PA Supreme Court Finds Autopsy Reports Testimonial under Confrontation Clause

 Philadelphia Criminal Defense Attorney Zak Goldstein

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Brown, holding that autopsy reports are testimonial and therefore may not be introduced at trial unless the witness who prepared the report testifies. In this case, however, the court found that the improper admission of the  autopsy report was harmless error, so the defendant did not receive a new trial.

The Facts of Commonwealth v. Brown

In Brown, the defendant attended a party on Stanley Street in Philadelphia. Before arriving at the party, he hid a gun in the wheel well of a nearby parked car. The defendant argued with someone during the party, and his co-defendant then retrieved the gun from the car and gave it to the defendant. The defendant shot the person with whom he was arguing four times, killing him. A doctor with the Philadelphia Medical Examiner’s Office performed an autopsy and prepared a report of the findings. The report found that the decedent had been shot four times, the shots struck the ribs, heart, lungs, and shoulder of the victim, and three of the bullets entered the front of the victim’s body while one entered his back. The report also described the trajectory of the bullets in the victim’s body and noted that there was no soot, stippling, or muzzle imprints around any of the gunshot wounds. The report noted that the cause of death was multiple gunshot wounds and the manner of death was homicide.

At the time of trial, the doctor who performed the report no longer worked for the city. The Commonwealth did not call him to testify at the trial. Instead, the Commonwealth admitted the report into evidence by calling a different doctor who had reviewed the report to testify to the other doctor’s report. The defendants objected, arguing that the admission of the report without the testimony of the doctor who prepared it violated the Confrontation Clause of the Sixth Amendment of the United States. Based on the other doctor’s report, the testifying doctor told the jury that the wounds were consistent with a scenario in which someone shot the victim from a distance of six to eight feet away while facing him, and then shot the victim in the back after the victim turned away. He further testified that the victim could have walked a few feet before collapsing.

The jury convicted the defendant of third-degree murder and related offenses, and the court sentenced him to 25 – 50 years in prison. The defendant appealed, and the Superior Court affirmed his conviction. The court first ruled that the report should not have been admitted, but it found harmless error because there was no real dispute about the cause of death.

The Criminal Appeal

The defendants again appealed to the Pennsylvania Supreme Court, and the Supreme Court agreed to review the case. On appeal, the Commonwealth argued that autopsy reports are not testimonial because they are not necessarily created for trial in the same way that a BAC report or drug test report is prepared specifically for trial. Instead, state law requires coroners to prepare autopsy reports regardless of whether there is an ongoing criminal activity. The defendant argued that although some autopsy reports are prepared regardless of whether there is a suspicion of criminal activity, the law requires the coroner to prepare a report in response to any suspicious death and cooperate with the prosecutor. Further, the report in this case was prepared for the prosecution of homicide charges.

What is the Confrontation Clause?

The Pennsylvania Supreme Court agreed with the Superior Court that the report was testimonial and therefore should not have been admitted without the testimony of the doctor who prepared it. The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means that they have the right to cross-examine witnesses under oath at trial.

The Pennsylvania Supreme Court noted that in Crawford v. Washington, the United States Supreme Court created the modern analysis of the Confrontation Clause. The Court barred the admission of testimonial statements of a witness who did not appear at trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Thus, the key question for whether a statement violates the Confrontation Clause is whether the statement is testimonial. In general, statements are testimonial when their primary purpose is to establish or prove past events for purposes of proof at a criminal trial. This means that statements made to police officers who are investigating cases are typically going to be testimonial. Likewise, lab reports prepared to prosecute a criminal defendant at trial will also generally be found to be testimonial. On the other hand, statements which are not made for the purposes of criminal prosecution – such as a phone call to 911 in order to obtain emergency assistance – will often be found non-testimonial.

The Court's Decision

Ultimately, the Court concluded that the autopsy report was testimonial. Pennsylvania law requires the preparation of autopsy reports in all cases of sudden, violent, and suspicious deaths, or deaths by other than natural causes, and in such cases, the autopsy and subsequent report are designed to determine whether the death occurred as the result of a criminal act. The law also requires the coroner to advise and cooperate with the District Attorney. Therefore, the primary purpose of an autopsy report is to establish or prove past events potentially relevant to a later criminal prosecution. Any person creating the report would reasonably believe it would be available for use at a later criminal trial. Therefore, an autopsy report is testimonial. 

What is Harmless Error?

At the same time, the Supreme Court concluded that the defendant was not entitled to a new trial because the admission of the report amounted to harmless error. Even where the trial court has made a mistake in an evidentiary ruling, an appellate court may find harmless error where 1) the error did not prejudice the defendant or the prejudice was de minimis, 2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence, or 3) the property admitted and un-contradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the error was harmless error because the report was merely cumulative to the properly admitted testimony of the testifying doctor relating to the cause of death. Specifically, it was harmless error because the doctor had reached his own independent opinion regarding the cause of death which did not rely entirely on the inadmissible autopsy report. Further, an expert witness generally may rely on inadmissible evidence if it is the type of evidence that an expert in the field would normally rely on in reaching a determination. Thus, the report itself should not have been admitted, but the doctor was properly permitted to rely on it in reaching his own conclusions. Therefore, the defendant was not entitled to a new trial. 

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