J-S20039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DENNIS LEE DAVIS,

                            Appellee                 No. 1424 WDA 2015


                     Appeal from the Order August 3, 2015
               in the Court of Common Pleas of Somerset County
               Criminal Division at No.: CP-56-CR-0000407-2008


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED: MARCH 15, 2016

        The Commonwealth appeals from the trial court’s order requiring that

the emergency room physician who examined the victim on the day she was

raped appear at trial as a prerequisite to the admission of his medical

examination report.1        The Commonwealth asserts that the report already

qualifies for admissibility under Pennsylvania Rule of Evidence 803.1(3). It

further maintains that the report is not testimonial. Under our standard of

review, we conclude that the trial court properly exercised its discretion and

committed no error of law. Accordingly, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth has certified in the notice of appeal that the order
appealed from will terminate or substantially handicap the prosecution.
(See Notice of Appeal, 8/31/15); see also Pa.R.A.P. 311(d).
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       This case has a complicated and unusual history.2    Pertinent to the

issue in this appeal, Appellee is awaiting retrial on charges of rape and

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2
 Briefly summarized, in October 2008, a jury convicted Appellee, Dennis Lee
Davis, of kidnapping, rape, aggravated indecent assault, indecent assault,
and recklessly endangering another person. (See Trial Court Opinion,
8/04/15, at 2). He was designated a sexually violent predator (SVP), and
sentenced to not less than eight nor more than sixteen years’ incarceration.

      However, Appellee’s trial counsel, Arnold Yale Steinberg, had already
been the object of disciplinary proceedings by the Pennsylvania Attorney
Disciplinary Board for unrelated improprieties. (See Amendment to Petition
for Post-Conviction Collateral Relief, 1/31/12, at Exhibit B). On April 18,
2008, Steinberg had submitted a resignation statement, pursuant to
Pennsylvania Rule of Disciplinary Enforcement 215(b) (disbarment on
consent).

      A signed addendum to the resignation statement permitted Steinberg
to complete representation in four federal civil matters, but prohibited any
new representation. In return, the Office of Disciplinary Counsel agreed not
to forward the resignation to the Supreme Court of Pennsylvania before
October 18, 2008. (See Addendum). Paragraph (g) of the addendum
provided that if Steinberg violated any of the conditions of the agreement,
his resignation statement would be forwarded immediately to the Supreme
Court.

      Nevertheless, two weeks later Steinberg took on Appellee as a client in
this matter and represented him through trial, his SVP hearing, and
sentencing. In an order dated December 30, 2008, the Supreme Court of
Pennsylvania accepted Steinberg’s resignation, and disbarred him on
consent. (See, Order, 12/30/08, Amendment to Petition for Post-Conviction
Collateral Relief, 11/14/11, at Exhibit A).

       On these facts, the PCRA court vacated Appellee’s conviction. On
appeal, a panel of this Court affirmed, reasoning that because Steinberg was
“constructively unlicensed,” under paragraph (g), Appellee was presumed
prejudiced, and remanded the case for a new trial. (Commonwealth v.
Davis, No. 1180 WDA 2012, unpublished memorandum at *8 (Pa. Super.
filed Sept. 3, 2013)).



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related offenses.      The Commonwealth seeks to admit at trial the rape

examination report prepared by Terry L. Linville, M.D., the emergency room

physician who examined the victim, A.B., on the day of the rape.

       In the first trial, the parties had stipulated to the admission of all

medical records.3       However, on collateral appeal, Appellee’s new counsel

raised trial counsel’s stipulation to medical records as an example of

ineffectiveness. (See N.T. PCRA Hearing, 9/12/11, at 3).

       After remand, Appellee’s counsel filed an omnibus pre-trial motion. At

a hearing on February 24, 2015, the court addressed the issue on appeal,

whether Dr. Linville’s rape examination report could be admitted at trial

without his appearance.            For this hearing Dr. Linville appeared by

videoconference.

       Notably, he did not actually testify. (See N.T. Hearing, 2/24/15, at 8).

