J-A15002-22

2022 PA Super 176

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

FERDINAND FITZGERALD

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 644 WDA 2021

Appeal from the Order Entered May 6, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0005078-2020

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.

OPINION BY BOWES, J.: FILED: October 13, 2022

The Commonwealth of Pennsylvania (“Commonwealth”) appeals from 

the May 6, 2021 order dismissing the charges against Ferdinand Fitzgerald 

(“Appellee”). After careful review, we reverse and remand for further 

proceedings.

On May 2, 2020, Pittsburgh Police Officer Tyler Newman reported to a 

911 call at 5707 East Liberty Boulevard. Officer Newman immediately 

encountered the 911 caller, Cheryl Bryant (“Victim”), who indicated that her 

boyfriend, Appellee, had been threatening to kill her while physically 

assaulting her with his hands, a tabletop, a vacuum cleaner, and a knife over 

multiple hours. Officer Newman observed that Victim had injuries consistent 

with a physical assault. Still photographs depicting the injuries to her face, 

neck, and collarbone were preserved from Officer Newman’s body camera. 
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Victim explained that she had escaped the house when Appellee went 

to the bathroom. Earlier in the day, Appellee had taken her car keys and cell 

phone. Victim ran to a neighbor’s house to call 911, where she waited until 

officers arrived. Based on Victim’s description, Pittsburgh police officers were 

able to locate Appellee in the East Liberty area of Pittsburgh. Appellee 

appeared to be heavily intoxicated and a search incident to arrest led to the 

discovery of Victim’s keys. Victim’s cell phone was never located.

Appellee was arrested and charged with two counts of simple assault 

and one count each of terroristic threats and strangulation. The case was 

scheduled for a preliminary hearing, at which Victim was present, but Appellee 

waived the aforementioned charges to criminal court. See 

Withdrawal/Amendment Form, 7/7/22, at 1. 

After two Commonwealth continuances due to an inability to reach 

Victim, on May 6, 2021, Appellee appeared for a non-jury trial. The 

Commonwealth immediately indicated that Victim still could not be located.

See N.T. Non-Jury Trial, 6/6/21, at 2. However, rather than nolle prosse the 

charges, the Commonwealth sought to proceed without her testimony. Id. 

In response, Appellee made an oral motion in limine to dismiss the charges. 

See N.T. Non-Jury Trial, 5/6/21, at 2-3. Defense counsel argued that he had 

not had an opportunity to cross-examine Victim at the preliminary hearing, 

therefore, “any trial that would happen in the absence of the victim using 

hearsay statements of any kind would be a violation of [Appellee’s] 
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[C]onfrontation [C]lause rights.” Id. at 3. The Commonwealth disagreed and 

requested to make an offer of proof, contending that it did not intend to 

introduce any evidence that would violate the Confrontation Clause. Id. at 3. 

The trial court allowed the Commonwealth to make the following proffer:

The Commonwealth intends on entering and playing the 911 

call in this case, which would not be a violation of the 

[C]confrontation [C]lause as it is made in an emergency situation 

to non-police personnel.

The Commonwealth also intends on offering photographs, 

still photographs from the officers’ body cameras and officer 

observations on scene. At no point does the Commonwealth 

intend on offering any statements through the police officers. So 

there would not be a violation of the . . . [C]onfrontation [C]lause.

There is a portion of the body camera the Commonwealth 

intends to play that documents the interaction between the victim 

and the EMS that arrives. Again, that is separate and distinct from 

the police officers, and we would not be seeking to enter any 

hearsay statements from those police officers.

Id. at 4. In response, defense counsel renewed his objection that use of the 

body camera footage and 911 call violated the Confrontation Clause because 

Victim was not available for cross-examination about the cause of her injuries. 

Id. at 4-5. 

After hearing the foregoing proffer, the trial court abruptly ended the 

hearing, stating: “Ok. I’ve heard enough. I agree with [defense counsel]. 

