J-S26039-18


                                  2019 PA Super 9

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 ERIC L.L. LEANER                          :
                                           :
                      Appellant            :   No. 471 EDA 2016

               Appeal from the Judgment of Sentence April 4, 2014
     In the Court of Common Pleas of Philadelphia County Criminal Division at
                         No(s): CP-51-CR-0002556-2012


BEFORE:      BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

CONCURRING OPINION BY BOWES, J.:                    FILED JANUARY 08, 2019

        I join my distinguished colleagues except as to the following. Regarding

the Pa.R.Crim.P. 600 issue, I concur; however, I would hold that the issue

was not preserved, as Appellant, who was represented by counsel, filed that

motion pro se. As that renders the motion a legal nullity, there is nothing for

this Court to review. With respect to the Confrontation Clause issue, unlike

the Majority, I would find that Appellant’s rights were violated but that the

error was harmless beyond a reasonable doubt.

I.      Rule 600 Claim

        The Majority discusses the merits of Appellant’s Rule 600 motion, which

was filed pro se. However, Appellant was represented by counsel, who did

not adopt the motion. On November 21, 2013, in the midst of trial, counsel

informed the court that Appellant wanted the judge to address his pro se

motion. As indicated by the following exchange, trial counsel declined to adopt

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* Former Justice specially assigned to the Superior Court.
J-S26039-18


the motion,1 and the trial court conducted a brief review of the record to

placate Appellant:

       MR. WOLF: I did make a thorough examination of the docket, but
       it was my examination [sic] there are numerous defense
       continuances in this case early on before I became counsel.

       After I became counsel, there were numerous defense
       [continuances] for investigation. It was my opinion, generally, I
       didn’t believe the Rule 600 rights were violated. I had no intention
       of litigating a Rule 600 motion on this case.

       However, [Appellant] wanted to address Your Honor. If Your
       Honor wants to hear [Appellant] on it, I would certainly advise
       Your Honor he felt that I was not following his instructions on
       litigating this motion.

       THE COURT: It’s filed. Have counsel --

       MR. WOLF: I didn’t mean to interrupt, Your Honor.

       THE COURT: So [Appellant] understands, I’ll quickly look through
       the docket to confirm what Mr. Wolf is saying. . . .

              ....

       MR. WOLF: As I indicated, Your Honor, my opinion, I don’t believe
       Rule 600 is ripe in this case. [Appellant] and I disagree on this
       point. I’m raising it because [Appellant] wants to raise it.

N.T., 11/21/13, at 5-8.



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1 The remedy provisions of Pa.R.Crim.P. 600 state: “When a defendant has
not been brought to trial within the time periods set forth in paragraph (A),
at any time before trial, the defendant’s attorney, or the defendant if
unrepresented, may file a written motion requesting that the charges be
dismissed[.]” Pa.R.Crim.P. 600(D)(1) (emphasis added). Thus, even if
counsel had decided to adopt the motion, the trial court could not grant relief
mid-trial.


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        Appellant could not litigate a pro se Rule 600 motion while he was

represented.       See Commonwealth v. Nischan, 928 A.2d 349, 355

(Pa.Super. 2007) (“Appellant had no right to file a pro se motion because he

was represented by counsel. This means that his pro se post-sentence motion

was a nullity, having no legal effect.”) (citation omitted). Accordingly, this

motion did not exist and there is nothing to review. Moreover, adjudicating

this claim on the merits erroneously deprives Appellant of the ability to raise

the issue in collateral proceedings. I therefore concur.

II.     Confrontation Clause Claim

        Doctor Blanchard2 of the Philadelphia Medical Examiner’s Office

conducted the autopsy and authored a report. She retired prior to trial and

the Commonwealth called Gary Collins, M.D., a fellow medical examiner

employed by the same office, to testify in her place. Appellant stated that he

“should have an opportunity to confront and cross-examine Dr. Blanchard as

the expert who conducted the actual post-mortem examination.” N.T. Trial,

11/20/13, at 157. The trial court overruled the objection.

        Appellant’s Confrontation Clause claim arises in two separate, albeit

linked, contexts. The first concerns the admission into evidence of the autopsy

report. I agree with the Majority that Appellant waived any objection to the




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2   The doctor’s first name was not stated.



