confrontation clause in Pennsylvania

2026Prior to the decision in Crawford, supra, “the United States Supreme Court was of the view the Confrontation Clause did not bar the admission of out-of-court statements that fell within a firmly rooted exception to the hearsay rule or that bore a particularized guarantee of trustworthiness.” Brown, 185 A.3d at 324 , citing Crawford, 541 U.S. at 40 and Ohio v. Roberts, 448 U.S. 56, 66 (1980); see also Commonwealth v. Carter, 932 A.2d 1261 , 1265 n.3 (Pa. 2007).

2022That court offered the following rationale for its conclusion. -7- J-S35015-21 In Crawford v. Washington, 541 U.S. 36, 68 (2004), the [United States] Supreme Court reiterated that[,] “[w]here testimonial evidence is at issue ..., the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” As such, a Confrontation Clause violation occurs where a court allows the admission of “testimonial” statements against a criminal defendant who did not have an opportunity to cross-examine the witness.

2026Prior to the decision in Crawford, supra, “the United States Supreme Court was of the view the Confrontation Clause did not bar the admission of out-of-court statements that fell within a firmly rooted exception to the hearsay rule or that bore a particularized guarantee of trustworthiness.” Brown, 185 A.3d at 324 , citing Crawford, 541 U.S. at 40 and Ohio v. Roberts, 448 U.S. 56, 66 (1980); see also Commonwealth v. Carter, 932 A.2d 1261 , 1265 n.3 (Pa. 2007).

2018Previously, in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the United States Supreme Court held that the Confrontation Clause did not bar admission of an unavailable witness’s statement against a criminal defendant, provided the statement was surrounded by “adequate indicia of reliability.” Id. at 66 , 100 S.Ct. 2531 .

2026Prior to the decision in Crawford, supra, “the United States Supreme Court was of the view the Confrontation Clause did not bar the admission of out-of-court statements that fell within a firmly rooted exception to the hearsay rule or that bore a particularized guarantee of trustworthiness.” Brown, 185 A.3d at 324 , citing Crawford, 541 U.S. at 40 and Ohio v. Roberts, 448 U.S. 56, 66 (1980); see also Commonwealth v. Carter, 932 A.2d 1261 , 1265 n.3 (Pa. 2007).

2026“In Crawford, however, the [High] Court sought to align its Confrontation Clause analysis with the original intent of the framers [of the United States Constitution] who, according to the [High] Court, were concerned about abuses of the civil-law mode of criminal procedure.”14 Brown, 185 A.3d at 324 .

2023Because a defendant "always has the burden of raising his Confrontation Clause objection,” these statutes are constitutional as they “simply govern the time within which he must do so.” Id. at 327 (emphasis in original).

2016See Commonwealth *220 v. Rosser, 135 A.3d 1077 , 1088 (Pa.Super.2016) (after determining there was a Confrontation Clause violation the second step is to determine if that violation was harmless); see also Melendez-Diaz, 557 U.S. at 329 n. 14, 129 S.Ct. 2527 (expressing no view as to whether * Confrontation Clause violation was harmless).

2021In Bruton, the High Court held “the admission of [a] facially incriminating statement by [a] non-testifying co-defendant violate[s a defendant’s] right of cross-examination guaranteed by the confrontation clause of the Sixth Amendment, notwithstanding” any jury instruction “to consider that testimony only against [the] co-defendant.” Commonwealth v. Travers, 768 A.2d 845, 847 (Pa. 2001) (citations omitted).

2019Id., 481 U.S. at 209-10 , 107 S. Ct. at 1708-09 (footnote omitted). 10 In Commonwealth v. Travers. 768 A.2d 845, 850-51 (Pa. 2001), the Pennsylvania Supreme Court held that the redaction of a non-testifying co-defendant's confession, which replaced any direct reference to the defendant with the words "other man," when accompanied with the appropriate cautionary charge, sufficiently protected a defendant's confrontation clause rights.

2018Initially, we note that “[an] assertion of a Confrontation Clause violation presents an issue of law. [Thus,] [o]ur scope of review is plenary and our standard of review is de novo.” Commonwealth v. Williams, 103 A.3d 354, 358 (Pa.Super. 2014) (citation omitted).

