Commonwealth v. Walters, P., Aplt.

[J-57-2023]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA, : No. 102 MAP 2022

:

Appellee : Appeal from the Order of the

: Superior Court dated April 5, 2022

: at No. 446 MDA 2021 Affirming the

v. : Judgment of Sentence of the

: Wyoming County Court of Common

: Pleas, Criminal Division, dated

PHILLIP DONALD WALTERS, : December 10, 2020 at No. CP-66-

: CR-0000058-2019.

Appellant :

: ARGUED: October 18, 2023

OPINION

CHIEF JUSTICE TODD DECIDED: September 23, 2024

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

[J-57-2023] - 2

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. 1

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 2 and abuse of a corpse. 3 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,

1 18 Pa.C.S. § 2502(a).

2 Id. § 2718(a)(1).

3 Id. § 5510.

[J-57-2023] - 3

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.

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”; 4 and that

he “didn’t see evidence of any overt injury on the body per se externally when [he]

examined it.” Id. at 18.

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

4 “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.).

[J-57-2023] - 4

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. 5 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.

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

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

[J-57-2023] - 5

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, 913 A.2d 207 (Pa. 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

[J-57-2023] - 6

fractures of Lorenzen’s skull, which would corroborate Bell’s testimony that Lorenzen had

been hit on the head with a hammer.

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. 6

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, 208 A.3d 960, 970 (Pa. 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, 265 A.3d 485,

530 (Pa. 2021).

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

6 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 2. However, as Justice Dougherty observes,

the Commonwealth does not argue that Appellant waived this claim. Id. at 4. 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.

[J-57-2023] - 7

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; 7 see also Commonwealth v. Maconeghy, 171 A.3d 707, 712

(Pa. 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).

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, 316 A.2d 888, 891

(Pa. 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, 756 A.2d 1139, 1160 (Pa. 2000) (as pathologist

7 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.

[J-57-2023] - 8

“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,

106 A.3d 611, 628-29 (Pa. 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

[J-57-2023] - 9

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

[J-57-2023] - 10

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. 8 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 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, 337

A.2d 873 (Pa. 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, 236 A.2d 802 (Pa. 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

8 The appellant’s conviction for second-degree murder was based on his conviction for

felony kidnapping.

[J-57-2023] - 11

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, 517 A.2d 920 (Pa. 1986); Commonwealth v.

Balodis, 747 A.2d 341 (Pa. 2000); and Commonwealth v. Hernandez, 615 A.2d 1337 (Pa.

Super. 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

[J-57-2023] - 12

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). 9

9 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.

[J-57-2023] - 13

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)). 10 Instead, the Commonwealth suggests

the instant case is more analogous to the South Carolina Supreme Court’s decision in

State v. Commander, 721 S.E.2d 413, 415 (S.C. 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”).

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. 11 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

10 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.

11 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.

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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.

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.

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 Webb, 296 A.2d at 737;

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.

[J-57-2023] - 15

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

[J-57-2023] - 16

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 without 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,

crushing 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.

[J-57-2023] - 17

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 drugs, 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

[J-57-2023] - 18

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. 12

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.

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. 13

12 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 1. 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 6 n.15.

13 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 6. 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

(continued…)

[J-57-2023] - 19

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

opinion 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

pathologist confirmed that he has consulted the relevant history to render an opinion on

cause of death in other cases.” Id. at 7 (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.3d 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.

[J-57-2023] - 20

statements. 14 Thus, we hold that his testimony impermissibly encroached on the jury’s

determination of Bell’s credibility.

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

14 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.

[J-57-2023] - 21

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. 15

15 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 5-6. 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

(continued…)

[J-57-2023] - 22

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, 273 A.3d 514, 540 (Pa. 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

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.

[J-57-2023] - 23

and the prejudicial effect of the error was so insignificant by comparison that the error

could not have contributed to the verdict). 16

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.

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.

16 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 8. 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 9. 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.

[J-57-2023] - 24