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admission of the report itself.3         The second concerns Dr. Collins’s expert

opinion testimony, which was premised, in part, on material contained within

Dr. Blanchard’s report. Citing Commonwealth v. Brown, 185 A.3d 316 (Pa.

2018), my distinguished colleagues find that there is no Confrontation Clause

violation concerning that testimony. As explained infra, the Majority’s quoted

passage is from a portion of Brown that did not garner a majority.

       For the following reasons, my views align with the competing view of

this issue, as expressed by Justice Donohue’s concurring opinion, joined by

Chief Justice Saylor, and Justice Wecht.           I would hold that Appellant’s

Confrontation Clause rights were violated by the admission of any testimony

concerning the autopsy report. A review of the pertinent testimony leads me

to conclude that there is insufficient evidence to find that Dr. Collins

independently reviewed the underlying autopsy data.          However, under the

circumstances of this case, I believe that any error was harmless beyond a

reasonable doubt, because the remaining portions of Dr. Collins’s testimony

relied upon non-testimonial medical records. I therefore concur.

       Some years ago, a photograph of a dress gained national attention for

the simple reason that about half the viewers were convinced the dress was



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3 The Commonwealth argues that the trial court “did not admit the autopsy
report into evidence[.]” Commonwealth’s brief at 16. However, as noted by
the trial court, the autopsy report was marked as an exhibit and all exhibits
were later moved into evidence.


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black and blue, while the other half was sure that the dress was white and

gold. Whether an expert can render an opinion based on testimonial hearsay

is a jurisprudential version of that photograph.       Some see a constitutional

violation plain as day, while others are equally certain that there is no problem

whatsoever.

       The divergent views are illustrated by Williams v. Illinois, 567 U.S. 50

(2012), a plurality decision from the United States Supreme Court addressing

a similar factual scenario.         Five Justices determined that there was no

Confrontation Clause violation.         Justice Kagan, joined by Justices Scalia,

Ginsburg, and Sotomayor, thought obvious the contrary result: “Under our

Confrontation Clause precedents, this is an open-and-shut case.” Id. at 119

(Kagan, J., dissenting). Williams lacks a clear holding as Justice Thomas,

who provided the fifth vote, did not agree with the lead opinion’s logic. Thus,

as Justice Kagan observed: “But in all except its disposition, [the lead] opinion

is a dissent: Five Justices specifically reject every aspect of its reasoning and

every paragraph of its explication.” Id. at 120.4 Our Supreme Court similarly

split in Brown.

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4 The United States Supreme Court recently declined an opportunity to clarify
Williams. Justice Gorsuch, joined by Justice Sotomayor, dissented from the
denial of certiorari in Stuart v. Alabama, 139 S. Ct. 36 (Nov. 19, 2018),
wherein the State defended the admission of a forensic report on the grounds
an expert could rely on the report in rendering an opinion. Justice Gorsuch
wrote:




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       I agree with the views of the dissent in Williams. The Commonwealth

cannot circumvent the Confrontation Clause’s protections by having an expert

witness rely on otherwise inadmissible testimonial hearsay. That is rather like




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       To prove Vanessa Stuart was driving under the influence, the
       State of Alabama introduced in evidence the results of a blood-
       alcohol test conducted hours after her arrest. But the State
       refused to bring to the stand the analyst who performed the test.
       Instead, the State called a different analyst. Using the results of
       the test after her arrest and the rate at which alcohol is
       metabolized, this analyst sought to estimate for the jury Ms.
       Stuart's blood-alcohol level hours earlier when she was driving.
       Through these steps, the State effectively denied Ms. Stuart the
       chance to confront the witness who supplied a foundational piece
       of evidence in her conviction. The engine of cross-examination
       was left unengaged, and the Sixth Amendment was violated.

       To be fair, the problem appears to be largely of our creation. This
       Court's most recent foray in this field, Williams v. Illinois, 567
       U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), yielded no
       majority and its various opinions have sown confusion in courts
       across the country. . . . .

              ....

