J-S15016-16

                              2016 PA Super 98

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

DARNELL BROWN,

                         Appellant                    No. 1165 EDA 2015


         Appeal from the Judgment of Sentence of March 26, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003322-2013

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

OPINION BY OLSON, J.:                                   FILED MAY 10, 2016

      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.




* Retired Senior Judge Assigned to the Superior Court
J-S15016-16


        The factual background and procedural history of this case are as

follows.    On the evening of December 9, 2012, Appellant and his co-

defendant, 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




1
    18 Pa.C.S.A. § 2502.
2
    18 Pa.C.S.A. § 6105(a)(1).
3
    18 Pa.C.S.A. § 6106(a)(1).
4
    18 Pa.C.S.A. § 6108.




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possessing an instrument of crime,5 and conspiracy to commit murder.6 A

jury trial commenced on November 4, 2014 at which Appellant and co-

defendant, 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


5
    18 Pa.C.S.A. § 907(a).
6
    18 Pa.C.S.A. §§ 903(c); 2502.
7
  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. Id. Throughout this opinion, we refer to
“medical examiner;” however, this term is meant to encompass coroners in
those counties that retain that office.
8
  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.
9
    18 Pa.C.S.A. § 2502(c).




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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




10
   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.
11
  “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, 79 A.3d 520, 531
n.10 (Pa. 2013), cert denied, 134 S.Ct. 2662 (2014) (ellipses in original).




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plenary.12    Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013), cert

denied, 134 S.Ct. 2662 (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


12
   Although the admission of expert testimony is subject to an abuse of
discretion standard of review, Commonwealth v. Watson, 945 A.2d 174,
176 (Pa. Super. 2008) (citation omitted), an error of law constitutes an
abuse of discretion. Nat’l Cas. Co. v. Kinney, 90 A.3d 747, 753 (Pa.
Super. 2014) (citation omitted). Thus, we ultimately employ a de novo
standard of review.
13
   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.



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court prosecutions. Pointer v. Texas, 380 U.S. 400, 406-407 (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 (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 (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)).



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      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



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J-S15016-16


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, 735 S.E.2d 905, 917-918 (W.Va. 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, 133 S.Ct. 714 (2013); Cuesta–Rodriguez

v. Oklahoma, 241 P.3d 214, 228 (Okla. Crim. App. 2010); North Carolina

v. Locklear, 681 S.E.2d 293, 305 (N.C. 2009); Wood v. Texas, 299

S.W.3d 200, 209–210 (Tex. Crim. App. 2009); Massachusetts v. Nardi,

893 N.E.2d 1221, 1233 (Mass. 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



                                     -8-
J-S15016-16


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, 132 S.Ct. 2221 (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



                                     -9-
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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 argument being made by the Commonwealth in this case, the

Commonwealth’s argument based upon Justice Alito’s test in Williams is

without merit.

      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).




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      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,



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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:

     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, 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 to be used in a criminal prosecution and therefore under the

Crawford and Melendez-Diaz [v. Massachusetts, 557 U.S. 305 (2009)]

framework   would   be   testimonial   for   Sixth   Amendment   confrontation

purposes.” Cuesta-Rodriguez, 241 P.3d at 228.

     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


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J-S15016-16


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, 2016 WL

531266, *16 (Tenn. Feb. 5, 2016); Ohio v. Maxwell, 9 N.E.3d 930, 949-

952 (Ohio 2014); Arizona v. Medina, 306 P.3d 48, 63 (Ariz. 2013); United

States v. James, 712 F.3d 79, 97-99 (2d Cir. 2013); Illinois v. Leach,

980 N.E.2d 570, 592 (Ill. 2012); California v. Dungo, 286 P.3d 442, 450

(Cal. 2012).




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J-S15016-16


      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, 980 N.E.2d at 592.14 The Second Circuit

Court of Appeals also adopted a rationale similar to that advanced by the

Commonwealth. See James, 712 F.3d at 97-99.15


14
   The court in Leach also argued that it was impracticable to require
medical examiners to testify regarding autopsy reports. Leach, 980 N.E.2d
at 592. This argument has been soundly rejected by the Supreme Court of
the United States. Melendez-Diaz, 557 U.S. at 325 (“The Confrontation
Clause may make the prosecution of criminals more burdensome, but that is
equally true of the right to trial by jury and the privilege against self-
incrimination. The Confrontation Clause—like those other constitutional
provisions—is binding, and we may not disregard it at our convenience.”).
Thus, although forcing medical examiners to testify regarding the findings of
an autopsy report may be costly, that does not exempt autopsy reports from
the Confrontation Clause.
15
   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.
(Footnote Continued Next Page)


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      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,

132 S.Ct. at 2273 (Kagan, J. dissenting) (emphasis added); see also id. at

2262 (Thomas, J. concurring).           As the Supreme Court of Ohio recognized,

the primary purpose of an autopsy is to establish a fact, i.e., the cause of

death.     This   fact     is   certainly   potentially   relevant   to   later   criminal

prosecutions. It is immaterial that the autopsy was not created for the sole

purpose of being used in court.