The prosecutor told him, without any objection, that “we have decided that

you need not testify today . . . .” (Id.). At the direction of the prosecutor,

Dr. Linville did number and initial the pages of the examination report

previously forwarded to him by the District Attorney’s office. (See id.). He

also highlighted in light green color the portions he believed to be diagnoses,




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3
  Appellee did not deny a sexual encounter, but claimed it was consensual.
(See N.T. Trial, 10/23/08, at 68).




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including lists of diagnosis code numbers.4 (See Hospital Record, 5/02/08,

at 1-19).

       The examination record itself lists seven diagnoses by numerical code

on the first (cover) page, highlighted in light green by Dr. Linville. (See id.

at first page [handwritten─presumably by Dr. Linville─as“#1”]). The “Chief

Complaint,” is highlighted as “Sexual assault.”           (Id. at page 1 of 6;

handwritten “#2”).         Similarly, the “Primary Diagnosis” is described as

“Alleged Sexual Assault.”       (Id. at page 3 of 6; handwritten “4”).

       There is one section of the medical record, apparently preprinted,

titled “Discharge Instructions[;] SEXUAL ASSAULT.” (Id. at page 5 of 6;

handwritten “6”).      It is a catch-all which combines reportorial facts (“You

have been examined today for sexual assault (rape).”), with objective

general medical information and advice (“You should have blood tests . . .”)

and sympathetic advice (“you are not to blame for being attacked”). (Id.).

       It also includes, in the middle of the same paragraph, in the same

typeface and font as the rest of the paragraph, the following notices: “The

purpose of this exam is to help find any physical or emotional problems you

may have as a result of this experience. The exam is also done to collect




____________________________________________


4
  Dr. Linville also highlighted a list of CPT (Current Procedural Terminology)
codes, indicating services provided, rather than diagnoses. (See Hospital
Record, supra at 5 of 6).



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legal evidence; we will give this material to the proper law enforcement

agency with your permission.” (Id.).

       The hearing of February 24 was adjourned pending receipt of the

medical records marked up remotely by Dr. Linville.       (See N.T. Hearing,

2/24/15, at 14).      On July 10, 2015, the hearing was resumed to address

outstanding issues. After the hearing, the trial court took the issues under

advisement.      On August 3, 2015 the court filed the order which is the

subject of this appeal, requiring the testimony of Dr. Linville if the

Commonwealth sought to admit his report.          The Commonwealth timely

appealed.5

       The Commonwealth raises two questions for our review:

              1. Whether the [trial] court erred as a matter of law by
       ruling that in accordance with Pa.R.E. 803.1(3) Dr. Linville must
       testify at trial if the Commonwealth seeks admission of his report
       outlining his examination of [the victim] conducted the day of
       the alleged sexual assault?

              2. Whether the [trial] court erred as a matter of law by
       ruling that Appellee has a right to confront Dr. Linville at trial
       under the confrontation clause of the Sixth Amendment to the
       United States Constitution if the Commonwealth seeks admission
       of his report?
____________________________________________


5
   The Commonwealth filed a concise statement of errors on September 17,
2015. See Pa.R.A.P. 1925(b). The trial court filed an opinion on October 2,
2015, referencing its memorandum and order filed August 3, 2015. See
Pa.R.A.P. 1925(a). Although the opinion of October 2 recites that no concise
statement had been received, the statement is time-stamped as timely filed
on September 17, and the docket entries confirm the filing. We give the
Commonwealth the benefit of the doubt and deem the statement timely
filed.



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(Commonwealth’s Brief, at 4).

      The Commonwealth asserts the trial court erred because “the

foundation for the application of said rule [Pa.R.E. 803.1(3)] has been the

subject of stipulation.”      (Id. at 7).    It also maintains that the Sixth

Amendment right to confrontation does not apply because Dr. Linville’s

report is not testimonial.    (See id.).    The Commonwealth’s arguments do

not merit relief.

