Com. v. Fitzpatrick, J.

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.*

OPINION BY STEVENS, P.J.E.: FILED: MAY 17, 2024

Appellant, the Commonwealth, appeals from the March 20, 2023, order

entered in the York County Court of Common Pleas. The order granted in part

the Commonwealth’s motion in limine but denied the Commonwealth’s

request to present certain evidence and testimony in the case against

Defendant, Joseph Bernard Fitzpatrick, III, regarding the death of his wife,

Annemarie. After a careful review, we reverse the part of the order denying

the Commonwealth’s requests and affirm the remaining part.

The facts of the case, as set forth by the Pennsylvania Supreme Court1,

are as follows:

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 This case first went to trial in 2014. In 2021, the Pennsylvania Supreme

Court ordered a new trial. Commonwealth v. Fitzpatrick, 255 A.3d 452,

(Pa. 2021). The instant appeal is regarding a pre-trial motion in the new trial.

J-A27041-23

On June 6, 2012, Fitzpatrick and Annemarie were riding on

an all-terrain vehicle (“ATV”) through a deep part of Muddy Creek,

a tributary of the Susquehanna River that runs near their home in

Chanceford Township, York County, Pennsylvania. According to

Fitzpatrick, at some point during their trek, the vehicle flipped

backwards and tossed both riders into the creek. Although

Fitzpatrick managed to climb out of the water relatively

unscathed, in his version of events, Annemarie could not.

Fitzpatrick claimed that he called 911 after he initially was unable

to locate Annemarie in the water. While on the line with a

dispatcher, Fitzpatrick allegedly saw Annemarie's body floating

nearby on the side of the creek opposite from where he was

standing.

Pennsylvania State Police (“PSP”) troopers and emergency

medical technicians (“EMT”) responded to the scene. Fitzpatrick—

who presented no obvious signs of injury and refused medical

treatment—told a PSP trooper that, when he located Annemarie,

he dove into the creek, removed her body from the water, and

began to perform CPR. The EMTs took over the

resuscitation efforts. Once the EMTs were able to restart

Annemarie's pulse, they immediately transported her to the local

hospital. A short time later, Annemarie died. The York County

Coroner's Office determined that the cause of Annemarie's death

was drowning. Upon further determining that an autopsy was not

necessary at that time, the Coroner's Office released Annemarie's

body to a mortician, who embalmed her remains.

At first, the PSP investigators uncovered no evidence of foul

play. By all initial accounts, it appeared to the authorities that

Annemarie had died in an ATV accident on June 6. Two days later,

things changed dramatically. On June 8, 2012, the PSP received a

telephone call from Rebekah Berry, one of Annemarie's co-workers

at Collectibles Insurance Services, a business that is located

across the state line in Hunt Valley, Maryland. This call

transformed the case into a murder investigation, with Fitzgerald

being the lead suspect.

Berry told PSP investigators that her co-workers had found

a day planner on Annemarie's desk. Annemarie had left a note in

the day planner that read, “06/05/12. If something happens to

me—JOE.” Annemarie had personally signed the note. After

reviewing the note, PSP personnel obtained access to Annemarie's

password-protected work email account. The troopers discovered

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that, at 10:30 a.m. on June 6, 2012, the day she died, Annemarie

sent an email from her work email account to her personal email

account, “feltonfitz@gmail.com.” In the subject line of the email,

Annemarie wrote, “if something happens to me.” In the body of

the message, Annemarie stated, “Joe and I are having marital

problems. Last night we almost had an accident where a huge log

fell on me. Joe was on the pile with the log and had me untying a

tarp directly below.”

That same day, PSP investigators interviewed Fitzpatrick at

a PSP barracks. Fitzpatrick related that he and Annemarie went to

Muddy Creek to have a waterside picnic in celebration of their

wedding anniversary. During dinner, Fitzpatrick drank three beers.

Annemarie had a glass of wine. After they ate, Fitzpatrick and

Annemarie wanted to start a campfire, but they had left the

propane torch needed to ignite the fire back at their house. They

climbed onto the ATV, with Annemarie in the driver's position and

Fitzpatrick the passenger. Annemarie, who, according to

Fitzpatrick, was inexperienced in driving ATVs, started toward the

house to get the torch, with Fitzpatrick behind her.

Fitzpatrick told the PSP that, due to his wife's limited ability

operating ATVs, he had to reach around Annemarie to assist her

with the controls. He explained that he reached around her left

side to shift gears and around her right side to throttle the vehicle.

Fitzpatrick claimed that, when he twisted the throttle, the ATV

shot forward and flipped them both backwards into the water.

As the interview progressed, however, Fitzpatrick's version

of the events began to change. For instance, he retracted his

statement that he had shifted the gears and twisted the throttle.

He proceeded now to state that he believed that it had to be

Annemarie who did so, because he no longer could remember

reaching around and assisting her. He claimed that his memory of

the accident was limited, and that he could only recall driving into

the creek in a diagonal direction.

Regarding the accident, Fitzpatrick explained that the front

of the ATV rose slowly—more like a tilt than a rapid ascent, as one

might see when a driver performs a wheelie—before it flipped over

backwards. He then told the troopers that, when he emerged from

the water, the rear tire of the ATV was near his head. The vehicle

was almost entirely submerged. He tried to move the ATV, but

could not do so because so much of it was under water. Fitzpatrick

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looked around but could not see any sign of Annemarie. After

several minutes of searching for her, he placed the 911 call. He

told the police that it was during the call that he spotted

Annemarie's body floating near the opposite shore.

Fitzpatrick walked away from the incident relatively

unscathed. He informed the troopers only that he felt some

soreness in his legs. Otherwise, the accident that had caused

Annemarie to drown had left him almost entirely uninjured.

Notably, Fitzpatrick told the PSP investigators that he and

Annemarie were not experiencing any marital problems on or

before June 6, 2012.

Meanwhile, on June 8, 2012, PSP troopers executed a search

warrant on Fitzpatrick's residence. While on the property, the

investigative team observed a large woodpile in a field behind the

house. The stack of wood was partially covered by a blue tarp. On

one side of the pile, there was clear evidence that a log had fallen

off the pile. The investigators located an impression in the mud

that they believed likely was caused by a fallen log, which also

was surrounded by loose bark. These findings corroborated

Annemarie's June 6 email message.

During the initial investigation on the night of Annemarie's

death, a trooper had observed Annemarie's cell phone on a picnic

table near the creek where she drowned. During the execution of

the search warrant on June 8, 2012, PSP investigators tried to

locate that phone, but were unsuccessful. They asked Fitzpatrick

about the phone, but he claimed that he did not know where it

was located. He suggested that he and his brother might have

thrown it in the garbage when they were cleaning up the residence

during the two days following Annemarie's death. Fitzpatrick told

the troopers that he would let them know if he found the phone.

