J-S20039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. DENNIS LEE DAVIS, Appellee No. 1424 WDA 2015

Appeal from the Order August 3, 2015 in the Court of Common Pleas of Somerset County Criminal Division at No.: CP-56-CR-0000407-2008
BEFORE: PANELLA, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED: MARCH 15, 2016 The Commonwealth appeals from the trial court’s ord er requiring that the emergency room physician who examined the victi m on the day she was raped appear at trial as a prerequisite to the admi ssion of his medical examination report. 1 The Commonwealth asserts that the report already qualifies for admissibility under Pennsylvania Rule of Evidence 803.1(3). It further maintains that the report is not testimonia l. Under our standard of review, we conclude that the trial court properly e xercised its discretion and committed no error of law. Accordingly, we affirm.

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* Retired Senior Judge assigned to the Superior Cour t.

1 The Commonwealth has certified in the notice of ap peal that the order appealed from will terminate or substantially handi cap the prosecution. ( See Notice of Appeal, 8/31/15); see also Pa.R.A.P. 311(d).J-S20039-16

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This case has a complicated and unusual history. 2 Pertinent to the issue in this appeal, Appellee is awaiting retrial on charges of rape and

____________________________________________ 2 Briefly summarized, in October 2008, a jury convic ted Appellee, Dennis Lee Davis, of kidnapping, rape, aggravated indecent ass ault, indecent assault, and recklessly endangering another person. ( See Trial Court Opinion, 8/04/15, at 2). He was designated a sexually viole nt predator (SVP), and sentenced to not less than eight nor more than sixt een years’ incarceration. However, Appellee’s trial counsel, Arnold Yale Stei nberg, had already been the object of disciplinary proceedings by the Pennsylvania Attorney Disciplinary Board for unrelated improprieties. ( See Amendment to Petition for Post-Conviction Collateral Relief, 1/31/12, at Exhibit B). On April 18, 2008, Steinberg had submitted a resignation stateme nt, pursuant to Pennsylvania Rule of Disciplinary Enforcement 215(b ) (disbarment on consent). A signed addendum to the resignation statement perm itted Steinberg to complete representation in four federal civil ma tters, but prohibited any new representation. In return, the Office of Disci plinary Counsel agreed not to forward the resignation to the Supreme Court of Pennsylvania before October 18, 2008. ( See Addendum). Paragraph (g) of the addendum provided that if Steinberg violated any of the cond itions of the agreement, his resignation statement would be forwarded immedi ately to the Supreme Court. Nevertheless, two weeks later Steinberg took on App ellee as a client in this matter and represented him through trial, his SVP hearing, and sentencing. In an order dated December 30, 2008, t he Supreme Court of Pennsylvania accepted Steinberg’s resignation, and disbarred him on consent. ( See , Order, 12/30/08, Amendment to Petition for Post-C onviction Collateral Relief, 11/14/11, at Exhibit A). On these facts, the PCRA court vacated Appellee’s c onviction. On appeal, a panel of this Court affirmed, reasoning t hat because Steinberg was “constructively unlicensed,” under paragraph (g), A ppellee was presumed prejudiced, and remanded the case for a new trial. ( Commonwealth v. Davis , No. 1180 WDA 2012, unpublished memorandum at *8 ( Pa. Super. filed Sept. 3, 2013)).J-S20039-16

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related offenses. The Commonwealth seeks to admit at trial the rape examination report prepared by Terry L. Linville, M .D., the emergency room physician who examined the victim, A.B., on the day of the rape. In the first trial, the parties had stipulated to t he admission of all medical records. 3 However, on collateral appeal, Appellee’s new cou nsel raised trial counsel’s stipulation to medical recor ds as an example of ineffectiveness. ( See N.T. PCRA Hearing, 9/12/11, at 3). After remand, Appellee’s counsel filed an omnibus p re-trial motion. At a hearing on February 24, 2015, the court addressed the issue on appeal, whether Dr. Linville’s rape examination report coul d be admitted at trial without his appearance. For this hearing Dr. Linvi lle appeared by videoconference. Notably, he did not actually testify. ( See N.T. Hearing, 2/24/15, at 8). The prosecutor told him, without any objection, tha t “we have decided that you need not testify today . . . .” ( Id. ). At the direction of the prosecutor, Dr. Linville did number and initial the pages of th e examination report previously forwarded to him by the District Attorne y’s office. ( See id. ). He also highlighted in light green color the portions he believed to be diagnoses,

____________________________________________ 3 Appellee did not deny a sexual encounter, but clai med it was consensual. ( See N.T. Trial, 10/23/08, at 68).J-S20039-16

