Commonwealth v. Brown, No. 40 EAP 2016

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: JUSTICE DOUGHERTY
• Citation: 185 A.3d 316
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Darnell BROWN, Appellee Commonwealth of Pennsylvania, Appellee v. Darnell Brown, Appellant
• Docket Number: No. 40 EAP 2016,No. 41 EAP 2016
• Decision Date: 01 June 2018

185 A.3d 316

COMMONWEALTH of Pennsylvania, Appellant
v.
Darnell BROWN, Appellee

Commonwealth of Pennsylvania, Appellee
v.
Darnell Brown, Appellant

No. 40 EAP 2016
No. 41 EAP 2016

Supreme Court of Pennsylvania.

Argued: September 12, 2017
Decided: June 1, 2018

Anthony James Carissimi, Esq., Lawrence Jonathan Goode, Esq., Philadelphia District Attorney's Office, Philadelphia, for Commonwealth of Pennsylvania, Appellant.

Jules Epstein, Esq., Philadelphia, Jay Samuel Gottlieb, Esq., for Brown, Darnell, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Justice Dougherty delivers the Opinion of the Court with respect to Sections I through IV(A) and announces the Judgment of the Court with respect to Sections IV(B) through VI. Justices Baer and Todd join the Opinion in full. Chief Justice Saylor, Justice Donohue, Justice Wecht and Justice Mundy join only Sections I through IV(A) and do not join Sections IV(B) through VI.

OPINION

JUSTICE DOUGHERTY

185 A.3d 318

In these consolidated discretionary cross-appeals we consider whether an autopsy report is testimonial in nature, such that the report's author must appear as a witness subject to cross-examination at a criminal trial for murder when the report is introduced as evidence substantiating the cause of the victim's death. We hold admission of the autopsy report without testimony from its author was error in this case, but the error was harmless, and therefore affirm.

I. Background

On December 9, 2012, appellant/cross-appellee Darnell Brown attended a party on the 2600 block of Stanley Street in Philadelphia, after hiding a revolver in the wheel well of a nearby parked automobile. At the party, Brown began arguing with Cory Morton (the victim). Marcus Stokes (co-defendant) retrieved the revolver and handed it to Brown, who fired four shots into the victim, killing him. Dr. Marlon Osbourne of the Philadelphia Medical Examiner's Office performed an autopsy of the victim and prepared a report of his findings. The report detailed, among other things, the existence of four gunshot wounds, both penetrating and perforating, that struck the ribs, heart, left lung and left shoulder of the victim. The report noted three of the bullets entered the front of the victim's body while one entered his back and the report described the paths of the bullets.¹ The report noted there was no soot, stippling or muzzle imprints around any of the gunshot wounds. The report concluded the cause of death was multiple gunshot wounds and the manner of death was homicide.

At the time of trial, Dr. Osbourne was no longer employed by the Medical Examiner's Office and he was not called as a witness, but his report of the victim's autopsy was admitted into evidence. The Commonwealth called Dr. Albert Chu of the Philadelphia Medical Examiner's Office, who had not been present

185 A.3d 319

at the autopsy, to provide expert testimony based on portions of the autopsy report as well as autopsy photographs. Counsel for both defendants objected to the admission of the autopsy report and Dr. Chu's testimony, apparently on the basis of Bullcoming v. New Mexico , 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011),² arguing the report constituted testimonial evidence, and its admission through Dr. Chu violated the Confrontation Clause of the Sixth Amendment of the United States Constitution.³ The trial court overruled the objection.

Dr. Chu explained to the jury the difference between penetrating and perforating gunshot wounds and the distance parameters of gun barrel to body for gunshot wounds that leave no stippling, soot or other residue marks. Although Dr. Chu could not state the order in which the wounds were received, he testified, based on the victim's injuries as detailed in the report, death would have been rapid but not instantaneous. Dr. Chu testified the wounds were consistent with a scenario in which someone shot the victim from a distance of six to eight feet while facing him, and then shot the victim in the back after the victim turned away. He further testified the victim could have walked a few feet before collapsing. Dr. Chu testified, in his expert opinion, the cause of death was multiple gunshot wounds and the manner of death was homicide. He testified he was not "merely repeating Dr. Osbourne's

185 A.3d 320

opinion from the report[,]" but that he, through his medical experience and training "also h[e]ld this opinion" regarding the manner and cause of death within a reasonable degree of medical and scientific certainty. N.T., 11/5/14, at 130.