This turned out to be untrue. As noted below, Fitzpatrick concealed

the phone in order to cover up the fact that Annemarie had learned

that he was engaged in an extramarital affair.

On June 9, 2012, three days after Annemarie's death and in

light of the newly uncovered suspicious circumstances

surrounding the drowning, authorities decided to have

Annemarie's body autopsied. Barbara Bollinger, M.D., a forensic

pathologist, conducted the autopsy at the Lehigh Valley Hospital.

Dr. Bollinger determined that Annemarie had drowned, and

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concluded that the circumstances surrounding her death were

suspicious. However, Dr. Bollinger could not determine the manner

of death with any degree of certainty. During the examination of

Annemarie's body, Dr. Bollinger found injuries to the head, neck,

torso, buttocks, right and left hands, right and left arms, right and

left legs, right elbow, right forearm, left thigh, left knee, and lower

back. Additionally, one of Annemarie's ribs had been broken.

Notwithstanding Fitzpatrick's assertion that Annemarie had

consumed a glass of wine during dinner on the night she died, a

toxicology report showed no traces of alcohol or drugs in her

system.

As the investigation unfolded, PSP troopers continued to

suspect that Annemarie's death might not have been an accident.

Investigators learned that much of Fitzpatrick's statement to them

was not truthful. For instance, contrary to his claim that he and

Annemarie were not experiencing marital problems, Fitzpatrick

had been engaging in an affair with a woman named Jessica

Georg. In emails and other communications, Fitzpatrick told Georg

that he loved her and that he was going to end his marriage with

Annemarie in order to be with her.

On June 2, 2012—four days before Annemarie died—Georg

told Fitzpatrick that, if he wished to share a relationship with her,

he would have to end his marriage. Fitzpatrick agreed, and he

committed to discussing the matter with Annemarie. According to

Georg, Fitzpatrick decided that, on the night of June 6, he was

going to discuss a separation with Annemarie, and this was to be

followed by a divorce. But on June 7, Fitzpatrick abruptly directed

Georg to delete any Facebook messages between them and told

her that the police might be interested in speaking with her.

Fitzpatrick later admitted that he had hidden Annemarie's cell

phone (the one that PSP troopers had searched for on his

property) in an effort to conceal the affair from authorities.

The PSP also learned that Fitzpatrick was the beneficiary of

Annemarie's life insurance policy. Under the policy's terms, upon

Annemarie's death, Fitzpatrick would receive over $1.7 million

dollars. Eventually, investigators searched Fitzpatrick's personal

computer and reviewed his internet activity. They found that, on

June 1, 2012—five days before Annemarie's death—Fitzpatrick

had conducted an online search for “life insurance review during

contestability period.” Notes of Testimony (“N.T.”), 5/4/2015-

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5/13/2015, at 918. Four days later, he performed an online search

for “polygraph legal in which states.” Id.

Corporal Andrew Thierwechter, a PSP accident

reconstructionist, attempted to reenact the accident in Muddy

Creek according to Fitzpatrick's version of the events. Using

forensic mapping, measurements, and simulations with an actual

ATV, Corporal Thierwechter determined that, had the incident

occurred in accordance with Fitzpatrick's account, both he and

Annemarie would have been subjected to similar forces when the

ATV flipped over. In Corporal Thierwechter's view, either both

riders would have suffered similar injuries, or neither would have

been injured at all. Corporal Thierwechter concluded that there

was no reasonable way to explain how Annemarie could have

suffered such significant injuries while Fitzpatrick suffered

essentially none. Nor could he ascertain any reasonable

explanation for how Fitzpatrick awoke next to the submerged ATV

while Annemarie ended up on the other side of the creek.

Nearly two years after Annemarie's death, the PSP charged

Fitzpatrick with homicide. The case originally was assigned to the

Honorable Gregory M. Snyder. Prior to trial, Fitzpatrick filed an

omnibus pre-trial motion, asserting, inter alia, that both the note

written in Annemarie's day planner and the email that she had

sent from her work email account to her private account were

inadmissible hearsay and were not otherwise admissible under

any established hearsay exception. The Commonwealth conceded

that both statements were hearsay, but argued that the

statements nonetheless were admissible as substantive evidence

under the state of mind hearsay exception. See Pa.R.E. 803(3).

Judge Snyder agreed with the Commonwealth, ruling that both

statements were admissible. Thereafter, Judge Snyder was

reassigned to the Family Division of the York County Court of

Common Pleas. Fitzpatrick's case was transferred to the

Honorable Richard K. Renn for trial.

From May 4 through May 13, 2014, Fitzpatrick was tried for

murder before a jury. Of critical importance to the

Commonwealth's case against Fitzpatrick were the note, the

email, and the testimonies of Dr. Bollinger and Corporal

Thierwechter. Given its particular relevance here, Dr. Bollinger's

testimony requires some further elaboration. Dr. Bollinger testified

that, to a reasonable degree of medical certainty, the cause of

Annemarie's death was drowning. While this conclusion was not

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disputed by the parties, the manner of death remained a central

point of contention. With the assistance of charts and diagrams,

Dr. Bollinger detailed for the jury the more than twenty-five

injuries suffered by Annemarie. Dr. Bollinger opined that all of

these injuries were the result of blunt force trauma. However, she

explained as well that such trauma may have been inflicted during

the resuscitation attempts or during the embalming process,

which occurred prior to the autopsy. On cross-examination, Dr.

Bollinger stated that the existence of injuries caused by blunt force

trauma does not, ipso facto, mean that a criminal act caused those

injuries.

At trial, Dr. Bollinger could not offer a definitive opinion on

the manner of death. She explained that Annemarie's

injuries could have been caused by being held underwater until

she drowned. Because Fitzpatrick was the only person in the water

with Annemarie, only he could have done that to her. In Dr.

Bollinger's view, that made the death at least

suspicious. However, Dr. Bollinger could not opine whether that,

in fact, is what happened. She testified that none of the more than

twenty-five injuries were indicative of any specific type of assault.

Instead, she opined, Annemarie's injuries were “consistent with

an accident,” N.T. at 547, and that it was “possible"” that those

injuries were consistent with being held under water. Id. at 564.

On re-cross-examination, defense counsel asked Dr. Bollinger the

following question: ”Dr. Bollinger, do you equally agree that all of

the injuries that you've described in depth here over the last few

questions could also be caused as a result of an ATV

accident?” Id. at 564-65 (emphasis added). Dr. Bollinger

responded: “That is also possible.” Id. at 565.