            Our      standard of review is well-settled: Generally, on
      review of     an order granting or denying a discovery request, an
      appellate      court applies an abuse of discretion standard.
      Likewise,      evidentiary rulings are subject to an abuse of
      discretion    standard.

         The standard of review for a trial court’s evidentiary
         rulings is narrow. The admissibility of evidence is solely
         within the discretion of the trial court and will be reversed
         only if the trial court has abused its discretion. An abuse
         of discretion is not merely an error of judgment, but is
         rather the overriding or misapplication of the law, or the
         exercise of judgment that is manifestly unreasonable, or
         the result of bias, prejudice, ill-will or partiality, as shown
         by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013), appeal

denied, 87 A.3d 319 (Pa. 2014) (citation and internal quotation marks

omitted).   “This [C]ourt’s scope of review in making a determination on a

question of law is, as always, plenary.       As with all questions of law, the

appellate standard of review is de novo[.]”       Commonwealth v. Vargas,

947 A.2d 777, 780 (Pa. Super. 2008) (citations omitted).

            Medical records are admissible under the hearsay rules as
      evidence of facts contained therein but not as evidence of

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     medical opinion or diagnosis. Commonwealth v. Green, 251
     Pa. Super. 318, 380 A.2d 798, 799-801 (1977).

              Medical diagnosis or opinion entails a “conclusion
        concerning a condition not visible but reflected
        circumstantially by the existence of other visible and
        known symptoms.” The existence of a readily observable
        physical condition, the evaluation of which does not
        require a complex application of technical knowledge, can
        as easily be ascertained by the lay person as by the
        trained physician.

        Id. at 801 (citations omitted).

Folger ex rel. Folger v. Dugan, 876 A.2d 1049, 1055 (Pa. Super. 2005)

appeal denied, 897 A.2d 458 (Pa. 2006).

            In general, when the record reveals what is or is not
     present in the patient, or that a test occurred, the record reflects
     facts. On the other hand, when the record reflects what the
     presence or absence of something means, the record more likely
     reflects a medical diagnosis or opinion.

Id. at 1056 (footnote omitted).

     Here, the Commonwealth first argues that “[t]he foundation for

applying Pa.R.E. 803.1(3) has been met as stipulated.”      (Commonwealth’s

Brief, at 8). We disagree.

     In pertinent part, Rule of Evidence 803.1 provides:

           The following statements are not excluded by the rule
     against hearsay if the declarant testifies and is subject to
     cross-examination about the prior statement:

                                    *     *   *

           (3) Recorded Recollection of Declarant-Witness. A
     memorandum or record made or adopted by a declarant-witness
     that:



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            (A) is on a matter the declarant-witness once knew about
      but now cannot recall well enough to testify fully and accurately;

           (B) was made or adopted by the declarant-witness when
      the matter was fresh in his or her memory; and

             (C) the declarant-witness testifies [sic] accurately reflects
      his or her knowledge at the time when made.

            If admitted, the memorandum or record may be read into
      evidence and received as an exhibit, but may be shown to the
      jury only in exceptional circumstances or when offered by an
      adverse party.

             Comment: Pa.R.E. 803.1(3) is similar to F.R.E. 803(5), but
      differs in the following ways:

            1. Pennsylvania treats a statement meeting the
      requirements of Pa.R.E. 803.1(3) as an exception to the hearsay
      rule in which the testimony of the declarant is necessary.
      F.R.E. 803(5) treats this as an exception regardless of the
      availability of the declarant. This differing organization is
      consistent with Pennsylvania law.

Pa.R.E. 803.1 (emphases added).

      In this case, the trial court reasons that the plain meaning of the rule

requires that the declarant, Dr. Linville, must testify and be subject to cross-

examination if the Commonwealth desires to have the report admitted in its

entirety, with opinions and diagnoses.     (See Trial Ct. Op., 8/04/15, at 6).

We agree.

      Our review of the record in this appeal reveals that while defense

counsel agreed to stipulate to the admission of the hospital records under

the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, he




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J-S20039-16


expressly excluded from the stipulation any opinions or diagnosis, precisely

the claims at issue. (See N.T. Hearing, 2/24/15, at 3-5).

