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Commonwealth v. Walters

Supreme Court of Pennsylvania
Sep 23, 2024
323 A.3d 151 (Pa. 2024)

Opinion

No. 102 MAP 2022

09-23-2024

COMMONWEALTH of Pennsylvania, Appellee v. Phillip Donald WALTERS, Appellant

Robert Michael Buttner, Esq,, for Appellant. Deborah Albert-Heise, Esq., Joseph Camille Peters, Esq., Wyoming County District Attorney’s Office, for Appellee.


Appeal from the Order of the Superior Court dated April 5, 2022 at No. 446 MDA 2021 Affirming the Judgment of Sentence of the Wyoming County Court of Common Pleas, Criminal Division, dated December 10, 2020 at No. CP-66-CR-0000058-2019. Dudley N. Anderson, Senior Judge

Robert Michael Buttner, Esq,, for Appellant.

Deborah Albert-Heise, Esq., Joseph Camille Peters, Esq., Wyoming County District Attorney’s Office, for Appellee.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

CHIEF JUSTICE TODD

In this appeal by allowance, we consider whether the trial testimony of the Commonwealth’s expert, a pathologist who opined that the victim’s cause of death was "strangulation by history," was offered to a reasonable degree of medical certainty, the requisite standard for admissibility of this type of expert testimony. We find that it was not, and, for reasons discussed below, conclude that Appellant Phillip Walters is entitled to a new trial.

At approximately 5:15 p.m. on December 30, 2018, Appellant called 911 to report that his girlfriend, 24-year-old Hayley Lorenzen, was missing. Lorenzen had recently moved into Appellant’s apartment, which Appellant shared with his 10-year-old son. According to Appellant, the three had stayed up late the prior evening, and, when Appellant awoke, he discovered that Lorenzen was not in the apartment. Appellant indicated that, prior to calling 911, he contacted Lorenzen’s father to see if he had heard from her; when her father stated that he had not heard from her, Appellant decided to contact the police. Apparently being advised that he needed to wait 24 hours to report a person missing, Appellant contacted the police at approximately the same time on the following day, December 31, 2018. On January 1, 2019, the police met Appellant at his residence to complete a missing person report, and Appellant showed the police several of Lorenzen’s belongings, such as her clothing.

On January 9, 2019, an attorney for Gabel Bell ("Bell") contacted the Wyoming County District Attorney’s Office, indicating that his client had information regarding Lorenzen’s death. During a subsequent interview with the Pennsylvania State Police, Bell stated that Appellant killed Lorenzen. Bell explained that she met Appellant online in September 2018, and they began a sexual relationship, typically communicating through text messages, although they also met in person. According to Bell, the relationship involved the infliction of physical pain for sexual pleasure, and dark fantasies, including the fantasy of Appellant choking and killing Bell. Bell ended the relationship in October, when Lorenzen moved in with Appellant, but resumed it after a few weeks. However, in November, Bell told Appellant that she did not want to be in a relationship with someone who was living with someone else. Appellant told her he was "working on" breaking up with Lorenzen. N.T., 10/21/20, at 13. On December 27, 2018, Bell and Appellant were texting each other about a sexual fantasy, and Appellant asked Bell to describe how she would kill Lorenzen and how they would dispose of her body; Bell claimed Appellant specifically mentioned throwing Lorenzen’s body into the river. Id. at 17. Bell stated that, on December 29, 2018, she texted Appellant to end their relationship.

According to Bell, on the morning of December 30, 2018, Appellant sent her a series of text messages stating that he and Lorenzen had been drinking the night before, and that he had wanted to hurt her. Appellant asked Bell to stop texting and switch to Snapchat, so that their messages would disappear after a short period of time. Appellant then sent Bell a picture of Lorenzen lying on the bathroom floor, suggesting that "she might be hurt or she might even be dead." Id. at 21. Appellant asked Bell to come to his home, and Bell immediately went to Appellant’s apartment and observed that Lorenzen was dead. She stated that Appellant told her he attempted to choke Lorenzen and break her neck while she was asleep, but that she woke up and became upset and nauseous and went into the bathroom, and that, as Lorenzen leaned over the toilet, Appellant struck her on the back of the head with a hammer and choked her to death. Bell stated that Appellant instructed her to remove a necktie that he had tied around Lorenzen’s neck and clean the apartment, and she complied. Appellant then placed plastic grocery bags around Lorenzen’s hands and face, and placed her body into the trunk of his car, tying trash bags containing rocks around her body. Bell then rode with Appellant to a nearby bridge, where Appellant threw Lorenzen’s body into the river. Based on the information provided by Bell, Appellant was arrested and charged with first-degree murder.

Notes of Testimony ("N.T."), 10/26/2020, at 18.

The majority asserts "the information ‘utilized’ by Dr. Ross to reach his conclusion was not provided by the police." Majority Opinion at 164 n.13. Although it is true the relevant information came from Bell, it was the police who gave that information to Dr. Ross. See N.T. Trial, 10/26/20, at 14 (defense counsel asserting "the only way [Dr. Ross] got that information was through the police").

"[A] Frye hearing, named after the seminal decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), is a hearing held for the trial court to determine whether the general scientific community has reached a general acceptance of the principles and methodology used by the expert witness." Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766, 769 n.1 (2014). "[A] hearing is warranted only when the trial court ‘has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.’" Commonwealth v. Jacoby, 642 Pa. 623, 170 A.3d 1065, 1091 (2017). Clearly, an objection to the methodology and a request for a Frye hearing was an appropriate legal vehicle for Appellant to raise the issue in this case, which he failed to do.

On July 20, 2019, Lorenzen’s remains were found in the Susquehanna River, and the Commonwealth subsequently amended the criminal information to include charges of strangulation and abuse of a corpse. At trial, in addition to the above-described testimony of Bell, the Commonwealth presented, inter alia, the testimony of the director of 911 for Wyoming County, who testified regarding the calls he received from Appellant; and the testimony of Appellant’s upstairs neighbor, who testified that, while she usually saw Appellant dressed in shorts and a t-shirt, on the days following December 30, 2018, she saw him wearing long sleeves, and that Appellant texted her to see if she had seen Lorenzen. The Commonwealth also presented the testimony of several individuals, including a friend of Appellant and Lorenzen’s father, indicating that Appellant contacted them on December 30, 2018 to see if they had heard from Lorenzen.

Id. § 2718(a)(1).

Id. at 32.

In his brief, appellant claims this "issue was preserved in a pretrial motion filed on October 22, 2019, in his argument during trial, (N.T. [Trial], 10/26/20, [at] 13-16), and in post-sentence motions filed on December 21, 2020." Appellant’s Brief at 24. But, as discussed above, no bolstering claim can be found in appellant’s motion in limine. As for his citation to the trial record, it also reveals no bolstering claim. Instead, within the cited passage appellant only "objected to certain portions of [Dr. Ross’s] report coming in as evidence because they constitute hearsay." N.T. Trial, 10/26/20, at 13 (emphasis added); see also N.T. Trial, 10/20/20, at 35 (arguing Dr. Ross’s reference to strangulation "by history" "is to that extent hearsay"). A hearsay claim is obviously distinct from a bolstering claim, and the preservation of one does not suffice to preserve the other.

See e.g., Motion, 10/22/19, at 10, ¶ 30 ("[T]he District Attorney has infected the independence of an expert witness[’] report required to be issued by law by counseling or suborning the expert to infect the report with hearsay, supposition, and inflammatory rhetoric."). See also id. at 12, ¶ 40 (stating, in the context of seeking the dismissal of all charges, "that the Cause of Death’ identified as ‘Strangulation (By History)’ is a statement unsupported to a reasonable medical certainty and, as such, has no place [i]n a report purporting to be an independent medical examination") ¶ 41 (claiming, under the header "the district attorney is creating expert evidence to prejudice the jury," that "hearsay statements couched as ‘by history’ are also unsupportable by the evidence collected and do not constitute findings of a medical nature regularly found in similar reports" (unnecessary capitalization omitted)); ¶ 42 (asserting that Dr. Ross "has become a de facto agent of the District Attorney’s Office") and id. at 10, ¶ 32 ("[T]he claimed ‘[h]istory’ is merely hearsay upon hearsay.").

Id. § 5510.

Id.

Although we may raise waiver sua sponte, we are not required to do so, and sometimes there are good reasons to decline. See Commonwealth v. Wolfel, 660 Pa. 192, 233 A.3d 784, 790, 790 n.5 (2020) (concluding the Commonwealth’s waiver argument was waived where it was advanced for the first time on appeal, with the Commonwealth in the position of appellant), citing Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440, 464 n.23 (2016) (same); In re Estate of Plance, 644 Pa. 232, 175 A.3d 249, 270 (2017) ("the instant case falls within the class of circumstances in which this Court will undertake merits review of issues that may have been deemed to be waived, because an opposing party failed to advance a waiver contention before the appropriate court"); Sanchez, 82 A.3d at 972 n.10 ("as the Commonwealth has ‘waived the waiver’ in these instances, we will proceed to a merits disposition of those claims because we see substantive review as the most efficient manner of resolving the questions raised").

Rather, he sought to prohibit the introduction of Dr. Ross’ report and any testimony related thereto because the report was "not produced and [the] independence of [the] expert [was in] question." Id. at 17 (unnecessary capitalization omitted). See also id. (reiterating that "the report contains inflammatory conclusions and statements that are not the proper subject of a medical report").

Various law enforcement officials testified regarding their interviews with Appellant, his son, and Bell, as well as their search of Appellant’s residence. Additionally, a forensic specialist testified that he tested a red stain found in Appellant’s bathtub, but that it testified negative for human blood. The forensic specialist explained that he used "Bluestar," a substance similar to luminol, to test for blood on other areas of the bathroom, and that the testing revealed luminescence on the door handle, sink, tub, floor, and some of the walls. However, the specialist conceded that Bluestar can result in false positives, particularly if there is an animal present in the area, and he acknowledged that Appellant had a dog. The forensic specialist also stated that, prior to using Bluestar, he inspected the bathroom, including the walls, sink, toilet, tub, and plumbing, and it appeared that it had "been a long time since they were cleaned." N.T., 10/22/20, at 186.

Finally, the Commonwealth presented the testimony of Dr. Gary Ross, the pathologist who conducted an autopsy of Lorenzen’s body. Dr. Ross testified that, at the time Lorenzen’s body was discovered, it was "in a very advanced state of decomposition"; that there "was almost complete skeletonization of the head and neck organs"; and that he "didn’t see evidence of any overt injury on the body per se externally when [he] examined it." Id. at 18.