Fitzpatrick testified in his own defense. As he did when

interviewed by PSP investigators, Fitzpatrick maintained that

Annemarie had died in an ATV accident. Fitzpatrick told the jury

that Annemarie must have inadvertently placed the vehicle in the

reverse gear, such that when she accelerated the ATV flipped

backwards, sending them both into the water. Fitzpatrick denied

killing Annemarie intentionally.

Commonwealth v. Fitzpatrick, 255 A.3d 452, 459-63 (Pa. 2021).

The jury found Defendant guilty of first-degree murder. In September

2015, after post-sentence motions were submitted and oral argument was

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held on the motions, the trial judge determined that the evidence was

insufficient to support a murder conviction and granted Defendant a judgment

of acquittal. In 2017, we reversed the trial court’s grant of Defendant’s motion

for judgment of acquittal. Once Defendant’s sentence was reinstated, he again

appealed to this Court contesting the admissibility of two pieces of evidence;

the note and the email. In 2019, we held that the evidence was properly

admitted.

The Defendant filed a petition for allowance of appeal which the

Pennsylvania Supreme Court granted. In 2021, the Pennsylvania Supreme

Court found the note and email to have been admitted in error and ordered a

new trial. The case was remanded to the York County Court of Common Pleas

and by order and opinion dated June 7, 2022, the trial court inexplicably

released defendant on nominal bail.2 Also in June 2022, the Commonwealth

____________________________________________

2 The Commonwealth devotes several pages of the argument section in its

brief to establish the trial court judge’s “pattern of bias against the

Commonwealth and in favor of seeing defendant acquitted and discharged

from incarceration.” Appellant’s Br. at 32. The Commonwealth noted that it

anticipates filing a recusal motion at the conclusion of the instant appeal. Id.

at 35 n.169. While the Commonwealth states that it does not raise bias lightly

or merely because it received an adverse ruling, Id. at 34, reasons the

Commonwealth includes are that the trial court released Defendant from

prison when “lacking jurisdiction,” and released Defendant on nominal bail

despite the charge being homicide. Appellant’s Br. at 33-34. The trial court

stated that it raised issues with the Commonwealth’s evidence sua sponte,

R.R. 1627, which the Commonwealth asserts resulted in the partial denial of

the Commonwealth’s motion in limine. Appellant’s Br. at 34. The trial court

stated in its order granting supervised bail on June 6, 2022, “We note that we

do not consider ourselves bound by the Superior Court’s finding that there

(Footnote Continued Next Page)

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filed a motion in limine for the admission of, inter alia, demonstrative exhibits

by Corporal Thierwechter and testimony from Dr. Caruso. A pre-trial hearing

was held on the motion in January 2023 on the motions. On March 20, 2023,

the trial court issued an order resolving the pre-trial motions. Relevantly, the

trial court denied the Commonwealth’s requests to present demonstrative

exhibits by Corporal Thierwechter and testimony from Dr. Caruso. This appeal

followed.

The Commonwealth raises two issues on appeal:

I. DID THE TRIAL COURT ERR IN DENYING THE

COMMONWEALTH'S MOTION IN LIMINE AND THEREBY

EXCLUDING EVIDENCE AND TESTIMONY OF THE ATV

EXPERIMENTS CONDUCTED BY CORPORAL ANDREW

THIERWECHTER AND THE PENNSYLVANIA STATE POLICE?

II. DID THE TRIAL COURT ERR IN DENYING THE

COMMONWEALTH'S MOTION IN LIMINE AND THEREBY

EXCLUDING EVIDENCE AND TESTIMONY OF DR. JAMES

CARUSO, AN EXPERT IN THE FIELD OF FORENSIC

PATHOLOGY AND AQUATIC DEATHS, AS TO HIS OPINION

CONCERNING THE MANNER OF DEATH FOR THE HOMICIDE

VICTIM AND HIS REASONS FOR THAT OPINION?

Appellant’s Br. at 4.

In reviewing the denial of the Commonwealth's motion in limine, our

standard of review is as follows:

when reviewing the denial of a motion in limine, we apply an

evidentiary abuse of discretion standard of review. See

Commonwealth v. Zugay, 2000 PA Super 15, 745 A.2d 639

(Pa.Super. 2000) (explaining that because a motion in limine is a

____________________________________________

was sufficient evidence at trial to support the original verdict.” R.R. 1606. The

Commonwealth asserts that the “pattern and tone exhibited by the trial court’s

rulings strike a tone of advocacy rather than dispassionate reflection.”

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procedure for obtaining a ruling on the admissibility of evidence

prior to trial, which is similar to ruling on a motion to suppress

evidence, our standard of review of a motion in limine is the same

of that of a motion to suppress). The admission of evidence is

committed to the sound discretion of the trial court and our review

is for an abuse of discretion.

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa. Super. 2018) (quoting

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (citations

and brackets omitted)).

Specifically, the Commonwealth’s first issue is that the trial court abused

its discretion in precluding the admission of the demonstrative experiments

because they were substantially similar to the version of events provided by

Defendant and that if there is a discrepancy between Defendant’s statements

and the results of the experiments, such would affect the “weight of the

evidence and not admissibility.” Appellant’s Br. at 30. Defendant’s position is

that the ATV experiments by Corporal Thierwechter were “poorly theorized,

organized and performed,” and “bore no similarity to the conditions or event

being analyzed.” Appellee’s Br. at 8.

As a general rule, “the threshold inquiry with admission of evidence is

whether the evidence is relevant.” Commonwealth v. Cook, 952 A.2d 594,

612 (2008) (citations omitted). Our rules of evidence state that “[a]ll relevant

evidence is admissible, except as otherwise provided by law. Evidence that is

not relevant is not admissible.” Pa.R.E. 402. Pennsylvania Rule of Evidence

401 provides that “[e]vidence is relevant if: (a) it has any tendency to make

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a fact more or less probable than it would be without the evidence; and (b)

the fact is of consequence in determining the action.” Pa.R.E. 401.

Further, this Court has provided that “[e]vidence is relevant if it logically

tends to establish a material fact in the case, tends to make a fact at issue

more or less probable or supports a reasonable inference or presumption

regarding a material fact.” Commonwealth v. Akhmedov, 216 A.3d 307,

316 (Pa. Super. 2019).

However, “[t]he court may exclude relevant evidence if its probative

value is outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

Specifically, with respect to the admission of demonstrative evidence,

we are guided by the following principles:

The decision to admit the results of experiments, like the decision

to admit other forms of evidence, is ordinarily one for the trial

court's discretion, reviewable only for an abuse of

discretion. Commonwealth v. Sero, 478 Pa. 440, 449, 387 A.2d

63, 68 (1978). “Authority is unanimous that test results

of experiments are admissible if the conditions under which

the experiment was conducted are 'substantially similar' to the

conditions involved in the commission of the crime; to attain

identical conditions is often impossible.” Commonwealth v.