I’m going to grant the motion. Case dismissed. Thank you.” Id. at 5. The 

court concluded the hearing without listening to the 911 call, viewing the body 

camera footage, or allowing the Commonwealth to present testimony from 

Officer Newman.
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On May 21, 2021, the Commonwealth filed a motion to reconsider, 

averring that the evidence cited in its offer of proof did not run afoul of the 

Confrontation Clause. Attached to the motion, the Commonwealth submitted 

the transcript of the 911 call, the transcript of the body camera video, and the 

still photographs. See Commonwealth’s Motion to Reconsider, 5/21/21, at 

unnumbered 2-4. The Commonwealth contended that all the evidence it 

intended to admit was nontestimonial, qualified as an exception to hearsay, 

or constituted a personal observation by the officer on scene. Id. Accordingly, 

the Commonwealth requested the opportunity to present the evidence at trial. 

Id. Appellee submitted an answer, contending that all the evidence was 

testimonial in nature and therefore inadmissible absent testimony from the 

Victim. See Answer, 5/25/21, at unnumbered 4. The next day, the trial court 

entered an order denying the Commonwealth’s motion to reconsider. This 

timely appeal followed.1 Both the Commonwealth and the trial court have 

complied with the mandates of Pa.R.A.P. 1925. 

The Commonwealth raises the following issue for our review: “Whether 

the trial court erred in granting the appellee’s oral motion to dismiss his 

domestic-abuse case on the grounds that the Commonwealth’s intention to 

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1

In this Court, Appellee filed a motion to quash the instant appeal. Therein, 

Appellee argued that the trial court’s ruling was interlocutory rather than a 

final order from which the Commonwealth was permitted to appeal. The 

Commonwealth filed a response and this Court denied the motion without 

prejudice for Appellee to present the arguments to the panel assigned to 

address the merits of the appeal. 
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proceed with trial in the absence of [Victim] was a violation of the 

Confrontation Clause?” Commonwealth’s brief at 4.

Preliminarily, we consider Appellee’s argument that this appeal must be 

quashed. See Appellee’s brief at 10. Appellee contends that the appeal 

should be quashed because the Commonwealth appealed from an 

interlocutory order. Id. at 11. 

It is well-settled that the Commonwealth may only appeal from a final 

order issued by the trial court. See Commonwealth v. Waller, 682 A.2d 

1292, 1294 (Pa.Super. 1996) (en banc). “An order is final, and not 

interlocutory, if it prevents a party from presenting the merits of its claim in 

the trial court.” Barak v. Karolizki, 196 A.3d 208, 215 (Pa.Super. 2018). 

Accordingly, “if the defect which precipitated the dismissal may be cured by 

the Commonwealth, a subsequent appeal to this Court is considered 

interlocutory.” Id. “On the other hand, if the defect which requires the 

dismissal of charges is incurable, then the order dismissing the charges is 

final, and appellate review is proper.” Id. 

Relying on Waller and Commonwealth v. Jones, 676 A.2d 251, 252 

(Pa.Super. 1996), Appellee alleges that the order was not final because the 

trial court did not attach prejudice to the dismissal and the defect that 

prompted the trial court to dismiss the charges was “entirely curable.” Id. at 

18. However, the Commonwealth contends that Appellee’s reliance on Waller 
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and Jones is misplaced. For the following reasons, we agree with the 

Commonwealth. 

In Waller, the case was dismissed after the Commonwealth was denied 

a continuance request and admitted that it could not proceed without an 

absent witness. Waller, supra at 1294. We quashed the Commonwealth’s

appeal that followed as interlocutory, concluding that the trial court had 

dismissed the charges without prejudice to be refiled by the Commonwealth. 

Id. at 1294-95. Put another way, since the Commonwealth could cure the 

defect by refiling the complaint and producing the witness at the ensuing trial, 

the order was not final. Id. at 1295.

Similarly, in Jones, the trial court dismissed charges after multiple

essential Commonwealth witness failed to appear and the Commonwealth 

stated that it was unable to proceed without them. Rather than appeal that 

ruling, the Commonwealth located the witnesses and refiled the criminal 

complaint. Id. at 252. Thereafter, the defendant filed a motion to quash on 

the grounds that refiling the charges was improper. The trial court granted 

the motion and the Commonwealth appealed. We reversed the quashal, 

finding that the Commonwealth properly refiled the complaint because the 

defect was curable. Id. 

