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decided: July 29, 1974.


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.


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 to the jury's scrutiny. Any weakness could have been unearthed.*fn4

[ 457 Pa. Page 314]

However, "[a]n opinion expressed in hospital records [were they to be admitted without the presence of the physician] is subject to no such searching inquiry as to accuracy, soundness, and veracity. Hence the danger in admitting them is very great. However admirable, whatever the character and reputation of the institution from which records come, to deny a defendant the opportunity to test the correctness of the diagnosis and ascertain the qualifications of the assertor . . . is to deny [him] a substantial right." Paxos v. Jarka Corp., supra at 154, 171 A. at 471. The "substantial right" here denied was the right to cross-examine; the medical examiner's opinion was thus insulated from effective challenge.

Commonwealth v. Mobley, 450 Pa. 431, 301 A.2d 622 (1973), upon which the Commonwealth relies, is not to the contrary. In Mobley, we approved the admission of certain hospital records as a business records exception to the hearsay rule. There, however, we specifically limited our holding: "The records were offered not to show medical opinion, but for the legitimate purpose of establishing the fact of hospitalization and the treatment given." Id. at 435, 301 A.2d at 624.

Mobley demonstrates the error in the Commonwealth's argument; it illustrates, we have stated, that the purpose of offered evidence can determine its admissibility with respect to the confrontation clause. Here, the record, over objection, was offered to prove an essential element of the crime charged. The Supreme Court of Minnesota perceptively observed: "It appears from the various decisions that the admissibility in evidence of business records depends upon the purpose for which they are offered. If they are offered to prove an

[ 457 Pa. Page 315]

    essential element of the crime or connect the defendant directly to the commission of the crime, then they must be proved through persons having personal knowledge of the element or connection and such persons must be available for cross-examination. If, instead of producing the person who has personal knowledge, the state relies on documents made by such person or recorded testimony, the defendant has been denied his right to confront the witnesses against him." State v. Matousek, 287 Minn. 344, 350, 178 N.W.2d 604, 608 (1970).

Here, for example, it may have been proper under Mobley to use the autopsy report to establish the fact of decedent's death, to show that an autopsy had been performed, or to verify the identity of the examiner who performed the autopsy. Cf. United States v. Burruss, 418 F.2d 677, 678-79 (4th Cir. 1969); United States v. Shiver, 414 F.2d 461, 463 (5th Cir. 1969). However, its use as direct evidence in establishing the cause of death (an element of the crime) denied appellant the fundamental constitutional right of confrontation and was error.

We therefore hold that in a homicide prosecution, evidentiary use, as a business records exception to the hearsay rule, of an autopsy report in proving legal causation is impermissible unless the accused is afforded the opportunity to confront and cross-examine the medical examiner who performed the autopsy, absent a compelling necessity.*fn5 Accord, State v. Tims, 9 Ohio St. 2d 136, 224 N.E.2d 348 (1967);*fn6 Bennett v. State,

[ 457 Pa. Page 316448]

P.2d 253 (Okla. Crim. App. 1968);*fn7 Robison v. State, 430 P.2d 814 (Okla. Crim. App. 1967) (alternate holding).*fn8 Of course, when the examiner does testify and is subject to cross-examination, his report may be used. See Commonwealth v. Ross, 413 Pa. 35, 39-44, 195 A.2d 81, 82-85 (1963).

In some cases, production of a critical witness may be inconvenient. However, we stress that "[t]he constitutional right of confrontation and cross-examination . . . cannot be sidestepped because it happens to be convenient for one of the parties." Holman v. Washington, 364 F.2d 618, 623 (5th Cir. 1966). "The difficulty of obtaining witnesses is not sufficient grounds for liberalizing an exception to the hearsay rule if the effect

[ 457 Pa. Page 317]

    of such liberalization is to deny an accused a fair trial. . . . [E]xpediency is not a sound ground upon which a denial of a constitutional right may be based." State v. Tims, 9 Ohio St. 2d 136, 138, 224 N.E.2d 348, 350 (1967).

It has aptly been stated that "[t]he Government should produce the maker of any important record wherever possible . . . ." United States v. Johns-Manville Corp., 225 F. Supp. 61, 63 (E.D. Pa. 1963) (Van Dusen, J.). Here, the Commonwealth could have produced the maker of the autopsy report, but did not. Its failure to do so clearly was error of constitutional dimension.

The Commonwealth, urges, however, that on this record, we should view the error as harmless. This argument is meritless. The United States Supreme Court has specifically held that "'[a] denial of cross-examination without a waiver * * * would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'" Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 750 (1968) (quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 1246 (1966)).

Judgment of sentence reversed and a new trial granted.


Judgment of sentence reversed and new trial granted.

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