AI Case Brief
Generate an AI-powered case brief with:
đKey Facts
âď¸Legal Issues
đCourt Holding
đĄReasoning
đŻSignificance
Estimated cost: $0.10â$0.50 per brief, depending on opinion length and retries
Full Opinion
[[COURTLISTENER_SUBOPINION {"id":"10772119","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
J-S44041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN W. KEARNS :
:
Appellant : No. 540 EDA 2023
Appeal from the Judgment of Sentence Entered January 17, 2023
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004662-2021
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *
MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2024
Appellant, Justin W. Kearns, appeals from the judgment of sentence
entered on January 17, 2023, following his jury trial conviction for
endangering the welfare of a child. 1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On September 11, 2020, Appellant ingested heroin and became
unconscious while he was the sole caregiver for his two-year old daughter
(Child) in his two-story apartment in Warminster Township, Pennsylvania,
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 4304(a)(1).
J-S44041-23
while Childâs mother was away. N.T., 10/6/2022, at 49, 67-69, 77-81, and,
103-105; N.T., 10/7/2022, at 11. When Childâs mother returned, she was
locked out of the apartment, Appellant did not respond to her knocking and
calling to let her in, and she could see Appellant and Child in the home. N.T.,
10/6/2022, at 29-35, 49-50, and 62. After Childâs mother tried
unsuccessfully to get into the apartment, she called 911. Id. at 49-50. Police
officers and emergency medical personnel responded and forcefully entered
the front door to find Appellant lying with his legs on the floor and his head
positioned in the corner of the couch. Id. at 68-73, and 98-102. Appellant
was unresponsive and Child was unsupervised, not wearing pants, and
wandering around the first floor of the apartment. Id. at 77-79, and 103-04;
Commonwealth Exhibit 10. When roused by emergency responders, Appellant
finally awoke, confused, and was subsequently taken to a hospital by
ambulance. N.T., 10/6/2022, at 79-81, 87, 104-106.
Appellant was charged with endangering the welfare of a child and
reckless endangerment. A two-day jury trial commenced on October 6, 2022.
Prior to trial, Appellant moved to suppress the medical records obtained from
the hospital where he was treated, arguing the search warrant used to obtain
his records was not supported by probable cause; the trial court denied relief
following a suppression hearing. N.T., 10/5/2022, at 8-9, 27-28, 32-34, and
37. At trial, the court permitted the Commonwealth to question the
investigating officer and allowed him to read portions of the hospital records
-2-
J-S44041-23
into evidence over Appellantâs objection. N.T., 10/6/2022, at 120-123; N.T.,
10/7/2022, at 4-12. In addition, over Appellantâs objections, the
Commonwealth presented evidence from the investigating officer who testified
that after Appellant awoke and stood up, the police recovered a clear plastic
baggie underneath the area where Appellant was found. The Commonwealth
also introduced a brief, recorded statement Appellant made during a prison
telephone call to his mother six days later. N.T., 10/6/2022, at 81; N.T.,
10/7/2022, at 20-25; Commonwealth Exhibit 13; N.T., 10/5/2022, at 9, 29-
31, 35, and 38.
On October 7, 2022, the jury found Appellant guilty of endangering the
welfare of a child, but not guilty of reckless endangerment. N.T., 10/7/2022,
at 100-101. On January 17, 2023, the trial court sentenced Appellant to 42
to 84 months of incarceration. Appellant filed a timely motion to reconsider
his sentence, which the trial court denied on February 1, 2023. This timely
appeal followed.
Appellant raises the following six issues 2 in this appeal:
A. Was there insufficient evidence to find Appellant guilty beyond
a reasonable doubt of [endangering the welfare of a child]?
B. Did the trial court err in admitting [the clear plastic baggie]
which was never tested or sent to the lab for testing found near
Appellant where the probative value of that evidence was
outweighed by the danger of unfair prejudice to Appellant?
C. Did the trial court err in admitting an out-of-context portion of
a prison telephone call where the probative value of that
2 We have reordered Appellantâs issues for ease of discussion and disposition.
-3-
J-S44041-23
evidence was outweighed by the danger of unfair prejudice to
Appellant?
D. Did the trial court err in denying Appellantâs motion to suppress
medical records where there was not probable cause to support
the warrant used to obtain those records?
E. Did the trial court err in admitting testimony concerning
diagnoses contained in Appellantâs medical records where the
doctor responsible for those medical opinions was not available
to be cross-examined at trial?
F. Did the trial court err in sentencing Appellant to the statutory
maximum sentence for [endangering the welfare of a child]
where it considered improper factors and imposed a sentence
beyond what is necessary to protect the public and rehabilitate
Appellant, factors that the trial court failed to consider?
Appellantâs Brief at 8 (suggested answers omitted).
In his first issue presented, Appellant argues that the Commonwealth
failed to present sufficient evidence âexplaining how Appellantâs daughter was
placed in a perilous or dangerous situation [] to supportâ his conviction for
endangering the welfare of Child. Id. at 15. Appellant also contends that
evidence showed that Child was not unsupervised because âAppellant woke
up shortly after being touched by police, indicating that Appellant was not
totally unresponsive and would have been able to respond to any sort of
emergency situation involving his daughter.â Id. at 16. Appellant maintains
that the Commonwealth failed to prove he was aware of circumstances that
could threaten Childâs welfare, because the Commonwealthâs evidence merely
showed that Appellant was unconscious in Childâs presence but she was not
exposed to any dangerous condition.
-4-
J-S44041-23
Our standard of review regarding the sufficiency of evidence is
well-settled:
We evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendantâs guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Importantly,
the jury, which passes upon the weight and credibility of each
witnessâs testimony, is free to believe all, part, or none of the
evidence.