In contrast to Waller and Jones, where the absent witnesses were

essential to the litigation, here, the Commonwealth did not contend that it was 

unable to proceed. Instead, the Commonwealth indicated that it intended to 
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try the case without Victim and the trial court denied the Commonwealth the 

opportunity to do so. Accordingly, it was the trial court that prevented the 

Commonwealth from presenting the merits of its case, not the absent Victim. 

Since this case involves a trial court dismissing a Commonwealth case, which 

was ready to proceed, thereby denying review on the merits, we find that the 

resulting ruling was final. Accordingly, we will not quash the appeal on these 

grounds. We now turn to the merits of the Commonwealth’s substantive issue. 

The Commonwealth contends that the trial court erred in excluding the 

substance of the 911 call and Victim’s interaction with the paramedic as 

violative of the Confrontation Clause. See Commonwealth’s brief at 16. 

Alternatively, the Commonwealth argues that the charges should not have 

been dismissed because of the adverse Confrontation Clause ruling. Instead, 

it asserts that the trial court should have permitted it to proceed to trial 

without that evidence. Id. We agree.

Whether a defendant has been denied his right to confront a witness is 

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

of review is plenary. See Commonwealth v. Brown, 185 A.3d 316, 409 

(Pa. 2018) (plurality). The Confrontation Clause of the Sixth Amendment 

prohibits out-of-court testimonial statements by a witness, even if they are 

otherwise admissible as an exception to the rule against hearsay, unless the 

witness is unavailable and the defendant had a prior opportunity to crossexamine the witness. See Crawford v. Washington, 541 U.S. 36 (2004). 
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In analyzing whether an out-of-court statement is testimonial, and, 

therefore, subject to the protections of the Confrontation Clause under 

Crawford, a court must review the statement itself in order to determine 

whether the primary purpose of the evidence was to establish or prove past 

events relevant to a later criminal prosecution. See Commonwealth v. 

Williams, 103 A.3d 354, 359 (Pa.Super. 2014). 

Statements are nontestimonial when made in the course of police 

interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance 

to meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is 

to establish or prove past events potentially relevant to [a] later 

criminal prosecution. 

Id. (summarizing Davis v. Washington, 547 U.S. 813, 822 (2016)). For 

example, Pennsylvania courts have found that a child’s statements in a 

forensic interview conducted as part of a criminal investigation were 

testimonial, while a victim’s statements about fear of the defendant made to 

friends in a casual setting were not. Compare In re N.C., 74 A.3d 271, 278 

(Pa.Super. 2013), with Commonwealth v. Kunkle, 79 A.3d 1173, 1190 

(Pa.Super. 2013).

Herein, it is uncontradicted that Victim was unavailable, and that 

Appellee did not have a prior opportunity to cross-examine her about the 

incident. Thus, the outcome of this appeal turns on the question of whether 

Victim’s representations recorded in the 911 call and body camera footage 
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constituted testimonial statements. We consider each piece of evidence in 

turn.2

The 911 call

First, the Commonwealth argues that the trial court erred when it held 

that the Victim’s statements during the 911 call were testimonial and, thus, 

inadmissible unless the Victim appeared to testify. 

In Davis, a victim called 911 to report an ongoing domestic disturbance. 

When the victim reported that her assailant had fled the premises, the 

operator instructed the victim to stay on the line and answer questions until 

police arrived. See Davis v. Washington, supra at 818. A couple of 

minutes later, the police found the victim “shaken” and “frantic.” Id. The 

victim did not testify at trial, but the trial court admitted the recording into 

evidence over the defendant’s Confrontation Clause objection. Id. at 819. On 

appeal, the United States Supreme Court confirmed that the Confrontation 

Clause applied only to testimonial statements and considered whether the 911 

call at issue contained any such utterances. Focusing on the circumstances 

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2 We note that the trial court improperly determined the 911 call and body 