"Skeletonization" is defined as extreme emaciation, or the removal of soft parts from the skeleton. Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health (7th ed.).

See Maj. Op. at 163–64, 166, and 166–67.

See N.T. Trial, 10/26/20, at 195 (instructing the jury that to find appellant guilty of abuse of a corpse, "you must find beyond a reasonable doubt that [appellant] treated the corpse of [the victim] in a way that he knew would outrage ordinary family sensibilities and in this case by dumping the corpse — by allegedly dumping the corpse in the Susquehanna River"); see also N.T. Hearing on Post-Sentence Motions, 1/27/21, at 15 (defense counsel arguing the jury "relied upon [Dr. Ross]’s testimony to find [appellant] guilty of First Degree Murder and Strangulation" but making no argument about abuse of a corpse).

In addition to referencing his pre-trial motion, in his brief to this Court, Appellant asserts that he preserved his issue "in his argument during [ ] trial[.]" Appellant’s Brief at 24 (citing N.T., 10/26/20, at 13-16). However, the cited portion of the transcript reveals only an objection to the admissibility of certain parts of the pathologist’s report on hearsay grounds.

Nevertheless, Dr. Ross testified that it was his conclusion that Lorenzen "died by strangulation which was by history." Id. at 31. Specifically, he stated:

[t]here was no anatomic indication that she was actually strangled. If I looked at the body alone without any history, I could not say that. It would have to be an undetermined death. … I had no physical actual evidence that a strangulation occurred other than the history. The history to me was very important because I saw no other possible cause of death either.

Id. at 31-32.

On cross-examination, Dr. Ross explained that he "determined the cause and manner of death by history and the exclusion of everything else from the autopsy." Id. at 48. He clarified that "somebody else’s statements are the history. And that’s what I refer to. And that’s what I based my findings largely upon." Id. at 49. The statements Dr. Ross relied on were Bell’s. Dr. Ross reiterated that there was "no physical evidence to support" a determination that Lorenzen’s death was the result of strangulation. Id. at 53.

Bell’s testimony was the only testimony stating that Lorenzen had been strangled.

Kanayo Tatsumi, M.D., & Michael Graham, M.D., Death Investigation in the United States: Forensic Pathology, Missouri Medicine, September/October 2022, 119:5, at 411.

See Commonwealth’s Brief at 10 ("Regarding the process of elimination, Dr. Ross testified as follows: Lorenzen had no external trauma [other than the absent hands and feet], Lorenzen had no congenital anomalies. Lorenzen had no heart disease. Lorenzen had no diseases of the pulmonary system, liver, pancreas, spleen, or adrenals. Lorenzen had no disease or trauma to the genitourinary system or gastrointestinal tract" (internal citations omitted)).

The jury convicted Appellant of the aforementioned offenses, and he was sentenced to life imprisonment without parole. Appellant filed a post-sentence motion, arguing, inter alia, that the trial court erred in allowing Dr. Ross to offer an opinion regarding Lorenzen’s cause of death because his conclusions were not rendered to a reasonable degree of medical certainty, and, in fact, were not medical conclusions at all, as they were based solely on Bell’s account of the events. The trial court denied Appellant’s post-sentence motion, and, in its opinion in support thereof, stated:

Dr. Ross testified to a reasonable degree of medical certainty that Ms. Lorenzen’s death was strangulation, by history. There was certainly adequate testimony from numerous other witnesses regarding the cause of Ms. Lorenzen’s death and as such, the jury was able to conclude beyond a reasonable doubt that the cause of death was strangulation.

Trial Court Opinion, 3/11/21, at 7.

Appellant appealed his judgment of sentence to the Superior Court, arguing, inter alia, that Dr. Ross’ testimony that the cause of Lorenzen’s death was strangulation by history was not based on objective medical findings and was not rendered to a reasonable degree of medical certainty; further, he argued that Dr. Ross’ testimony improperly bolstered the credibility of Bell. The Superior Court affirmed Appellant’s judgment of sentence in a unanimous, unpublished memorandum opinion. Commonwealth v. Walters, 2022 WL 1016624 (Pa. Super. filed Apr. 5, 2022). In rejecting Appellant’s argument that Dr. Ross’ opinion as to Lorenzen’s cause of death was not rendered to a reasonable degree of medical certainty because it was based solely on Bell’s account of the victim’s death, the Superior Court posited that our precedent permits a medical examiner to rely on case history in formulating an opinion on cause of death, specifically noting that, in Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207 (2006), we

wrote with apparent approval of the coroner’s reliance on case history to arrive at a cause of death: "At trial, the coroner stated that [the victim’s] cause of death was ‘strangulation by history,’ which refers to the events immediately preceding the death, […] this conclusion was apparently based, in part, upon the occurrences as related by Appellant in his statement to police."

Walters, 2022 WL 1016624 at *6 (quoting Bullock, 913 A.2d at 211) (alterations original). Thus, the Superior Court rejected Appellant’s argument that, because the trial court allowed Dr. Ross "to consider Bell’s account of the victim’s death," his opinion as to cause of death did not meet the admissibility standard for expert testimony. Walters, 2022 WL 1016624 at *6.

The Superior Court also rejected Appellant’s argument that Dr. Ross’ testimony improperly bolstered Bell’s credibility. In particular, the court noted that Dr. Ross testified that he was unable to determine if Lorenzen had suffered neck trauma, and, therefore, his testimony, in fact, did not corroborate Bell’s claim that Lorenzen had been strangled. The court further highlighted that Dr. Ross testified that he saw no evidence that Lorenzen’s bones were broken, which he would expect if, as Bell claimed, she had been dropped from a bridge, depending on the length of the drop; nor did he observe any fractures of Lorenzen’s skull, which would corroborate Bell’s testimony that Lorenzen had been hit on the head with a hammer.

[1] Appellant filed a petition for allowance of appeal with this Court, and we granted review to consider whether the trial court should have excluded Dr. Ross’ expert testimony regarding Lorenzen’s cause of death on the basis that it was not offered within a reasonable degree of medical certainty, and whether Dr. Ross’ testimony improperly bolstered the credibility of Bell.

Although Justice Dougherty agrees with our determination that Dr. Ross’ opinion that the victim was strangled "was not offered within a reasonable degree of medical certainty and should have been excluded at trial," he indicates that he is unable to join our holding that Dr. Ross’ testimony impermissibly encroached upon the jury’s determination of Bell’s credibility because Appellant waived this claim as he did not raise it at trial. Concurring and Dissenting Opinion (Dougherty, J.) at 172. However, as Justice Dougherty observes, the Commonwealth does not argue that Appellant waived this claim. Id. at 173. Further, in his brief on appeal to the Superior Court, Appellant included this specific argument in his challenge to the admission of Dr. Ross’ testimony, and the Superior Court addressed this claim. Finally, in response to Appellant’s petition, this Court granted review to determine whether the Superior Court erred in admitting Dr. Ross’ testimony "which was devoid of any objective medical findings and did not comport with a conclusion or opinion ‘within a reasonable degree of medical certainty’ thereby not only improperly bolstering the credibility of Gabel Bell but depriving [Appellant] of his right to due process and a fair trial." Commonwealth v. Walters, 286 A.3d 710 (Pa. filed Oct. 18, 2022) (order). Accordingly, we are disinclined to sua sponte find this issue to be waived.

Id.

Justice Wecht, citing Walsh v. BASF Corp., 660 Pa. 313, 234 A.3d 446, 456 (Pa. 2020) (discussing, inter alia, the Frye test), emphasizes that it is the proponent of expert testimony that must demonstrate its admissibility. See Concurring Opinion (Wecht, J.), at 170 n.16. I do not disagree. However, critically, Appellant never raised any evidentiary challenge to the methodology employed by Dr. Ross. Also, Appellant neither sought a Frye hearing, nor did he meaningfully counter Dr. Ross’ testimony that relying on case history to formulate an opinion on cause of death to a reasonable degree of medical certainty is accepted practice within the medical community. Stated differently, the defense who stipulated to Dr. Ross’ role as an expert in this case did not seek to counter the expert’s testimony in any meaningful way.

[2,3] Preliminarily, we note that the admission of evidence is solely within the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. Commonwealth v. Le, 652 Pa. 425, 208 A.3d 960, 970 (2019). An abuse of discretion is not simply an error of judgment, but is an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will, or partiality. Commonwealth v. Talley, Pa. , 265 A.3d 485, 530 (2021).

[4] Rule 702 of our Rules of Evidence provides that expert testimony is generally admissible if: the witness has a specialized knowledge beyond that possessed by the average layperson; such knowledge will help the trier of fact to understand the evidence or determine a fact in issue; and the expert’s methodology is generally accepted in the relevant field. Pa.R.E. 702; see also Commonwealth v. Maconeghy, 642 Pa. 770, 171 A.3d 707, 712 (2017). An expert may not, however, opine on issues relating to the credibility of witnesses, as the determination of witness credibility is exclusively for the finder of fact. Id. (holding that doctor’s expert opinion that a child was sexually abused, which was based solely on witness accounts and not physical findings, was inadmissible because his opinion invaded the jury’s province as the sole arbiter of witness credibility).

Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant field.
Pa.R.E. 702.

Id.

In fact, the majority seemingly acknowledges that there are circumstances in which a pathologist may rely on case history when forming an opinion. See Majority Op. at 164 ("We need not decide in this case the extent to which an expert may rely on case history in formulating his or her opinion as to cause of death … [.]").

[5,6] In addition to meeting the above general requirements for expert testimony, in order for a medical opinion regarding an individual’s cause of death to be considered by the trier of fact, it must be shown that the expert "entertained a reasonable degree of medical certainty for his conclusions." Commonwealth v. Williams, 455 Pa. 539, 316 A.2d 888, 891 (1974). An expert’s opinion regarding cause of death is offered within a reasonable degree of medical certainty when it is based on medical observations and conclusions. See, e.g., Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1160 (2000) (as pathologist "clearly explained the medical basis for all of his conclusions … it is clear that his opinions were based upon a reasonable degree of medical certainty"); Commonwealth v. Davido, 630 Pa. 217, 106 A.3d 611, 628-29 (2014) (in holding appellant failed to demonstrate ineffectiveness of counsel based on counsel’s failure to challenge pathologist’s expert testimony as unreliable, we observed that pathologist’s determination as to cause of death, offered within a reasonable degree of medical certainty, was based on a number of "observable factors").