Commonwealth v. Delamarter,
302 A.3d 1195
, 1201 (Pa. Super. 2023)
(internal citation and ellipses omitted). Moreover, in determining whether the
evidence is sufficient to support conviction, we must consider all evidence
actually admitted at trial, without consideration of whether the trial courtâs
evidentiary rulings are correct. Commonwealth v. Arias,
286 A.3d 341,
350
(Pa. Super. 2022).
The Crimes Code provides that â[a] parent ⌠supervising the welfare of
a child under 18 years of ageâ commits the offense of endangering the welfare
of a child âif he knowingly endangers the welfare of the child by violating a
duty of care, protection or support.â 18 Pa.C.S.A. § 4304(a)(1). The
Commonwealth must prove: 1) that the defendant was aware of his or her
duty to protect the child; 2) that the defendant was aware that the child was
-5-
J-S44041-23
in circumstances that could threaten the childâs physical or psychological
welfare; and 3) that the defendant either failed to act or took action so lame
or meager that such actions could not reasonably be expected to protect the
childâs welfare. Delamarter, 302 A.3d at 1201; Commonwealth v.
Barkman,
295 A.3d 721, 732
(Pa. Super. 2023).
The mere fact that a parent is intoxicated while caring for his child is
insufficient to prove that he was aware that the child was in circumstances
that could threaten the childâs physical or psychological welfare where there
is no evidence that the child was in fact subjected to a dangerous situation.
Compare Commonwealth v. Vela-Garrett,
251 A.3d 811, 816-19
(Pa.
Super. 2021) (evidence that defendant was driving under the influence (DUI)
with child in car is insufficient to support endangering welfare of a child
conviction absent evidence that defendant was driving unsafely) with
Delamarter, 302 A.3d at 1204-1209 (evidence that defendant was DUI with
child in car and was driving unsafely is sufficient to prove endangering welfare
of a child). A mere error in parental judgment is also not sufficient to support
a conviction for endangering the welfare of a child where there is no evidence
that the parent had notice that the child was endangered. Commonwealth
v. Howard,
257 A.3d 1217
, 1228-30 (Pa. 2021) (evidence was insufficient to
prove endangering welfare of a child where a mother placed her child in a
ride-for-hire car that did not contain a child car seat where there was no
evidence that she had reason to believe driver was unsafe and the record
-6-
J-S44041-23
contained no other evidence showing that mother was aware child had been
placed in circumstances which threatened the childâs physical or psychological
safety).
The crime of endangering the welfare of a child does not require actual
infliction of physical injury or proof that the child was in imminent threat of
physical harm. Delamarter, 302 A.3d at 1207; Commonwealth v. Krock,
282 A.3d 1132, 1139
(Pa. Super. 2022); Commonwealth v. Wallace,
817
A.2d 485, 491
(Pa. Super. 2002). Instead, evidence that a parent or caregiver
made himself or herself unavailable or incapable of protecting a minor where
obvious dangers to the child were present is sufficient to support a conviction
for endangering the welfare of a child. Commonwealth v. Fewell,
654 A.2d
1109, 1119
(Pa. Super. 1995) (leaving baby unattended with access to a
plastic bag is sufficient to support conviction for endangering the welfare of a
child); Commonwealth v. Nulph, 196 WDA 2023, at 9-10 (Pa. Super. 2024)
(non-precedential memorandum) (leaving two-year-old unattended on porch
near swimming pool is sufficient to support endangering the welfare of a child
conviction); see also Commonwealth v. Hoffman,
198 A.3d 1112
, 1125
n.8 (Pa. Super. 2018) (evidence that defendant consumed sleeping
medications that put her in a drug-induced stupor while caring for
two-year-old was sufficient to prove conduct that placed the child in danger
of death or serious bodily injury).
-7-
J-S44041-23
Here, upon review of the certified record, we conclude that there was
sufficient evidence to support the determination that Appellant was
unconscious while he was caring for Child because he chose to consume
heroin. A police officer and an emergency medical technician who were at
the scene both testified that Appellant, after he awoke, admitted he snorted
heroin. N.T., 10/6/2022, at 80-81, 105. This evidence, in and of itself, was
sufficient evidence for the jury to find that Appellant had consumed heroin.
In addition, a torn plastic baggie which made drug use a more probable
explanation for Appellantâs condition was found where Appellant had been
lying, and hospital records diagnosed Appellant with âpoisoning by unspecified
narcotics, accidentalâ and â[a]ccidental opioid overdose.â Id. at 81; N.T.,
10/7/2022, at 11.
Furthermore, the Commonwealth presented additional evidence which
showed that Appellant was unconscious for at least 35 minutes while Child
was under his sole supervision. During this time, Child walked freely in the
two-story apartment and Appellant was so deeply unconscious that he did not
respond to loud noises when Childâs mother tried to rouse him. Moreover,
Appellant failed to respond when police announced their presence and
shattered a glass door close upon which Appellant was found unconscious.
N.T., 10/6/2022, at 29-36, 41, 72-73, 77-79, and 100-104; Commonwealth
Exhibit 10. The evidence also established conditions that posed a risk of
injury to Child were present and readily visible in the living room where Child
-8-
J-S44041-23
and Appellant were located. Id. at 78. The stairs from the living room to the
second floor of the apartment were ungated and numerous plastic bags were
lying on the living room floor. Id. at 81-86, and 88-89; Commonwealth
Exhibits 5, 6, 7, 9, and 10. While Child did not suffer any physical injury from
Appellantâs conduct, the crime of endangering the welfare of a child does not
require actual infliction of physical injury or proof that the child was in
imminent threat of physical harm. Finally, as noted, the Commonwealth also
introduced into evidence an excerpt of a recorded prison phone call between
Appellant and his mother following Appellantâs arrest, wherein Appellant
admits that he overdosed with Child present. N.T., 10/7/2022, at 20-25;
Commonwealthâs Exhibit 13.