Sero, supra, 478 Pa. at 449-450, 387 A.2d at 68 (results of a

neutron activation tests on scarf worn by victim introduced to

discredit defendant's version of the shooting held admissible).

The requirement of similarity of conditions is a relative one:

“[p]erfect identity between experimental and actual conditions is

neither attainable nor required . . . . [d]issimilarities affect the

weight of the evidence, not admissibility.” Ramseyer v. GM

Corp., 417 F.2d 859, 864 (8th Cir.1969). Thus, the general rule

regarding corroboration by results of experiments is that unless

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some other exclusionary rule is violated, the results

of experiments may be admitted into evidence when the

circumstances under which the experiment was performed

were sufficiently similar to the event in question to throw light on

a material point in controversy and to assist the jury in arriving at

the truth rather than to confuse the jury, inflame passions or

prejudices, or unnecessarily delay proceedings.

Commonwealth v. Davis, 492, 554 A.2d 104, 109 (1989).

The trial court focuses its analysis on those aspects of the experiment

that conflicted with Defendant’s theory of what happened, ignoring the

probative aspects that support the Commonwealth’s theory. The trial court

concludes that because the experiments do not conform to Defendant’s

version of events, the experiments necessarily do not accurately replicate the

“actual events.” Tr. Ct. Op. at 8 (comparing the experiment to “Defendant’s

account of the actual incident” and suggesting the jury will have to guess

which experiment was closest to “the actual events.”).

For example, the trial court indicates that instead of human riders,

mannequins were used, Tr. Ct. Op. at 8, but fails to consider in its analysis

that the mannequins were of the same size and weight as Defendant and his

wife. The trial court states that multiple reenactments were done at varying

speeds producing differing results, and none produced the tire marks that

were found at the actual scene of the incident. Id. The trial court fails to

recognize the probative value in the fact that no reenactment supports

Defendant’s theory of the case; it necessarily has a tendency either to make

the Defendant’s “facts” less likely or the Commonwealth’s experiments less

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credible. Next, the trial court notes the varying speeds performed during the

experiment and finds this to weigh against similarity. Tr. Ct. Op. at 8. The

record reflects that Dr. Fisher, Commonwealth expert in biometrics,

acknowledged that the speed of the ATV on the night in question was an

unknown variable. N.T., 5/12/15, at 1130. However, that was the reason for

performing six different experiments; to test various speeds and forces to

determine “which speeds provided kinematics most consistent with Mr.

Fitzpatrick’s account.” Id.

Further, the trial court uses as factors weighing against the finding of

“sufficiently similar” conditions that the reenactment was not conducted at the

same time of day that the incident happened and that it was “unknown

whether the water conditions were the same as on the night in question.” Tr.

Ct. Op. at 7-8. However, “[p]erfect identity between experimental and actual

conditions is neither attainable nor required . . . . [d]issimilarities affect the

weight of the evidence, not admissibility.” Ramseyer, supra. To the extent

the conditions were unknown, the trial court abused its discretion in using an

unknown variable as weighing against a finding of similarity. Finally, the only

factors the trial court found as weighing towards a finding of “sufficiently

similar” were that the experiment was done with the actual ATV in question

and at the actual location of the incident. Tr. Ct. Op. at 8.

The conditions between the actual occurrence and the experiment were

sufficiently similar to warrant admissibility. The fact that the actual ATV used

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on the day in question and owned by Defendant, not a comparable model,3

was used for the experiment weighs more heavily towards a finding of

sufficient similarity because the use of the same equipment removes

speculation from the test that could cause confusion. Defendant argues that

the use of the same ATV, as opposed to a new comparable model, makes the

conditions less similar to the night in question because the original ATV was

inoperable and “waterlogged,” which would not have allowed it to float.

Appellee’s Br. at 14. However, this is a point Defendant’s counsel developed

through cross-examination; Defendant’s counsel extensively questioned and

attempted to impeach Corporal Thierwechter regarding the credibility and

efficacy of, inter alia, the mannequins used, the condition of the ATV, and the

pully system to recreate Defendant’s version of events. N.T., 5/7/15, at 670-

75, 690-701.

As such, whether the experiment’s features were accurate and effective

to depict Defendant’s version of events is a fact specifically placed at issue by

Defendant. Thus, Defendant could “develop those points through cross-

examination and then implore the jury to discount the [experiment’s] value in

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3 We note that lower courts in Pennsylvania have found experiments using not

the vehicle in question but one of the same year, make, and model to be

“substantially similar” conditions. See McGrorey v. Obermayer, 14 Pa.D. &

C.3d 335, 346 (C.P. Philadelphia 1978). While we are not bound by those

decisions, there is an even stronger showing of sufficient similarity here

because the vehicle was the same, not just similar. See Morris v. Rickel

Home Ctrs., 27 Phila. 293, 307 (1993).

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depicting what happened.” Sullivan v. Werner Co., 253 A.3d 730, 754 (Pa.

Super. 2021); see also Davis, 554 A.2d at 109.

Moreover, the location of the experiments was the same embankment

of the same body of water where the victim drowned, also weighing heavily

towards a finding of sufficiently similar. The dummies used to represent

Defendant and his wife were substantially similar to Defendant and his wife

because they were of similar weight and in the same positions as Defendant

asserted, and were proportioned to have a center of mass distributed like a

human body. N.T., 5/7/15, at 704. Defendant argues that the mannequins are

useless because they do not have anthropomorphic features and could not

react the way a human could. Appellee’s Br. at 16. The record reflects that Dr.

Fisher, who was present for Corporal Thierwechter’s experiments, identified

the mannequins used as “anthropomorphic.” N.T., 5/12/12, at 1128.

Regardless, as stated above, this issue may be explored by Defendant’s

counsel during cross-examination. Finally, the weather conditions were similar

because the reenactment took place during the same season of the year the

month following the victim’s death.

We find that the trial court abused its discretion in holding that the

differences between the Defendant’s statements and the experiments bar

their admissibility, as it is a consideration for the jury in determining the

weight to be accorded to the experiment results. See Davis, 554 A.2d at 109

(“The extent to which the experiment may have deviated from the actual

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conditions was a consideration for the jury in determining the weight to be

accorded the experiment results and not a bar to its admissibility so long as

the differences did not render the results of the experiment more confusing

or misleading than probative.”).