Appellant maintains that Dr. Ross’ expert opinion as to Lorenzen’s cause of death was not offered within a reasonable degree of medical certainty, and, thus, was inadmissible, because it was not based on objective medical findings, and, further, "could not be drawn from even the process of elimination … due to decomposition" of Lorenzen’s body. Appellant’s Brief at 31. In this regard, Appellant highlights Dr. Ross’ testimony that, in light of the body’s advanced stage of decomposition, he was unable to detect from an external examination any signs of overt injury, such as knife or gunshot wounds, or needle marks; that he was unable to observe any signs of bleeding or trauma to the brain because it was necrotic and liquified, so much so that, although he took tissue samples, they would not have been interpretable; that, although he suspected, based on his internal examination of the body, that Lorenzen did not suffer from heart, lung, liver, or other such diseases, his findings were "questionable" due to the necrotic state of the organs; and that he was unable to observe any sign of injury to the head and neck area because they were skeletonized and the cartilage structures were missing due to decomposition. Id. at 32.

Appellant further emphasizes that, in explaining the basis for his opinion that Lorenzen’s cause of death was "strangulation which was by history," Dr. Ross conceded:

[t]here was no anatomic indication that she was actually strangled. If I looked at the body alone without any history, I could not say that. It would have to be an undetermined death. … I had no physical actual evidence that strangulation occurred other than the history. The history to me was very important because I saw no other possible cause of death either.

N.T., 10/26/20, at 31-32.

Appellant additionally challenges the Superior Court’s reliance on this Court’s decision in Bullock. In Bullock, the appellant went to the police department and reported that, approximately one week earlier, he strangled his pregnant girlfriend to death and placed her body in a closet in their apartment. The appellant was charged with third-degree murder and voluntary manslaughter. At trial, the coroner testified that, based on the autopsies of the victim and her unborn child, the victim’s cause of death was "strangulation by history," a conclusion that "was apparently based, in part, upon the occurrences as related by Appellant in his statement to police." 913 A.2d at 211. The appellant was found guilty but mentally ill, and was sentenced to an aggregate term of 20 to 60 years imprisonment. He appealed to the Superior Court, which affirmed. On further review, we affirmed; we did not, however, address the admissibility of the coroner’s testimony. Appellant avers that Bullock is distinguishable from the instant case because the appellant therein admitted to strangling the victim, whereas Appellant denies harming Lorenzen; further, he notes that the admissibility of the pathologist’s opinion in Bullock was neither raised by the appellant, nor addressed by this Court. Instead, Appellant suggests that this case is "more akin" to the Superior Court’s decision in Commonwealth v. Passmore, 857 A.2d 697 (Pa. Super. 2004). Appellant’s Brief at 39. In Passmore, the appellant, charged with the kidnapping and murder of his ex-girlfriend, pled guilty to murder generally. At a subsequent degree of guilt hearing, a pathologist testified that, although she was unable to observe any evidence of traumatic injury due to the advanced decomposition of the body, she was able to eliminate various causes of death and, based on information from the crime scene, her examination of the body, the toxicology report, and the discovery of a pillow case containing blood and saliva that matched the victim’s DNA, opined that the victim’s cause of death was "most likely" and "probably" asphyxia. Passmore, 857 A.2d at 713. The trial court convicted the appellant of second-degree murder, and he appealed to the Superior Court, challenging, inter alia, the weight of the evidence for his kidnapping conviction. Relevant herein, the appellant argued that the trial court should not have considered the pathologist’s opinion as to the victim’s cause of death because it was not offered within a reasonable degree of medical certainty.

The appellant’s conviction for second-degree murder was based on his conviction for felony kidnapping.

Id.

Also, and assuming arguendo that this claim is properly preserved, I disagree with the suggestion that Dr. Ross’ testimony improperly bolstered Bell’s credibility. See Commonwealth v. Maconeghy, 642 Pa. 770, 171 A.3d 707, 715 (2017) (holding that "expert testimony opining that a child has been sexually abused—which is predicated on witness accounts and not physical findings—is inadmissible"). Unlike the expert in Maconeghy, some of Dr. Ross’ statements contradicted Bell’s trial testimony, as Dr. Ross relayed that "he was unable to corroborate several of Bell’s statements, including that Lorenzen had been struck by a hammer prior to her death, and that her body had been dropped from a great height." Majority Op. at 161 (footnote omitted). See also Maconeghy, 171 A.3d at 715 (emphasizing the limited nature of its decision, as this Court was "not presently assessing whether, or under what circumstances, such evidence may be appropriate in light of physical findings or as fair response on redirect examination or in rebuttal"). Dr. Ross also qualified his statements regarding the cause of death, explaining that his conclusion was strangulation by history. Thus, the doctor was forthcoming regarding his consideration of Bell’s statements when formulating an opinion on cause of death. Bell’s credibility, however, was still for the jury to decide.

The Superior Court agreed with the appellant that the pathologist’s use of the term "probably" to qualify her medical opinion directly contravened her claim that her opinion was rendered with "reasonable certainty." Id. (citing Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975) (holding admission of medical expert’s testimony as to cause of death was proper because expert testified emphatically and without qualification as to cause of death); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968) (holding medical expert’s testimony as to cause of death was insufficient to establish legal causation because he stated defendant’s assault on victim "probably" caused his death)). Notably, however, the court in Passmore determined that the admission of the pathologist’s testimony was harmless error in light of the fact that the appellant admitted to killing the victim, and that the method of the victim’s murder was immaterial to the appellant’s conviction for second-degree murder.

Appellant also discusses at length the Iowa Supreme Court’s decision in State v. Tyler, 867 N.W.2d 136 (Iowa 2015), wherein the court held, inter alia, that an expert’s opinion on the cause and manner of a newborn baby’s death was inadmissible because it was not sufficiently based on objective medical findings, but on the defendant’s conflicting statements to police. The appellant in Tyler hid her pregnancy from her family and gave birth in a hotel room. Housekeeping staff eventually discovered the deceased newborn in a trash can. When interviewed by police, the appellant gave inconsistent statements, first stating that the baby was stillborn, and then stating that it was born alive, crying and moving, at which time she placed him in the bathtub and drowned him. At the appellant’s trial, a pathologist testified that the cause of the newborn’s death was drowning, and the manner of death was homicide. However, the pathologist admitted that his opinion on the cause and manner of death was based primarily, if not exclusively, on the appellant’s uncorroborated statements to police, as opposed to objective medical findings. See id. at 164 (noting pathologist’s statement that "without the witness statements, I could not have diagnosed drowning in this case"). The Iowa Supreme Court concluded that the pathologist’s opinion was not sufficiently based on objective medical findings, and, further, that his testimony amounted to impermissible commentary on the appellant’s credibility.

Along these lines, Appellant likewise contends that Dr. Ross’ opinion improperly bolstered and vouched for the credibility of Bell. He submits that this Court has consistently prohibited such testimony on the basis that it "encroaches upon the province of the jury and improperly and unfairly enhances the credibility of the witness." Appellant’s Brief at 53 (citing Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Balodis, 560 Pa. 567, 747 A.2d 341 (2000); and Commonwealth v. Hernandez, 420 Pa.Super. 1, 615 A.2d 1337 (1992)). With respect to the Superior Court’s determination that, because Dr. Ross admitted he found no objective evidence to substantiate Bell’s claim that Lorenzen was strangled, his testimony did not impermissibly bolster Bell’s credibility, Appellant suggests that the court overlooked the fact that Dr. Ross admitted that he relied on Bell’s statements for his opinion that Lorenzen was, in fact, strangled. Id. Thus, Appellant submits that, under this Court’s decision in Maconeghy, Dr. Ross was precluded from offering an opinion that was based solely on information provided by Bell, rather than his objective physical findings.

In response, the Commonwealth, highlighting the liberal standard for qualification of expert witnesses, argues that the admission of Dr. Ross’ testimony was proper because it was "based on both historical data as well as objective findings through autopsy and the process of elimination," which the Commonwealth suggests is "standard practice in the field of forensic pathology, and falls outside the ken of the average lay person." Commonwealth’s Brief at 13 (emphasis omitted). The Commonwealth further submits that, on several occasions, Pennsylvania courts have approved the admission of expert testimony regarding the cause of death that was based on anecdotal history. Id. at 14-15 (citing Bullock and Williams).

In Williams, the appellant was charged with the first-degree murder of a wheelchair-bound woman with whom she lived. The victim’s remains were discovered in the residue of a fire. At the appellant’s trial, a medical pathologist testified that, "in his opinion based on a reasonable degree of medical certainty, death was caused by burning and asphyxiation." 316 A.2d at 891. The pathologist stated that "he arrived at this conclusion by the absence of any other evidence of major trauma sufficient to cause death except the fire." Id. The pathologist admitted that the condition of the body "did not permit him to exclude all possible causes of death unrelated to trauma but reasoned that the attempt to conceal the body suggested a cause of death other than one of natural means." Id. The trial court excluded the testimony on the basis that the pathologist "had not testified to the cause of death using the standard of reasonable doubt." Id. In the instant case, the trial court cited Williams in support of its denial of Appellant’s post-sentence motion. The Superior Court concluded, however, that our opinion in Williams was dicta, as the trial court in that case had excluded the pathologist’s testimony, and it further opined that Williams is factually distinguishable from the instant case because, in Williams, "there was some physical evidence to support the pathologist’s conclusions," whereas, "in contrast, the only evidence of [Lorenzen’s] cause of death came from Bell." Walters, 2022 WL 1016624, at *6 n.7. Notwithstanding its observations, the Superior Court, as noted above, affirmed the trial court’s decision.

Id. at 413.

Additionally, the Commonwealth disputes Appellant’s suggestion that Dr. Ross’ testimony was qualified in a manner similar to the testimony in Passmore. Id. at 16. It further avers that Tyler is "inapposite," noting that the Iowa Supreme Court itself later cautioned that the factual circumstances in Tyler were "unique." Id. (citing State v. Stendrup, 983 N.W.2d 231, 239 (Iowa 2022)). Instead, the Commonwealth suggests the instant case is more analogous to the South Carolina Supreme Court’s decision in State v. Commander, 396 S.C. 254, 721 S.E.2d 413, 415 (2011) (finding no error in the admission of a pathologist’s testimony that the cause of death of a victim, whose mummified and partially decomposed body was found covered by a blanket on a sofa in her home, was asphyxiation, based on a lack of other evidence of trauma and "anecdotal history relayed by officers at the scene").