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including lists of diagnosis code numbers. 4 ( See Hospital Record, 5/02/08, at 1-19). The examination record itself lists seven diagnoses by numerical code on the first (cover) page, highlighted in light gre en by Dr. Linville. ( See id. at first page [handwritten─presumably by Dr. Linvil le─as“#1”]). The “Chief Complaint,” is highlighted as “Sexual assault.” ( Id. at page 1 of 6; handwritten “#2”). Similarly, the “Primary Diagnos is” is described as “Alleged Sexual Assault.” ( Id. at page 3 of 6; handwritten “4”). There is one section of the medical record, apparen tly preprinted, titled “ Discharge Instructions [;] SEXUAL ASSAULT.” ( Id. at page 5 of 6; handwritten “6”). It is a catch-all which combines reportorial facts (“You have been examined today for sexual assault (rape). ”), with objective general medical information and advice (“You should have blood tests . . .”) and sympathetic advice (“you are not to blame for b eing attacked”). ( Id. ). It also includes, in the middle of the same paragra ph, in the same typeface and font as the rest of the paragraph, the following notices: “The purpose of this exam is to help find any physical o r emotional problems you may have as a result of this experience. The exam is also done to collect

____________________________________________ 4 Dr. Linville also highlighted a list of CPT (Curre nt Procedural Terminology) codes, indicating services provided, rather than di agnoses. ( See Hospital Record, supra at 5 of 6).J-S20039-16

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legal evidence; we will give this material to the p roper law enforcement agency with your permission.” ( Id. ). The hearing of February 24 was adjourned pending re ceipt of the medical records marked up remotely by Dr. Linville. ( See N.T. Hearing, 2/24/15, at 14). On July 10, 2015, the hearing was resumed to address outstanding issues. After the hearing, the trial c ourt took the issues under advisement. On August 3, 2015 the court filed the order which is the subject of this appeal, requiring the testimony of Dr. Linville if the Commonwealth sought to admit his report. The Commo nwealth timely appealed. 5 The Commonwealth raises two questions for our revie w: 1. Whether the [trial] court erred as a matter of l aw by ruling that in accordance with Pa.R.E. 803.1(3) Dr. Linville must testify at trial if the Commonwealth seeks admissio n of his report outlining his examination of [the victim] conducted the day of the alleged sexual assault? 2. Whether the [trial] court erred as a matter of l aw by ruling that Appellee has a right to confront Dr. Li nville at trial under the confrontation clause of the Sixth Amendme nt to the United States Constitution if the Commonwealth seek s admission of his report?

____________________________________________ 5 The Commonwealth filed a concise statement of erro rs on September 17, 2015. See Pa.R.A.P. 1925(b). The trial court filed an opini on on October 2, 2015, referencing its memorandum and order filed Au gust 3, 2015. See Pa.R.A.P. 1925(a). Although the opinion of October 2 recites that no concise statement had been received, the statement is time- stamped as timely filed on September 17, and the docket entries confirm the filing. We give the Commonwealth the benefit of the doubt and deem the statement timely filed.J-S20039-16

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(Commonwealth’s Brief, at 4). The Commonwealth asserts the trial court erred beca use “the foundation for the application of said rule [Pa.R.E . 803.1(3)] has been the subject of stipulation.” ( Id. at 7). It also maintains that the Sixth Amendment right to confrontation does not apply bec ause Dr. Linville’s report is not testimonial. ( See id. ). The Commonwealth’s arguments do not merit relief.

Our standard of review is well-settled: Generally, on review of an order granting or denying a discovery request, an appellate court applies an abuse of discretion stan dard. Likewise, evidentiary rulings are subject to an abu se of discretion standard. The standard of review for a trial court’s evidenti ary rulings is narrow. The admissibility of evidence i s solely within the discretion of the trial court and will b e reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, b ut is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonabl e, or the result of bias, prejudice, ill-will or partiali ty, as shown by the evidence of record. Commonwealth v. Mendez , 74 A.3d 256, 260 (Pa. Super. 2013), appeal denied , 87 A.3d 319 (Pa. 2014) (citation and internal quo tation marks omitted). “This [C]ourt’s scope of review in makin g a determination on a question of law is, as always, plenary. As with al l questions of law, the appellate standard of review is de novo [.]” Commonwealth v. Vargas , 947 A.2d 777, 780 (Pa. Super. 2008) (citations omit ted).

Medical records are admissible under the hearsay ru les as evidence of facts contained therein but not as evid ence ofJ-S20039-16

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medical opinion or diagnosis. Commonwealth v. Green , 251 Pa. Super. 318, 380 A.2d 798, 799-801 (1977).

Medical diagnosis or opinion entails a “conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms.” The existence of a readily observ able physical condition, the evaluation of which does no t require a complex application of technical knowledg e, can as easily be ascertained by the lay person as by th e trained physician. Id. at 801 (citations omitted). Folger ex rel. Folger v. Dugan , 876 A.2d 1049, 1055 (Pa. Super. 2005) appeal denied , 897 A.2d 458 (Pa. 2006).

In general, when the record reveals what is or is n ot present in the patient, or that a test occurred, th e record reflects facts. On the other hand, when the record reflects what the presence or absence of something means, the record more likely reflects a medical diagnosis or opinion. Id. at 1056 (footnote omitted). Here, the Commonwealth first argues that “[t]he fou ndation for applying Pa.R.E. 803.1(3) has been met as stipulate d.” (Commonwealth’s Brief, at 8). We disagree. In pertinent part, Rule of Evidence 803.1 provides: The following statements are not excluded by the ru le against hearsay if the declarant testifies and is subject to cross-examination about the prior statement : * * * (3) Recorded Recollection of Declarant-Witness. A memorandum or record made or adopted by a declarant -witness that:J-S20039-16

- 8 - (A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the declarant-witness wh en the matter was fresh in his or her memory; and (C) the declarant-witness testifies [sic] accuratel y reflects his or her knowledge at the time when made. If admitted, the memorandum or record may be read i nto evidence and received as an exhibit, but may be sho wn to the jury only in exceptional circumstances or when offe red by an adverse party. Comment: Pa.R.E. 803.1(3) is similar to F.R.E. 803(5), but differs in the following ways: 1. Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(3) as an exception to the hearsay rule in which the testimony of the declarant is necessa ry. F.R.E. 803(5) treats this as an exception regardles s of the availability of the declarant. This differing organization is consistent with Pennsylvania law. Pa.R.E. 803.1 (emphases added). In this case, the trial court reasons that the plai n meaning of the rule requires that the declarant, Dr. Linville, must tes tify and be subject to crossexamination if the Commonwealth desires to have the report admitted in its entirety, with opinions and diagnoses. ( See Trial Ct. Op., 8/04/15, at 6). We agree. Our review of the record in this appeal reveals tha t while defense counsel agreed to stipulate to the admission of the hospital records under the Uniform Business Records as Evidence Act, 42 Pa .C.S.A. § 6108, heJ-S20039-16

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expressly excluded from the stipulation any opinion s or diagnosis, precisely the claims at issue. ( See N.T. Hearing, 2/24/15, at 3-5). Defense counsel also maintained that for the diagno sis and opinions to be admissible, Dr. Linville would have to appear, t estify, and be subject to cross-examination at trial. ( See id. at 6). He agreed that if Dr. Linville’s opinions and diagnoses were redacted, he would not have to appear personally for the admission of the (redacted) hosp ital records. ( See id. at 7). Accordingly, contrary to the Commonwealth’s cl aim, the limited stipulation evidenced by the record does not resolv e the first issue. The Commonwealth also argues the report should have been admitted as a past recollection recorded. ( See Commonwealth’s Brief, at 9). We disagree. Four elements are required for a hearsay statement to be admitted as a past recollection recorded: (1) the w itness must have had firsthand knowledge of the event; (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a c lear and accurate memory of it; (3) the witness must lack a present recollection of the event; and (4) the witness must vouch for the accuracy of the written memorandum. Commonwealth v. Young , 748 A.2d 166, 177 (Pa. 1999) (citing Commonwealth v. Cargo , 444 A.2d 639 (Pa. 1982). Here, on their face, the third and fourth elements require the testimony of Dr. Linville. The Commonwealth claims that Dr. Linville has already testified at a pre-trial hearing that he do es not remember authoringJ-S20039-16

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the report in question. ( See Commonwealth’s Brief, at 6). However, the record does not support this claim. To the contrary, as already noted, the prosecutor t old Dr. Linville he “need not testify.” (N.T. Hearing, 2/24/15, at 8). He was not sworn in, and aside from incidental conversation relating to the highlighting procedure previously noted, he said nothing on the record. ( See id. at 8-10). Instead, Carolann A. Young, Esq., the prosecutor , said that Dr. Linville could not remember. ( See id. at 5, 7, 29). But the prosecutor’s personal vouch ing for Dr. Linville’s lack of memory is plainly an ins ufficient and legally impermissible substitute for testimony by Dr. Linvi lle himself, as required for compliance by the plain meaning of Rule 803.1. The Commonwealth offers no authority to the contrary. In sum, the record confirms that Dr. Linville did n ot testify. The stipulation of defense counsel did not extend to th e diagnoses and opinions at issue. The prosecutor’s personal vouching is no t compliant with Rule 803.1. Therefore, the Commonwealth has failed to s how that the entire report is admissible without the testimony of Dr. L inville at trial. The Commonwealth’s first issue does not merit relief. In its second issue, the Commonwealth asserts that the trial court erred in ruling that Appellee has a right to confro nt Dr. Linville at trial under the Confrontation Clause of the Sixth Amendment of the United States Constitution. ( See Commonwealth’s Brief, at 4).J-S20039-16

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The Commonwealth chiefly argues that the rape exami nation report was not testimonial in nature and therefore Appelle e was not entitled to Sixth Amendment protection under the Confrontation Clause. ( See Id. at 10-13). We disagree.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses aga inst him.” We have held that this bedrock procedural guarantee ap plies to both federal and state prosecutions. Pointer v. Texas , 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965). Crawford v. Washington , 541 U.S. 36, 42 (2004). Our Pennsylvania Supreme Court has recognized that protection under the Confrontation Clause is dependent on whether th e statement sought to be admitted is determined to be testimonial in natu re:

In sum, in analyzing whether a statement is testimo nial, and, therefore, subject to the protections of the C onfrontation Clause under Crawford , a court must determine whether the primary purpose of the interrogation was to establi sh or prove past events relevant to a later criminal prosecutio n. In making the determination as to the primary purpose of an i nterrogation, a court first should determine whether the interrog ation occurred during the existence of an ongoing emergency, or wh at was perceived to be an ongoing emergency. Although the existence—actual or perceived—of an ongoing emergency is one of the most important factors, this factor is not d ispositive because there may be other circumstances, outside o f an ongoing emergency, where a statement is obtained fo r a purpose other than for later use in criminal procee dings. In determining the primary purpose of an interrogation , a court must also objectively evaluate the circumstances su rrounding the interrogation, including the formality and loca tion, and the statements and actions of both the interrogator and the declarant.J-S20039-16

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Commonwealth v. Allshouse , 36 A.3d 163, 175-76 (Pa. 2012), cert. denied , 133 S. Ct. 2336 (2013). “Whether Appellant was d enied [his] right to confront a witness under the confrontation claus e of the Sixth Amendment is a question of law for which our standa rd of review is de novo and our scope of review is plenary.” Commonwealth v. Yohe , 39 A.3d 381, 384 (Pa. Super. 2012), affirmed , 79 A.3d 520 (Pa. 2013), cert. denied , 134 S. Ct. 2662 (2014) (citations omitted). In this appeal, the Commonwealth maintains that the medical report at issue was not testimonial hearsay because it “was n ot procured with a primary purpose of creating an out-of-court substit ute for trial testimony.” (Commonwealth’s Brief, at 11) (citing Allshouse , supra at 174). The Commonwealth argues that Dr. Linville’s “intent was not to obtain testimony . . . for the purposes of a criminal proceeding,” b ut rather he “intended to provide medical treatment to his patient in a hospi tal emergency room.” ( Id. at 13) We disagree. First, and most obviously, there is no evidence in the record, in particular, no testimony from Dr. Linville, explain ing what his intent was. Secondly, the mere bald assertion that the report “ was not procured with a primary purpose of creating an out-of-court substit ute for trial testimony” is undeveloped and lacks pertinent supporting authorit y.J-S20039-16

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The report did note that its purpose was to “help f ind any physical or emotional problems[.]” (Hospital Record, supra at 5 of 6). 6 However, it added that the purpose of the examination was to co llect evidence concerning an alleged sexual assault: (“The exam i s also done to collect legal evidence[.]”) ( Id. ) (emphasis added). Photographs of the victim’s injuries were included in the report. By her signature, the victim acknowledged receipt a nd review of the report along with an authorization for collection a nd release of evidence, as well as numerous other notices and releases. The d isposition section of the report advised the victim to follow up with her pri mary health care provider. The examination obviously had multiple purposes, in cluding compliance with record keeping requirements, and pr oviding any needed emergency treatment. However, we conclude that in the totality of circumstances, the trial court could properly decid e from the evidence of record that the primary purpose of the examination report was to document that the patient was the victim of a sexual assault , and to establish the extent of her injuries. This documentation include d the treating physician’s diagnosis and opinions.

____________________________________________ 6 See also 28 Pa. Code § 115.31(a), Patient medical records: “An adequate medical record shall be maintained for every inpati ent, outpatient and patient treated or examined in the emergency unit.”J-S20039-16

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Accordingly, the trial court properly and correctly decided that the rape examination report, including diagnoses and opinion s, was testimonial in nature. ( See Trial Ct. Op., at 9). 7 The trial court also correctly decided that if the Commonwealth seeks to introduce Dr. Linville ’s rape examination report, including opinions and diagnoses, under Pa. R.E. 803.1(3), Dr. Linville will have to appear at trial, testify, and be subje ct to cross-examination. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/15/2016

____________________________________________ 7 The trial court reasoned, in part, that the Common wealth erroneously contended that Dr. Linville’s lack of memory of pre paring the examination report made him unavailable, and therefore, his tes timony was not barred by the Confrontation Clause. ( See Trial Ct. Op., at 9-10). However, the Commonwealth expressly disclaims this argument in i ts brief. ( See Commonwealth’s Brief, at 11). Accordingly, we need not review this part of the trial court’s reasoning.