Appellant also argues that, because the jury found him not guilty of
reckless endangerment, the Commonwealth could not prove that his conduct
was âknowingâ for purposes of his endangering the welfare of a child
conviction. This argument fails for two reasons.
First, contrary to Appellantâs contention, inconsistent verdicts do not
render sufficient evidence insufficient or otherwise invalidate a conviction,
unless commission of an offense of which the defendant was acquitted is an
essential statutory element of another offense for which the defendant was
convicted. Commonwealth v. Baker-Myers,
255 A.3d 223
, 229-235 (Pa.
2021); Commonwealth v. Moore,
103 A.3d 1240, 1246-50
(Pa. 2014);
Commonwealth v. Knox,
219 A.3d 186, 197
(Pa. Super. 2019).
-9-
J-S44041-23
Commission of the crime of reckless endangerment is not an essential
statutory element of the crime of endangering the welfare of a child. The
reckless endangerment verdict is therefore irrelevant to the validity of
Appellantâs endangering the welfare of a child conviction and cannot make the
evidence insufficient to support that conviction even if the two verdicts were
inconsistent. Moore,
103 A.3d at 1250
; Knox,
219 A.3d at 197
.
Second, the verdicts are not, in fact, inconsistent. As stated, reckless
endangerment is not a lesser included offense of endangering the welfare of
a child. Delamarter, 302 A.3d at 1205; Commonwealth v. Martir,
712
A.2d 327, 330
(Pa. Super. 1998). Rather, the type of risk that the
Commonwealth must prove is different for the two offenses. To sustain a
reckless endangerment conviction, the Commonwealth must prove âconduct
which places or may place another person in danger of death or serious bodily
injury.â 18 Pa.C.S.A. § 2705; Delamarter, 302 A.3d at 1205; Martir,
712
A.2d at 329-330
. In contrast, the danger that must be proved for the offense
of endangering the welfare of a child is âcircumstances that could threaten the
childâs physical or psychological welfare.â Delamarter, 302 A.3d at 1205;
Barkman,
295 A.3d at 732
; Martir,
712 A.2d at 330
. Accordingly, for all of
the foregoing reasons, we conclude that there was sufficient evidence to
support Appellantâs conviction for endangering the welfare of a child and
Appellant is not entitled to relief on his first appellate issue.
-10-
J-S44041-23
Appellantâs next two issues challenge the trial courtâs evidentiary
rulings, and we will examine them together. Appellant challenges the
admission of trial testimony concerning the plastic baggie recovered from the
area underneath where Appellant was found, as well as the admission of the
redacted excerpt of the prison phone call recording between Appellant and his
mother, as described in detail above. See Appellantâs Brief at 28-31. In both
of these issues, Appellant claims that the prejudice from the admission of
these items of evidence outweighed their probative value. More specifically,
Appellant argues that there was no evidence that the plastic bag at issue
actually contained heroin or another illegal drug and that the brief phone call
excerpt did not necessarily refer to the events at issue here. We disagree.
âQuestions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and a reviewing court will not reverse the court's
decision on such a question absent a clear abuse of discretion.â
Commonwealth v. Crosley,
180 A.3d 761, 768
(Pa. Super. 2018) (citation
omitted). âAn abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.â
Id.
(citation omitted).
Rule 403 of the Pennsylvania Rules of Evidence provides that a trial
court âmay exclude relevant evidence if its probative value is outweighed by
a danger of ⌠unfair prejudice.â Pa.R.E. 403. Our review of a trial courtâs
-11-
J-S44041-23
decision on this issue is limited to whether the court abused its discretion.
Commonwealth v. Gallaway,
283 A.3d 217
, 222-223 (Pa. 2022). The mere
fact that evidence is harmful to the defendant does not constitute unfair
prejudice. Commonwealth v. Knupp,
290 A.3d 759, 776
(Pa. Super. 2023);
Commonwealth v. Wilson,
273 A.3d 13, 19-20
(Pa. Super. 2022). Rather,
unfair prejudice may constitute a ground for exclusion where the proffered
evidence has âa tendency to suggest a decision on an improper basis or to
divert the jury's attention away from its duty of weighing the evidence
impartially.â Pa.R.E. 403, Comment; Gallaway, 283 A.3d at 223 (citation
omitted).
Neither the testimony regarding the baggie nor the excerpt of a recorded
prison telephone call tended to divert the juryâs attention from the issues in
this case or suggest a decision on an improper basis. Initially, we reject
Appellantâs suggestion that the baggie or prison call recording were unfairly
prejudicial because the evidence offered minimal persuasive value. Such
contentions, at bottom, attack the evidentiary weight of this evidence and do
not show unfair prejudice that could support exclusion under Rule 403.
Commonwealth v. Mabus,
300 A.3d 1057, 1070
(Pa. Super. 2023).
Moreover, the telephone call excerpt admitted into evidence did not contain
any reference to Appellantâs imprisonment, and Appellant made no showing
that the redactions distorted the meaning of the statement wherein Appellant
said that he overdosed while with Child. Likewise, even if not dispositive, the
-12-
J-S44041-23
torn plastic baggie recovered from Appellantâs apartment was at least
probative of the cause of Appellantâs intoxicated condition during the incident.