Although the court in Stendrup characterized the case of Tyler as "unique," it expressly declined the State’s request to overrule Tyler, and, in fact, reiterated that the pathologist’s opinion in Tyler was inadmissible because "it was not based on objective, scientific, or medical evidence" but, rather, "solely on his belief in the mother’s statements." 983 N.W.2d at 239.

Id.

The Commonwealth further maintains that Dr. Ross’ testimony did not improperly bolster or vouch for the credibility of Bell, particularly since Dr. Ross stated that he was unable to corroborate several of Bell’s statements, including that Lorenzen had been struck by a hammer prior to her death, and that her body had been dropped from a great height. The Commonwealth emphasizes that, "[t]he only facts Dr. Ross and [Bell] agreed upon were that [Lorenzen] had died, the manner was homicide, and the cause was strangulation." Commonwealth’s Brief at 22. The Commonwealth suggests that those facts "were also evinced by the location and disposition of the body upon being found, i.e., in a river tied to a bag, decomposing, with no evidence of any other cause of death discernable from the corpse." Id.

In light of the fact that Dr. Ross testified that, due to the decomposition of Lorenzen’s body, he could not confirm whether she had been struck by a hammer, but, at the same time, opined that she had been strangled, Appellant suggests that Dr. Ross "cherry-picked his conclusion." Appellant’s Brief at 35.

Id.

The Commonwealth also asserts that the cases relied on by Appellant for the proposition that expert testimony implicating the credibility of a witness is inadmissible, including Seese, Balodis, and Hernandez, are distinguishable because, in those cases, the expert testified that the victim of a sex crime or domestic violence crime was credible, despite the lack of physical evidence of the crime, whereas here, "Dr. Ross offered no testimony regarding the credibility of any other witnesses." Id. The Commonwealth further submits that Maconeghy is distinguishable because there was no physical evidence in that case, whereas here, "Dr. Ross was provided with a physical finding in the form of a dead body that had been found decomposing in a river with a bag tied to its arm, which is evidence independent from the statement of another witness indicating that a murder has occurred." Id. at 23.

Finally, the Commonwealth argues that, if this Court determines that Dr. Ross’ opinion as to Lorenzen’s cause of death was not offered within a reasonable degree of medical certainty, and that it improperly vouched for Bell’s credibility, such error was harmless because a process of elimination of other causes of Lorenzen’s death left strangulation as the only reasonable explanation. The Commonwealth further states in its brief that it "respectfully echoes the Superior Court’s characterization of the evidence in the instant case as ‘voluminous,’" see id. at 21, although it fails to identify that evidence. [7] As noted above, for an expert’s medical opinion regarding an individual’s cause of death to be admissible at trial, it must be shown that the expert’s opinion was offered based on a "reasonable degree of medical certainty." See Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734, 737 (1972); Williams, 316 A.2d at 891; Stoltzfus, 337 A.2d at 879. Our thorough review of the record in the instant case reveals that Dr. Ross’ expert opinion did not meet this standard.

At Appellant’s trial, Dr. Ross testified that, at the time Lorenzen’s body was discovered, it was "in a very advanced state of decomposition. It was almost complete skeletonization of the head and neck organs. The feet and the hands were absent." N.T., 10/26/20, at 18. Dr. Ross further stated: "I didn’t see evidence of any overt injury on the body per se externally when I examined it. But there was more decomposition obscuring any type of injuries that may have been present." Id. When asked to identify several autopsy photographs of Lorenzen, Dr. Ross explained:

The first photograph it shows the upper jaw and the base of the skull of the body …. And basically it shows the teeth within the jaw and almost complete skeletonization of the head and neck organs and the loss of all anterior soft tissue and boney tissue of the neck organs. That’s critically important for me to find those in an autopsy because I examined those to determine if there is any signs of trauma about the neck.
But the problem is, all that tissue rotted away over the six-month period that she was absent – or in the water. And all the soft tissue of the head and neck were gone.

Id. at 19-20.

Although Dr. Ross indicated that he did not observe any knife wounds, gunshot wounds, or track or needle marks on Lorenzen, he continued: "But again, the body was so decomposed that I could easily have not seen those due to the decomposition." Id. at 21. Dr. Ross testified that he also conducted an internal examination of the victim, but when asked to describe his findings with respect to her organs, including her heart and lungs, he stated:

I have to preface this by saying all the internal organs like the external portions of the body were in advanced state of decomposition. So basically they were all necrotic, rotten, basically - - and I hate to say this when the body is out in the elements it basically rots and it decomposes. And all the internal organs were in that very advanced state of decomposition. So examination of the autopsy was limited because of the decompositional changes.

Id. at 24. Dr. Ross reiterated throughout his testimony that his examination was "very limited" due to the decomposition of the body. See, e.g., id. at 24 ("But again, my examination was very limited because of the decomposition."); id. at 25 ("And again, I must caution you that examination was very limited because of the decomposition changes"; "Again, [the pancreas, spleen and adrenals] were very necrotic.").

Dr. Ross further explained that he examined Lorenzen’s brain and skull, and did not see any evidence of trauma to the skull or fractures, but again stated that "the brain was extremely decomposed." Id. at 27. In fact, he testified that, although he took a sample of Lorenzen’s brain, he "[knew he] wasn’t going to analyze it. And I suggested it not be analyzed because the results would basically be uninterpretable." Id. When asked whether he analyzed Lorenzen’s musculoskeletal system, Dr. Ross stated that "[t]here were no fractures to the skeletal system. There were no injuries noted on the skeletal system of the head and neck. And most importantly the bone structures and cartilaginous structures of the neck were absent due to decomposition." Id. at 29 (emphasis added).

Notwithstanding all of the above, when asked for a conclusion as to Lorenzen’s cause of death, Dr. Ross offered the following:

The conclusion my cause of death [sic] was that she died by strangulation which was by history. There was no anatomic indication that she was actually strangled. If I looked at the body alone with out any history, I could not say that. It would have to be an undetermined death.
What I look for in an autopsy is basically injury to the neck organs, a fractured hyoid bone which is a small bone in the neck, hemorrhage within the muscles of the neck, crashing of the larynx of the laryngeal cartilages and none of that was present because all that tissue was gone. It was all rotted away and necrotic. So all the tissue of the head and neck was absent.
I also look for petechial hemorrhages which are small blood vessels which are burst on the skin of the cheeks. But all that was gone. And I look for hemorrhages within the conjunctiva of the eyes which are typical in strangulation. But eyes were absent. The conjunctiva was absent all due to decomposition. So I had no physical actual evidence that a strangulation occurred other than the history. The history to me was very important because I saw no other possible cause of death either.

Id. at 31-32 (emphasis added).

Moreover, on cross-examination, Dr. Ross confirmed that he "determined the cause and manner of death by history and the exclusion of everything else from the autopsy," id. at 48, and explained that "somebody else’s statements are the history. And that’s what I refer to. And that’s what I based my findings largely upon." Id. at 49. Finally, Dr. Ross reiterated that there was "no physical evidence to support" a determination that Lorenzen’s death was the result of strangulation. Id. at 53.

It is abundantly clear from Dr. Ross’ own testimony that his opinion that Lorenzen’s cause of death was strangulation was not offered to a reasonable degree of medical certainty. Dr. Ross’ opinion was not based on any objective medical observations or findings, as he repeatedly acknowledged that he was unable discern any trauma to Lorenzen’s neck because the tissue, cartilage, and organs in her neck and head were missing. Dr. Ross also explained that he was unable to determine whether there were other potential causes of death, such as knife or gunshot wounds, or drags, because he "could easily have not seen those due to the decomposition." Id. at 21. Thus, the Commonwealth’s contention that Dr. Ross’ opinion as to Lorenzen’s cause of death was properly admitted because it was "based on both historical data as well as objective findings through autopsy and the process of elimination," Commonwealth’s Brief at 13 (original emphasis omitted, italics added), is unsupported. Dr. Ross repeatedly conceded that there was no physical evidence to support his conclusion that Lorenzen was strangled, and that the only basis for his opinion in this regard were Bell’s statements. Moreover, with respect to the Superior Court’s reliance on this Court’s decision in Bullock for the proposition that a medical expert is permitted to consider the case history in arriving at a cause of death, we agree with Appellant that Bullock is inapplicable to the instant case. First, the appellant in Bullock admitted to strangling the victim, whereas Appellant denies harming Lorenzen. Most critically, as noted by Appellant, the admissibility of the pathologist’s opinion in Bullock was neither raised by the appellant therein, nor addressed by this Court.

Justice Mundy asserts that we are "turn[ing] a blind eye" to "the defense’s deficient attempt at issue preservation," specifically, a Frye challenge to Dr. Ross’ methodology, in favor of resolving the issue of "whether a medical expert can issue an opinion to a reasonable degree of medical certainty based solely on case history." Dissenting Opinion (Mundy, J.) at 175. However, for the reasons aptly explained by Justice Wecht in his concurring opinion, Appellant is not challenging the admission of Dr. Ross’ testimony based on Frye, and, as such, there is no issue of waiver. See Concurring Opinion (Wecht, J.) at 169–70 n.15.

Id. at 415.

We need not decide in this case the extent to which an expert may rely on case history in formulating his or her opinion as to cause of death, because it is clear that an expert’s opinion cannot be based solely on case history; rather, it must also be supported by objective medical findings. As Dr. Ross’ testimony regarding Lorenzen’s cause of death was not based on any objective medical findings, it did not meet the standard for admissibility, and should not have been admitted at trial.

