PA Supreme Court Finds Autopsy Reports Testimonial under Confrontation Clause

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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If you are facing criminal charges or may be under investigation by law enforcement, we can help. Our Philadelphia criminal defense attorneys have successfully defended thousands of clients in Pennsylvania and New Jersey. We offer a free 15-criminal defense strategy session to each potential client, and we can help you build a defense to pending criminal charges or evaluate the merits of filing a PCRA or direct appeal. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today. 

PA Superior Court: Guilty Plea Invalid Where Defendant Not Warned of Obligation to Pay Restitution

Commonwealth v. Rotola

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Rotola, holding that the trial court may not order restitution at sentencing in a plea bargained case unless the defendant agreed to restitution as part of the plea bargain.

Theft of Property Lost, Mislaid or Delivered by Mistake and Restitution

In Rotola, the defendant pleaded guilty to theft of property lost, mislaid or delivered by mistake as a misdemeanor of the first degree. The court ordered Rotola to serve 9-24 months, less one day, of incarceration and pay restitution in the amount of $25,000, jointly and severally with his co-defendant. Initially, the court found Rotola solely responsible for the theft of $25,000 in jewelry. However, after Rotola filed a post-sentence motion to reconsider, the trial court made Rotola jointly and severally liable with his co-defendant.

Given the extremely high restitution figure, Rotola appealed. On appeal, Rotola argued that the restitution amount was both not supported by the record and not the direct result of his conduct. Rotola pleaded guilty to theft as a misdemeanor of the first degree, and theft as an M1 indicates that the property stolen was worth less than $2,000. Thus, Rotola argued that it was excessive to impose a restitution amount so far exceeding $2,000 when he pleaded guilty to an offense which suggested the restitution should only be $2,000. He also argued that he was not as culpable as his co-defendant who had actually stolen the property as his role in the crime was to sell only a portion of the stolen goods to a pawn shop.

The Pennsylvania Restitution Statute

The statute governing restitution in criminal cases makes restitution mandatory regardless of ability to pay. It provides:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) MANDATORY RESTITUTION.--

(1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution . . . and such other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.

Restitution in Theft Cases

After Rotola appealed, the Superior Court rejected his second argument, finding that because the defendants acted together criminally to cause a single harm to the victim, both defendants were responsible for the full restitution despite Rotola being somewhat less involved.

The Court, however, agreed with the first argument. It found that there was no agreement as to restitution and no suggestion in the record that Rotola would be responsible for restitution. The plea paperwork did not suggest that he would be responsible for restitution, and the oral colloquy conducted by the sentencing judge did not inform Rotola that he would be responsible for restitution. Given the complete absence of any mention of restitution on the record, the Superior Court agreed with Rotola that the guilty plea to theft could not have been knowing, intentional, and voluntary. Therefore, the Court reversed the conviction and ordered that the plea be withdrawn.

Although the restitution statute makes restitution mandatory, a defendant must be advised of the possibility of having to pay restitution in order for a plea to be valid. The Court specifically required that the defendant be warned on the record of the possibility of having to pay restitution, and the Court also required that the sentencing court follow the procedures specified by the statute, meaning a court is required to hold a hearing and determine the amount of restitution at the time of sentencing. Because Rotola was never informed that he would have to pay restitution, his plea was withdrawn and the court remanded the case for trial.

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Superior Court Finds Sexually Violent Predator Classification Unconstitutional

More Changes for Pennsylvania's Unconstitutional Megan's Law Statute

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Butler, finding that Pennsylvania's system of classifying certain sex offenders as Sexually Violent Predators is unconstitutional. The Court held that that 42 Pa C.S.A. § 9799.24(e)(3), the section of the Sexual Offender Registration and Notification Act (“SORNA) that deals with designating an individual as a Sexually Violent Predators (“SVP”), is unconstitutional. This decision could impact thousands of individuals throughout Pennsylvania. Further, this is yet another case where an appellate court has found a section of the SORNA statute unconstitutional. If you are charged with a SORNA offense, it is imperative that you contact an attorney who is familiar with this rapidly evolving area of law.