Given the nature of charges lodged against Appellant, the trial court
reasonably could conclude that neither piece of evidence tended to suggest a
decision on an improper basis or to divert the jury's attention away from an
impartial assessment of the evidence. The trial court therefore did not abuse
its discretion in allowing the Commonwealth to introduce testimony that a
plastic baggie was found near Appellant and to play the phone call excerpt to
the jury. Accordingly, Appellantâs second and third issues as set forth above
lack merit.
Appellantâs fourth and five issues both challenge the admission of
Appellantâs medical records from the hospital where he was taken after the
incident. We will examine them in turn. First, Appellant contends that the
search warrant used to obtain Appellantâs medical records was not supported
by probable cause and, therefore, the trial court erred in denying his motion
to suppress those records. We disagree.
Probable cause exists for the issuance of a search warrant where, based
on the totality of the circumstances set forth in the affidavit of probable cause,
including the reliability and veracity of hearsay statements included therein,
there is a fair probability that evidence of a crime will be found.
Commonwealth v. Lyons,
79 A.3d 1053
, 1063â1064 (Pa. 2013);
Commonwealth v. Fletcher,
307 A.3d 742, 746
(Pa. Super. 2023). Here,
-13-
J-S44041-23
the affidavit of probable cause set forth the following: that the mother of a
two-year-old advised police that Appellant was passed out in the apartment
with the two-year-old, that police and emergency personnel broke the glass
on the storm door and kicked in the door to get into the apartment, that after
this forced entry, Appellant was unresponsive lying with his knees on the floor
and his head in the corner of a couch while his two-year-old was roaming
freely and unsupervised, that an item of suspected drug paraphernalia
consistent with heroin use was found on the floor near Appellant, that
Appellant regained consciousness while being treated by emergency medical
personnel and admitted ingesting heroin, and that Appellant was transported
by ambulance to the hospital from which the records were sought. Exhibit
CS-1.3 These facts were sufficient to show that there was a fair probability
that Appellant had suffered a drug overdose and that he was treated for that
event at the hospital and, therefore, sufficient to provide probable cause that
evidence of a crime, i.e. narcotics use that caused child endangerment, would
be found in the records from that hospitalization. The trial court accordingly
did not err in denying Appellantâs motion to suppress.
3 The affidavit of probable cause also contained a reference to drug
paraphernalia found in another part of the apartment, but this portion was
excluded by agreement of the Commonwealth and Appellant because it had
been obtained in an unconstitutional search and the trial court considered the
search warrant affidavit with that portion removed in determining whether
probable cause existed. N.T., 10/5/2022, at 27-28, 32-34, 37. We discern
no error.
-14-
J-S44041-23
Next, Appellant posits that the trial court erred by admitting evidence
contained in Appellantâs medical records when the doctor responsible for those
medical opinions was not available for cross-examination at trial. Appellantâs
Brief at 22-26. Appellant argues that the investigating officer who testified at
trial, âis not affiliated in any way with [the h]ospital, has no medical
background, and had no personal knowledge surrounding Appellantâs hospital
visit, [and] improperly testified as to various diagnosis contained within the
medical reports[.]â Id. at 22. In sum, on this issue, Appellant concludes:
Because the doctor who reached [medical] conclusions did not
testify here, Appellant was denied the opportunity to challenge
those medical opinion[s]. Specifically, Appellant was unable to
challenge the doctorâs qualifications, determine what information
the doctor relied onâor did not rely on â in forming the opinions,
or ask other relevant questions on cross-examination. Appellantâs
only recourse was to cross-examine the officer, who never
observed Appellant [at the hospital] at any point that night, has
no medical background, and only learned of this incident several
days later.
Id. at 23-24.
Appellantâs claim raises a Confrontation Clause challenge, which
requires us to ascertain the primary purpose for creating the hospital records.
For reasons more fully explained below, because we conclude that the primary
purpose for Appellantâs trip to the hospital was for the development of
evidence demonstrating that he ingested drugs which could be used in a
subsequent prosecution for child endangerment charges, the content of
Appellantâs medical records was largely testimonial in nature and the
-15-
J-S44041-23
admission of the documents at trial violated Appellantâs right to confrontation.
Therefore, the medical records should have been excluded from trial.
We begin by setting forth relevant principles of our Confrontation Clause
jurisprudence. This Court has recently determined:
Issues related to whether the admission of evidence violated an
accused's rights under the Confrontation Clause are questions of
law, for which our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Brown,
185 A.3d 316, 324
(Pa. 2018). The Sixth Amendment's Confrontation Clause
generally prohibits the admission of hearsay statements that are
âtestimonialâ in nature. Crawford v. Washington,
541 U.S. 36,
50-60
(2004). The [United States] Supreme Court declined to
further define in Crawford what is meant by this term, but it did
opine that such a statement could include the âfunctional
equivalentâ of ex parte in-court testimony, formalized testimonial
materials, or a statement made under circumstances which would
lead an objective witness to believe that it might be used at some
later trial. See Commonwealth v. Thompson,
314 A.3d 922,
926
(Pa. Super. 2024). Stated differently, testimonial evidence
has a ââprimary purpose of creating an out-of-court substitute for
trial testimony.ââ Commonwealth v. Banko,
268 A.3d 484, 491
(Pa. Super. 2022), quoting Bullcoming v. New Mexico,
564 U.S.
647, 669-672
(2011) (Sotomayor, J., concurring) (other citations
omitted); See also Davis v. Washington,
547 U.S. 813, 822
(2006) (stating that statements to police are nontestimonial when
the primary purpose of the statement is to meet an ongoing police
emergency; they are testimonial when the primary purpose is to
establish or prove past events relevant to a criminal prosecution).