In her dissenting opinion, Justice Mundy states that Dr. Ross "testified that based on his independent examination and understanding of the case’s history, he could determine to a reasonable degree of medical certainty that Lorenzen’s cause of death was strangulation by history." Dissenting Opinion (Mundy, J., dissenting) at 177–78. Justice Mundy further submits that Dr. Ross’ testimony was proper under Pa.R.E. 702, which permits expert opinion testimony if, inter alia, the expert’s methodology is generally accepted in the relevant field, because Dr. Ross indicated that "it is ‘common’ in his ‘practice to utilize information provided by the police in reaching [his] conclusions[.] … In fact, the pathologist confirmed that he has consulted the relevant history to render an opinion on cause of death in other cases." Id. at 178 (emphasis added).
Notably, in the instant case, the information "utilized" by Dr. Ross to reach his conclusion was not provided by the police. Rather, his opinion was based solely on the statements of Bell, who offered that she assisted Appellant in cleaning up after the murder and disposing of the victim’s body. Moreover, in addition to meeting the requirements of Rule 702, including that the expert’s methodology is generally accepted in the relevant field, for an expert’s medical opinion regarding an individual’s cause of death to be admissible at trial, the expert’s opinion must be offered to a reasonable degree of medical certainty. See Webb, 296 A.2d at 737; Williams, 316 A.2d at 891; Stoltzfus, 337 A.2d at 879. An expert’s opinion regarding cause of death is offered within a reasonable degree of medical certainty when it is based on medical observations and conclusions. Spotz, 756 A.2d at 1160. As detailed above, Dr. Ross’ testimony was not based on any objective medical observations or findings, and Dr. Ross repeatedly admitted that there was no physical evidence to support his conclusion that Lorenzen was strangled; rather, the only basis for his opinion in this regard were Bell’s statements. Accordingly, the totality of Dr Ross’ testimony demonstrates that his opinion as to Lorenzen’s cause of death was not offered within a reasonable degree of medical certainty, notwithstanding his single affirmative reply when asked by the prosecution at the conclusion of his direct testimony whether the "conclusions [he] made today [are] within a reasonable degree of medical certainty." N.T., 10/26/20, at 36.

Id.

[8] We now turn to the question of whether Dr. Ross’ erroneously admitted testimony improperly bolstered Bell’s credibility. As noted above, in Maconeghy, this Court held that an expert’s opinion that a child victim was sexually assaulted, which was based on the expert’s apparent acceptance of the child’s report of the abuse and not on any physical evidence of abuse, impermissibly invaded the province of the jury in determining the child’s credibility. Similarly, in Tyler, the Iowa Supreme Court held that a pathologist’s opin- ion regarding a newborn baby’s cause of death, which was not based on objective medical findings, but, rather, on the defendant’s conflicting statements to police, constituted improper commentary on the defendant’s credibility. Like the testimony in Maconeghy and Tyler, Dr. Ross’ opinion as to Lorenzen’s cause of death was not based on any objective medical findings, but, instead, was premised on his acceptance of Bell’s statements. Thus, we hold that his testimony impermissibly encroached on the jury’s determination of Bell’s credibility.

The Commonwealth attempts to distinguish these cases, suggesting that, in Maconeghy, there was no physical evidence, whereas in the instant case, there was physical evidence in the form of Lorenzen’s dead body. However, as we discuss infra, while the existence of Lorenzen’s decomposed body may have supported Dr. Ross’ determination that the manner of death was homicide, it did not establish that she was strangled. While the Commonwealth submits that Tyler is inapposite, it offers no argument as to why it is distinguishable from the instant case.

See Diss. Op. at 177 (Mundy, J., dissenting).

Although the Superior Court opined that Dr. Ross’ testimony did not improperly bolster Bell’s credibility because he conceded that he was unable to determine if Lorenzen had suffered neck trauma, and, therefore, his testimony did not corroborate Bell’s testimony that Lorenzen had been strangled, as Appellant emphasizes, this reasoning ignores the fact that Dr. Ross testified that, without relying on Bell’s statements, he could not have offered an opinion as to Lorenzen’s cause of death. Indeed, in opining that Lorenzen’s cause of death was "strangulation … by history," Dr. Ross testified that, without Bell’s testimony, he would have ruled Lorenzen’s cause of death "undetermined." Id. at 31. He admitted that he had "no physical actual evidence that a strangulation occurred other than the history." Id. at 32. He explained that he "based [his] findings largely upon" Bell’s statements. Id. at 49. Indeed, he conceded there was "no physical evidence to support" a determination that Lorenzen’s death was the result of strangulation. Id. at 53. In repeatedly stating that that he relied on Bell’s testimony to reach his determination as to Lorenzen’s cause of death, and that he could not have reached his determination without her statement, Dr. Ross indisputably placed his imprimatur on Bell’s testimony.

Further, while the Superior Court reasoned, and the Commonwealth argues, that, because Dr. Ross stated that he could not corroborate several of Bell’s specific statements (for example, being hit on the back of the head with a hammer) based on his examination of Lorenzen’s body, his testimony did not bolster her credibility, the record testimony undermines this reasoning. For example, when asked by the prosecutor if it was "fair to say that there’s no medical evidence that anyone applied a hammer to the skull" of Lorenzen, Dr. Ross replied, "there’s no physical evidence to support that fact"; critically, however, he continued: "I’m not saying it didn’t happen. And certainly, somebody could be struck with a hammer without fracturing the skull or causing bleeding within the brain." Id. at 51.

Additionally, the Commonwealth’s assertion that Dr. Ross’ conclusion that Lorenzen had been strangled was supported "by the location and disposition of the body upon being found, i.e., in a river tied to a bag, decomposing, with no evidence of any other cause of death discernable from the corpse," Commonwealth’s Brief at 22, is incorrect. Although the location and disposition of Lorenzen’s body may have supported Dr. Ross’ determination that the manner of death was homicide, it did not, as revealed by Dr. Ross’ testimony that he relied on the case history provided by Bell, establish that Lorenzen was strangled to death. Accordingly, we find that Dr. Ross’ testimony improperly bolstered Bell’s testimony.

Justice Dougherty disagrees with our conclusion that Dr. Ross "placed his imprimatur on Bell’s testimony," noting that Appellant’s counsel "disclaimed" this theory at trial by arguing, in his closing, that Bell’s story "was never corroborated," and that counsel highlighted how Dr. Ross’ testimony undercut Bell’s testimony in several respects, for example, by stating that there was no physical evidence that Lorenzen had been strangled. Concurring and Dissenting Opinion (Dougherty, J.) at 174–75. First, in our view, counsel’s assertion, in his closing argument, that Bell’s testimony "was never corroborated" is distinct from a concession that Dr. Ross somehow rejected her strangulation testimony. Justice Dougherty’s position essentially ascribes to Appellant’s counsel an intent to abandon an objection to the admission of Dr. Ross’ testimony – which was clearly and expressly preserved on the record – based on counsel’s general assertion in his closing argument that Bell’s testimony "was never corroborated." However, Appellant’s counsel did not specifically reference Dr. Ross’ testimony, and his statement that Bell’s testimony "was never corroborated" arguably was directed at the lack of additional physical evidence and/or fact witnesses. Moreover, the Commonwealth did not assert, either before the Superior Court or this Court, that Appellant, through counsel’s isolated statement, abandoned his claim that Dr. Ross’ testimony improperly bolstered Bell’s testimony. Thus, there is no basis on which to conclude Appellant abandoned his challenge to the admissibility of Dr. Ross’ expert testimony. To Justice Dougherty’s second point, regardless of what else in Bell’s testimony Dr. Ross disputed, in specifically stating that he could not have reached a determination as to the cause of death without Bell’s statement, Dr. Ross necessarily indicated to the jury that he believed her strangulation testimony, a central focus of the case. Therefore, Dr. Ross improperly bolstered Bell’s testimony.

The Dissent mistakes Walters’ challenge to the admissibility of Dr. Ross’ opinion as a Frye challenge. See Diss. Op. at 175–77. A proper Frye challenge contests whether the methodology that generated the proffered "novel scientific evidence" has gained "general acceptance in the relevant scientific community." Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1043-44 (2003) (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117, 1119 (1998) (footnote omitted)). We all agree that consideration of the "history" of a case is a generally accepted tool used in formulating an opinion as to cause of death. Resolution of this case is in no way dependent upon whether the use of "history" has achieved "general acceptance in the [forensic pathology] community." Id. There was no need to request, let alone to hold, a Frye hearing. The reason that Dr. Ross’ opinion is inadmissible is that he made no independent medical conclusions of his own, not because the way he reached that conclusion failed the Frye test. His testimony failed to satisfy the most basic elements of what constitutes expert testimony under Pa.R.E. 702 and 703. Because the Dissent misapprehends this premise, it would find waiver. There is no waiver here.

[9] Finally, we address the Commonwealth’s suggestion that, if this Court determines Dr. Ross’ opinion as to Lorenzen’s cause of death was not offered within a reasonable degree of medical certainty, and, further, that it improperly vouched for Bell’s credibility, such errors were harmless because the process of elimination of other causes of Lorenzen’s death left strangulation as the only reasonable explanation. As detailed above, however, Dr. Ross testified that, due to the decomposition of the body, he was unable to determine whether there were other potential causes of death, such as knife or gunshot wounds, or drugs. N.T., 10/26/20, at 21. Thus, Dr. Ross’ opinion as to Lorenzen’s cause of death was not based on the process of elimination. Further, beyond its statement that it agrees with the Superior Court’s characterization of the evidence as "voluminous," see supra, the Commonwealth makes no attempt to demonstrate that the overwhelming evidence of Appellant’s guilt renders any error in the admission of Dr. Ross’ testimony harmless. See Commonwealth v. Holt, Pa. , 273 A.3d 514, 540 (2022) (an error may be found harmless if: (1) the error did not prejudice the defendant or the prejudice was de minimis; (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). In summary, Dr. Ross’ expert opinion that Lorenzen’s cause of death was strangulation was inadmissible because it was not offered within a reasonable degree of medical certainty and, therefore, constituted inadmissible testimony that vouched for the credibility of Bell. As the Commonwealth failed to prove that the error was harmless beyond a reasonable doubt, we are constrained to hold that Appellant is entitled to a new trial.

In her dissent, Justice Mundy avers that we are "summarily reject[ing]" the Commonwealth’s suggestion that any error in the admission of Dr. Ross’ testimony was harmless. Dissenting Opinion (Mundy, J., dissenting) at 178–79. She submits that, given Dr. Ross’ disclosures regarding the limitations of the autopsy, "the jury was still required to assess Bell’s credibility," and Bell’s testimony, "[i]f believed, … along with other properly admitted evidence, would have been sufficient to find Appellant guilty of the charged crimes." Id. at 180. As noted above, and as Justice Mundy recognizes, harmless error exists if the record demonstrates that the error did not prejudice the defendant or the prejudice was de minimis; the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or the properly admitted and uncontradicted evidence of guilt was so overwhelming, and the prejudicial effect of the error so insignificant by comparison, that the error could not have contributed to the verdict. See Holt. Not only does Justice Mundy fail to identify which prong she relies on to conclude that the admission of Dr. Ross’ testimony, if erroneous, was harmless error, her determination that the evidence was "sufficient" to support Appellant’s conviction is not a relevant Factor in a harmless error analysis. Finally, and importantly, the dissent ignores the fact that, by conceding that he could not have reached a determination as to the cause of death without Bell’s statement, Dr. Ross placed his expert imprimatur on her testimony, and thereby necessarily and improperly bolstered her credibility.