2018Initially, we note that “[an] assertion of a Confrontation Clause violation presents an issue of law. [Thus,] [o]ur scope of review is plenary and our standard of review is de novo.” Commonwealth v. Williams, 103 A.3d 354, 358 (Pa.Super. 2014) (citation omitted).

2017Therefore, with respect to the Confrontation Clause issue, our Supreme Court explained that it could not “find the confrontation element of Crawford was met herein, for Crawford and its progeny require an opportunity for effective cross-examination which [the juvenile defendant] simply did not have[,]” as the victim provided “virtually no verbal responses on direct examination … which effectively left defense counsel with no opportunity to cross-examine her on the charges brought against [the juvenile defendant].” Id. at 1216, 1217 .7 ____________________________________________ 7 Cf. Commonwe

2016Kemmerer, supra; Charlton, supra. Thus, when the Commonwealth seeks to introduce Tender Years hearsay statements, the threshold Confrontation Clause query under Crawford "ls whether the . . statements are testimonial, for if the statements are nontestlmonial, 'the confrontation clause places no restriction on their introduction except for the "tradifional llrnitations" upon hearsay evidence'." Al/house, 36 A.3d at 173 (quoting Davis, 547 U.S. at 821 ).

2026In Bruton v. United States, 391 U.S. 123, 135-36 (1968), the Supreme Court of the United States held that the admission of incriminating statements by a non-testifying co-defendant violated a defendant’s right of cross-examination protected by the confrontation clause of the Sixth Amendment.

2021This particular argument implicates the principles set forth in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), in which the Supreme Court of the United States held that “the admission of [a] facially -9- J-S24037-21 incriminating statement by the non-testifying co-defendant violate[s a defendant’s] right of cross-examination guaranteed by the confrontation clause of the Sixth Amendment, notwithstanding [a] jury charge” that instructs the jury that the co-defendant’s statement could only consider that testimony against the co-defendant.

2014Prior to the decision in Crawford v. Washington, 541 U.S. 36 , [] (2004), the United States Supreme Court took the view that “the Confrontation Clause did not bar the admission of out-of-court statements that fell within a firmly rooted exception to the hearsay rule.” Williams v. Illinois, ––– U.S. ––––, 132 S.Ct. 2221, 2223 , [] (2012); see Ohio v. Roberts, 448 U.S. 56 , [] (1980).

2013Prior to the decision in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the United States Supreme Court took the view that “the Confrontation Clause did not bar the admission of out-of-court statements that fell within a firmly rooted exception to the hearsay rule.” Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 2223 , 183 L.Ed.2d 89 (2012); see Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980).

2018Further, the Confrontation Clause “precludes the admission of a testimonial report through - 11 - J-S33025-18 ‘surrogate’ in-court testimony.” Id. at 319 n.3 (citing Bullcoming v. New Mexico, 564 U.S. 647 , 652-53 (2011)); but see Commonwealth v. Yohe, 79 A.3d 520, 538 (Pa. 2013) (distinguishing Bullcoming and finding no Confrontation Clause violation where the testifying witness reviewed the entire file, compared test printouts, certified the accuracy of results, and signed the report).

2017The Yohe Court held there was no Confrontation Clause violation because “the testimonial document was the certified Toxicology Report prepared and signed by Dr. Blum, and [] the Commonwealth met its obligation to present the analyst who signed the certificate to testify at trial[.]” Yohe, 79 A.3d at 541 .

2026See Smith, 602 U.S. at 800 .

2026See Smith, 602 U.S. at 800 .