      Defense counsel also maintained that for the diagnosis and opinions to

be admissible, Dr. Linville would have to appear, testify, and be subject to

cross-examination at trial. (See id. at 6). He agreed that if Dr. Linville’s

opinions and diagnoses were redacted, he would not have to appear

personally for the admission of the (redacted) hospital records. (See id. at

7).   Accordingly, contrary to the Commonwealth’s claim, the limited

stipulation evidenced by the record does not resolve the first issue.

      The Commonwealth also argues the report should have been admitted

as a past recollection recorded.    (See Commonwealth’s Brief, at 9).     We

disagree.

             Four elements are required for a hearsay statement to be
      admitted as a past recollection recorded: (1) the witness must
      have had firsthand knowledge of the event; (2) the written
      statement must be an original memorandum made at or near
      the time of the event and while the witness had a clear and
      accurate memory of it; (3) the witness must lack a present
      recollection of the event; and (4) the witness must vouch for the
      accuracy of the written memorandum.

Commonwealth v. Young, 748 A.2d 166, 177 (Pa. 1999) (citing

Commonwealth v. Cargo, 444 A.2d 639 (Pa. 1982).

      Here, on their face, the third and fourth elements require the

testimony of Dr. Linville.   The Commonwealth claims that Dr. Linville has

already testified at a pre-trial hearing that he does not remember authoring




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the report in question.   (See Commonwealth’s Brief, at 6).       However, the

record does not support this claim.

      To the contrary, as already noted, the prosecutor told Dr. Linville he

“need not testify.” (N.T. Hearing, 2/24/15, at 8). He was not sworn in, and

aside from incidental conversation relating to the highlighting procedure

previously noted, he said nothing on the record. (See id. at 8-10). Instead,

Carolann A. Young, Esq., the prosecutor, said that Dr. Linville could not

remember. (See id. at 5, 7, 29). But the prosecutor’s personal vouching

for Dr. Linville’s lack of memory is plainly an insufficient and legally

impermissible substitute for testimony by Dr. Linville himself, as required for

compliance by the plain meaning of Rule 803.1. The Commonwealth offers

no authority to the contrary.

      In sum, the record confirms that Dr. Linville did not testify.         The

stipulation of defense counsel did not extend to the diagnoses and opinions

at issue.   The prosecutor’s personal vouching is not compliant with Rule

803.1.   Therefore, the Commonwealth has failed to show that the entire

report is admissible without the testimony of Dr. Linville at trial.         The

Commonwealth’s first issue does not merit relief.

      In its second issue, the Commonwealth asserts that the trial court

erred in ruling that Appellee has a right to confront Dr. Linville at trial under

the Confrontation Clause of the Sixth Amendment of the United States

Constitution. (See Commonwealth’s Brief, at 4).


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J-S20039-16


     The Commonwealth chiefly argues that the rape examination report

was not testimonial in nature and therefore Appellee was not entitled to

Sixth Amendment protection under the Confrontation Clause.      (See Id. at

10-13). We disagree.

            The Sixth Amendment’s Confrontation Clause provides
     that, “[i]n all criminal prosecutions, the accused shall enjoy the
     right . . . to be confronted with the witnesses against him.” We
     have held that this bedrock procedural guarantee applies to both
     federal and state prosecutions. Pointer v. Texas, 380 U.S.
     400, 406, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965).

Crawford v. Washington, 541 U.S. 36, 42 (2004).