The Dissent commits another error. The Dissent faults Walters for failing to "introduce any evidence suggesting that the methodology utilized by Dr. Ross in reaching his opinion is not generally accepted within the medical community." Id. at 178. It is the proponent, not the opponent, of expert testimony that must demonstrate its admissibility under the law. See Walsh v. BASF Corp., 660 Pa. 313, 234 A.3d 446, 456 (2020) ("The proponent of the admission of expert scientific evidence bears the burden of establishing all of the elements supporting its admission, including the general acceptance of the methodology employed in the relevant scientific community."). In other words, the burden lies with the Commonwealth to prove that its expert’s methods are accepted in the relevant field. As the Dissent would have it, an expert’s testimony would be automatically admissible unless and until the opposing party could prove otherwise. That get things backwards.

Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

Justices Donohue, Wecht and Brobson join the opinion.

Justice Wecht files a concurring opinion.

Justice Dougherty files a concurring and dissenting opinion.

Justice Mundy files a dissenting opinion.

JUSTICE WECHT, concurring

I join the Majority’s opinion in full. I write separately to explain why a forensic pathologist’s determination as to the cause of a person’s death can never be admissible at a murder trial when that determination is based exclusively upon another person’s statements.

The typical murder case involves a number of different professionals, each of whom performs distinct, but essential, functions. For example, the first police officer to respond ensures that the danger has dissipated, and that officer then secures the scene. Other officers search for physical evidence and canvass the neighborhood for witnesses. Crime scene technicians photograph the site and recover both physical and biological evidence. Scientific experts test firearms for size and functionality, examine clothing for blood and semen stains, and compare DNA profiles extracted from biological material left at the scene. Detectives interview witnesses, ascertain a motive, develop a suspect, and make an arrest. A prosecutor compiles all of this information and presents it to a jury (or judge) at trial.

There is (at least) one additional person who is essential. Someone must determine how, when, and why the victim died. After all, there is no murder case if the decedent died by suicide, or by accident, or from natural causes. These determinations form part of the forensic pathologist’s role. In many murder cases, this pathologist will perform an autopsy, review the scene (or photographs of the scene) and all of the other available evidence, apply his or her medical knowledge, training, and experience to render an opinion as to the cause and manner of death, and then present that opinion at trial (assuming the manner of death is homicide). The appeal we decide today addresses the way in which a forensic pathologist reaches that opinion. More specifically, this case asks whether a forensic pathologist’s opinion is admissible under the law and our rules of evidence when that opinion is based exclusively upon the "history" of a case (which in this case consisted solely of statements of a Commonwealth witness) rather than upon that pathologist’s independent medical judgment and expertise.

As the Majority recounts, the victim’s body was recovered after having been submerged in a river for an extended period of time. Her body was in a "very advanced state of decomposition," so much so that the head and neck—the most critical parts of the body here in light of the Commonwealth’s theory that she was strangled to death—were almost entirely "skeletonized."1a The Commonwealth’s forensic pathologist, Gary Ross, M.D., performed an autopsy on the victim. Because of the decomposed condition of the body, Dr. Ross was incapable of making any relevant pathological observations or findings to a reasonable degree of medical certainty. Dr. Ross’s examination revealed "no physical actual evidence that a strangulation had occurred."2a Dr. Ross could rule out some causes of death, but, due to the extensive decomposition, he could not rule out many others. Finding no anatomical evidence of strangulation, Dr. Ross initially concluded that the cause of the victim’s death was "undetermined."3a

But, after he was supplied a "history" of the case, Dr. Ross changed his mind. That "history" was a statement by the Commonwealth’s central witness, Gabel Bell, and nothing more. Bell claimed that Walters had admitted to strangling the victim. Despite finding no anatomical indicia of strangulation, and having made no independent medical observations or deductions supporting strangulation, Dr. Ross adopted Bell’s version of events. He then changed his opinion as to cause of death from undetermined to what he creatively labeled "strangulation by history."

The Majority correctly holds that: (1) an opinion as to cause or manner of death based entirely upon "history" is inadmissible under our caselaw and our rules of evidence; (2) Dr. Ross’ testimony impermissibly bolstered Gabel Bell’s credibility; and (3) the error in allowing the testimony was not harmless.4a

Forensic pathology is a "unique discipline within medicine that bridges the world of science and law."5a A forensic pathologist is a medical doctor "who has undergone at least three years of anatomic pathology residency and one year of subspeciality training in forensic pathology."6a Many forensic pathologists also undergo additional training in "clinical pathology, neuropathology, cardiac pathology, and pediatric pathology," as well as in non-medical fields, such as "toxicology, firearms, trace evidence, and anthropology."7a By virtue of this extensive and diversified education, the forensic pathologist is uniquely equipped to ascertain the "cause, mechanism, and manner of death."8a

This is no easy task, as no two deaths, particularly suspicious ones, are the same. Each involves a unique set of circumstances, environment, and background. Unlike a treating physician, a forensic pathologist does not have a living patient who can describe a "history of present illness."9a The pathologist must instead gather pieces of information from a variety of sources and attempt to arrange those pieces into an accurate, reliable picture of what caused the person’s death. While the most important piece of the puzzle is the body, a forensic pathologist also is guided by information gleaned from the police investigation, including "accounts given by family/friends and witnesses, law enforcement evaluation, and, most importantly, inspection of the scene."10a This investigation does not culminate until the forensic pathologist analyzes results of the "autopsy, histology, toxicology, and other ancillary studies."11a Critically, no one source of information "is interpreted in a vacuum."12a Each piece of evidence must be considered "in the context of all available pertinent information."13a

The task becomes even more difficult in cases where the investigation does not yield all of the information that a forensic pathologist might need (or want). The scene of the crime might be awash with blood stains, but there might not be any witness statements. A toxicology report might contain no relevant evidence, but the body might demonstrate signs of blunt force trauma. There may be stippling around what appears to be a gunshot wound, but no firearms or shell casings are found in the surrounding area. The forensic pathologist must consider all available information in formulating an opinion. This necessarily includes the "history" of a case. Such information often is relevant, helpful, and, in some cases, essential in determining the cause and manner of a person’s death. Thus, the Dissent is correct to suggest that the assessment of a case’s "history" is a commonly accepted and approved methodology in the field of forensic pathology.14a The problem is that the Dissent maintains that this uncontroversial proposition suffices to resolve this case. It does not. No one would argue that forensic pathologists can never consider the "history" of a particular case. They should, and they do. But, that is not what today’s case is about. This appeal asks whether a forensic pathologist can rely only on that "history" and use that as the sole basis to offer an admissible opinion on the cause or manner of person’s death.15a The Dissent never addresses, let alone resolves, this question.16a

The answer to the question is straightforward. When a forensic pathologist offers a cause or manner of death that is predicated entirely upon "history"—that is, information that the forensic pathologist cannot corroborate with any independent medical findings or evidence—that forensic pathologist is not offering an admissible opinion at all. The forensic pathologist is not using that "history" as a component in rendering a medical opinion. Nor is that forensic pathologist utilizing the "history" to explain medical observations, to support scientific deductions, or to facilitate an understanding of the evidence. That forensic pathologist is merely repeating what someone else said. That is not a professional opinion. An opinion is a "formal expression of judgment or advice based on an expert’s special knowledge." No special knowledge or expertise is required for anyone to take the witness stand and simply repeat what someone else said. Cloaking such repetition in the guise of expert testimony and stamping it with the imprimatur of an expert with unassailable credentials does not transform someone else’s account into an admissible opinion.

Opinion, Black’s Law Dictionary (12th ed. 2024).

Consider what occurred in this case. Due to the state of the victim’s body, Dr. Ross was unable to reach any medical conclusions about how she died. He could not exclude all possible causes of death. Naturally, having no useful evidence or information, Dr. Ross concluded that the cause of the victim’s death had to be listed as "undetermined." However, Dr. Ross changed that determination (or lack of a determination) when he was told that Gabel Bell had claimed that Walters had said he strangled the victim. Supplied with this statement, Dr. Ross changed his finding, and now opined that the cause of death was "strangulation by history." There was no anatomical, physical, or forensic evidence to corroborate this new determination. Dr. Ross did not render an independent medical judgment, because he could not do so. He simply took Gabel Bell’s word for it, and then repeated her words to the jury.

If this is an admissible expert opinion, then anyone can be an expert. Anyone can take the witness stand and repeat what someone else told them. A teacher, an engineer, a park ranger, or some random passerby all could have testified that the victim was strangled here simply because Gabel Bell told them so. A forensic pathologist was not needed to do this. No one offered an actual opinion as to how the victim died. Dr. Ross simply repeated what another person reported that Walters had said about how the victim died. A person does not need any particular "knowledge, skill, experience, training, or education" to repeat what he’s been told. In fact, while Rule 703 of the Pennsylvania Rules of evidence allows an expert to base an opinion upon information "that the expert has been made aware of," the comment to that rule specifically prohibits experts from serving as a "mere conduit for the opinion of another." Nor does repeating what another said require any "scientific, technical, or other specialized knowledge." The jury heard from Gabel Bell at trial. The jury did not need an expert with special training or skill to repeat Bell’s claim in order to understand that claim.

Although there is no hearsay issue presented to us in this appeal, it is difficult to ignore the fact that Dr. Ross’s opinion was based upon Gabel Bell’s report of what Walters had told her, which is a classic example of typically inadmissible double hearsay. See Commonwealth v. Latch, 566 Pa. 19, 777 A.2d 1057, 1060 (2001) (explaining that double hearsay is an "out-of-court declaration containing another out-of-court declaration," and that, in order for the entire statement to be admissible, both hearsay statements must be individually admissible) (citations omitted).

See. Pa.R.E. 702.

Pa.R.E. 703.

Id. cmt.

Id. at 702(a).

Id. at 702(c) (permitting expert testimony when it will "help the trier of fact to understand the evidence or to determine a fact in issue").