2026See, e.g., In re Stevenson, 12 A.3d 273, 275 (Pa. 2010) (“as a general matter, it is better to avoid constitutional questions if a non-constitutional ground 12 Similarly, in the event the Commonwealth opts to pursue separate trials upon remand, like the majority, I “offer no opinion” on the viability of a Commonwealth motion “seek[ing] to admit evidence of the other rape cases on the basis of another Rule 404(b)(2) exception.” Majority Opinion at 35-36 n.17. 13 Although the rule against hearsay exists in our rules of evidence and does not itself implicate constitutional concerns, the majority’

2026See, e.g., In re Stevenson, 12 A.3d 273, 275 (Pa. 2010) (“as a general matter, it is better to avoid constitutional questions if a non-constitutional ground 12 Similarly, in the event the Commonwealth opts to pursue separate trials upon remand, like the majority, I “offer no opinion” on the viability of a Commonwealth motion “seek[ing] to admit evidence of the other rape cases on the basis of another Rule 404(b)(2) exception.” Majority Opinion at 35-36 n.17. 13 Although the rule against hearsay exists in our rules of evidence and does not itself implicate constitutional concerns, the majority’

2026See, e.g., Commonwealth v. Jones, 37 N.E.3d 589, 598 (Mass. 2015) (finding Confrontation Clause violation where testifying expert “lacked any capacity to address the chain of custody and evidence-handling protocols [J-8A-2025, J-8B-2025 and J-8C-2025] [MO: McCaffery, J.] - 22 relevant to the process by which the swabs were collected” and “[c]onsequently, the defendant was deprived of any opportunity to question the expert about the protocols in place to ensure that the swabs were properly collected and labeled”); State v. Carmona, 371 P.3d 1056 , 1059 (N.M.

2026See, e.g., Commonwealth v. Jones, 37 N.E.3d 589, 598 (Mass. 2015) (finding Confrontation Clause violation where testifying expert “lacked any capacity to address the chain of custody and evidence-handling protocols [J-8A-2025, J-8B-2025 and J-8C-2025] [MO: McCaffery, J.] - 22 relevant to the process by which the swabs were collected” and “[c]onsequently, the defendant was deprived of any opportunity to question the expert about the protocols in place to ensure that the swabs were properly collected and labeled”); State v. Carmona, 371 P.3d 1056 , 1059 (N.M.

2026See Majority Opinion at 52 (“We begin with [appellant’s] Confrontation Clause challenge, as we conclude it is dispositive”); id. at 56 (“Our exceptions to the hearsay rule do not circumvent the requirements of the Confrontation Clause.”); id. at 56 n.35 (rejecting Commonwealth’s arguments the medical records exception or business records exception would apply based on reasoning used to find Confrontation violation: “as we determined supra, the primary purpose of a rape kit report — and in particular, the evidence collection information in the report — is to provide evidence for a later prosecu

2026See Majority Opinion at 52 (“We begin with [appellant’s] Confrontation Clause challenge, as we conclude it is dispositive”); id. at 56 (“Our exceptions to the hearsay rule do not circumvent the requirements of the Confrontation Clause.”); id. at 56 n.35 (rejecting Commonwealth’s arguments the medical records exception or business records exception would apply based on reasoning used to find Confrontation violation: “as we determined supra, the primary purpose of a rape kit report — and in particular, the evidence collection information in the report — is to provide evidence for a later prosecu

2026Ct. App. 2016) (“the Confrontation Clause prohibits the admission of DNA evidence collected by an unavailable SANE and any expert testimony based thereon when the primary purpose animating the SANE’s collection of such evidence is to assist in the prosecution of an individual identified at the time of the collection”); see also Young v. U.S., 63 A.3d 1033, 1048 (D.C. 2013) (“without evidence that [testifying witness] performed or observed the generation of the DNA profiles . . . herself, her supervisory role and independent evaluation of her subordinates’ work product are not enough to satisfy

2026Ct. App. 2016) (“the Confrontation Clause prohibits the admission of DNA evidence collected by an unavailable SANE and any expert testimony based thereon when the primary purpose animating the SANE’s collection of such evidence is to assist in the prosecution of an individual identified at the time of the collection”); see also Young v. U.S., 63 A.3d 1033, 1048 (D.C. 2013) (“without evidence that [testifying witness] performed or observed the generation of the DNA profiles . . . herself, her supervisory role and independent evaluation of her subordinates’ work product are not enough to satisfy

2025See, e.g., United States v. Stone, 432 F.3d 651, 654 (6th Cir.2005) (because Crawford focused only on testimonial evidence at trial, “it does not change our long-settled rule that the Confrontation Clause does not apply in sentencing hearings”), cert. denied, 549 U.S. 821 (2006).