     Our Pennsylvania Supreme Court has recognized that protection under

the Confrontation Clause is dependent on whether the statement sought to

be admitted is determined to be testimonial in nature:

           In sum, in analyzing whether a statement is testimonial,
     and, therefore, subject to the protections of the Confrontation
     Clause under Crawford, a court must determine whether the
     primary purpose of the interrogation was to establish or prove
     past events relevant to a later criminal prosecution. In making
     the determination as to the primary purpose of an interrogation,
     a court first should determine whether the interrogation occurred
     during the existence of an ongoing emergency, or what was
     perceived to be an ongoing emergency.              Although the
     existence—actual or perceived—of an ongoing emergency is one
     of the most important factors, this factor is not dispositive
     because there may be other circumstances, outside of an
     ongoing emergency, where a statement is obtained for a
     purpose other than for later use in criminal proceedings. In
     determining the primary purpose of an interrogation, a court
     must also objectively evaluate the circumstances surrounding
     the interrogation, including the formality and location, and the
     statements and actions of both the interrogator and the
     declarant.




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Commonwealth v. Allshouse, 36 A.3d 163, 175-76 (Pa. 2012), cert.

denied, 133 S. Ct. 2336 (2013). “Whether Appellant was denied [his] right

to   confront a witness under     the confrontation clause     of the   Sixth

Amendment is a question of law for which our standard of review is de novo

and our scope of review is plenary.”    Commonwealth v. Yohe, 39 A.3d

381, 384 (Pa. Super. 2012), affirmed, 79 A.3d 520 (Pa. 2013), cert. denied,

134 S. Ct. 2662 (2014) (citations omitted).

      In this appeal, the Commonwealth maintains that the medical report at

issue was not testimonial hearsay because it “was not procured with a

primary purpose of creating an out-of-court substitute for trial testimony.”

(Commonwealth’s Brief, at 11) (citing Allshouse, supra at 174).           The

Commonwealth argues that Dr. Linville’s “intent was not to obtain testimony

. . . for the purposes of a criminal proceeding,” but rather he “intended to

provide medical treatment to his patient in a hospital emergency room.”

(Id. at 13) We disagree.

      First, and most obviously, there is no evidence in the record, in

particular, no testimony from Dr. Linville, explaining what his intent was.

Secondly, the mere bald assertion that the report “was not procured with a

primary purpose of creating an out-of-court substitute for trial testimony” is

undeveloped and lacks pertinent supporting authority.




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       The report did note that its purpose was to “help find any physical or

emotional problems[.]”        (Hospital Record, supra at 5 of 6).6      However, it

added that the purpose of the examination was to collect evidence

concerning an alleged sexual assault:           (“The exam is also done to collect

legal evidence[.]”)      (Id.) (emphasis added).        Photographs of the victim’s

injuries were included in the report.

       By her signature, the victim acknowledged receipt and review of the

report along with an authorization for collection and release of evidence, as

well as numerous other notices and releases. The disposition section of the

report advised the victim to follow up with her primary health care provider.

       The    examination       obviously      had   multiple   purposes,   including

compliance with record keeping requirements, and providing any needed

emergency treatment.           However, we conclude that in the totality of

circumstances, the trial court could properly decide from the evidence of

record that the primary purpose of the examination report was to document

that the patient was the victim of a sexual assault, and to establish the

extent of her injuries. This documentation included the treating physician’s

diagnosis and opinions.


____________________________________________


6
 See also 28 Pa. Code § 115.31(a), Patient medical records: “An adequate
medical record shall be maintained for every inpatient, outpatient and
patient treated or examined in the emergency unit.”




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       Accordingly, the trial court properly and correctly decided that the rape

examination report, including diagnoses and opinions, was testimonial in

nature. (See Trial Ct. Op., at 9).7 The trial court also correctly decided that

if the Commonwealth seeks to introduce Dr. Linville’s rape examination

report, including opinions and diagnoses, under Pa.R.E. 803.1(3), Dr. Linville

will have to appear at trial, testify, and be subject to cross-examination.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




____________________________________________


7
  The trial court reasoned, in part, that the Commonwealth erroneously
contended that Dr. Linville’s lack of memory of preparing the examination
report made him unavailable, and therefore, his testimony was not barred
by the Confrontation Clause. (See Trial Ct. Op., at 9-10). However, the
Commonwealth expressly disclaims this argument in its brief.        (See
Commonwealth’s Brief, at 11). Accordingly, we need not review this part of
the trial court’s reasoning.



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