camera footage ran afoul of the Confrontation Clause without reviewing either 

piece of evidence. The trial court then compounded the error by offering scant 

explanation of its decision. Frustratingly, after having prevented the 

Commonwealth from developing a record to support its position, the trial court 

opined to this Court that the Commonwealth’s failure to establish specific facts 

to demonstrate the nontestimonial nature of the statements necessitated 

dismissal. Fortunately, our review is not thwarted by trial court error since 

the Commonwealth ensured that the proffered evidence was included in the 

certified record and our standard of review in this context is de novo. 
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of the 911 call, the Court found that the operator’s primary purpose, while 

interrogating the victim, was to enable police assistance to address “a bona 

fide physical threat.” Id. at 827. Specifically, the Court noted that the caller 

was speaking about events as they were happening, the nature of the 

questions that were asked and answered were targeted at resolving the 

present emergency, and the informality of the conversation indicated that the 

victim remained in a potentially unsafe environment. Id. Based on its review, 

the Court concluded that the call did not contain testimonial statements, and 

thus, its admission did not violate the Confrontation Clause. 

Instantly, as in Davis, the Commonwealth sought to admit an absent 

victim’s hearsay statements through the transcript of a 911 phone call. At the 

beginning of the 911 phone call, Victim informed a 911 call operator that her 

boyfriend, Appellee, “had beat [her] up” and had “been threatening [her] with 

knives all day.” See Transcript of 911 Call, 5/2/20, at 2, 6. While she had 

managed to escape to a neighbor’s apartment, Appellee was currently “tearing 

[her] house apart.” Id. at 2. Victim indicated that she was close enough to 

the scene that she could hear Appellee destroying her belongings. Id. at 2. 

Victim pleaded with the operator, “Can you please come soon?” Id. at 3. The 

operator indicated that help was on its way and asked Victim to continue 

providing basic identifying information for Appellee. Id. at 49. Throughout 

the conversation, Victim repeatedly described her face as “all balled up” and 
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stated that she was “shaking right now.” Id. at 4, 9. The call concluded as 

soon as the officers arrived. Id. at 10. 

While Victim had fled Appellee’s physical assault prior to initiating the 

911 call, an ongoing emergency remained as Victim remained close by, 

Appellee continued to destroy her residence, and law enforcement had not 

secured the scene. Furthermore, as in Davis, follow up questions by the 

operator focused on helping police assess the threat to their own safety and 

possible danger to Victim as they formulated a responsive plan to the 

emergency. Likewise, the informality of the 911 call, in which Victim indicated 

she was actively shaking and that her face was “all balled up,” further 

evidenced the nontestimonial nature of Victim’s statements. Therefore, we 

conclude that the 911 call was nontestimonial and the trial court erred by 

excluding it on these grounds. Accord Williams, supra at 362 (holding 

statements of victim during 911 call outside of the presence of the defendant, 

advising the authorities of the defendant’s infliction of her injuries and his 

starting a fire before fleeing the house, to be non-testimonial). 

Body Camera Footage

The Commonwealth also challenges the trial court’s exclusion of 

statements that Victim made to the paramedic. See Commonwealth’s brief 

at 23 n.11. Specifically, Victim engaged in the following conversation with the 

paramedic:
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EMS MEDIC: Do you have any blurred vision? A little bit? 

Yeah.

[Victim]: I do use glasses, though.

EMS MEDIC: Okay. But even if you put your glasses on –

[Victim]: I don’t know. I didn’t – I haven’t put them on. 

He might’ve broke them, too. I haven’t even 

been back up – I haven’t been up there since I 

called the police.

EMS MEDIC: Okay.

[VICTIM]: He probably tore my house apart. I heard him 

dropping things, and stuff like that. He got my 

phone. He got my money. I don’t know what 

else he did. I didn’t go up through there.

EMS MEDIC: Are you having any jaw pain?

[VICTIM]: Mm-mm, just headache and my neck is sore. 

I’ve got a sore throat.

EMS MEDIC: Okay.

[VICTIM]: But my head – and my head is hurting.