2025See, e.g., United States v. Stone, 432 F.3d 651, 654 (6th Cir.2005) (because Crawford focused only on testimonial evidence at trial, “it does not change our long-settled rule that the Confrontation Clause does not apply in sentencing hearings”), cert. denied, 549 U.S. 821 (2006).

2024See Agnew, 299 - 34 - J-S10009-24 A.3d at 1007-1008 (holding that the Commonwealth presented text message between the confidential informant and the appellant “to explain [an investigator’s] course of conduct” and, as such, “the texts were admitted, not for their truth” and the appellant’s “claim of a Confrontation Clause violation [] merit[ed] no relief”); see also Dargan, 897 A.2d at 499-502 (same).

2024See Agnew, 299 - 34 - J-S10009-24 A.3d at 1007-1008 (holding that the Commonwealth presented text message between the confidential informant and the appellant “to explain [an investigator’s] course of conduct” and, as such, “the texts were admitted, not for their truth” and the appellant’s “claim of a Confrontation Clause violation [] merit[ed] no relief”); see also Dargan, 897 A.2d at 499-502 (same).

2023At trial, Trooper Follmer testified regarding his preparation and submission of the Google search warrant through Google’s online portal and then (Footnote Continued Next Page) - 25 - J-S10032-22 1087 (where defendant did not raise a Confrontation Clause claim in the trial court, the argument was waived on appeal); Commonwealth v. Akbar, 91 A.3d 227 , 235 (Pa. Super. 2014), vacated on other grounds, 111 A.3d 168 (Pa. 2015) (Confrontation Clause issue waived where defendant only raised a hearsay objection at trial when evidence admitted).

2023At trial, Trooper Follmer testified regarding his preparation and submission of the Google search warrant through Google’s online portal and then (Footnote Continued Next Page) - 25 - J-S10032-22 1087 (where defendant did not raise a Confrontation Clause claim in the trial court, the argument was waived on appeal); Commonwealth v. Akbar, 91 A.3d 227 , 235 (Pa. Super. 2014), vacated on other grounds, 111 A.3d 168 (Pa. 2015) (Confrontation Clause issue waived where defendant only raised a hearsay objection at trial when evidence admitted).

2021See Commonwealth v. Brown, 139 A.3d 208, 219-20 (Pa. Super. 2016) (after finding Confrontation Clause violation, this Court examines whether error was harmless beyond a reasonable doubt). - 19 - J-A26016-20 Commonwealth’s custody.

2021See Commonwealth v. Brown, 139 A.3d 208, 219-20 (Pa. Super. 2016) (after finding Confrontation Clause violation, this Court examines whether error was harmless beyond a reasonable doubt). - 19 - J-A26016-20 Commonwealth’s custody.

2016Kemmerer, supra; Charlton, supra. Thus, when the Commonwealth seeks to introduce Tender Years hearsay statements, the threshold Confrontation Clause query under Crawford "ls whether the . . statements are testimonial, for if the statements are nontestlmonial, 'the confrontation clause places no restriction on their introduction except for the "tradifional llrnitations" upon hearsay evidence'." Al/house, 36 A.3d at 173 (quoting Davis, 547 U.S. at 821 ).

2016As a result, and because the requirements of the TYHA were satisfied, "the confrontation clause placejd] no restriction on their lntroductlon'." Al/house, 36 A.3d at 173 (quoting Davis, 547 U.S. at 821 ).