       Respectfully, I believe we owe lower courts struggling to abide our
       holdings more clarity than we have afforded them in this area.
       Williams imposes on courts with crowded dockets the job of
       trying to distill holdings on two separate and important issues
       from four competing opinions. The errors here may be manifest,
       but they are understandable and they affect courts across the
       country in cases that regularly recur. I would grant review.

Id. at 36-37.



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saying a GPS device can give you the right directions even if you enter the

wrong address.5

       The respective opinions in Brown offer scholarly and in-depth

discussions of the relevant United States Supreme Court precedents, and I

refer the reader to those pages. For present purposes, all members of our

Supreme Court agreed that

       the primary purpose for preparation of an autopsy report under
       these circumstances is to establish or prove past events
       potentially relevant to a later criminal prosecution and that any
       person creating the report would reasonably believe it would be
       available for use at a later criminal trial. Thus, we conclude the
       autopsy report in this case was testimonial.

Id. at 329. There is no reason to conclude that the autopsy report herein was

not conducted for the same purposes. Hence, the report was testimonial, and

therefore inadmissible without the testimony of its author. All Justices further

agreed that the constitutional error in introducing the report was harmless

beyond a reasonable doubt, but divided as to why.

       In finding no Confrontation Clause violation in the case at bar, the

Majority adopts the reasoning of Justice Dougherty, joined by Justices Baer

and Todd. Those Justices determined that the erroneous admission of Dr.



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5Charles Babbage, sometimes called the father of computers, wrote: “On two
occasions I have been asked,—’Pray, Mr. Babbage, if you put into the machine
wrong figures, will the right answers come out?’ . . . I am not able rightly to
apprehend the kind of confusion of ideas that could provoke such a question.”
Charles Babbage, Passages from the Life of a Philosopher 67 (London, Logman
& Co. 1864).

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Chu’s report was “merely cumulative of Dr. Chu’s independent opinion

regarding the cause of death which was properly admissible.” Brown, supra

at 330. Justice Dougherty opined that Dr. Chu’s testimony was independently

rendered for the following reasons:

      Here Dr. Chu formed an independent conclusion and testified to
      that conclusion based on his own review of both the otherwise
      inadmissible facts and data contained in the report and the data
      provided by the autopsy photographs. Because Dr. Chu properly
      formed an independent opinion, and was available to be cross-
      examined regarding the basis of that opinion, we conclude there
      was no Confrontation Clause violation with respect to his opinion
      regarding the cause of death. Additionally, Dr. Chu’s testimony
      was sufficient to satisfy the Commonwealth’s evidentiary burden
      regarding the victim’s cause of death.

      The Superior Court, however, also determined to the extent Dr.
      Chu acted as a surrogate for Dr. Osbourne and expressed Dr.
      Osbourne’s opinion regarding the cause of death, Dr. Chu’s
      testimony was similar to the surrogate testimony rejected by the
      Court . . . as violating the Confrontation Clause. Brown, 139 A.3d
      at 219–20 n.20. Specifically, the jury heard, through Dr. Chu,
      that Dr. Osbourne had also concluded the victim’s cause of death
      was four gunshot wounds. We determine any error that arose
      from Dr. Chu’s testimony revealing Dr. Osbourne’s opinion as
      contained in the report was harmless beyond a reasonable doubt
      because Dr. Chu’s independent opinion testimony satisfied the
      Confrontation Clause and the Commonwealth’s evidentiary burden
      of proof.

Id. at 332–33.

      Thus, the Justices determined that Dr. Chu rendered an independent

opinion based on his review of raw data, e.g. the photographs and the

descriptions of the wounds in the autopsy report, and applied his own

expertise.   Hence, the actual Confrontation Clause violation occasioned by




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admission of the report was harmless in light of that properly-introduced

independent opinion testimony.

       Alternatively,    Justice    Dougherty    suggested   that   there   is   no

constitutional issue when an expert testifies to testimonial hearsay that

experts reasonably rely upon per the rules of evidence relating to expert

witnesses.6     While this analysis was also addressing the harmless error

resulting from the admission of a testimonial autopsy report—a circumstance

not at issue herein due to a failure to object to admission of the report—it

suggested that there is no Confrontation Clause issue when an expert testifies

to testimonial statements that the Commonwealth could not introduce

directly.