EMS MEDIC: Okay. Did you want to be seen in the hospital?

[VICTIM]: I really kind of don’t. I wanted to just see if I 

can, like, put some ice and stuff on it.

EMS MEDIC: I want you to bite down for me. Does that hurt?

[VICTIM]: Mm-hmm, little bit.

EMS MEDIC: A little bit there. It doesn’t feel like nothing’s 

out of place?

[VICTIM]: That – that little bit right there. That’s just –

no, it’s – just that – when you did that, my – my 

head started hurting.
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EMS MEDIC: Can you lift it up for me? Get your head up. 

Can you put your chin down to your chest?

[VICTIM]: That’s hurting my throat.

EMS MEDIC: Okay.

[VICTIM]: Not back there.

OFC NEWMAN: [Victim], your swollen eye and your bleeding lip 

here, how did you get that? Did he hit you with 

something, or –

[VICTIM]: He hit me with his hands.

OFC NEWMAN: Okay.

EMS MEDIC: Are you able to breathe out your nose?

[VICTIM]: Mm-hmm. You got any ice packs?

EMS MEDIC: We can give you an ice pack.

[VICTIM]: How long you think I’m going to be swollen for?

EMS MEDIC: Couple of days, two or three days.

[VICTIM]: Wow.

Commonwealth’s Motion for Reconsideration Exhibit 5, Transcript of Body 

Camera Video, 5/2/20, at 1-5.

We find these statements to be akin to those held to be non-testimonial 

in Williams, supra. In that case, the defendant stabbed his girlfriend with a 

screwdriver before pouring gasoline on her and setting her on fire. Id. at 356. 

After the defendant fled, the victim was able to extricate herself from her 

burning home and call 911 from a neighbor’s house. The victim was 

transported to the hospital where she later succumbed to her injuries. At trial, 
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the Commonwealth sought to introduce the victim’s 911 call and statements 

she made to the paramedic on her way to the hospital. The defendant

challenged the admission of both statements on Confrontation Clause 

grounds, arguing that the emergency had ended by the time the statements 

were made. Id. at 362. The trial court disagreed. 

On appeal, we affirmed, finding that the defendant was construing the 

phrase “ongoing emergency,” as used in Davis too narrowly. Id. Even 

though the defendant was no longer present, and the victim had retreated

from the burning building before the statements were made, the surrounding 

circumstances reflected that an ongoing emergency remained. The victim’s 

house was still burning, and she needed immediate medical attention. During 

the 911 call, the victim repeatedly and frantically pled for help while also 

providing information that the firefighters used to safely contain the fire. 

Furthermore, while victim’s statements to the paramedic included additional 

details of a sexual assault not included in the 911 recordings, this information 

was provided in response to a simple “what happened” question posed by the 

paramedic. Id. at 363. This was not an interrogation whose intention was to 

generate evidence for a future prosecution. Instead, the paramedic needed 

to know “what happened” to understand quickly what kind of injuries to look 

for beyond what could be seen externally. Id. Accordingly, we construed 

both pieces of evidence as non-testimonial statements designed to assist the 

emergency personnel in responding to an emergency. Id. 
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Here, as in Williams, the conversation with the paramedic also occurred 

shortly after the crime had been committed and was tailored to discerning the 

extent of Victim’s injuries so that the appropriate treatment could be provided. 

While Victim’s conversation with the paramedic also included additional details 

of the assault that were not included in the 911 recordings, the paramedic’s 

questioning did not elicit this information. Instead, while the paramedic 

inquired whether Victim had blurred vision, jaw pain, and whether she could 

breathe through her nose, the paramedic was trying to ascertain whether 

there was an ongoing medical emergency for which Victim needed to be 

transported to the hospital. Officer Newman’s follow up question regarding 

what Victim was assaulted with was also aimed at assessing the extent of 

Victim’s potential internal injuries, as they worked to quickly understand the 

extent of Victim’s injuries. Accordingly, we find that Victim’s statement to the 

paramedic was also nontestimonial and should not have been excluded on 

Confrontation Clause grounds. 

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2022