      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, 2016 WL 531266

at *15; Medina, 306 P.3d at 64; Dungo, 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

                       _______________________
(Footnote Continued)
James, 712 F.3d at 99. This indicates that the Second Circuit may reach a
different conclusion if presented with a case where the autopsy was done
because the medical examiner suspected homicide. In the case at bar, it is
evident that the autopsy was performed because the medical examiner
believed that a homicide was committed.




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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 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.16      In this case, Dr. Osbourne did not testify and


16
   Our holding today is consistent with our Supreme Court’s pre-Crawford
jurisprudence. In Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974),
abrogated on other grounds, Commonwealth v. McGrogan, 568 A.2d 924
(Pa. 1990), our Supreme Court held “that in a homicide prosecution,
(Footnote Continued Next Page)


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Appellant did not have a chance to cross-examine him prior to trial.

Accordingly, Appellant’s Confrontation Clause rights 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

                       _______________________
(Footnote Continued)
evidentiary use, as a business records exception to the hearsay rule, of an
autopsy report in proving legal causation is impermissible unless the accused
is afforded the opportunity to confront and cross-examine the medical
examiner who performed the autopsy.” McCloud, 322 A.2d at 656-657.



                                           - 17 -
J-S15016-16


preponderance of the evidence, it does not satisfy the more stringent

standard of criminal trials.” Commonwealth v. Baker, 445 A.2d 544, 548

n.2 (Pa. Super. 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.17 As Dr. Chu was the only expert

called regarding cause of death, we must examine whether he provided

sufficient admissible evidence to prove Morton died as a result of gunshot

wounds.18

     In order to understand the background of this issue, it is necessary to

review Justice Sotomayor’s concurring opinion in Bullcoming v. New

Mexico, 131 S.Ct. 2705 (2011).19       In Bullcoming, the defendant was

charged with aggravated driving while under the influence of alcohol.     At

17
   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, 808 A.2d 215,
230 (Pa. Super. 2002).
18
  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, 808 A.2d at 229 (internal quotation marks and citation
omitted). Thus, no expert testimony was necessary to prove the manner of
Morton’s death.
19
   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, 131 S.Ct. at 2709. As such,
it was a majority decision as to all but those portions of Justice Ginsburg’s
opinion.



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trial, the prosecution entered into evidence a forensic laboratory report

stating the defendant’s blood alcohol concentration was sufficient for

aggravated driving while intoxicated. Id. at 2709. “[T]he prosecution did

not call as a witness the analyst who signed the certification. Instead, the

State called another analyst who was familiar with the laboratory’s testing

procedures, but had neither participated in nor observed the test on

Bullcoming’s blood sample.” Id.

      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 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


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      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, 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.


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      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., 34 A.3d 177, 182-183 (Pa. Super. 2011), appeal denied, 47 A.3d 848

(Pa. 2012); Boucher v. Pa. Hosp., 831 A.2d 623, 628 (Pa. Super. 2003),

appeal denied, 847 A.2d 1276 (Pa. 2004); Primavera v. Celotex Corp.,

608 A.2d 515, 519-520 (Pa. Super. 1992), appeal denied, 622 A.2d 1374

(Pa. 1993); Maravich v. Aetna Life & Casualty Co., 504 A.2d 896, 900–

901 (Pa. Super. 1986); Commonwealth v. Thomas, 282 A.2d 693, 698

(Pa. Super. 1971).

      Our Supreme Court addressed a similar situation to the case at bar in

Commonwealth v. Daniels, 390 A.2d 172 (Pa. 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:

      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


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J-S15016-16


          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, 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, 10 A.3d 282, 306 (Pa. 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, 391 A.2d 1009, 1012-1013 (Pa. 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


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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,20 we turn to whether this error was harmless.              See

Commonwealth v. Rosser, 2016 WL 769485, *9 (Pa. Super. Feb. 26,

20
   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.” Id. (emphasis added).

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.



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J-S15016-16


2016) (after determining there was a Confrontation Clause violation the

second step is to determine if that violation was harmless); see also

Melendez-Diaz, 557 U.S. at 329 n.14 (expressing no view as to whether \

Confrontation   Clause   violation   was      harmless).   “Before   a   federal

constitutional error can be held harmless [on direct appeal], th[is C]ourt

must be able to declare a belief that it was harmless beyond a reasonable

doubt.” Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015) (internal alteration

and citation omitted).

      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



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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.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016




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