Commonwealth v. Brown
Commonwealth v. Brown
Opinion
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, 1 possession of a firearm by a prohibited person, 2 carrying a firearm without a license, 3 carrying a firearm on the streets of Philadelphia, 4 possessing an instrument of crime, 5 and conspiracy to commit murder. 6 A jury trial commenced on November 4, 2014 at which Appellant and codefendant, Stokes, were tried together. At trial, Dr. Albert Chu, an assistant medical examiner, 7 testified as an expert witness as to the cause and manner of Morton's death. Dr. Chu neither assisted nor was present at Morton's autopsy, which was performed by Dr. Marlon Osbourne. Instead, Dr. Chu testified based upon his *211 review of the autopsy report prepared by Dr. Osbourne and the accompanying autopsy photographs. The autopsy report was admitted into evidence at the conclusion of trial. 8
On November 7, 2014, the jury found Appellant guilty of third-degree murder, 9 carrying a firearm without a license, carrying a firearm on the streets of Philadelphia, and possessing an instrument of crime. On March 26, 2015, the trial court sentenced Appellant to an aggregate term of 25 to 50 years' imprisonment. This timely appeal followed. 10
Appellant presents one issue for our review:
Did the [trial court] err when, over objection, it ruled that [Dr. Chu] could testify as to [the] cause and manner of [Morton's] death when [Dr. Chu] took no part in the original autopsy?
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.
11
Whether Appellant's confrontation rights were violated is a pure question of law; therefore, our standard of review is
de novo
and our scope of review is plenary.
12
Commonwealth v. Yohe,
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. 13 See Pa.R.Evid. 103(b) ("Once the court rules definitively *212 on the record-either before or at trial-a party need not renew an objection or offer of proof to preserve a claim of error for appeal.").
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,
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,
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 *213 was the result of other than natural causes. In this case, the circumstances surrounding Morton's death suggest that his death was sudden, violent and suspicious and not the result of natural causes. A relatively young male died in the middle of the street after being shot multiple times. As such, based upon the statutory framework in Pennsylvania and the circumstances surrounding Morton's death, it is evident that the autopsy report in this case was testimonial in nature.
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,
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,
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. ----,
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,
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,
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:
the autopsy reports were formalized in signed documents titled reports.... [C]ombined with the fact that each autopsy found the manner of death to be a homicide caused by gunshot wounds, circumstances [existed] which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Moore,
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
*215
to be used in a criminal prosecution and therefore under the
Crawford
and
Melendez-Diaz [v. Massachusetts,
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,
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,
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,
*216
We respectfully disagree with the rationale endorsed by these courts and advanced by the Commonwealth. Five members of the Supreme Court of the United States concluded that a similar rationale by Justice Alito in
Williams
was flawed. As Justice Kagan explained, the primary purpose test asks whether a statement "was made for the primary purpose of establishing past events potentially relevant to later criminal prosecution."
Williams,
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,
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. 16 In this case, Dr. Osbourne did not testify and Appellant did not have a chance to cross-examine him prior to trial. Accordingly, Appellant's Confrontation Clause rights *217 were violated by the admission of the autopsy report in this case.
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,
In order to understand the background of this issue, it is necessary to review Justice Sotomayor's concurring opinion in
Bullcoming v. New Mexico,
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 *218 or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst's part." Id. Furthermore, the Court explained that the Confrontation "Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination." Id. at 2716.
In her concurrence, Justice Sotomayor stated Bullcoming was
not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. As the [majority] note[d], the State [did] not assert that [the surrogate] offered an independent, expert opinion about Bullcoming's blood alcohol concentration. Rather, the State explain[ed that] aside from reading a report that was introduced as an exhibit, [the surrogate] offered no opinion about [Bullcoming's] blood alcohol content. Here the State offered the BAC report, including [the analyst's] testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence.
Bullcoming,
The Supreme Court of the United States granted certiorari in
Williams
to decide the expert testimony issue left unresolved in
Bullcoming. See
Williams,
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,
Under Pennsylvania Rule of Evidence 703 :
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
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.,
*219
Primavera v. Celotex Corp.,
Our Supreme Court addressed a similar situation to the case at bar in
Commonwealth v. Daniels,
interviews with former residents of the school (all of whom testified for the Commonwealth concerning [the victim's] symptoms); certain hospital records ...; the death certificate ...; a letter from and a conversation with a person who had performed a dissection of a body believed to be that of the [victim]; the testimony the [forensic pathologist] heard during the trial; and certain police reports concerning [the victim's] death. [The forensic pathologist] was asked whether, as a result of this investigation, he had come to an opinion regarding the cause and manner of [the victim's] death. He answered in the affirmative and, over objection, was permitted to testify to that opinion.
