Com. v. Fitzpatrick, J.

2024 Pa. Super. 101, 316 A.3d 987

• Court: Superior Court of Pennsylvania
• Decided: May 17, 2024
• Docket: 554 MDA 2023
• Status: Published

Opinion

J-A27041-23

2024 PA Super 101

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSEPH BERNARD FITZPATRICK, III : No. 554 MDA 2023

Appeal from the Order Entered March 20, 2023 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002534-2014

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*

CONCURRING/DISSENTING OPINION BY LAZARUS, J.:FILED: MAY 17, 2024

I concur with the Majority’s determination that the Commonwealth’s

accident reconstruction evidence is admissible and that it is for the jury to

assess its credibility and the weight to be afforded it. However, I dissent from

the Majority’s conclusion that Dr. Caruso’s expert opinion testimony,

regarding manner of death, was not required to be held to the requisite

reasonable degree of medical certainty. Accordingly, I would hold, in line with

our Supreme Court’s longstanding precedent, that the trial court properly

barred Dr. Caruso’s manner of death testimony from trial.

In my view, the Majority has applied an inappropriately lenient standard

in analyzing Dr. Caruso’s testimony regarding the victim’s manner of death.

The admissibility of expert testimony is governed by Pa.R.E. 702, which

provides as follows:

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* Former Justice specially assigned to the Superior Court. J-A27041-23

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.

Although the Majority correctly acknowledges that experts are not

required to use “magic words,” see Commonwealth v. Baez, 720 A.2d 711,

728 (Pa. 1998) (experts need not use “magic words” of “reasonable degree of

medical certainty”), courts of this Commonwealth have routinely held that

expert opinion testimony must be held to the requisite reasonable degree of

certainty. See Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super.

2015) (expert’s report grounded “on mere possibilities” rather than

reasonable degree of certainty was not competent evidence) (citing

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa. Super. 2012));

see also Commonwealth v. Radford, 236 A.2d 802 (Pa. 1968) (holding

medical expert’s testimony insufficient because expert stated defendant’s

assault on victim “probably” caused victim’s death).

Instantly, the Majority concludes that manner of death testimony is

distinct and, somehow, not subject to this same long-recognized standard.

However, our Supreme Court has previously held that an expert opinion

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regarding manner of death must be held to our Commonwealth’s

requisite degree of medical certainty. See Commonwealth v. Spotz,

756 A.2d 1139, 1160 (Pa. 2000) (forensic pathologist’s testimony in first-

degree murder trial as to victim’s manner of death properly based on

reasonable degree of medical certainty, even though pathologist did not

use those “magic words”).

The Majority embarks upon a lengthy dicta-led journey and concludes

by mischaracterizing the holding in Spotz. See Majority, ---DATE---, at 15-

34. The Majority concludes that “manner of death determinations are required

to be ‘probable’ and not ‘definitive,’ unlike cause of death determinations, so

Dr. Caruso’s language is . . . compatible with the holding in [Spotz].” Id. at

32. The Majority’s holding is in direct conflict with the Spotz Court.

It is clear throughout our caselaw that an expert need not say the magic

words, see Baez, supra, but the Majority blatantly mischaracterizes the

holding in Spotz. In Spotz, our Supreme Court applied the same standard

to manner of death that it does to cause of death. As I highlighted above, our

Supreme Court expressly stated that a forensic pathologist’s testimony as to

victim’s manner of death is properly based upon the “reasonable degree

of medical certainty, rather than mere speculation.” See Spotz, 756

A.2d at 1160 (emphasis added). Moreover, in Radford, our Supreme Court

concluded that an expert’s statement that defendant “probably” caused the

victim’s death was not based on a reasonable degree of medical certainty.

See Radford, supra.

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With the appropriate standard in mind, Dr. Caruso’s testimony fails to

meet the requisite burden. While experts are not required to espouse the

“magic words,” Dr. Caruso did not merely omit them, but expressly stated

that his expert opinion was not to the required reasonable degree of medical

certainty. See N.T. Pre-Trial Hearing, 1/10/23, at 171, 173-74 (Dr. Caruso

testifying his opinion was “not held to a reasonable degree of scientific

certainty;” rather, his opinion was based on “more likely than not”)

(emphasis added); see id. at 171-72 (Dr. Caruso testifying “I think the

manner of death was homicide”) (emphasis added).

The Majority attempts to draw a distinction between “manner of death”

expert testimony and all other types of expert testimony. See Majority, ---

DATE---, at 21-34. Simply put, I find that distinction unpersuasive. Rule 702

makes no distinction among types of experts or types of expert opinion

testimony. See Pa.R.Crim.P. 702. Indeed, our standard that expert

testimony regarding manner of death must be offered to a reasonable

degree of medical certainty has been the law of this Commonwealth for

decades. See Spotz, supra; see also Commonwealth v. Haney, 131 A.3d

24, 30-31 (Pa. 2015) (accepting expert opinion testimony to reasonable

degree of medical certainty on manner of death); Commonwealth v.

Patterson, 91 A.3d 55, 66 (Pa. 2014) (accepting forensic pathologist opinion

testimony to reasonable degree of medical certainty as to manner of death);

Commonwealth v. Miller, 987 A.2d 638, 656 (Pa. 2009) (“[T]he substance

of the testimony presented by the expert must be reviewed to determine

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whether the opinion rendered was based on the requisite degree of certainty

and not on mere speculation.”). Based upon my review, Dr. Caruso’s

statement that he applied the correct standard of “more likely than not” is an

incorrect statement of the law, inasmuch as its almost identical to the

language that our Supreme Court disallowed in Radford and later applied to

manner of death analysis in Spotz. See Radford, supra; see Spotz, supra.

Thus, in my view, the Majority has erred with respect to the standard used to

assess the admissibility of manner of death testimony, and I would affirm the

trial court’s order in this respect.

Accordingly, I respectfully dissent.

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