There is an important difference between using "history" as a factor in ascertaining the cause of a person’s death and using it as the only factor. Consider the following hypothetical. Suppose a man goes to see his family physician after experiencing back pain for a relatively short period of time. When the physician enters the examination room, the patient promptly informs her that his mother told him that he has spinal cancer, which runs in the family. Without any independent evidence, the physician immediately takes the patient into surgery. This physician did not reach a medical opinion, at least not one using a methodology that the medical community would recognize as reasonable. Now, to appreciate the difference, consider an emergency room physician who observes a penetrating laceration on a patient’s abdomen that is two inches long and four inches deep. The police officer that accompanied the patient to the hospital tells the treating physician that the injury was caused by a bloody knife with a very sharp, five inch blade that was found near the patient’s body. The physician concludes that the patient was stabbed, which likely caused internal injuries, and the physician immediately begins surgery. This physician, unlike the first one, considered the police statement in conjunction with her independent medical observations, training, and expertise, and then formed a professionally reasonable opinion.

An expert who applies none of his or her expertise, but who instead relies exclusively upon someone else’s words or observations, is no more a witness offering an admissible opinion than he would be an author by writing his name on the cover of someone else’s book, or a chef by serving food that someone else cooked. For this reason, as the Majority correctly concludes, no conclusion reached in this manner can be offered to a reasonable degree of medical certainty, as our law requires. And it never can be. "History" is a relevant and important part of a forensic pathologist’s formulation of an opinion on the cause and manner of a person’s death. It cannot be the only part. JUSTICE DOUGHERTY, concurring and dissenting

I respectfully concur in part and dissent in part. Specifically, I agree that since "Dr. Ross’[s] testimony regarding [the victim’s] cause of death was not based on any objective medical findings, it did not meet the standard for admissibility, and should not have been admitted at trial." Majority Opinion at 164 (emphasis omitted). I stress, however, that this conclusion flows directly from the unique factual record before us — more precisely, from Dr. Ross’s candid "acknowledg[ment] that he was unable [to] discern any trauma to [the victim’s] neck because the tissue, cartilage, and organs in her neck and head were missing." Id. at 163; see id. at 163 ("Dr. Ross repeatedly conceded that there was no physical evidence to support his conclusion that [the victim] was strangled[.]") (emphasis omitted). Given Dr. Ross’s admissions, it is apparent his conclusion regarding the cause of death was not, as the Commonwealth argues, "based on both historical data as well as objective findings through autopsy and the process of elimination[.]" Commonwealth’s Brief at 13. Instead, "the only basis for his opinion in this regard were Bell’s statements." Majority Opinion at 163. I therefore agree with the majority that Dr. Ross’s expert opinion that the victim’s cause of death was strangulation was not offered within a reasonable degree of medical certainly and should have been excluded at trial.

Nevertheless, it is important to reiterate what the Court does not resolve today: "the extent to which an expert may rely on case history in formulating his or her opinion as to cause of death[.]" Id. On this particular question, I agree with Justice Wecht’s view that a "forensic pathologist must consider all available information in formulating an opinion" regarding a victim’s cause and manner of death, and this "necessarily includes the ‘history’ of a case." Concurring Opinion at 169; see Pa. R.E. 703 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted."). Notably, when asked at trial whether it was "common in your practice to utilize information provided by the police in reaching your conclusions[,]" Dr. Ross testified in the affirmative,1b explaining that

the circumstances surrounding every case are critical in order to understand what’s happened. For instance, somebody could be shot in the head and that could be an accident. It could be a suicide or it could be a homicide. And just from examination of the body alone I may not be able to determine that.
But the circumstances surrounding that might give me evidence to support the fact that it may be a homicide or a suicide or an accident. And [in] every case the information surrounding the death is critical.

N.T. Trial, 10/26/20, at 17. As I understand it, the majority does not cast doubt on this longstanding practice by medical experts or reject the "process of elimination" method when used alongside case history. It merely holds (1) as a factual matter, that Dr. Ross’s "opinion as to [the victim]’s cause of death was not based on the process of elimination" method, Majority Opinion at 166, and, (2) as a legal matter, "that an expert’s opinion cannot be based solely on case history[.]" Id. at 164 (emphasis in original). See Concurring Opinion at 171 ("There is an important difference between using ‘history’ as a factor in ascertaining the cause of a person’s death and using it as the only factor.") (emphasis omitted). On those limited points I agree.

However, I cannot join the majority’s holding that Dr. Ross’s testimony regarding the victim’s cause of death "impermissibly encroached on the jury’s determination of Bell’s credibility." Majority Opinion at 165. The reason is simple: this issue of allegedly improper bolstering is waived.

Prior to trial, appellant filed a motion in limine in which he plainly raised the first issue discussed above. See Motion In Limine, 10/22/19, at ¶40 ("it is clear that the ‘Cause of Death’ identified as ‘Strangulation (By History)’ is a statement unsupported to a reasonable medical certainty and, as such, has no place on a report purporting to be an independent medical examination"). The trial court denied appellant’s motion in limine on November 8, 2019, thereby preserving that issue for appeal. See Commonwealth v. Stevenson, — Pa. —, 318 A.3d 1264 (2024) ("Rule 103 explicitly provides that: (1) ‘[a] party may claim error in a ruling to admit … evidence’ when a party, inter alia, ‘makes a … motion in limine;’ and (2) ‘a party need not renew an objection … to preserve a claim of error for appeal’ once a trial court ‘rules definitively on the record.’"), quoting Pa.R.E. 103(a)(1)(A), (b).

But the same cannot be said of the bolstering claim upon which the majority now grants appellant a new trial. Nowhere in his motion in limine did appellant use the word bolster or otherwise raise an argument along those lines. Nor did he raise any objection on that ground at trial. The first time he raised such an argument was in his post-sentence motion. See Post-Sentence Motion, 12/21/20, at ¶4 ("By permitting Dr. Ross to testify to a non-medical factual conclusion that the alleged cause of death of [the victim] was by strangulation, Dr. Ross’s testimony also constituted an improper bolstering of the testimony of Gabel Bell on the same subject."). That was too late. See Commonwealth v. Yandamuri, 639 Pa. 100, 159 A.3d 503, 528 n.23 (2017) (bolstering claim waived where appellant "failed to demonstrate where in the record he preserved his claim and our independent review discloses no contemporaneous objection"), citing Pa.R.A.P. 2119(e) (requiring an appellant to identify where in the record he preserved an issue for appellate review); Commonwealth v. Sanchez, 623 Pa. 253, 82 A.3d 943, 969-70 (2013) (where objection at trial "was not offered on the basis of improper bolstering," bolstering claim waived on appeal; bolstering "objection must be specific and brought to the trial judge’s attention as soon as is practical"); Pa.R.E. 103 (to preserve claim of error in a ruling to admit evidence a party must, on the record, "make[ ] a timely objection" and "state[ ] the specific ground, unless it was apparent from the context"); Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.").2b Admittedly, the Commonwealth does not argue appellant waived his bolstering claim. But "[t]his Court may raise the issue of waiver sua sponte." Commonwealth v. Edmondson, 553 Pa. 160, 718 A.2d 751, 752 n.7 (1998) (citation omitted); see Commonwealth v. Hines, 461 Pa. 271,-336 A.2d 280, 282 n.3 (1975) ("While the question of waiver has not been raised by any party to this litigation, this Court may affirm an order if it is correct for any reason."). I would do so here.3b Significantly, had appellant raised his bolstering claim prior to or at trial rather than in a post-sentence motion, the trial court may have precluded Dr. Ross from testifying in the manner he did, or issued a limiting instruction, blunting any prejudice stemming from the testimony. Neither happened, however, because appellant waited until he was convicted and sentenced to raise the issue for the first time. Under these circumstances, where the Commonwealth was the appellee below and in this Court, I would enforce the waiver as to appellant’s bolstering claim. See Commonwealth v. Katze, 540 Pa. 416, 658 A.2d 345, 349 (1995) (opinion divided on other grounds) ("There is a general rule that issues not raised in the lower court may not be addressed on appeal; however, this rule is applicable only to appellants.").

Even if the Court had some good reason for overlooking the waiver problem, I still would be compelled to dissent from the majority’s disposition. The majority concludes that "Dr. Ross indisputably placed his imprimatur on Bell’s testimony." Majority Opinion at 165. The problem with this theory is that appellant disclaimed it at trial. During closing argument, defense counsel forcefully argued Bell’s "story was never corroborated." N.T. Trial, 10/26/20, at 145. Counsel then specifically discussed how Dr. Ross "testified that there was no evidence that [the victim] was the subject of strangulation." Id. at 149; see id. ("Dr. Ross did attempt to testify that [the victim]’s cause of death was listed as strangulation by history which is a short form way of saying that [he] did [ ] not have any evidence of strangulation but he could not rule it out."). Indeed, defense counsel made it a point to highlight all the ways in which Dr. Ross’s testimony undercut Bell’s testimony. See id. at 134, 149. Yet, almost four years later, this Court now holds that, not only did Dr. Ross corroborate Bell’s testimony, he "improperly bolstered" it to the point of requiring a new trial on all charges, even ones that could not possibly have been impacted by Dr. Ross’s testimony concerning the cause of death, like abuse of a corpse.4b Respectfully, I think the decision to award appellant a new trial on all charges based on an unpreserved issue where he expressly proclaimed the opposite view before the jury is improper. See generally Vicari v. Spiegel, 605 Pa. 381, 989 A.2d 1277, 1290 (2010) (Saylor, J., concurring) (explaining that, although the overlooking of waiver "to dispose of [a] salient interpretive legal question on the merits can be justified as a salutary measure undertaken to provide guidance to the bench and bar," such holdings "should be applied prospectively only, and only to parties that have preserved the issue"). Consequently, I am compelled to dissent in part.

JUSTICE MUNDY, dissenting

The majority holds, inter alia, that Dr. Ross’ expert opinion as to Lorenzen’s cause of death was not offered to a reasonable degree of medical certainty and that the error in admitting Dr. Ross’ testimony at trial was not harmless. Majority Op. at 166–67. Dr. Ross rendered his unchallenged expert opinion to "a reasonable degree of medical certainty." N.T., 10/26/20, at 36. That, in my view, resolves this appeal.

The analysis of the majority fails to address or acknowledge the defense’s deficient attempt at issue preservation, choosing instead to turn a blind eye to this fact in favor of resolving whether a medical expert can issue an opinion to a reasonable degree of medical certainty based solely on ease history. Since Dr. Ross testified to his practice of consulting case history, in addition to conducting an independent examination of the body, and no other expert testimony was presented in this appeal to challenge his methodology, the issue is clearly unpreserved. Thus, I dissent.