The Commonwealth’s second issue is that the trial court erred by

denying the Commonwealth’s request to permit Dr. Caruso to state his opinion

concerning the manner of death of the victim. The trial court’s order allows

Dr. Caruso to testify at trial as to cause of death, but not manner of death.

Specifically, the Commonwealth argues that the trial court abused its

discretion in excluding Dr. Caruso’s testimony because it was rendered to the

applicable standard regarding of manner of death determinations and with the

certainty required by law. Appellant’s Br. at 30. We agree.

It is important to note that Dr. Caruso was not part of the earlier

proceedings in this case. As stated in the facts and procedural history, Dr.

Barbara Bollinger was the forensic pathologist who testified at trial as an

expert as to the victim’s cause of death, drowning, which has never been

disputed. However, Dr. Bollinger did not give any definitive opinion on the

manner of death, although she found it “suspicious.” In the trial court’s opinion

in support of its order acquitting Defendant, it states that one of the

Commonwealth's deficiencies was that Dr. Bollinger,

the pathologist[,] could not, to a reasonable degree of medical

certainty, conclude that Annemarie Fitzpatrick died as a result of

a homicide or accident. Thus, the jury had to rely on Corporal

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Thierwechter’s reconstruction and the circumstantial evidence of

the note, e-mail, affair, Google searches, and insurance policies.

Tr. Ct. Op., 9/1/15, at 14-15.

The Commonwealth asserts that it retained Dr. Caruso as an expert

because the court placed this “great emphasis on the need for a manner of

death opinion of homicide.” Dr. Caruso testified at the bail hearing in May

2022. The trial court indicated in the order and opinion granting the Defendant

nominal bail that the fact that Dr. Bollinger could not state the manner of

death was a “shortcoming,” and that even after Dr. Caruso’s testimony at the

bail hearing, the court was not convinced that “the Commonwealth has met

this burden, by a substantial quantity of legally competent evidence, that the

manner of death was the result of an unlawful killing.” Tr. Ct. Op., 6/6/22, at

6, 9 (emphasis in original).

The trial court’s emphasis on the lack of a sufficient expert opinion on

manner of death prompted the Commonwealth to engage Dr. Caruso to

generate a report and testify as an expert. Dr. Caruso testified for a second

time at the pre-trial motion hearing on January 10, 2023, as to cause of death

and manner of death. In the trial court’s opinion denying the Commonwealth’s

motion in limine to allow Dr. Caruso to testify at the new trial as to manner of

death, the trial court relies on one sentence of quoted caselaw:

The cause of a death is usually established by the opinion

testimony of medical experts, whereas a conclusion upon the

question whether a death from ‘external cause or violence’ was

‘accidental, suicidal, or homicidal,’ may ordinarily be determined

by a jury without the assistance of expert witnesses.

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Commonwealth v. Smith, 808 A.2d 215, 229 (Pa. Super. 2002).

The trial court then states, “[u]nfortunately for the Commonwealth,

however, the last sentence of that quote from Smith does not support the

Commonwealth's argument for allowing its expert to testify as to the manner

of death.” Tr. Ct. Op. at 10. Moreover, the trial court’s conclusion states,

To put it in the terms of the authority cited by the Commonwealth,

“a conclusion upon the question whether a death from external

cause or violence was accidental, suicidal, or homicidal, may be

ordinarily determined by a jury without the assistance of expert

witnesses.” That is clearly the case here. The Doctor's opinion on

manner of death adds nothing to the jury’s understanding of the

main issue in controversy- whether this case is a homicide –

beyond what the jurors can get from listening to other evidence

which we expect to be presented in the case and drawing their

own conclusions.

Tr. Ct. Op. at 14 (some quotation marks and citation omitted).

We disagree. The paragraph from which this quote was taken in Smith

is attempting to distinguish between cause of death and manner of death,

determinations which have different legal standards. Supra. Additionally, the

quote uses the term “may.” It is well established that “[t]he term ‘shall’

establishes a mandatory duty, whereas the term ‘may’ connotates an act that

is permissive, but not mandated or required.” Lorino v. Workers' Comp.

Appeal Bd., 266 A.3d 487, 493 (Pa. 2021).

In short, originally the trial court was dissatisfied with Dr. Bollinger’s

inability to definitively opine on manner of death, forcing the jury to have to

rely on circumstantial and demonstrative evidence to determine manner of

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death for themselves. The trial court now holds that Dr. Caruso’s opinion on

manner of death is prohibited because he is an expert, and manner of death

determinations are for the jury to decide after listening to the evidence. Thus,

we must determine if and when it is permissible for an expert to testify as to

manner of death. We will begin by comparing the legal standards of cause of

death and manner of death.

The Pennsylvania Supreme Court has explained,

Black's Law Dictionary, for example, defines cause of death as

“[t]he happening, occurrence, or condition that makes a person

die; the injury, disease, or medical complication that results

directly in someone's demise.” In isolation, “happening,

occurrence, or condition” might hint at a broader inquiry than

medical cause, but only in isolation. The more limited reference to

“injury, disease, or medical complication”—with its suggestive use

of the word "directly,” which implies “but-for” causation—critically

narrows the scope of the definition. Dorland's Medical Dictionary

offers an equally strict definition of cause of death as “the injury

or disease responsible for death.” And our constrained reading of

“cause of death” in harmony with these dictionaries finds more

support in the same dictionaries' respective definitions of manner

of death. Black's, for example, defines manner of death as “[t]he

circumstances under which the cause of death arose, which jibes

perfectly with Dorland's definition: “the circumstances under

which a death occurs, e.g., suicide or accident.”

Reibenstein v. Barax, 286 A.3d 222, 233 (Pa. 2022). This court has stated,

The difference between cause and manner of death has been

explained as such: this legislation makes a clear distinction

between statements relative to the cause, and those concerning

the manner, of a death; as to the former the statement is required

to be definite,’ but only “probable” to the latter. The reason for

the distinction is obvious. The cause of a death is usually

established by the opinion testimony of medical experts, whereas

a conclusion upon the question whether a death from ‘external

cause or violence’ was ‘accidental, suicidal, or homicidal,’ may

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ordinarily be determined by a jury without the assistance of expert

witnesses.

Smith, 808 A.2d at 229.

In synthesis, then, “cause of death” refers to the but-for cause of death

such as the specific injury or disease. A medical expert must be able to

definitively state the cause of death. “Manner of death,” on the other hand,

refers to the circumstances under which the death occurs—whether it was

accidental, suicidal, or homicidal. In many circumstances, the jury comes to

its own conclusion on manner of death based on the evidence4, but if a witness

does testify as to manner of death, the statements need only be “probable”

because they are opinions, not facts.

Here, it is undisputed that the cause of death of the victim is drowning.