2023However, unless the Supreme Court of the United States reverses course in its Confrontation Clause cases, or until this Court untethers Article I, Section 9 of the Pennsylvania Constitution from the Supreme Court’s jurisprudence and allows us to examine the question anew under our own charter,83 this inequity shall continue. 82 Pointer 380 U.S. at 405 (1965). 83 See In re N.C., 105 A.3d 1199 , 1210 n.15 (Pa. 2014) (explaining that, because the language of the Sixth Amendment and Article I, Section 9 are identical, a Confrontation Clause analysis would be the same under either charter). [J-12-2

2023However, unless the Supreme Court of the United States reverses course in its Confrontation Clause cases, or until this Court untethers Article I, Section 9 of the Pennsylvania Constitution from the Supreme Court’s jurisprudence and allows us to examine the question anew under our own charter,83 this inequity shall continue. 82 Pointer 380 U.S. at 405 (1965). 83 See In re N.C., 105 A.3d 1199 , 1210 n.15 (Pa. 2014) (explaining that, because the language of the Sixth Amendment and Article I, Section 9 are identical, a Confrontation Clause analysis would be the same under either charter). [J-12-2

2015The use of former testimony is permissible under the confrontation clause because the previous opportunity for cross-examination "afford(s) the trier of fact a satisfactory basis for evaluating the truth of the prior statement." Commonwealth v. Jackson, 344 A.2d 842, 845 , 463 Pa. 301, 308 (1975) (citing Mancusi v. Stubbs, 408 U.S. 204 , 92 S.Ct. 2308 , 33 L.Ed.2d 293 . (1972), quoting California v. Green, 399 U.S. 149, 161 , 90 S.Ct. 1930, 1936 , 26 L.Ed.2d 489 (1970)).

2015The use of former testimony is permissible under the confrontation clause because the previous opportunity for cross-examination "afford(s) the trier of fact a satisfactory basis for evaluating the truth of the prior statement." Commonwealth v. Jackson, 344 A.2d 842, 845 , 463 Pa. 301, 308 (1975) (citing Mancusi v. Stubbs, 408 U.S. 204 , 92 S.Ct. 2308 , 33 L.Ed.2d 293 . (1972), quoting California v. Green, 399 U.S. 149, 161 , 90 S.Ct. 1930, 1936 , 26 L.Ed.2d 489 (1970)).

1995Id. at 61 , 107 S.Ct. at 1003, 94 L.Ed.2d at 60 . 13 “[Ritchie ] rejected the notion adopted by this Commonwealth’s highest tribunal that the confrontation clause translated into a constitutionally compelled rule of pre-trial discovery.” Carillion, 380 Pa.Super. at 467 , 552 A.2d at 283 .

1995Id. at 61 , 107 S.Ct. at 1003, 94 L.Ed.2d at 60 . 13 “[Ritchie ] rejected the notion adopted by this Commonwealth’s highest tribunal that the confrontation clause translated into a constitutionally compelled rule of pre-trial discovery.” Carillion, 380 Pa.Super. at 467 , 552 A.2d at 283 .

2009Id. at 840, 110 S.Ct. 3157 .

1999See Maryland *1265 v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990).

2007As it was, reading the autopsy report into the record to establish the cause of death “denied [the defendant] the fundamental constitutional right of confrontation and was error.” Id. ¶ 34 More recently, a panel of this Court in Commonwealth v. Carter, 861 A.2d 957 (Pa.Super.2004) found a confrontation clause violation in the admission of a lab report identifying cocaine in defendant’s possessions where the testimony accompanying the report came from the crime lab manager who had no personal knowledge of the report.

1977As our Supreme Court has stated: "The purpose of offered evidence can determine its admissibility with respect to the confrontation clause." McCloud, supra, 457 Pa. at 314 , 322 A.2d at 656 .

2021The Court refined Bruton in Richardson v. Marsh, 481 U.S. 200, 211 (1987), which held that the - 12 - J-S51019-20 admission of a co-defendant’s statement that redacted the defendant’s name did not violate the Confrontation clause.

2019Id., 481 U.S. at 209-10 , 107 S. Ct. at 1708-09 (footnote omitted). 10 In Commonwealth v. Travers. 768 A.2d 845, 850-51 (Pa. 2001), the Pennsylvania Supreme Court held that the redaction of a non-testifying co-defendant's confession, which replaced any direct reference to the defendant with the words "other man," when accompanied with the appropriate cautionary charge, sufficiently protected a defendant's confrontation clause rights.