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COMMONWEALTH v. MCCLOUD (07/29/74)

decided: July 29, 1974.

COMMONWEALTH
v.
MCCLOUD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1972, No. 1196, in case of Commonwealth of Pennsylvania v. Artie McCloud.

COUNSEL

Nolan N. Atkinson, Jr., with him Zack, Myers and Atkinson, for appellant.

Albert L. Becker, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones, Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result.

Author: Roberts

[ 457 Pa. Page 311]

Appellant, Artie McCloud, was charged with the murder of one Louella Pester. At McCloud's jury trial, the Commonwealth endeavored to satisfy its burden of proving legal causation beyond a reasonable doubt by reading into evidence, over repeated objection, substantial portions of the written report of the official, salaried medical examiner who performed an autopsy on the deceased. The medical examiner was not called to testify; at the time of trial he was attending a convention. Recognizing that the report was hearsay evidence, the Commonwealth relied on a claimed statutory exception to the hearsay rule, the Pennsylvania Uniform Business Records as Evidence Act.*fn1 On this direct appeal*fn2 from his conviction of murder in the second degree, appellant contends that the Commonwealth's introduction of the report without calling the medical examiner constitutes reversible error. We agree.

The Pennsylvania Constitution guarantees an accused the right to confront and cross-examine witnesses.

[ 457 Pa. Page 312]

Pa. Const. art. I, ยง 9. Although a fundamental right, this right of confrontation is not absolute. In certain circumstances, the admission of hearsay evidence does not violate the constitutional guarantee; in others, its introduction is constitutionally repugnant. Compare Commonwealth v. Ransom, 446 Pa. 457, 288 A.2d 762 (1972), with Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971). See also California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 1933-34 (1970).*fn3 But this divergence in our holdings is no more than a recognition of the principle that "there are clearly different kinds of hearsay testimony possessed of varying degrees of prejudice." Commonwealth v. Thomas, supra at 239, 279 A.2d at 23. In delineating the line between admissible and inadmissible hearsay in a criminal case, it is therefore necessary to assess the purpose of the proffered evidence and the risks inherent in its admission.

Causation is an element of the crime of murder and must be proved beyond a reasonable doubt by the Commonwealth in every homicide prosecution. Commonwealth v. Newkirk, 455 Pa. 559, 317 A.2d 216 (1974). Frequently, the cause of death is seriously in issue and the subject of conflicting opinion by qualified physicians. See, e.g., Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974). This is not surprising, because the legal cause of death is at best a conclusion based on interpretation of often conflicting medical opinion. This Court stated in Paxos v. Jarka Corp., 314 Pa. 148, 154, 171 A. 468, 471 (1934) (civil litigation): "As any

[ 457 Pa. Page 313]

    practical experience in trial work reveals, the testimony of a doctor as to the extent of injuries and their effects is primarily opinion evidence at best, and, where the person stating the opinion is present in court, is subjected to the severest of examinations to test its strength." It is precisely because medical evidence is opinion evidence that this Court has held that "causation is an issue of fact for the jury." Commonwealth v. Carn, 449 Pa. 228, 230, 296 A.2d 753, 754 (1972).

Had the medical examiner been called to testify, the opinions, conclusions, and interpretation contained in the autopsy report would have been subject to cross-examination. The defense would have been able to submit the reliability of the examiner's opinion ...


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