Neither the trial court nor Defendant dispute that drowning was the cause of

death. See Appellee’s Br. at 26; Tr. Ct. Op. at 9. The issue is if the

Commonwealth’s medical expert can testify as to manner of death, i.e.,

homicide. The trial court and Defendant rely on Griffin v. Univ. of

Pittsburgh Med. Ctr.-Braddock Hosp.5 See Appellee’s Br. at 30, 43; Tr. Ct.

Op. at 12-13. That reliance is misplaced. Griffin was a medical malpractice

case in which a woman complained of shoulder pain after receiving abdominal

____________________________________________

4 The jury came to its own conclusion about manner of death in Defendant’s

first trial; without Dr. Bollinger stating that the manner of death was homicide,

the jury convicted Defendant of first-degree murder.

5 950 A.2d 996, 998 (Pa. Super. 2008).

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surgery at a hospital. Griffin, 905 A.2d at 998. The shoulder injury required

additional surgeries and affected her arm mobility. The woman alleged that

the hospital caused the shoulder injury sometime during the abdominal

operation. The woman sued the hospital and the jury returned a verdict for

the woman and awarded her damages. Id.

On appeal, the hospital argued that the plaintiff’s expert testified that

there was a 51 percent probability that the hospital was responsible and a 49

percent chance that the injury was caused by a seizure, which fails the

requisite degree of certainty. Id. at 999. We observed that expert testimony

was required to determine the cause of the injury because it was a situation

“where the circumstances surrounding the malpractice claim [were] beyond

the knowledge of the average lay person.” Id. at 1000. We had to determine

if, in the context of a medical malpractice case, an expert needs to state the

cause of injury to a “reasonable degree of medical certainty,” even though the

burden of proof on civil plaintiffs is generally by a preponderance of the

evidence, or 51 percent. We reiterated, “if there is any other cause to which

with equal fairness the injury may be attributed (and a jury will not be

permitted to guess which condition caused the injury), an inference of

negligence will not be permitted to be drawn against defendant.” Id. at 1004.

We held that a 49 percent chance that the injury was caused by a seizure is a

near equal probability, and thus an inference of negligence should not have

been drawn against the hospital. Id. at 1005.

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Griffin is not applicable here. This is not a medical malpractice case, let

alone a civil case. The issue in the instant case deals with manner of death,

which can be natural, accidental, suicidal, or homicidal. Griffin deals with an

injury, which could never be classified as “suicidal” or “homicidal” since there

was no death involved. Most importantly, the expert in Griffin testified to the

cause of injury, not manner of injury. Our discussion surrounded only the

requisite standard for cause of injury in medical malpractice cases because an

expert needs to testify to the requisite degree of medical certainty when

proving causation. See also Stimmler v. Chestnut Hill Hosp., 981 A.2d

145, 155 (Pa. 2009) (“An expert witness proffered by a plaintiff in a medical

malpractice action is required to testify ‘to a reasonable degree of medical

certainty that the acts of the physician deviated from good and acceptable

medical standards, and that such deviation was the proximate cause of the

harm suffered.’”) (quoting Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997)).

Notably, manner of injury, let alone manner of death, was absent from our

discussion in Griffin.

We find Commonwealth v. Jacobs6 to be particularly relevant. In that

case, the defendant’s girlfriend and infant daughter were found dead in the

bathtub at the apartment where defendant and the victims had resided.

Jacobs, 639 A.2d at 788. The infant had drowned, and the mother had over

____________________________________________

6 639 A.2d 786 (Pa. 1994).

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200 stab wounds. Id. The prosecution’s expert witness, a forensic pathologist,

testified to the cause of death of the victims; the infant died by drowning and

the mother died by stab wounds. Id. at 789. When the prosecution asked the

expert for his opinion on manner of death, the defense objected on the basis

that it is the jury’s job to determine manner of death, not the expert’s. Id.

The jury was sent out of the courtroom and the expert informed the judge

that he intended to state that the deaths were “homicides,” i.e., that in the

medical sense, the deaths were not self-inflicted. The court allowed the

testimony as to both cause and manner of death, and defendant was found

guilty of two counts of first-degree murder. On direct appeal to the

Pennsylvania Supreme Court, it was held that because the expert specified he

was giving a medical opinion, not a legal conclusion, as to homicide, and

because no party argued the position that the manner of death of the infant

and mother was accidental, that the expert’s opinion that the baby’s death

was homicide was not prejudicial to defendant. Id. at 790.

In another instructive Pennsylvania Supreme Court case, an expert, a

forensic pathologist, testified as to both cause of death and manner of death

of a two-year-old boy who died in a bathtub while in the defendant’s care.

Commonwealth v. Woodard, 129 A.3d 480, 488 (Pa. 2015). In that case,

none of the issues raised on appeal concerned the expert’s testimony as to

manner of death, and the Court does not address it. However, in discussing

the expert testimony at trial, the Court explains this:

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At trial, the Commonwealth presented the testimony of

forensic pathologist, Dr. Samuel Land, who had performed

Jaques's autopsy the day after the murder. Utilizing the autopsy

photos, Dr. Land summarized the multitude of injuries that he

documented over the child's entire body. He noted at least ten to

twenty bruises, a significant number of which had been inflicted

within hours before Jaques's death . . . .

Dr. Land found that the most significant injury to Jaques's

torso was the laceration to the victim's liver, extending almost

completely through the liver, which occurred several hours before

Jaques's death. He acknowledged that it would take a significant

amount of force to lacerate the child's liver, such as would occur

in a severe motor vehicle accident. . . .

Dr. Land considered, but ruled out death by drowning,

explaining that drowning is diagnosed by excluding every other

possibility and the presence of lethal head trauma and lethal

trauma to the torso established that drowning was not a

possibility. . . . Dr. Land concluded that Jaques was beaten to

death, i.e., that the cause of the victim's death was multiple blunt

force trauma, and that the manner of death was homicide.

Appellant did not testify on his own behalf. He presented the

testimony of pathologist, Dr. Richard Bindie. Contrary to Dr.

Land's medical opinion, Dr. Bindie opined that Jaques's brain

hemorrhaging was not fatal and that the head injuries could have

resulted from the child hitting his head during a fall several days

before his death. He testified that Jaques's severely lacerated liver

was caused by aggressive and prolonged CPR and other life-saving

measures. Dr. Bindie concluded that the victim died as a result of

drowning, and not homicide.

Commonwealth v. Woodard, 129 A.3d 480, 488-89 (Pa. 2015) (emphasis

added) (internal citation to the record omitted; lengthy medical descriptions

omitted for brevity, indicated by ellipses).