As noted by Justice Sotomayor, whether a statement is considered
to be testimonial often is determined by looking at the purpose
served by that statement. Bullcoming,
564 U.S. at 669
. For
example, in a driving-under-the-influence (DUI) prosecution
where the charge is based upon the percentage of alcohol
contained in one's blood, a toxicology report that identifies the
alcohol percentage in the defendant's blood is testimonial because
the information in the report serves to satisfy an element of the
crime for which the defendant was charged, i.e., the defendant's
blood alcohol content (BAC). Thompson,
314 A.3d at 926-927
.
-16-
J-S44041-23
In such a case, it would âviolate[] the Confrontation Clause to
admit a toxicology report with the testimony of the custodian of
records but not the laboratory technician who performed the test.â
Id. at 927
. Similarly, an autopsy report compiled by a medical
examiner in consultation with the district attorney has been
deemed testimonial because it is designed to provide an opinion
as to whether death occurred as a result of a criminal act.
Id.
Nonetheless, if a statement is not intended to be used to prove an
element of a crime, the statement may be non-testimonial.
* * *
In considering whether the medical records are testimonial, we
note that, generally speaking, medical records are the objective
recordings of test results and the medical practitioner's
observations. They are unlike an autopsy report that contains an
opinion regarding the legal cause of death as resulting from an
accident, homicide, or natural causes; instead, these records are
a factual account of what medical practitioners did to treat the
victim's injuries.
Commonwealth v. McCullough, -- A.3d --,
2024 WL 4271674
, at *2-3 (Pa.
Super. 2024).
Further, this Court has stated:
It is well settled that the Confrontation Clause applies solely to
statements that are testimonial in nature. Commonwealth v.
Williams,
103 A.3d 354, 358-359
(Pa. Super. 2014). In the
context of a DUI case, forensic analyses of blood are within the
âcore class of testimonial statementsâ subject to Confrontation
Clause protection. See Melendez-Diaz v. Massachusetts,
557
U.S. 305, 310
(2009).
In order to determine whether a report detailing the results of a
blood test is testimonial, âa court must determine whether the
primary purpose [] was to establish or prove past events relevant
to a later criminal prosecution.â Commonwealth v. Allshouse,
36 A.3d 163, 175
(Pa. 2012); see also Commonwealth v.
Banko,
268 A.3d 484, 492
(Pa. Super. 2022) (reiterating that
evidence is testimonial in nature where its primary purpose was
to support an arrest and âcreate an out-of-court substitute for trial
-17-
J-S44041-23
testimonyâ). However, where a blood test is administered for the
purpose of medical treatment, and not âto establish nor prove past
events relevant to a later criminal prosecution,â that evidence is
non-testimonial in nature.
Id.
Commonwealth v. Dougan,
317 A.3d 619
, at *6 (Pa. Super. 2024)
(non-precedential decision).4
For example, in McCullough, supra, police responded to a shooting in
downtown Pittsburgh, wherein they encountered the victim laying on the
sidewalk with two bullet wounds in the left side of his chest. See McCullough,
at *1. The Commonwealth sought to introduce the victimâs medical records
through the investigating police officer who was called to testify at trial. The
medical records were offered to support a conviction for aggravated assault.
Id. at *3 (âBecause the victim did not testify, the prosecutor sought to
introduce the victim's medical records and accompanying certification to
establish the victim's injuries.â). We ultimately determined that âthe records
in question [were] medical records relating to treatment given to the
non-testifying victim for injuries suffered in the shooting.â Id. Therefore, the
records were not testimonial.
Moreover, in Dougan and
Banko, supra,
both defendants were
involved in car accidents and taken to the hospital for medical treatment. In
Dougan, the defendant âhad cuts and burns on his face and handsâ following
a single car accident wherein he ârequested and was in need of further medical
treatmentâ and was transported to the local hospital. Dougan, at *1. While
4 See Pa.R.A.P. 126(b) (This Court may cite and rely upon non-precedential
decisions filed after May 1, 2019 for their persuasive value).
-18-
J-S44041-23
at the hospital, medical personnel conducted blood tests which the
Commonwealth later sought to introduce at Douganâs trial for driving under
the influence of alcohol â second offense. Ultimately, we recognized that
âhospital personnel determined the alcohol content of [Douganâs] blood for
the purpose of medical treatment, and not at the request of law enforcementâ
thus, âthe report detailing [Douganâs blood alcohol content] was not
testimonialâ and, â[t]herefore, the Confrontation Clause [did] not apply.â Id.,
at *6. Similarly, in Banko, we determined that Bankoâs âblood was tested as
part of his hospital treatment following an automobile accidentâ after he âwas
transported to the hospital by EMS, which was summoned in light of the fact
[Banko] reported to be a diabetic and was complaining of face, neck, and back
pains after driving his car off the road and into a field.â Banko,
268 A.3d at
487
. Ultimately, the Banko Court determined that âthe primary purpose of
[Bankoâs blood alcohol] testing was neither to establish nor prove past events
relevant to a later criminal prosecution, but rather was for the purpose of
[Bankoâs] medical treatmentâ and, therefore, âthe [medical records]
presented at trial [were] not testimonial.â
Id. at 492
.
Upon review of the certified record in this matter, we conclude that the
primary purpose of Appellantâs visit to the hospital, together with the ensuing
generation of his medical records, was to establish or prove past events
relevant to a later criminal prosecution and not for the purpose of medical
treatment. Here, there is no dispute that Appellant âfinally awoke, confused,
when touched by the emergency responders and was taken to a hospital by
-19-
J-S44041-23
ambulance.â N.T., 10/6/2022, at 79-81, 87, and 104-106. According to the
hospital medical records admitted at trial:
Patient is a 34-year-old male with history of [gastroesophageal
reflux disease] and drug abuse presenting emergency department
after an unintentional narcotics overdose. Per EMS report, patient
was found asleep on the couch with his 2-year-old child, whom he
was supposed to be watching. He was hard to arouse and
girlfriend called EMS. EMS brought patient here. Patient did not
require Narcan or other medication. Upon time of arrival here,
patient is awake, alert, oriented[, and] clinically sober. He admits
to snorting fentanyl this evening. He denies injections. He denies
any other drug use. He feels well and would like to go home. He
denies fevers, chills, nausea, vomiting, chest pain, shortness of
breath, numbness, weakness, tingling, acute traumatic injury, or
any other major symptoms.
Commonwealthâs Exhibit C-12, at 1. Under the differential diagnosis section
of the hospital record, hospital personnel noted âaccidental opiate overdose,
doubt serious intracranial injury, doubt cervical spine injury, doubt other
major traumatic injury[.]â Id. at 2. Hospital personnel further âdiscussed the
risks of leavingâ the hospital with Appellant, âbelieve[ing] that he ha[d] the
capacity to make such a decisionâ but Appellant did not require any medical
treatment after the preliminary evaluation. Id. at 3. Here, the record
suggests that Appellant was in no further need of medical treatment when he
arrived at the hospital. Instead, the hospital performed a blood draw in order
for the Commonwealth to confirm a past event, specifically Appellantâs
consumption of opiates, which was clearly only relevant for later criminal
prosecution. As such, the trial court erred in admitting hospital records that
were testimonial in nature without first receiving testimony from the medical
-20-
J-S44041-23
personnel who administered the examinations. Accordingly, for all of the
foregoing reasons, Appellantâs medical records were improperly admitted into
evidence.
Despite the improper admission of Appellantâs medical records, we must
next consider whether that evidentiary error was harmless. âThe harmless
error doctrine, as adopted in Pennsylvania, reflects the reality that the accused
is entitled to a fair trial, not a perfect trial.â Commonwealth v. Hairston,
84 A.3d 657, 672
(Pa. 2014). Our Supreme Court has stated:
Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Id. at 671-672
(citations omitted). â[W]hen reviewing for harmless error, the
appellate court considers only the uncontradicted evidence and, having done
so, proceeds to determine whether that body of uncontradicted evidence was
so overwhelming that the erroneous admission of the evidence could not have
impacted the verdict.â Commonwealth v. Fitzpatrick,
255 A.3d 452
, 470
(Pa. 2021) (citation omitted).
Here, both a police officer and an emergency medical technician (EMT)
who responded to the scene testified at Appellantâs trial and opined that
Appellant was intoxicated and had overdosed. Pennsylvania law provides that
-21-
J-S44041-23
â[a] police officer may utilize both his experience and personal observations
to render an opinion as to whether a person is intoxicated.â Commonwealth
v. Kelley,
652 A.2d 378, 382
(Pa. Super. 1994) (citation omitted). Moreover,
[i]ntoxication is a matter of common knowledge, and
opinions given by lay people are permissible on the issue.
Commonwealth v. Reynolds,
389 A.2d 1113
(Pa. Super.
1978). However, the lay witness must have sufficient facts
on which to base his opinion before he can express an
opinion on another's intoxication. Commonwealth v.
Hughes,
389 A.2d 1081
(Pa. 1978). See also
Commonwealth v. Summers,
410 A.2d 336
(Pa. Super.
1979) (court concludes witness' observations of the way the
person looked and the way he was walking provided
sufficient factual basis for witness to conclude a person was
intoxicated). The court also looks to the witness' personal
knowledge and observation. Commonwealth v.
Davenport,
386 A.2d 543
(Pa. Super. 1978).
Commonwealth v. Womack,
453 A.2d 642, 648
(Pa. Super.
1982). In addition, we note that lay opinion testimony embracing
an ultimate issue in a case is admissible as long as the witness
perceived the events upon which his opinion is based.
Commonwealth v. Bowser,
624 A.2d 125, 133
(Pa. Super. 1993); see also
Commonwealth v. Horn,
150 A.2d 872, 875
(Pa. 1959) (citation omitted)
(âIntoxication is a matter of common observation and knowledge, and because
of observation, knowledge or experience, the opinions of laymen are
admissible and medical opinion, while of course admissible, is not required.â);
see also Commonwealth v. McLaughlin,
198 A.2d 419, 421
(Pa. Super.
1964) (citations omitted) (âIntoxication is a matter of common observation on
which the opinions of non-experts are generally admissible [but t]he
testimony of a physician is not required.â). More specifically, we previously
determined that âthe intoxicating effects of cocaine and opiates, like the
-22-
J-S44041-23
intoxicating effects of alcohol, are more widely and commonly understood than
the effects of prescription medication.â Commonwealth v. DiPanfilo,
993
A.2d 1262, 1267
(Pa. Super. 2010). Furthermore, this Court has found âno
basis upon which to distinguish opinion testimony of drug-induced intoxication
from opinion testimony of alcohol-induced intoxication where the witness is
personally familiar with the effects of narcotics.â Commonwealth v.
Yedinak,
676 A.2d 1217, 1221
(Pa. Super. 1996) (citations omitted).
In this case, Officer Joseph Santospago, a member of the Warminster
Township Police Department, testified at trial. Officer Santospago testified
that he had experienced â[n]umerous drug arrests, self-initiated and also calls
for service in regard to drugs [and] numerous calls related to drug overdoses,â
estimating that he had been involved in approximately 25 to 30 drug
investigations. N.T., 10/6/2022, at 65 and 67. When investigating a potential
overdose victim, Officer Santospago stated that he typically looks for drug
paraphernalia and narcotics at the scene âto find out what they used.â Id. at
66. He testified that heroin is typically stored in very small plastic bags. Id.
at 66. In responding to the incident at issue, Officer Santospago found a
âclear plastic baggieâ underneath Appellant âknownâ from his experience for
âsnort[ing] narcoticsâ wherein the user âcan put [the bag] in [his] hand and
close [his] fist so [others] wouldnât be able to see it.â Id. at 81. Officer
Santospago testified that Appellant was unresponsive, did not respond to
knocking on a glass door, and when the police forced entry into the residence,
Appellant still did not wake up. Id. at 73. Officer Santospago touched
-23-
J-S44041-23
Appellant âto wake him up, and then he woke up and became alert.â Id. at
79. Officer Santospago testified that, based upon his training and experience,
Appellant displayed common signs of someone waking up from overdosing,
including âbeing confused, distraught, kind of looking [] like he didnât know
what was going on.â Id. at 80. Responding EMT, Donald Rogers, testified
similarly. EMT Rogers stated that, based upon his training and experience,
Appellantâs actions were consistent with someone who had overdosed. Id. at
105 (âWhen someone wakes up from a drug overdose, itâs very typical for
them to be unaware of whatâs going on; agitation is very, very common.
Unresponsiveness with a drug overdose is also very common.â). Ultimately,
EMT Rogers opined that Appellant âwas exhibiting signs and symptoms of a
possible opioid overdose.â Id. at 112.
However, more importantly, both Officer Santospago and EMT Rogers
testified that Appellant admitted to Rogers that âhe snorted heroin.â N.T.,
10/6/2022, at 81 (Officer Santospago stated Appellant âadvised [the EMT]
that he snorted heroin.â); id. at 105 (EMT Rogers testified, âThe patient did
admit to drug usage of snorting one bag of, I believe, heroin, and thatâs in the
[ambulance] medical chart.â). Appellant never challenged these admissions
or argued that they should have been suppressed from trial. Moreover, while
the police body camera footage did not capture an explicit admission, the
-24-
J-S44041-23
video footage played at trial ends as Appellant audibly admits that he snorted
heroin before entering the ambulance. 5
As such, we conclude that the body of uncontradicted evidence in this
case was so overwhelming that the erroneous admission of Appellantâs
medical records could not have impacted the verdict. After he was revived by
first responders, Appellant admitted to the EMT that he had ingested heroin.
At trial, the responding police officer confirmed Appellantâs confession to the
EMT. Moreover, both the responding officer and the EMT opined that, based
upon their training, experience, and personal observations of Appellant,
5 Upon review of the body camera footage identified as Commonwealth Exhibit
C-10, Officer Santospago and Appellant can be heard having the following
conversation on the way to the ambulance:
Officer: How often do you use it?
Appellant: I just started using.
Officer: Whyâd you start? Why would you do something crazy
like that?
Appellant: I just lost my job.
Officer: Yeah, but why the hell would you start heroin?
Appellant: Because I did it when I was younger, when I was
younger, and I havenât done it in 10 years.
Officer: Alright, so itâs the first time âŚ.
Appellant: In 10 years. 10 years.
Officer: Well, thatâs a dumb choice. Weâre going to hop up in
[the ambulance] and have a seat in that chair until we
get the bed ready for you.
Commonwealth Exhibit C-10, at 3:41-4:03.
-25-
J-S44041-23
Appellantâs actions were consistent with a person who overdosed on opiates.
The jury also observed Appellantâs actions when the footage from the police
body camera was played as an exhibit at trial. Because intoxication is a matter
of common observation and knowledge, medical records simply were not
required. Additionally, the small bag found under Appellant, which the
responding officer testified was consistent with snorting heroin for personal
use, provided additional circumstantial evidence that Appellant had recently
consumed opiates. Finally, while Appellant argues that the prison recording
was prejudicial, outweighed its probative value, and should not have been
admitted at trial (an argument we rejected earlier), Appellant agrees that the
excerpt played for the jury contains a statement by Appellant that he
overdosed. See Appellantâs Brief at 30 (âHere, the trial court permitted the
Commonwealth to publish a portion of a prison phone call where Appellant
stated that he overdosedâŚ. Despite the fact that Appellantâs statement is
related to the Commonwealthâs theory of the case, the portion of the call does
not reference any date, place, or time connecting Appellantâs statement giving
rise to the criminal charges.â). The uncontradicted evidence of Appellantâs
voluntary intoxication which endangered the welfare of Child while in his sole
care was so overwhelming in this case that the erroneous admission of
Appellantâs medical records could not have impacted the verdict, and a new
trial is not warranted. Accordingly, we affirm Appellantâs conviction.
Finally, we address Appellantâs contention that the trial court abused its
discretion by imposing the statutory maximum sentence for endangering the
-26-
J-S44041-23
welfare of a child. Appellantâs Brief at 31-26. He claims his sentence of 42 to
84 months of incarceration is manifestly excessive. Id. at 32. More
specifically, Appellant argues that the trial court failed to consider his
rehabilitative needs and the safety of the community and impermissibly relied
upon âAppellantâs alleged failure to cooperate with Bucks County Children and
Youth [Services (CYS)].â Id. at 35.