I. Waiver

At the outset, it is clear Appellant failed to challenge Dr. Ross’ methodology in arriving to an opinion on Lorenzen’s cause of death. Before this Court, Appellant argues, inter alia, that Dr. Ross improperly "relied on the statements of [Gabel] Bell because there was no independent evidence of strangulation." Appellant’s Brief at 37. See also id. at 49-50 ("Dr. Ross possessed no objective evidence upon which to opine that the cause and manner of death was homicide by strangulation."). Clearly, Appellant is challenging Dr. Ross’ methodology, i.e., consulting the case’s history when rendering an opinion. Indeed, most of the lead opinion is dedicated to discussing and deciding whether a pathologist may rely on case history when determining a decedent’s cause of death.

Appellant, however, did not request a Frye 1c hearing at any point before the trial court or otherwise aver that the use of case history to formulate an opinion on cause of death is not generally accepted in the scientific community. Nor did Appellant produce any expert witness in the field of pathology to counter the testimony or methodology of Dr. Ross. Instead, in his pre-trial filing, entitled "Motion to Dismiss Prosecution or, in the Alternative, Motion in Limine to Limit Evidence and Testimony at Trial" ("Motion"), Appellant set forth allegations of "hearsay upon hearsay," while seeking dismissal of all charges for purported intentional prosecutorial misconduct.2c While Appellant referred to Dr. Ross’ use of history in formulating his opinion, he did not, as he does now, explicitly challenge Dr. Ross’ methodology.3c

At the ensuing pre-trial hearing, Appellant explained the role of the coroner’s office, stressing that those employed within may not "engage in any course of conduct that favors the defense or the prose- cution[.]" N.T., 11/7/19, at 22. See also id. at 23 (arguing that the "report contains allegations that you would normally find in a criminal complaint instead of a medical examiner’s report") and 26-27 (indicating that he consulted with somebody who is obtaining their doctorate in forensic anthropology about Dr. Ross’ report and that this individual found some statements made to be "unusual."). Appellant’s prior hearsay concerns were later repeated at trial. See N.T., 10/26/20, at 13 (stating, in relation to the introduction of Dr. Ross’ report, that certain portions contained hearsay). Defense counsel also inquired into Dr. Ross’ use of case history on cross- examination, see id. at 48-49, but did not attempt to gather any information regarding whether history is commonly utilized in this field of medicine.4c It was only during post-trial proceedings that Appellant articulated, for the first time, his true concern with respect to Dr. Ross’ methodology. In my view, this belated argument was insufficient to preserve the issue that is now before us and has resulted in the issuance of an opinion despite a woefully underdeveloped record. I also share the same concerns as my learned colleague with respect to the preservation of Appellant’s bolstering claim. See Concurring and Dissenting Opinion (Dougherty, J.) at 173 ("Nowhere in his motion in limine did [A]ppellant use the word bolster or otherwise raise an argument along those lines. Nor did he raise any objection on that ground at trial. The first time he raised such an argument was in his post-sentence motion. … That was too late."). Accordingly, I am inclined to conclude that waiver precludes our review.

II. Reasonable Degree of Medical Certainty

Setting aside glaring waiver, I observe that, it is well-settled that "[t]he admission of expert testimony is a matter of discretion for the trial court, and will not be disturbed absent an abuse of discretion." Commonwealth v. Poplawski, 634 Pa. 517, 130 A.3d 697, 718 (2015). See also Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900, 903 (1967) (explaining that "[e]xpert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence[,] and experience." (quotation mark omitted)); and Pa.R.E. 702(a)-(c) (providing that an expert witness "may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (c) and the expert’s methodology is generally accepted in the relevant field").

Our Rules of Evidence provide that "[a]n expert may base an opinion on facts … that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." Pa.R.E. 703. Pertinently, "[w]hether the facts or data satisfy this requirement is a preliminary question to be determined by the trial court under Pa.R.E. 104(a)[(Preliminary Questions)]." Id., cmt. See also Commonwealth v. Williams, 455 Pa. 539, 316 A.2d 888, 891 (1974) ("To permit evidence of a medical opinion as to cause of death to be considered by the trier of fact it must be shown only that the witness entertained a reasonable degree of medical certainty for his conclusions. The test of reasonable doubt is a legal one and it is the test that the jury must use in determining whether the expert opinion taken together with all of the other evidence in the case warrants the finding of the cause of death as suggested by the expert, beyond a reasonable doubt.").

In this case, Dr. Ross candidly described the difficulties with performing an autopsy of Lorenzen’s body, testifying that at the time her body was discovered, it was in an advanced state of decomposition. See N.T., 10/26/20, at 18 ("[T]he body was in a very advanced state of decomposition"); at 20 ("[A]gain, the decomposition of the body was so extensive"); at 23 ("That the body was in a very advanced state of decomposition and severely decomposed as a result of being out in the elements for approximately six months"); at 25 ("And again, I must caution you that examination was very limited because of the decomposition changes"). However, he was able to rule out certain diseases5c and testified that based on his independent examination and understanding of the case’s history, he could determine to a reasonable degree of medical certainty that Lorenzen’s cause of death was strangulation by history. Id. at 31, 36. In particular, as noted by the Commonwealth,

Lorenzen had no bleeding, trauma, or fractures to the brain or skull. Lorenzen had no fractures to the skeletal system. Lorenzen had no knife, cutting, or gunshot wounds. Lorenzen had no track or needle marks indicating drug use. There was no indication from the autopsy that Lorenzen died from cancer, infection, organ failure, any type of disease, or any type of natural medical condition.

Commonwealth’s Brief at 10 (internal citations omitted). See also N.T., 10/26/20, at 48 (Dr. Ross explaining that he "determined the cause and manner of death by history and the exclusion of everything else from the autopsy"); and Trial Ct. Op., 3/11/21, at 6 (noting that "[a]fter thoroughly testifying regarding both the external and internal examination of [ ] Lorenzen, Dr. Ross testified that he concluded that the cause of death was that she died by strangulation which was by history and made within a reasonable degree of medical certainty"). Most notably, Dr. Ross answered in the affirmative when asked whether: (1) rendering an opinion based on history is something he has done in other cases; and (2) his conclusions were made within a reasonable degree of medical certainty. See N.T., 10/26/20, at 32, 36. This unchallenged expert testimony resolves the issue raised by Appellant in this appeal.

Before this Court, Appellant argues that the trial court erred in allowing Dr. Ross to offer an opinion concerning Lorenzen’s cause of death because his conclusions were based only on Bell’s account of the events and were therefore not rendered to a reasonable degree of medical certainty. Notwithstanding my issue with how Appellant characterized the testimony elicited by the Commonwealth, Rule 702 clearly provides that an expert witness may testify in the form of an opinion if, inter alia, "the expert’s methodology is generally accepted in the relevant field." Pa.R.E. 702(c).

Here, Dr. Ross, having been permitted to testify as an expert witness at Appellant’s trial after a stipulation by the parties, see id. at 10 ("Both parties have agreed that [Dr. Ross is] an expert"), explained that he was able to determine Lorenzen’s cause of death to a reasonable degree of medical certainty based on an examination of Lorenzen’s body and the history provided. Importantly, at that time, Dr. Ross answered in the affirmative when asked whether it is "common" in his "practice to utilize information provided by the police in reaching [his] conclusions[.]" Id. at 17. In fact, the pathologist confirmed that he has consulted the relevant history to render an opinion on cause of death in other cases. Id. at 32.

This testimony remained uncontradicted, as Appellant did not seek to introduce any evidence suggesting that the methodology utilized by Dr. Ross in reaching his opinion is not generally accepted within the medical community.6c There is nothing in the record to suggest that utilizing case histo- ry in the manner employed by Dr. Ross is not an accepted or approved practice in pathology.7c Under these circumstances, I cannot find that the trial court abused its discretion in admitting Dr. Ross’ testimony.8c

III. Harmless Error

In a single page, the majority summarily rejects the Commonwealth’s suggestion that any error in admitting Dr. Ross’ testimony was harmless. Criticizing the Commonwealth’s development of this point, the majority finds that there was no attempt made to "demonstrate that the overwhelming evidence of Appellant’s guilt renders any error in the admission of Dr. Ross’ testimony harmless." Majority Op. at 166.

The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that [a] defendant is entitled to a fair trial but not a perfect one.

Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d 163, 182 (2012) (citation and internal quotation marks omitted).

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.

Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657, 671–72 (2014) (citations omitted).

At trial, the jury heard testimony from several individuals, including Bell, who had an intimate relationship with Appellant and testified in detail about the circumstances surrounding Lorenzen’s death. Regarding Dr. Ross’ testimony, as aptly observed by the Commonwealth, the pathologist "merely agreed with [ ] Bell, following his autopsy of [ ] Lorenzen, that the manner of death was homicide and the cause was strangulation[.] … Dr. Ross declined to adopt any other factual averment made by [ ] Bell despite being prompted to do so." Commonwealth’s Brief at 24. For example, Dr. Ross admitted that he would sometimes expect to find broken bones if it were alleged that a body was dropped from a bridge into the water. N.T., 10/26/20, at 42. He also conceded that he was aware of allegations that Lorenzen was struck in the head with a hammer but went on to explain that he did not see "any evidence of fractures or any indentations that a hammer might have made." Id. at 50. See also id. at 55 (stating that due to the significant decomposition of Lorenzen’s body, he could not, "by autopsy alone[,] state that the decedent was strangled").

Given the substance of Dr. Ross’ testimony and his repeated disclosures regarding the limitations of his autopsy, the jury was still required to assess Bell’s credibility. See fn.4, supra. If believed, this testimony, along with other properly admitted evidence, would have been sufficient to find Appellant guilty of the charged crimes. See Commonwealth v. Cox, 460 Pa. 566, 333 A.2d 917, 918 (1975) ("It is well established in Pennsylvania that circumstantial evidence alone may be sufficient to determine commission of a crime and convict the accused of it.").

For these reasons, I dissent.


Summaries of

Commonwealth v. Walters

Supreme Court of Pennsylvania
Sep 23, 2024
323 A.3d 151 (Pa. 2024)
Case details for

Commonwealth v. Walters

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA, Appellee v. PHILLIP DONALD WALTERS, Appellant

Court:Supreme Court of Pennsylvania

Date published: Sep 23, 2024

Citations

323 A.3d 151 (Pa. 2024)