Relevantly, the Court noted nothing improper about the fact that the

expert, after viewing the autopsy photos and explaining the victim’s injuries

and their probable causes, testified as to both cause of death and manner of

death in his medical opinion. Moreover, Woodward suggests even fewer

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obstacles for an expert to testify as to manner of death than in Jacobs, supra.

In Jacobs, the Court reasoned, in part, that the expert’s opinion as to

homicide was not prejudicial to the defendant because the defendant was not

asserting a contrary position: the prosecution’s expert testified that manner

of death was homicide, but the defendant was not arguing that the baby

drowned itself or the mother stabbed herself over 200 times in an accidental

manner. In Woodward, however, the defendant did take the contrary

position to the prosecution’s witness: the prosecution’s expert testified that

cause of death for the two-year old was blunt force trauma and the manner

of death was homicide, while the defense posited that the cause of death was

drowning, and the manner of death was accidental. Thus, whether or not a

prosecution expert may testify that the manner of death is homicide does not

depend on if the defendant’s position is contrary, i.e., that the manner of

death was accidental.

Finally, in Commonwealth v. Yale,7 we dealt with a similar set of

circumstances. In Yale, the defendant’s wife was found dead at the bottom of

the staircase in their home after suffering massive injuries. Yale, 150 A.3d at

981. Initially, the medical examiner ruled the wife had died from blunt force

trauma, but made no determination regarding the manner of death, and the

husband was not charged. Id. About a decade later, the police reopened the

____________________________________________

7 150 A.3d 979 (Pa. Super. 2016).

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investigation, and a new medical examiner reviewed the evidence and

concluded that the trauma was less consistent with a fall down the steps than

with being stomped to death. Id. All parties agreed that the cause of death

was blunt force trauma; it was the manner of death, accidental or homicide,

that was at issue. The prosecution’s expert testified in its case in chief that

the wife was stomped to death. The defendant had two expert witnesses

testify that the wife’s death was an accident. One defense expert thought the

accident was caused by the wife falling down the stairs, the other thought the

accident was likely caused by her stumbling at the foot of the staircase and

falling into a pile of firewood. On rebuttal, the prosecution presented a second

expert witness who stated that the cause of death was strangulation and

trauma, and the manner of death was homicide. Id.

On appeal, the defendant argued that the trial court should not have

permitted the prosecution’s expert who testified during rebuttal to provide

evidence that should have been offered during the prosecution’s case in chief.

We disagreed:

The Commonwealth did produce testimony regarding the cause

and manner of death of Mrs. Yale in its case in chief. [Prosecution

expert 1] provided lengthy testimony regarding her expert

medical opinion that Mrs. Yale had been murdered and that the

genesis of her injuries was not an accidental fall down the steps,

but was from being stomped to death.

In his defense, Yale provided two experts who contradicted

[Prosecution expert 1]'s conclusions regarding the manner of

death and genesis of the blunt force trauma. The doctors provided

detailed testimony regarding how they believed Mrs. Yale had

suffered her fatal injuries. Although [defense experts 1 and 2] held

differing opinions on where Mrs. Yale had fallen, they both agreed

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that the catastrophic injuries she suffered were the result of an

accident and not inflicted by another human. In rebuttal,

[prosecution expert 2] provided his medical opinion on why

[defense experts 1 and 2] were incorrect, which opinion

necessarily included addressing the very issues of manner of

death and genesis of the blunt force trauma. [Prosecution expert

2] primarily opined why the injuries were unlikely to have been

caused by the accidental means described by the defense experts

and, secondarily, the most likely method by which the injuries

occurred. This testimony allowed the jury to fully consider and

compare the opinions of the defense experts and the bases of

those opinions. Accordingly, there was nothing improper about the

subject of [prosecution expert 2]’s testimony, nor the scope of

that testimony. In light of this, we find the trial court did not abuse

its discretion in allowing [prosecution expert 2] to testify as to the

cause and manner of death.

Yale, 150 A.3d at 982-83.

Relevantly, we noted nothing improper about the fact that the experts,

after viewing the medical evidence and explaining the victim’s injuries and

their probable causes, testified as to both cause of death and manner of death

in their medical opinions, regardless of what point in the trial the testimony

occurred.

We now reiterate the standard we have gleaned from the relevant

authorities: Manner of death refers to the circumstances under which the

death occurs—whether it was natural, accidental, suicidal, or homicidal. In

many circumstances, the jury comes to its own conclusion on manner of death

based on the evidence, but a witness may testify to it. If a witness does testify

as to manner of death, the statements need only be “probable” because they

are medical opinions, not legal conclusions or facts. It is of no consequence if

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the opposing party’s position on manner of death is contrary. See

Reibenstein, supra; Smith, supra; Woodward, supra.

We now must analyze Dr. Caruso’s testimony in light of the above

standard and in tandem with the Pennsylvania Rules of Evidence regarding

expert testimony.

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. The comment to this rule states that when a qualified expert

testifies, the weight of his testimony is for the trier of fact to determine.

Pa.R.E. 702 cmt. This is germane to the standard for testimony on manner of

death developed above because expert testimony is opinion, and the jury need

not take the expert’s opinion on manner of death as fact.

Further, an expert must base the substance of his opinion on a

reasonable degree of certainty instead of mere speculation, but need not use

the magic legal words that his opinion is to a “reasonable degree of medical

certainty,” as long as his opinion is sturdy. Commonwealth v. Gonzalez,

109 A.3d 711, 727 (Pa. Super. 2015).

Expert testimony is incompetent if it lacks an adequate basis in

fact. While an expert's opinion need not be based on absolute

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certainty, an opinion based on mere possibilities is not competent

evidence. This means that expert testimony cannot be based

solely upon conjecture or surmise. Rather, an expert's

assumptions must be based upon such facts as the jury would be

warranted in finding from the evidence.

Commonwealth v. Ward, 188 A.3d 1301, 1311 (Pa. Super. 2018).

Defendant argues that Dr. Caruso’s reports and testimony were

uncertain and equivocal. Appellee’s Br. at 28. Defendant points out that the

testimony from Dr. Caruso said that medical examiners, including himself,

must rely on the evidence of law enforcement and circumstances surrounding

the death to opine on manner of death, which is speculation. Id. at 34, 41.

Defendant also argues that Dr. Caruso’s testimony is inconsistent and cites a

portion of the transcript where the trial court examines Dr. Caruso on the

stand. The testimony points out that Dr. Caruso said it was “not likely” that

the Defendant’s version of events caused the victim’s injuries, that

Defendant’s version of the fall was “unlikely,” and that while he doesn’t know

what exactly caused the injuries because he wasn’t there, the head trauma

“could have been” inflicted upon the victim. Id. at 37-38 (citing RR 1859-

1861). Defendant argues that these statements taken together are

“diametrically opposed” to one another. Id. at 39. Finally, Defendant cites

testimony where Dr. Caruso was asked if his opinion on manner of death was

to a reasonable degree of medical certainty and he states, “It is not held to a

reasonable degree of scientific certainty. It is more likely than not. Given the

information I have on this case, I think the manner of death was homicide.”