Daniels,
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,
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
Finally, having determined that Appellant's Confrontation Clause rights were violated,
20
we turn to whether this error was harmless.
See
Commonwealth
*220
v. Rosser,
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.
P.J.E. BENDER joins this Opinion.
Judge PLATT concurs in the result.
18 Pa.C.S.A. § 2502.
18 Pa.C.S.A. § 6105(a)(1).
18 Pa.C.S.A. § 6106(a)(1).
18 Pa.C.S.A. § 6108.
18 Pa.C.S.A. § 907(a).
18 Pa.C.S.A. §§ 903(c) ; 2502.
Philadelphia abolished the position of coroner and replaced it with a medical examiner. Phila. Code § 2-102. The medical examiner in Philadelphia has the same powers and duties as do coroners in other counties of the Commonwealth.
The autopsy report was never sent back with the jury. Instead, the parties and the trial court agreed not to initially send any exhibits back with the jury. The parties and trial court agreed to litigate the admissibility of any exhibits if the jury requested them. See N.T., 11/6/14, at 8.
18 Pa.C.S.A. § 2502(c).
On April 23, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal ("concise statement"). See Pa.R.A.P.1925(b). On June 29, 2015, Appellant filed his concise statement. On July 15, 2015, the trial court issued its Rule 1925(a) opinion. Appellant's lone issue on appeal was included in his concise statement.
"Although Appellant has not premised his argument on Article I, Section 9 of the Pennsylvania Constitution, it similarly provides: 'In all criminal prosecutions the accused hath a right ... to be confronted with the witnesses against him....' "
Commonwealth v. Yohe,
Although the admission of expert testimony is subject to an abuse of discretion standard of review,
Commonwealth v. Watson,
Although not binding on this Court, the trial court acknowledged at trial that the issue was "preserved for the record." N.T., 11/5/14, at 101.
The court in
Leach
also argued that it was impracticable to require medical examiners to testify regarding autopsy reports.
Leach,
As we shall discuss
infra,
we reject the conclusions reached in this line of authority. In addition,
James
is distinguishable from the case
sub judice.
In
James,
the Second Circuit noted that the medical examiner did not originally believe a homicide occurred when conducting the autopsy.
James,
Our holding today is consistent with our Supreme Court's pre-
Crawford
jurisprudence. In
Commonwealth v. McCloud,
The expert testimony need not be offered by a medical doctor. For example, this Court has found sufficient a lay coroner's expert testimony regarding the cause of death.
Commonwealth v. Smith,
On the other hand, "a conclusion upon the question whether a death from external cause or violence was accidental, suicidal, or homicidal, may ordinarily be determined by a jury without the assistance of expert witnesses."
Smith,
The Commonwealth states that "
Bullcoming
is a plurality decision [.]" Commonwealth's Brief at 11 n.3. It appears that the Commonwealth meant to state that
Williams
was a plurality opinion. Nonetheless, Justice Ginsburg's opinion in
Bullcoming
was joined by four other justices except as to part IV and footnote 6.
See
Bullcoming,
We see two ways in which the Commonwealth violated Appellant's Sixth Amendment rights; first, admission of the autopsy report without testimony from its author, Dr. Osborne; and second, admission of Dr. Osbourne's opinions found in the report. The Commonwealth avers that "Dr. Osbourne's conclusions were never offered against [Appellant.]" Commonwealth's Brief at 13. Instead, the Commonwealth argues that only Dr. Chu's independent conclusions were offered against Appellant. Our review of the trial testimony, however, belies this assertion. At the conclusion of Dr. Chu's testimony, he testified that Dr. Osborne concluded that the cause of death was multiple gunshot wounds and that the manner of death was homicide. Specifically, the Commonwealth asked Dr. Chu, "Is your opinion in this case, are you merely repeating Dr. Osbourne's opinion from the report or through your medical experience and training, do you
also
hold this opinion?" N.T., 11/5/14, at 130 (emphasis added). Dr. Chu responded, "I
also
hold this opinion."
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.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee v. Darnell BROWN, Appellant.
- Cited By
- 25 cases
- Status
- Published