Commonwealth v. Butler 

In Butler, the defendant was a 21-year-old man who repeatedly engaged in sexual intercourse with a 15-year-old girl. In September of 2014, Butler was charged with statutory sexual assault, criminal use of a communication facility, manufacturing child pornography, and corruption of minors. In July of 2016, he pleaded guilty to statutory sexual assault and corruption of minors. As a result of pleading guilty to corruption of minors, Pennsylvania law required that he undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether or not he fit the classification as an SVP. § 9799.24(a) of SORNA requires that every defendant who is convicted of a sex offense undergo the SOAB evaluation before sentencing for a SORNA offense. The SOAB concluded that Butler was a Sexually Violent Predator, leading to a hearing before the trial judge on the issue. After the SVP hearing, the trial judge found that the Commonwealth met its burden, and the judge classified Butler as a Sexually Violent Predator. Butler also received a sentence of 12 to 30 months of incarceration and 90 months of probation. He appealed. 

How Does Someone Get Labeled AN SVP?

As stated above, after a conviction for a SORNA offense an individual must be assessed the SOAB to determine whether they meet the classification as an SVP. According to § 9799.12 of the SORNA, an individual who is an SVP is a person with “a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses.” In making its assessment, the SOAB will look at 15 factors to determine whether someone meets the classification as an SVP. § 9799.24 lists factors that the SOAB will consider including: the specific facts of the underlying case, the age of the defendant, the age of the complainant, the prior criminal record of the defendant, drug use, whether the defendant has any mental health illnesses. 

If the SOAB makes its determination that an individual meets the requirements for SVP classification, the District Attorney must then file a praecipe to have a hearing before a judge to determine whether or not the defendant should be labeled an SVP. Notably, the Commonwealth must meet this burden by clear and convincing evidence. This is a lesser standard than the beyond a reasonable doubt standard which is required to convict someone of a criminal offense. Further, a defendant does not have the right to have a jury determine whether the defendant is an SVP.

At the SVP hearing, the Commonwealth will present its case as to why the court should find the defendant an SVP. Typically, this involves testimony from the SOAB evaluator who assessed the defendant. The defendant would have the opportunity to cross-examine any witnesses the Commonwealth presents, and the defendant may also present evidence as to why he or she does not meet the characteristics of an SVP. For example, a defendant may call an expert witness to testify that based on an independent assessment of the relevant facts, it is their expert opinion that the defendant is not an SVP. After all the evidence is presented, the statute permits the judge to make a determination, using the clear and convincing evidence standard, as to whether or not the Commonwealth proved that the defendant is a Sexually Violent Predator.  

It is important to note that the SVP procedure can result in even defendants who were convicted of relatively minor sex offenses like misdemeanor Indecent Assault being labeled as SVPs. In most cases, Indecent Assault results in a defendant being required to register as a Tier I Sex Offender. Tier I Sex Offenders face the fewest restrictions in terms of registration requirements and only have to register for fifteen years. However, the SVP procedure can result in someone who would normally be a Tier I Sex Offender being required to register for life subject to the most severe restrictions as a Sexually Violent Predator. 

What Are the Consequences of Being Labeled an SVP?

If a court finds that an individual is an SVP, there are several consequences. First, the defendant must register for life. Further, the victim of the underlying offense must be notified of where the defendant lives and works; the community also receives notification about where the individual lives, works, eats, attends school, spends his or her leisurely time; and the person is subjected to lifetime counseling. As such, this designation carries serious collateral consequences beyond just a period of incarceration or probation. 

For a considerable period of time, Pennsylvania courts held that these registration requirements were civil, rather than punitive in nature. However, this all changed with the Pennsylvania Supreme Court’s landmark decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).   

