that autopsy reports are nontestimonial. E.g., Tennessee v. Hutchison, 482 S.W.3d 893, 913 (Tenn.2016); Ohio v. Maxwell, 139 Ohio St.3d 12, 9 N.E.3d 930, 949-952 (2014); Arizona v. Medina, 232 Ariz. 391, 306 P.3d 48, 63 (2013); United States v. James, 712 F.3d 79, 97-99 (2d Cir.2013); Illinois v. Leach, 366 Ill.Dec. 477, 980 N.E.2d 570, 592 (2012); California v. Dungo, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442, 450 (2012).
The Supreme Court of Ohio adopted the rationale advanced by the Commonwealth in this case, i.e., that because autopsy reports have multiple uses, they categorically cannot be considered testimonial in nature. The court specifically held that because autopsy reports are not usually created for use in criminal prosecutions, they do not have the primary purpose of being used as a substitute for out-of-court testimony. Maxwell, 9 N.E.3d at 950-952. The Supreme Court of Illinois employed a similar rationale in finding autopsy reports are nontestimonial. The court stated that "while it is true that an autopsy report might eventually be used in litigation of some sort, either civil or criminal, these reports are not usually prepared for the sole purpose of litigation." Leach, 366 Ill.Dec. 477, 980 N.E.2d at 592.
We also decline to follow the reasoning adopted by several courts that have held that autopsy reports are not sufficiently solemn to meet the test set forth by Justice Thomas in Williams. See Hutchison, 482 S.W.3d at 912; Medina, 306 P.3d at 64; Dungo, 147 Cal.Rptr.3d 527, 286 P.3d at 449-450. In his concurring opinion in Williams, Justice Thomas concluded that the DNA report at issue did not violate the Confrontation Clause because it "lacked the requisite `formality and solemnity' to be considered `testimonial' for purposes of the Confrontation Clause." Williams, 132 S.Ct. at 2255, quoting Bryant, 131 S.Ct. at 1167 (Thomas, J. concurring). We find this rationale unpersuasive for two reasons. First, in Yohe our Supreme Court did not employ Justice Thomas' solemnity test. Instead, our Supreme Court focused on the primary purpose of the evidence, an approach closer to that of Justice Kagan than that of Justice Thomas. See Yohe, 79 A.3d at 537-538. Second, as noted above, under Pennsylvania law the medical examiner is required to certify the findings of the autopsy report. See 16 P.S. § 1244. This is sufficiently solemn to be considered testimonial even under Justice Thomas' test.
Thus, we hold that an autopsy report that is prepared because of a sudden, violent, or suspicious death or a death that is the result of other than natural causes, is testimonial. Such an autopsy report is prepared to prove a fact, i.e., the victim's cause and manner of death, that an objective observer would reasonably believe could later be used in a criminal prosecution. As such autopsy reports are testimonial and the author of the autopsy report is required to testify at trial in order to satisfy the Confrontation Clause.
Having determined that the autopsy report was testimonial, we turn to the Commonwealth's contention that Dr. Chu's testimony was independently admissible. Approximately one week prior to trial, Dr. Chu, who testified as an expert with no challenge to his qualifications, reviewed Dr. Osborne's autopsy report as well as photographs taken during the autopsy. N.T., 11/5/14, at 123, 131-132. Based upon this review of the autopsy report and autopsy photographs, the Commonwealth asked Dr. Chu about the cause and manner of Morton's death. The Commonwealth contends that this testimony was admissible as Dr. Chu proffered his own independent conclusions regarding the cause and manner of Morton's death. Appellant, on the other hand, contends that Dr. Chu merely served as a surrogate for Dr. Osbourne and, therefore, his testimony violated Appellant's Confrontation Clause rights.
The reason that Dr. Chu's expert testimony was critical to the Commonwealth's case is because this Court has held that, although non-expert testimony "may be sufficient to establish cause of death by a preponderance of the evidence, it does not satisfy the more stringent standard of criminal trials." Commonwealth v. Baker, 299 Pa.Super. 241, 445 A.2d 544, 548 n. 2 (1982). Thus, in order to prove all the elements of third-degree murder, inter alia, that Morton's death was caused by gunshot wounds, expert testimony was required.
In order to understand the background of this issue, it is necessary to review Justice Sotomayor's concurring opinion in Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).
The Supreme Court of the United States held that the prosecution violated Bullcoming's Confrontation Clause rights. The Court held that "surrogate testimony ... could not convey what [the analyst] knew
In her concurrence, Justice Sotomayor stated Bullcoming was
Bullcoming, 131 S.Ct at 2722 (Sotomayor, J. concurring) (internal alterations, ellipsis, quotation marks, and citations omitted).
The Supreme Court of the United States granted certiorari in Williams to decide the expert testimony issue left unresolved in Bullcoming. See Williams, 132 S.Ct. at 2233 (Alito, J. announcing the judgment of the Court). Unfortunately, the Supreme Court of the United States did not issue a binding rule on this issue in Williams. Medina, 306 P.3d at 63; see also Yohe, 79 A.3d at 536. Thus, we proceed to consider Dr. Chu's testimony by analyzing the various opinions in Williams and settled Pennsylvania law.
From the various opinions in Williams, we glean that the Confrontation Clause is not violated when an expert expresses his or her independent conclusions based upon his or her review of inadmissible evidence. Williams, 132 S.Ct. at 2233 (Alito, J. announcing the judgment of the Court). However, the underlying inadmissible evidence does not become admissible based upon the expert's independent conclusions and his or her reliance on such inadmissible evidence. See id. at 2256-2257 (Thomas, J. concurring); id. at 2268-2269 (Kagan, J. dissenting). Thus, we turn to Pennsylvania law regarding what evidence an expert can rely upon in order to offer his or her own independent conclusions.
Under Pennsylvania Rule of Evidence 703:
Pa.R.Evid. 703.
Courts in Pennsylvania have long held that such independent conclusions based upon inadmissible evidence are admissible. E.g., In re D.Y., 34 A.3d 177, 182-183 (Pa.Super.2011), appeal denied, 616 Pa. 638, 47 A.3d 848 (2012); Boucher v. Pa. Hosp., 831 A.2d 623, 628 (Pa.Super.2003), appeal denied, 577 Pa. 705, 847 A.2d 1276 (2004); Primavera v. Celotex Corp., 415 Pa.Super. 41, 608 A.2d 515, 519-520
Our Supreme Court addressed a similar situation to the case at bar in Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). In Daniels, the Commonwealth called as an expert witness a forensic pathologist, who had not originally investigated the victim's death. The forensic pathologist consulted the following sources prior to testifying:
Daniels, 390 A.2d at 175 (footnote omitted).
Our Supreme Court held that such testimony was admissible. As our Supreme Court stated, "where the information is that of an attending nurse or physician having personal observation and an interest in learning and describing accurately, there seems to be every reason for admitting testimony based in part on this." Id. at 177 (internal quotation marks and citation omitted). In other words, our Supreme Court held that a medical expert may express his opinion on the cause of death based upon the report of a non-testifying physician who examined the body. See also Commonwealth. v. Ali, 608 Pa. 71, 10 A.3d 282, 306 (2010) ("[A] medical expert who did not perform the autopsy may testify as to cause of death as long as the testifying expert is qualified and sufficiently informed[.]"); Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009, 1012-1013 (1978) (permitting pathologist to testify regarding cause of death based upon findings of an autopsy performed by a non-physician).
Based upon this precedent, we hold that Dr. Chu's independent conclusions regarding the cause and manner of Morton's death were admissible. During trial, Dr. Chu testified that it was his own independent conclusion that the cause of death was multiple gunshot wounds and that the manner of death was homicide. N.T., 11/5/14, at 130. He emphasized that these conclusions were his own and not a mere parroting of Dr. Osbourne's conclusions as set forth in the autopsy report. See id. Thus, the Commonwealth provided sufficient admissible evidence at trial to prove that Morton's cause of death was multiple gunshot wounds.
Finally, having determined that Appellant's Confrontation Clause rights were violated,
This is not a case where the cause of the victim's death was seriously at issue. For example, this is not a cyanide poisoning case in which the testimony of the medical examiner that performed the autopsy was critical to the Commonwealth's case. Cf. Commonwealth v. Ferrante, CP-02-CR-0013724-2013 (C.C.P.Allegheny). Instead, this is a case where a healthy individual in his twenties was shot several times in the chest. Although this Court's precedent requires that an expert opinion be offered to prove the cause of death, extensive expert testimony was not necessary under the specific facts of this case. Instead, Dr. Chu's opinion was sufficient to prove Morton's cause of death beyond a reasonable doubt. Accordingly, we conclude that the admission of the autopsy report and the portions of Dr. Chu's testimony referencing Dr. Osbourne's opinions was harmless error.
In sum, we conclude that Appellant preserved his lone issue for appeal. We hold that an autopsy report is testimonial when the death was sudden, violent, or suspicious in nature, or was the result of other than natural causes. Because Morton's death was sudden, violent, and the result of other than natural causes, the autopsy report in this case was testimonial and the trial court erred by admitting the autopsy report and Dr. Chu's reference to the opinions expressed by Dr. Osbourne in the autopsy report. Nonetheless, Dr. Chu's independent expert testimony regarding the cause of Morton's death was admissible and sufficient to prove his cause of death beyond a reasonable doubt. Thus, the Confrontation Clause violation was harmless error. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
President Judge EMERITUS BENDER joins this Opinion.
Judge PLATT concurs in the result.
This type of basis evidence is the type that five justices in Williams rejected as violating the Confrontation Clause. It is similar in nature to the surrogate testimony that the Court rejected in Bullcoming. Dr. Chu was, in at least portions of his testimony, acting as a surrogate for Dr. Osbourne and outlining the conclusions Dr. Osbourne drew as a result of the autopsy conducted in this case. As such, we conclude that while the trial court correctly admitted the portions of Dr. Chu's testimony in which he gave his own independent conclusions regarding the cause and manner of Morton's death, the admission of Dr. Chu's testimony which relayed Dr. Osbourne's opinions regarding the cause and manner of Morton's death violated the Confrontation Clause.