Commonwealth v. Brown, 139 A.3d 208

On Dec. 9, 2012, Darnell Brown shot Cory Morton multiple times at a public gathering; Morton died from chest gunshot wounds.
Brown was tried with a co-defendant and convicted by a jury of third-degree murder and several weapons offenses; sentenced to 25–50 years.
The autopsy was performed by Dr. Marlon Osbourne; his autopsy report and photos were reviewed by Dr. Albert Chu, who did not perform the autopsy but testified at trial as an expert about cause and manner of death.
The autopsy report prepared by Dr. Osbourne was admitted into evidence though Osbourne did not testify and was not subjected to cross-examination.
Brown appealed, arguing admission of the autopsy report and Dr. Chu’s testimony regarding Osbourne’s findings violated the Sixth Amendment Confrontation Clause.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the autopsy report and testimony relaying its conclusions violated the Confrontation Clause	Commonwealth: autopsy report non-testimonial or Chu offered independent opinion; report used routinely and not targeted at defendant	Brown: autopsy report was testimonial and admitting it (and Chu repeating Osbourne’s conclusions) denied confrontation rights	Autopsy report is testimonial when death is sudden/violent/suspicious; admission without author testifying violated Confrontation Clause, but Chu’s independent opinions were admissible; error was harmless

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause requires testimony-bearing witnesses to be subject to cross-examination)
Michigan v. Bryant, 562 U.S. 344 (testimonial evidence admissible only if witness unavailable and defendant had prior opportunity for cross-examination)
Commonwealth v. Yohe, 79 A.3d 520 (Pa.) (primary-purpose test for determining whether out-of-court statements are testimonial)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (surrogate testimony cannot substitute for the testimony of the analyst who made the testimonial report)
Williams v. Illinois, 132 S. Ct. 2221 (plurality and fractured opinions addressing when experts may rely on inadmissible forensic reports)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (certificates of forensic analysis are testimonial)
United States v. Ignasiak, 667 F.3d 1217 (11th Cir.) (autopsy reports are testimonial)
Commonwealth v. Daniels, 390 A.2d 172 (Pa.) (an expert may testify as to cause of death based on review of non-testifying examiner’s report)
Commonwealth v. McCloud, 322 A.2d 653 (Pa.) (historical Pa. precedent limiting use of autopsy reports without opportunity for confrontation)