This claim implicates the discretionary aspects of sentencing and
pursuant to statute, Appellant does not have an automatic right to appeal.
See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, Pa.R.Crim.P. 720; (3)
whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, [42
Pa.C.S.A.] § 9781(b).
Commonwealth v. Cook,
941 A.2d 7, 11
(Pa. Super. 2007).
Here, Appellant has met the first three requirements as set forth above.
Moreover, we conclude that Appellantâs challenge raises a substantial
question. See Commonwealth v. Hill,
210 A.3d 1104, 1116
(Pa. Super.
2019) (finding appellant's claim that trial court failed to consider sentencing
factors and the sentence was excessive raised a substantial question); see
also Commonwealth v. Allen,
24 A.3d 1058
, 1064â1065 (Pa. Super. 2011)
-27-
J-S44041-23
(âThis Court has recognized that a claim that a sentence is excessive because
the trial court relied on an impermissible factor raises a substantial
question.â). We therefore turn to the merits of the claim.
This Court has stated:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review.
Nevertheless, the trial court's discretion is not unfettered. When
imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection
of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the defendant. And, of
course, the court must consider the sentencing guidelines.
Commonwealth v. Coulverson,
34 A.3d 135
, 143â144 (Pa. Super. 2011)
(cleaned up).
Moreover,
whether or not there is a departure from the guidelines, a court
imposing sentence for a felony or misdemeanor shall make part
of the record, and disclose in open court during sentencing, a
statement of the reasons for the sentence. The court is not
required to parrot the words of the Sentencing Code, stating every
-28-
J-S44041-23
factor that must be considered under Section 9721(b). However,
the record as a whole must reflect due consideration by the court
of the statutory considerations enunciated in that section.
Id. at 145
(citation and original brackets omitted). Where the sentencing
court has the benefit of a pre-sentence investigation report (PSI), we presume
it was aware of all appropriate sentencing factors and such consideration
satisfies the requirement that the court place its reasoning on the record. See
Commonwealth v. Johnson-Daniels,
167 A.3d 17, 26
(Pa. Super. 2017)
(citation omitted).
An appellate court shall vacate a sentence and remand the case to the
sentencing court if, inter alia, âthe sentencing court purported to sentence
within the sentencing guidelines but applied the guidelines [erroneously or]
the sentencing court sentenced within the sentencing guidelines[,] but the
case involves circumstances where the application of the guidelines would be
clearly unreasonable.â 42 Pa.C.S.A. § 9781(c)(1-2). An appellate court
should also vacate a judgment of sentence and remand a case âif the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.â 42 Pa.C.S.A. § 9781(c)(3). âIn all other cases the
appellate court shall affirm the sentence imposed by the sentencing court.â
42 Pa.C.S.A. § 9781(c).
Upon review of the certified record and applicable law, we discern that
the trial court did not abuse its discretion in sentencing Appellant. Initially,
we note that the trial court had the benefit of a PSI report, so we assume that
the trial court was aware of all of the appropriate factors when sentencing
-29-
J-S44041-23
him. See N.T., 1/17/2023, at 24 (âYour Honor, the PSI is very, very
detailed.â); see also id. at 35 (âYou insist, even when theyâre writing this
[PSI report] that you did not overdose, that you were just sleeping.â). At
sentencing, the trial court also considered testimony from Appellantâs
girlfriend and mother of Child and a letter from her cousin. Id. at 18-23. The
trial court considered the PSI report and sentencing guidelines and, ultimately,
determined that an aggregated range sentence of 42 to 84 months was
appropriate. Id. at 31 and 38. The trial court noted Appellantâs adult criminal
history included ânine arrests, five convictions, 11 commitments, and a
violation of probation and four violations of parole.â Id. at 31. While
imprisoned, Appellant consistently engaged in misconduct. Id. at 36 (â[Y] our
misconducts when youâre in jail [--] youâre getting five [to] seven misconducts
every time.â); see also id. at 11-17 (discussing two specific incidents of
recent prison misconduct in October 2022). The trial court further recognized
that a prior judge told Appellant to receive inpatient drug treatment, which he
refused. Id. at 32. Appellant was also âordered to have no unsupervised
visitation with [Child]â but was arrested in this matter while she was alone in
his care. Id. Appellant later refused to cooperate with CYS. Id. at 33.
Ultimately, the trial court stated that Appellant had not taken responsibility
for endangering the welfare of Child:
Iâve reviewed the nature and circumstances of the crime and the
history, character and condition of [Appellant]. I believe that
there is an undue risk that Appellant will commit another crime. I
believe that any lesser sentence would depreciate the seriousness
-30-
J-S44041-23
of this crime, and I believe that the defendant is in need of
correctional treatment[.]
Id. at 38. Further, in its subsequent opinion, the trial court noted that
âthroughout the sentencing proceeding, [Appellant] answered every question
with an excuse[, lack[ed] accountability, fail[ed] to take any responsibility for
his actions, and [found] his attitude demonstrate[d] a continuing disrespect
for the law and authority.â Trial Court Opinion, 6/8/2023, at 17 (emphasis in
original). Upon review, we discern no abuse of discretion. The trial court
clearly considered the protection of the public, the gravity of the offense in
relation to impact on victim and community, and the rehabilitative needs of
Appellant and provided ample reasons on the record for its imposition of
sentence. Accordingly, Appellantâs challenge to the discretionary aspects of
his sentence fails.
Judgment of sentence affirmed.
Judge Nichols joins this Memorandum.
Judge Colins files a Concurring and Dissenting Memorandum.
Date: 12/30/2024
-31-Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- December 30, 2024
- Status
- Precedential