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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 order requiring that 

the emergency room physician who examined the victim on the day she was 

raped appear at trial as a prerequisite to the admission 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 testimonial. Under our standard of 

review, we conclude that the trial court properly exercised its discretion and 

committed no error of law. Accordingly, we affirm.

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 The Commonwealth has certified in the notice of appeal that the order 

appealed from will terminate or substantially handicap the prosecution. 

(See Notice of Appeal, 8/31/15); see also Pa.R.A.P. 311(d). 
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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 convicted Appellee, Dennis Lee 

Davis, of kidnapping, rape, aggravated indecent assault, indecent assault, 

and recklessly endangering another person. (See Trial Court Opinion, 

8/04/15, at 2). He was designated a sexually violent predator (SVP), and 

sentenced to not less than eight nor more than sixteen years’ incarceration. 

However, Appellee’s trial counsel, Arnold Yale Steinberg, 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 statement, pursuant to 

Pennsylvania Rule of Disciplinary Enforcement 215(b) (disbarment on 

consent). 

A signed addendum to the resignation statement permitted Steinberg 

to complete representation in four federal civil matters, but prohibited any 

new representation. In return, the Office of Disciplinary 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 conditions of the agreement, 

his resignation statement would be forwarded immediately to the Supreme 

Court. 

Nevertheless, two weeks later Steinberg took on Appellee as a client in 

this matter and represented him through trial, his SVP hearing, and 

sentencing. In an order dated December 30, 2008, the Supreme Court of 

Pennsylvania accepted Steinberg’s resignation, and disbarred him on 

consent. (See, Order, 12/30/08, Amendment to Petition for Post-Conviction 

Collateral Relief, 11/14/11, at Exhibit A). 

On these facts, the PCRA court vacated Appellee’s conviction. On 

appeal, a panel of this Court affirmed, reasoning that because Steinberg was 

“constructively unlicensed,” under paragraph (g), Appellee 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)). 
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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 the admission of all 

medical records.3 However, on collateral appeal, Appellee’s new counsel 

raised trial counsel’s stipulation to medical records as an example of 

ineffectiveness. (See N.T. PCRA Hearing, 9/12/11, at 3). 

After remand, Appellee’s counsel filed an omnibus pre-trial motion. At 

a hearing on February 24, 2015, the court addressed the issue on appeal, 

whether Dr. Linville’s rape examination report could be admitted at trial 

without his appearance. For this hearing Dr. Linville 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, that “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 the examination report 

previously forwarded to him by the District Attorney’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 claimed it was consensual. 

(See N.T. Trial, 10/23/08, at 68). 
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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 green by Dr. Linville. (See id.

at first page [handwritten─presumably by Dr. Linville─as“#1”]). The “Chief 

Complaint,” is highlighted as “Sexual assault.” (Id. at page 1 of 6; 

handwritten “#2”). Similarly, the “Primary Diagnosis” is described as 

“Alleged Sexual Assault.” (Id. at page 3 of 6; handwritten “4”). 

There is one section of the medical record, apparently 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 being attacked”). (Id.). 

It also includes, in the middle of the same paragraph, 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 or 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 (Current Procedural Terminology) 

codes, indicating services provided, rather than diagnoses. (See Hospital 

Record, supra at 5 of 6). 
J-S20039-16 

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legal evidence; we will give this material to the proper law enforcement 

agency with your permission.” (Id.). 

The hearing of February 24 was adjourned pending receipt 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 court 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 Commonwealth timely 

appealed.5

The Commonwealth raises two questions for our review: 

1. Whether the [trial] court erred as a matter of law by 

ruling that in accordance with Pa.R.E. 803.1(3) Dr. Linville must 

testify at trial if the Commonwealth seeks admission 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 law by 

ruling that Appellee has a right to confront Dr. Linville at trial 

under the confrontation clause of the Sixth Amendment to the 

United States Constitution if the Commonwealth seeks admission 

of his report? 

____________________________________________ 

5

 The Commonwealth filed a concise statement of errors on September 17, 

2015. See Pa.R.A.P. 1925(b). The trial court filed an opinion on October 2, 

2015, referencing its memorandum and order filed August 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. 
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(Commonwealth’s Brief, at 4). 

The Commonwealth asserts the trial court erred because “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 because 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 standard. 

Likewise, evidentiary rulings are subject to an abuse of 

discretion standard. 

