The Pennsylvania Superior Court has decided the case of Commonwealth v. Fitzgerald, finding both that statements made to emergency personnel are non-testimonial and therefore generally admissible under the confrontation clause. The court also held that the trial court erred in dismissing the case where the Commonwealth indicated that it wanted to proceed and planned to seek to introduce the complainant’s statements to those EMTs and responding officers in the complainant’s absence. The court recognized that in general, the remedy for failing to present a necessary witness at trial is that the trial court should find the defendant not guilty. Further, it is fairly well-established that statements made as part of calling for help in response to an emergency do not implicate the confrontation clauses of the state and federal constitutions. Therefore, the Superior Court reversed the trial court’s order dismissing the case and remanded the matter for a trial.
Commonwealth v. Fitzgerald
In this case, the defendant appeared for a non-jury trial after the Commonwealth had requested two continuances due to its failure to locate the complainant. For this third listing, the Commonwealth indicated that it would move forward without the complainant. The defendant moved to dismiss the charges, arguing that there had been no opportunity to cross-examine the complainant and that introducing the complainant’s out-of-court statements in her absence would violate the confrontation clause. The confrontation clause gives a defendant the right to confront their accusers; this is generally accomplished through cross-examination.
The Commonwealth disagreed, contending that it would not introduce any evidence that would violate the confrontation clause. The trial court allowed the Commonwealth to make an offer of proof, and the Commonwealth announced its intention to enter a 911 call made in an emergency situation, to present photographs from police officer’s body cameras and observations of the scene, and to play a portion of body camera footage that showed the victim interacting with EMS. The Commonwealth suggested that it did not intend to introduce any hearsay statements through police officers.
After hearing this offer of proof, the trial court ruled that the proffered statements would be testimonial. The court therefore dismissed the charges.
The Proffered Evidence
The evidence in question was the following:
The complainant made a 911 call and informed the operator that her boyfriend, the defendant, had assaulted her and threatened her over a period of hours throughout the day. Pittsburgh Police Officer Tyler Newman responded to the 911 call and encountered the complainant, who indicated that the defendant had been physically assaulting and threatening to kill her over multiple hours. Officer Newman observed injuries on the complainant consistent with this story, and photographs of the injuries on her face, neck and collarbone were preserved from the officer’s body camera to be later introduced at the trial. EMS arrived on scene, and Officer Newman’s body camera captured a conversation between the complainant and a paramedic. The video showed that the paramedic questioned her to determine the extent of her injuries. Officer Newman also asked what she had been assaulted with, to which she replied she had been attacked by hand.
The police located the defendant based on the complainant’s description and found that the defendant was heavily intoxicated. They charged him with two counts of simple assault and one count each of terroristic threats and strangulation. The case was scheduled for a preliminary hearing. The complainant appeared for the preliminary hearing, and the defendant waived that hearing. Thus, his attorney never cross-examined the complainant.
The trial court dismissed the case, and the Commonwealth filed a motion to reconsider, attaching the transcript of the 911 call, transcript of the video, and still photographs. The trial court denied the motion to reconsider. The Commonwealth appealed.
The Superior Court’s Decision
First, the Superior Court rejected the defendant’s argument that the appeal should be quashed as interlocutory. As the trial court’s order resulted in the dismissal of the case, the order was a final order, and the Commonwealth therefore had the right to appeal.
Second, the Superior Court rejected the argument that the out-of-court statements were inadmissible due to the confrontation clause. The confrontation clause, as explained in the United States Supreme Court case of Crawford v Washington, prohibits out-of-court testimonial statements. Not all out-of-court statements are testimonial, however. Generally, statements are testimonial when they are intended to establish events for a subsequent criminal prosecution. Statements made in response to an ongoing emergency are often not testimonial.
Here, the complainant escaped from the defendant and went to a neighbor’s apartment. She called 911 in an attempt to obtain assistance from the police, not in order to provide a statement that would be used at a trial. The emergency was still ongoing, and follow-up questions asked by the operator were focused on assessing the threat to police and the victim to help with police response to the emergency. Citing the precedent of Davis v Washington, where a 911 call about an ongoing domestic disturbance was admitted as evidence and the US Supreme Court confirmed that the Confrontation Clause only applied to testimonial statements, the Superior Court concluded that the trial court in this case was mistaken in ruling in favor of the defense. Therefore, the trial court should not have even reached the issue of whether to dismiss the case because the statements themselves were admissible.
Finally, the Superior Court ruled that the trial court’s remedy was improper. The remedy for the Commonwealth seeking to proceed without a particular witness is to find a defendant not guilty following the close of the Commonwealth’s case; it is not to dismiss the case. Therefore, the Superior Court reversed the trial court’s ruling and remanded the case for trial.
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