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Appellee’s Br. at 35 (citing RR 1867). The opinion does not meet the Griffin

standard, Id. at 43, and highlights the expert’s lack of substantive facts. Id.

at 35.

Here, the court abused its discretion in precluding Dr. Caruso’s

testimony of manner of death for falling below the standard of certainty. Dr.

Caruso is board-certified in anatomic pathology, clinical pathology, and

forensic pathology, and has extensive experience and training in the field of

aquatic deaths. N.T., 1/10/23, at 18-19. He reviewed the report of the

neuropathologist who conducted tests on the victim’s body, viewed autopsy

photos and reports, considered the toxicology reports, and compared

Defendant’s testimony to Corporal Thierwechter’s experiments. Id. at 22-24.

After ruling that the cause of death was drowning, he testified to the manner

of death based on his investigation of the circumstances surrounding the death

in addition to the autopsy. Id. at 58.

He stated that the blunt force injuries to the victim’s lower back were

consistent with the victim being manually drowned by another. Id. at 64. The

totality of the blunt force trauma suffered by the victim was consistent with

forcibly being submerged under water. Id. at 61. He stated that the lack of

oxygen to the brain during drowning will trigger the fight or flight mechanism,

causing the drowning person to struggle. Id. at 65. The blunt force trauma

observed on the victim’s left leg, foot, and arms were consistent with someone

struggling while drowning. Id. Dr. Caruso considered Defendant's version of

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events compared to the reenactments and the inconsistencies led him to

believe the victim's death was not accidental. Id. at 66. In particular, he

compared the injuries the victim suffered with Defendant’s lack of injuries. He

noted that if Defendant had been positioned on the back of the ATV as he

described, it would have been Defendant who was more severely injured. Id.

at 72-73. Thus, his opinion was that the manner of death is homicide.

His testimony has an adequate basis in fact because he testified to the

many factors he considered in excluding accident as the manner of death:

Defendant’s lack of injuries, the victim’s toxicology report showing a lack of

food or alcohol in her stomach, investigative evidence such as the missing cell

phone, and the injuries to the victim’s lower back, knees, and tops of her feet.

To hold that Dr. Caruso’s opinion was based on “mere speculation” would be

in error. In light of Defendant’s position that the death was accidental, Dr.

Caruso’s opinion on manner of death adds value because the jury will be more

informed in comparing the contrary positions. Yale, 150 A.3d at 983 (“This

testimony allowed the jury to fully consider and compare the opinions of the

defense experts and the bases of those opinions.”). For the expert to give a

detailed description of the injuries but offer no opinion as to if their cause was

more likely accidental, suicidal, or homicidal in that expert’s opinion could be

more confusing to the jury than allowing the witness to state the opinion and

its basis and be cross-examined regarding his level of certainty, and letting

the jury weigh the testimony.

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We hold that Dr. Caruso is a qualified expert witness whose testimony

is competent and has an adequate basis in fact. The court erred in holding

that his testimony was uncertain because of his use of language including

“unlikely,” “possibility,” “I don’t think,” “probably,” and “consistent with” at

various times throughout his testimony. Tr. Ct. Op. at 13. Dr. Caruso specified

to the trial judge that medical examiners and coroners use the standard of

“more likely than not” to describe manner of death:

THE COURT: Doctor, something caught my ear. You said that

manner of death is not to a reasonable degree of medical or

scientific certainty, it's just more likely than not. Is that –

THE WITNESS: That's the standard, Your Honor, yes. It's more

likely than not. That's what the coroners use as a standard as well.

N.T., 1/10/23, at 173. Thus, his reasoning for not using the magic legal words

of “to a reasonable degree of medical certainty” does not make his testimony

speculative or incompetent. See Gonzalez, supra; see also

Commonwealth v. Yocolano, 169 A.3d 47, 61 (Pa. Super. 2017) (“while an

expert need not use ‘magic words,’ the foundation of her opinion must still be

sturdy.” (citing Commonwealth v. Spotz, 756 A.2d 1139, 11[6]0 (Pa.

2000)). Nonetheless, as stated above, manner of death determinations are

required to be “probable” and not “definitive,” unlike cause of death

determinations, so Dr. Caruso’s language is analogous to the standard as

developed herein.

This result is compatible with the holding in Commonwealth v. Spotz,

756 A.2d 1139 (Pa. 2000). In that case, the expert who testified for the

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Commonwealth as to both cause and manner of death was a pathologist for a

coroner, but was not a coroner himself. Although he had the authority and

experience sufficient to make cause of death determinations, he testified that

the coroner is the one whose “province” it is to make manner of death

determinations. Id. at 1160. On appeal, the defendant argued that the

Commonwealth’s expert: (1) was unqualified; and (2) did not state his opinion

in terms of a reasonable degree of medical certainty. First, our Supreme Court

held that although it may have been another’s “province” to determine manner

of death, it does not mean that the expert who testified was unqualified to

make that decision. Id. In his professional capacity, he performed autopsies

and made recommendations on the manner of death just as a coroner does,

so the Court held he was qualified. Id. Second, the Court stated that experts

are not required to use “magic words” and that appellate courts must look to

the substance of the expert’s testimony to ensure the opinions were not based

on mere speculation but instead had a reasonable degree of medical certainty,

just as we have done herein. Id. at 1160-61.

Here, Dr. Caruso is a pathologist who, like the pathologist in Spotz, in

addition to explaining his medical background and training, explained the

medical basis for his opinions. As quoted above, he stated that he was making

his determination with the same level of certainty that coroners use,

irrespective of what he labeled that standard, making him qualified pursuant

to Spotz, supra. Dr. Caruso may testify at trial regarding his medical opinions

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as to the cause and manner of death and his reasons for those opinions; any

equivocal language lends to his credibility and the jury is free to disbelieve his

opinion. See Pa.R.E. 702 cmt. (the weight of an expert’s opinion is for the

fact finder to decide).

Accordingly, we reverse the trial court’s order denying the

Commonwealth’s request to present Corporal Thierwechter’s experimental

evidence and Dr. Caruso’s manner of death testimony at trial. We remand for

proceedings consistent with this opinion.

Order reversed in part, affirmed in part.

Jurisdiction relinquished.

J. Nichols joins the opinion.

J. Lazarus files a concurring/dissenting opinion.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/17/2024

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