The standard of review for a trial court’s evidentiary 

rulings is narrow. The admissibility of evidence is solely 

within the discretion of the trial court and will be reversed 

only if the trial court has abused its discretion. An abuse 

of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or the 

exercise of judgment that is manifestly unreasonable, or 

the result of bias, prejudice, ill-will or partiality, 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 quotation marks 

omitted). “This [C]ourt’s scope of review in making a determination on a 

question of law is, as always, plenary. As with all questions of law, the 

appellate standard of review is de novo[.]” Commonwealth v. Vargas, 

947 A.2d 777, 780 (Pa. Super. 2008) (citations omitted). 

Medical records are admissible under the hearsay rules as 

evidence of facts contained therein but not as evidence of 
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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 observable 

physical condition, the evaluation of which does not 

require a complex application of technical knowledge, can 

as easily be ascertained by the lay person as by the 

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 not 

present in the patient, or that a test occurred, the 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 foundation for 

applying Pa.R.E. 803.1(3) has been met as stipulated.” (Commonwealth’s 

Brief, at 8). We disagree. 

In pertinent part, Rule of Evidence 803.1 provides:

The following statements are not excluded by the rule 

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: 
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(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 when 

the matter was fresh in his or her memory; and 

(C) the declarant-witness testifies [sic] accurately reflects 

his or her knowledge at the time when made. 

If admitted, the memorandum or record may be read into 

evidence and received as an exhibit, but may be shown to the 

jury only in exceptional circumstances or when offered 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 necessary.

F.R.E. 803(5) treats this as an exception regardless 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 plain meaning of the rule 

requires that the declarant, Dr. Linville, must testify 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 that 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, he 
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expressly excluded from the stipulation any opinions or diagnosis, precisely 

the claims at issue. (See N.T. Hearing, 2/24/15, at 3-5). 

Defense counsel also maintained that for the diagnosis and opinions to 

be admissible, Dr. Linville would have to appear, testify, 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) hospital records. (See id. at 

7). Accordingly, contrary to the Commonwealth’s claim, the limited 

stipulation evidenced by the record does not resolve 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 witness 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 clear 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 does not remember authoring 
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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 told 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 vouching 

for Dr. Linville’s lack of memory is plainly an insufficient and legally 

impermissible substitute for testimony by Dr. Linville 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 not testify. The 

stipulation of defense counsel did not extend to the diagnoses and opinions 

at issue. The prosecutor’s personal vouching is not compliant with Rule 

803.1. Therefore, the Commonwealth has failed to show that the entire 

report is admissible without the testimony of Dr. Linville 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 confront Dr. Linville at trial under 

the Confrontation Clause of the Sixth Amendment of the United States 

Constitution. (See Commonwealth’s Brief, at 4). 
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The Commonwealth chiefly argues that the rape examination report 

was not testimonial in nature and therefore Appellee 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 against him.” We 

have held that this bedrock procedural guarantee applies 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 the statement sought to 

be admitted is determined to be testimonial in nature: 

In sum, in analyzing whether a statement is testimonial, 

and, therefore, subject to the protections of the Confrontation 

Clause under Crawford, a court must determine whether the 

primary purpose of the interrogation was to establish or prove 

past events relevant to a later criminal prosecution. In making 

the determination as to the primary purpose of an interrogation, 

a court first should determine whether the interrogation occurred 

during the existence of an ongoing emergency, or what 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 dispositive 

because there may be other circumstances, outside of an 

ongoing emergency, where a statement is obtained for a 

purpose other than for later use in criminal proceedings. In 

determining the primary purpose of an interrogation, a court 

must also objectively evaluate the circumstances surrounding 

the interrogation, including the formality and location, and the 

statements and actions of both the interrogator and the 

declarant. 
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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 denied [his] right 

to confront a witness under the confrontation clause of the Sixth 

Amendment is a question of law for which our standard 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 not procured with a 

primary purpose of creating an out-of-court substitute 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,” but rather he “intended to 

provide medical treatment to his patient in a hospital 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, explaining 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 substitute for trial testimony” is 

undeveloped and lacks pertinent supporting authority. 
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The report did note that its purpose was to “help find any physical or 

emotional problems[.]” (Hospital Record, supra at 5 of 6).6 However, it 

added that the purpose of the examination was to collect evidence 

concerning an alleged sexual assault: (“The exam is 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 and review of the 

report along with an authorization for collection and release of evidence, as 

well as numerous other notices and releases. The disposition section of the 

report advised the victim to follow up with her primary health care provider. 

The examination obviously had multiple purposes, including 

compliance with record keeping requirements, and providing any needed 

emergency treatment. However, we conclude that in the totality of 

circumstances, the trial court could properly decide 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 included 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 inpatient, outpatient and 

patient treated or examined in the emergency unit.”
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Accordingly, the trial court properly and correctly decided that the rape 

examination report, including diagnoses and opinions, 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 subject 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 Commonwealth erroneously 

contended that Dr. Linville’s lack of memory of preparing the examination 

report made him unavailable, and therefore, his testimony was not barred 

by the Confrontation Clause. (See Trial Ct. Op., at 9-10). However, the 

Commonwealth expressly disclaims this argument in its brief. (See

Commonwealth’s Brief, at 11). Accordingly, we need not review this part of 

the trial court’s reasoning.