The jury convicted Brown of third-degree murder and related offenses, and the court sentenced him to an aggregate term of twenty-five to fifty years' imprisonment. Brown appealed, arguing the trial court erred by permitting Dr. Chu to testify about the victim's cause and manner of death based on Dr. Osbourne's autopsy report.

The Superior Court affirmed Brown's judgment of sentence. Commonwealth v. Brown , 139 A.3d 208 (Pa. Super. 2016). However, the court first determined the trial court erred in allowing admission of the autopsy report in the absence of Dr. Osbourne's testimony:

[W]e 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. In this case, Dr. Osbourne did not testify and [Brown] did not have a chance to cross-examine him prior to trial. Accordingly, [Brown's] Confrontation Clause rights were violated by the admission of the autopsy report in this case.

139 A.3d at 216–17 (footnote omitted). The court also concluded that some of Dr. Chu's testimony was "similar in nature to the surrogate testimony that the Court rejected in Bullcoming " and the admission of those portions of Dr. Chu's testimony "outlining the conclusions Dr. Osbourne drew as a result of the autopsy ... [and] which relayed Dr. Osbourne's opinions regarding the cause and manner of [the victim's] death violated the Confrontation Clause." Id. at 219 n.20. Nevertheless, the panel concluded any error was harmless because "[t]his is not a case where the cause of death was seriously at issue." Id. at 220. Moreover, the court opined Dr. Chu's testimony which offered independent conclusions that were based in part on otherwise inadmissible facts or data was proper under Pennsylvania law, including under Pennsylvania Rule of Evidence 703.⁴ Id. at 218–19.

This Court granted the petitions for allowance of appeal filed by both the Commonwealth and Brown.⁵

185 A.3d 321

II. Arguments

A. Commonwealth's Appeal

The Commonwealth contends Brown's rights under the Confrontation Clause were not implicated by the admission of the autopsy report and Dr. Chu's testimony. The Commonwealth acknowledges the Confrontation Clause guarantees the opportunity to confront those who testify against a defendant. In the Commonwealth's view, however, autopsy reports are non-testimonial in nature and thus are " ‘exempted ... from Confrontation Clause scrutiny altogether.’ " Commonwealth's Brief at 16, quoting Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (ellipsis supplied by Commonwealth). The Commonwealth argues that, under the United States Supreme Court's decisions in Melendez–Diaz v. Massachusetts , 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming , both of which were relied upon by this Court in Commonwealth v. Yohe , 621 Pa. 527, 79 A.3d 520 (2013), the test for whether a forensic report is testimonial is the "primary purpose" test, which examines whether the report "was created ‘under circumstances which would lead an objective witness reasonably to believe that the [report] would be available for use at a later trial, and was plainly created for [an evidentiary] purpose.’ " Commonwealth's Brief at 20, quoting Yohe , 79 A.3d at 537 (emphasis deleted).

The Commonwealth argues that most autopsies in Pennsylvania are not plainly created for evidentiary availability at a later trial, and thus the Superior Court improperly determined the primary purpose test was satisfied. The Commonwealth supports its position by referencing provisions in the County Code, 16 P.S. § 1237(a)(1)–(11), and Vital Statistics Law, 35 P.S. § 450.503, which require coroners to produce autopsy reports for statistical and other purposes independent of any criminal investigation.⁶ The Commonwealth argues "[t]he statutory, statistical, and scientific reasons for creating autopsy reports make them substantially different from the [certificates of] narcotics analyses in Melendez–Diaz and the BAC reports in Bullcoming and Yohe ." Commonwealth's Brief at 26. The Commonwealth asserts narcotics analyses...