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.
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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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