Commonwealth v. Brown

• Decision Date: 10 May 2016
• Docket Number: No. 1165 EDA 2015,1165 EDA 2015
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Darnell BROWN, Appellant.
• Court: Pennsylvania Superior Court

139 A.3d 208

2016 PA Super 98

COMMONWEALTH of Pennsylvania, Appellee

v.Darnell BROWN, Appellant.

No. 1165 EDA 2015

Superior Court of Pennsylvania.

Submitted Feb. 1, 2016.

Filed May 10, 2016.

Reargument Denied July 13, 2016.

Jay S. Gottlieb, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Michael C. Witsch, Assistant District Attorney and Anthony J. Carissimi, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., OLSON and PLATT,^* JJ.

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,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 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, 621 Pa. 527, 79 A.3d 520, 530 (2013), cert denied, ––– U.S. ––––, 134 S.Ct. 2662, 189 L.Ed.2d 209 (2014).

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 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, 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 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, 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 ...