The Pennsylvania Superior Court Finds § 9799.24 Unconstitutional   

In Muniz, the Pennsylvania Supreme Court held that the SORNA registration requirements were punitive and not civil. This is significant because the United States Supreme Court in Alleyne v. United States held that any fact that increases the mandatory minimum for a sentence must be proven beyond a reasonable doubt. In other words, the state must prove every element of the offense (including facts that increase a sentence) beyond a reasonable doubt.    

In Butler, had there been no SVP hearing, appellant would have had to register for 15 years.  However, because he was classified as an SVP, he had to register for life. Thus, the Butler Court held that this punishment was illegal because the court did not make its determination based on the beyond a reasonable doubt standard and because the statute allows the judge to make the determination instead of giving the defendant the right to a jury. 

The Pennsylvania Superior Court did not limit its ruling to Butler's specific case. Instead, it halted all future SVP hearings. The Court reasoned that because § 9799.24 is inherently flawed, trial courts are no longer allowed to hold SVP hearings until the General Assembly revises the statute to make it compliant with both the Pennsylvania and United States Constitutions.

Award-Winning Philadelphia Criminal Defense Lawyers for Sex Crimes and SORNA Offenses

Philadelphia Criminal Defense Lawyers

SORNA cases can be very complicated, and there is no question that the consequences are dramatic. If you are charged with a SORNA offense, you need an attorney who has the knowledge and expertise to defend your case. Likewise, if you are improperly classified under the SORNA statute, you need an attorney who can help you fix your registration tier. It is not clear whether the Commonwealth will appeal the decision in Butler or whether defendants who have already been classified as SVPs will be required to file a PCRA Petition within sixty days of the decision. Thus, it is important to act quickly in order to avoid waiving any rights to re-classification. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client who is under investigation or facing active criminal charges, and we offer a $100 Megan's Law/SORNA consultation on whether we may be able to help you change your registration tier. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

Pennsylvania Supreme Court Justices Can’t Agree On Admissibility of Hearsay At Preliminary Hearing

Is Hearsay Admissible at a Preliminary Hearing? 

The Pennsylvania Supreme Court has just dismissed the appeal in Commonwealth v. Ricker, thereby failing to decide the issue of how much hearsay may be admitted at a preliminary hearing in order for the Commonwealth to establish a prima facie case. The use of hearsay by the prosecution at a preliminary hearing has long been a heavily contested issue. For years, the rule was that the prosecution could introduce some evidence via hearsay testimony in order to establish a prima facie case, but the prosecution could not have a defendant held for court and a case sent to the Court of Common Pleas for trial without at least some live testimony by a witness with personal knowledge.

The Use of Hearsay at the Preliminary Hearing and the Pennsylvania Rules of Criminal Procedure

That basic rule began to change in 2011 when the Pennsylvania Supreme Court issued new Rules of Criminal Procedure expressly allowing for the use of hearsay to prove the elements of ownership and non-permission in cases involving property crimes like Theft, Burglary, and Robbery. In order to prove Theft, the prosecution would normally have to show that the defendant took someone else’s property without permission and did not intend to give it back. This would often require two witnesses. First, the complainant who had the property stolen would have to testify that something that person owned was stolen and that the complainant did not give the person who took the property permission to take it. Second, the police officer who arrested the defendant in possession of the stolen property would testify that the officer arrested the defendant and the defendant had the stolen goods.

By permitting ownership and non-permission testimony to come in through hearsay, the rule allowed the Commonwealth to call only the professional police witness, who is more likely to appear for court because it is part of his or her job, to testify at the preliminary hearing. This allowed more cases to survive the preliminary hearing because the complaining witness would only be required for trial. Of course, many cases do not go to trial, leaving many defendants forced to decide whether or not to plead guilty without any meaningful chance to challenge the evidence against them. Before the Pennsylvania Supreme Court adopted the rule, judges would frequently dismiss cases because the owner of the property or house involved in a Burglary or Theft would fail to appear for court. The rule was an attempt to provide the defendant with a continued right to a meaningful hearing while at the same time lessening the burden on victims and witnesses to miss work and other obligations for multiple pre-trial court dates.