       [H]ad the autopsy report not been introduced into evidence at
       trial, Pa.R.E. 703 and 705 would arguably permit precisely the
       type of expert opinion testimony given by Dr. Chu, which was
       based in part on the otherwise inadmissible facts and data
       contained in the report upon which experts in the field of forensic
       pathology would reasonably rely in forming an opinion.

Id. at 331 (emphasis in original).

       Since neither aspect of Justice Dougherty’s harmless error analysis

garnered a majority of the Court, it is not binding. The Majority’s decision to

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6 Justice Dougherty’s plurality noted its view that the rules of evidence might
permit Dr. Chu’s testimony in cases where the report was not introduced, but
stressed “our holding that Dr. Chu could properly offer an independent opinion
is based not on Rule 703, but on our analysis of relevant Confrontation Clause
jurisprudence[.]” Commonwealth v. Brown, 185 A.3d 316, 332 n.13 (Pa.
2018).



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adopt that view is certainly a viable approach, but I favor the competing view

set forth by Justice Donohue’s concurring opinion, joined by Chief Justice

Saylor and Justice Wecht.     The opinion, like Justice Dougherty’s, cogently

explains its analysis, and I therefore limit my remarks to a few salient points.

      Addressing the theory that an expert may reasonably rely upon

testimonial data in giving an opinion, Justice Donohue opined:

      [P]ermitting Dr. Chu to so testify was error, as it permitted the
      Commonwealth to do indirectly what it could not do directly,
      namely, to advise the jury of the findings and opinions of Dr.
      Osborne without providing Brown with an opportunity to cross-
      examine him. The introduction of testimonial forensic evidence
      without cross-examination of the analyst who performed the work
      is a clear violation of the confrontation rights of the accused, and
      I cannot join in the plurality’s decision to ignore this basic
      constitutional principle.

            ....

      In the present case . . . Dr. Chu clearly should not have been
      permitted, in Dr. Osborne’s absence, to testify regarding the
      contents of Dr. Osborne’s testimonial autopsy report. Dr. Chu did
      not participate in, assist with or observe the autopsy performed
      by Dr. Osborne. The plurality takes no constitutional issue with
      the trial court’s decision to allow Dr. Chu to convey to the jury the
      results of Dr. Osbourne’s work, including the location of the bullet
      wounds, the trajectory of the bullets through the victims’ body,
      the nature of the wounds (perforating versus penetrating), and
      the distance from which the victim was shot. Op. at 331; N.T.,
      11/5/2014, at 124–28.

Id. at 334-35 (footnote omitted).

      Justice Donohue found that the error was harmless due to the fact that

the Commonwealth is not required to provide medical testimony to establish

causation beyond a reasonable doubt in a murder prosecution. Id. at 340.


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Its burden may be met by showing that the action of the defendant constituted

a direct and substantial factor in causing the death. Justice Donohue stated

that “several witnesses testified to hearing and/or seeing Brown shoot the

victim multiple times, and afterwards, observing the victim laying on the

ground.” Id. Additionally, the victim was unresponsive and bleeding from

multiple gunshot wounds when the officers arrived.      Finally, there was no

evidence that the victim died of anything other than the gunshot wounds.

       Justice Mundy filed a concurrence, emphasizing Justice Donohue’s point

that several witnesses testified as to seeing or hearing gunshots.7        Her

analysis ended there, finding that Dr. Chu’s testimony was not prejudicial for

that same reason and therefore offered no opinion on the expert witness

question.

       I find that Dr. Collins did not render an independent opinion, and as a

result any testimony concerning the autopsy report violated the Confrontation

Clause.8      I would further find that any Confrontation Clause error was

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7 Justice Dougherty’s plurality disagreed: “We have great hesitation equating
an eyewitness’s lay testimony observing a victim was shot with expert medical
testimony stating the cause of death, even in cases where the cause of death
appears obvious.” Id. at 333 n.14.

8 A review of the challenged testimony leads me to question whether Dr.
Collins rendered an independent opinion as to Dr. Blanchard’s findings or
merely accepted them as reliable. N.T., 11/20/13, at 169-70. While Dr.
Collins stated that he reviewed the photographs and the autopsy report, and
rendered an independent opinion based on that review, I find that more
explanation was required beyond that conclusory statement. A technical



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harmless beyond a reasonable doubt.                Justice Donohue’s concurrence in

Brown determined that “In the absence of the autopsy report and Dr. Chu’s

testimony . . . there was competent evidence presented at trial” to support

causation. Id. at 340. Applying that same principle, I find that Dr. Collins

rendered an independent opinion as to causation based on material not

subject to the Confrontation Clause.

       At the outset, there is a significant distinction between Brown and the

present case. Justice Donohue noted that “Brown’s defense did not involve

challenging the cause of the victim’s death in any respect.” Id. at 340. In

contrast, Appellant challenged causation and maintains that the victim died

from some malady other than complications caused by his attack. That fact

suggests that the error was not harmless beyond a reasonable doubt.

       However, Appellant’s causation argument asserted that the evidence

was insufficient even if Dr. Blanchard had testified. His brief states:

       Dr. Gary Collins, a Deputy Chief Medical Examiner, testified as an
       expert in forensic pathology. He did not perform the post-mortem
       examination in this matter; the doctor who did so, Dr. Blanchard,
       had retired at some point between examination of the decedent’s
       body and the trial in this matter. Dr. Collins’ testimony revealed
       that the decedent had been to at least four medical facilities after


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distinction to be sure, but Dr. Collins stated that he reviewed the autopsy
report, not the underlying data itself. I view the former as inadequate to
support the notion that the opinion was truly independent. Finally, the
autopsy report was admitted into evidence and presumably available to the
jury. While Appellant failed to object to admission of the report, there is a
clear risk that the jury would attach significance to the report itself in
conjunction with Dr. Collins’s testimony that referenced said report.

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      the incident in question. The decedent passed away on January
      17, 2010, 124 days after the incident.

      Dr. Collins described the evidence of remote injury at the time of
      his death, including discoloration consistent with a healed brain
      contusion and healed bone surgery. Dr. Collins also testified that
      the decedent had high blood pressure, lymphoma, and possibly
      lung cancer, but that those conditions did not have an effect on
      him prior to this incident. It is unclear how a forensic
      pathologist who does not see living patients and who never
      knew the decedent in life would be able to draw such a
      conclusion, regardless of whether they were the actual
      pathologist who conducted the autopsy.

Appellant’s brief at 24 (emphasis added, citations to transcript omitted).

Hence, Appellant avers that causation was impossible to establish via the

testimony of any forensic pathologist, including Dr. Blanchard.

      As the Majority’s factual recitation aptly explains, Dr. Collins reviewed

the medical records from the facilities which treated Mr. McNeil following

Appellant’s attack. He explained that surgeons at the first hospital inserted a

drain to remove fluid accumulating on Mr. McNeil’s brain, and opined that

death would have occurred shortly after the beating but for the immediate

medical care. See Majority Opinion at 12-14. In turn, Dr. Collins reviewed

the complications that occurred resulting from Appellant’s attack and

attributed his ultimate death to the attack. “[W]ith the lack of improvement,

I can then correlate and say, well, there’s no intervening factor between this

assault and him getting better and his death. So the initial event had to have

played a significant role in his overall conditioning to end [with] his death four

months later.” N.T., 11/20/13, at 182. Thus, Dr. Collins was familiar with the


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medical records and personally reviewed them at length, and his opinions

based on that review supplied adequate evidence of an unbroken chain of

causation.   See Commonwealth v. Thompson, 660 A.2d 68 (Pa.Super.

1995) (assailant struck eighty-four-year-old man with a piece of brick, causing

two subdural hematomas; while victim recovered and was discharged, his

later death was a direct result of the hematomas). I would hold that those

medical records were non-testimonial and, therefore, Dr. Collins could validly

rely on them. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312

n.2 (2009) (“[M]edical reports created for treatment purposes . . . would not

be testimonial under our decision today.”).

      Accordingly, removing any inadmissible testimony concerning the

autopsy findings leaves intact the testimony based upon Dr. Collins’s review

of the medical treatment records, which I submit supplied an adequate basis

for the jury to reach the issue of causation.    Any error occasioned by Dr.

Collins’s reference to the autopsy report was thus harmless beyond a

reasonable doubt. I therefore concur as to this issue.




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