223 A.3d 260
Pa. Super. Ct.2019Background
- On Aug. 18, 2016, Officer Stanley Kaluza received an NCMEC/FBI tip about a Backpage posting advertising possible underage prostitution and called the listed number as an undercover officer.
- The caller/texts provided an address (2422 Rhawn St.) and instructions; Kaluza arrived undercover, was admitted by Appellant, and was escorted upstairs to rooms where three Asian women in lingerie were presented.
- One woman, Xiu, interacted with Kaluza, discussed sexual services/prices, and, when asked who the male downstairs was, replied “he’s the manager.”
- Kaluza had radioed for backup just before asking who the male downstairs was; Xiu was unavailable to testify at trial.
- The trial court admitted Xiu’s out-of-court statement under the coconspirator hearsay exception (Pa.R.E. 803(25)(E)). Appellant was convicted after a non-jury trial and sentenced; he appealed on Confrontation Clause grounds.
- The Superior Court concluded Xiu’s remark was testimonial (not an emergency), that Appellant had no prior opportunity to cross-examine Xiu, and vacated the judgment of sentence, remanding for a new trial.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Lu) | Held |
|---|---|---|---|
| Whether admitting Xiu’s out‑of‑court statement identifying Appellant as “the manager” violated the Sixth Amendment Confrontation Clause | Statement was non‑testimonial and admissible as coconspirator hearsay (court relied on precedents like Holton) | Statement was testimonial; Xiu was unavailable and Appellant had no prior opportunity for cross‑examination, so admission violated the Confrontation Clause | Statement was testimonial; admission violated Confrontation Clause; conviction vacated and case remanded for new trial |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause requires unavailability and prior cross‑examination for testimonial statements)
- Davis v. Washington, 547 U.S. 813 (2006) (adopted the "primary purpose" test to distinguish testimonial from non‑testimonial statements)
- Commonwealth v. Allshouse, 36 A.3d 163 (Pa. 2012) (explains factors for assessing primary purpose of interrogation)
- Commonwealth v. Dyarman, 73 A.3d 565 (Pa. 2013) (applies Davis and discusses primary purpose test)
- Commonwealth v. Holton, 906 A.2d 1246 (Pa. Super. 2006) (earlier panel held similar out‑of‑court statement non‑testimonial; distinguished here)
- United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005) (wiretap decision relied on in Holton to characterize statements as non‑testimonial)