Shortly after enacting the 2011 rule, the Pennsylvania Supreme Court amended the rule to permit other types of testimony to come in to evidence via hearsay. The rule currently reads:

Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

The amended rule expanded the number of cases in which hearsay could be used to prove various elements of the charged offenses at the preliminary hearing. Nonetheless, important protections remained in effect because the rule did not state that hearsay could be used to prove every element or all elements of an offense, and the Pennsylvania Supreme Court had previously ruled that a case could not be held for court at the preliminary hearing based on hearsay alone.

Commonwealth v. Ricker and Commonwealth v. McClelland

That all changed in the recent cases of Commonwealth v. Ricker and Commonwealth v. McClelland. In Ricker, the Pennsylvania Superior Court held that the amended rule permits the Commonwealth to establish a prima facie case at a preliminary hearing based on hearsay alone. Ricker did not address whether the Pennsylvania and United States Confrontation Clauses, which provide criminal defendants with the right to confront (meaning cross-examine) their accusers, prohibit the Commonwealth from establishing a prima facie case at a preliminary hearing based solely on hearsay. Unfortunately, in McClelland, a panel of the Superior Court again found that the Commonwealth could establish a prima facie case based solely on hearsay because the Confrontation Clause does not apply at a preliminary hearing.

The defense appealed in both Ricker and McClelland, and the defense bar has been anxiously awaiting the Pennsylvania Supreme Court’s review of the Ricker decision. Unfortunately, the Pennsylvania Supreme Court just announced that it has decided to punt on the issue. Instead of determining exactly how much hearsay is allowed at a preliminary hearing, the Supreme Court dismissed the appeal in Ricker as “improvidently granted.” In a concurring opinion, Chief Justice Saylor explained that the Court simply could not agree on a result and felt that the Ricker case was not the appropriate vehicle for resolving all of the issues. In a dissenting opinion, Justice Wecht argued that the Court should have resolved the issue either way and that the Superior Court’s holding in Ricker should be reversed. Because the Court has refused to rule on the issue for now, the exact procedure which should be used at a preliminary hearing will continue to be the subject of litigation.  

Despite the PA Supreme Court’s refusal to resolve the issues in Ricker, the Petition for Allowance of Appeal is still pending in McClelland. Therefore, it remains a possibility that the Court could still resolve these issues. The Court could provide an authoritative ruling on exactly how much hearsay is permitted at a preliminary hearing either by revisiting the issue in McClelland or by engaging in the rule-making process to make the Rules of Criminal Procedure clearer. In the absence of action by the Court, criminal defendants throughout Pennsylvania will remain subject to a wide variety of preliminary hearing procedures and subject to a severe disadvantage in terms of the defense’s ability to test the strength of the Commonwealth’s case at the preliminary hearing.

Most Judges in Philadelphia Require More Than Just Hearsay

In Philadelphia, most judges continue to require some level of non-hearsay testimony, and it is important to note that the rules and the case law do not require a judge to permit the Commonwealth to proceed based solely on hearsay. Instead, McClelland instructs judges to continue evaluating and analyzing the reliability of the Commonwealths’ evidence. Given the high volume of cases, it seems likely that this practice will continue for most cases. Further, many of the most serious cases in Philadelphia such as Attempted Murder and Robbery cases are now charged by way of a secret (and probably even more unfair) Indicting Grand Jury at which the defense is not present or able to cross-examine witnesses instead of by preliminary hearing. In the suburban counties, magistrates are more likely to allow the prosecution to proceed based solely on hearsay. In the short term, the practice in Philadelphia may not change dramatically. In the long term, it remains to be seen whether prosecutors will continue to call witnesses at preliminary hearings and whether the Pennsylvania Supreme Court will revisit this issue.

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If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients against a wide variety of criminal charges in preliminary hearings and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys.