# Commonwealth v. Fitzpatrick, J., Aplt.

> Supreme Court of Pennsylvania · January 21, 2026

URL: https://www.frixlaw.com/law-library/cases/11243995

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 21, 2026
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Wecht, David N.
- **Judges:** Wecht, David N.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11243995

## How later opinions describe it (automated extraction)

- stating that Pennsylvania “precedent requires that an expert opinion be offered to prove the cause of death”

## Opinion text

[J-86-2025]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA, : No. 95 MAP 2024
:
Appellee : Appeal from the Order of the
: Superior Court at No. 554 MDA
: 2023, entered on May 17, 2024,
v. : Affirming and Reversing the Order
: of the York County Court of
: Common Pleas, Criminal Division,
JOSEPH BERNARD FITZPATRICK, III, : at No. CP-67-CR-0002534-2014,
: entered on March 20, 2023
Appellant :
: ARGUED: October 8, 2025

OPINION

JUSTICE WECHT DECIDED: January 21, 2026
There is a “material distinction between cause and manner of death, with the

former referring to the immediate physiological processes that precipitate the death of an

individual and the latter speaking to the broader context of the surrounding circumstances

and events that preceded and contributed to those fatal physiological processes.” 1 Put

simply, cause of death refers to the “happening, occurrence, or condition that makes a

person die” or the “injury, disease, or medical complication that results directly in

someone's demise.” 2 In a murder case, for instance, the cause of a victim’s death might

1 Reibenstein v. Barax, 286 A.3d 222, 225-26 (Pa. 2022).
2 Cause of Death, BLACK’S LAW DICTIONARY (12th ed. 2024); see also Dan Simon,
Minimizing Error and Bias in Death Investigations, 49 SETON HALL L. REV. 255, 266 (2019)
(defining “cause of death” as “the physical antecedent of death, such as disease or
injury”).
be asphyxiation by strangulation, exsanguination from a gunshot wound, or organ failure

caused by blunt force trauma. Manner of death explains the cause of death. 3 It takes

into account “external factors” 4 and the “broader circumstances by which the death was

brought about.” 5 Manner of death classifications must fall into one of five categories:

“natural, accident, homicide, suicide, [or] undetermined.”6

Although cause of death and manner of death often are introduced hand-in-hand

in criminal cases, proof of one is not proof of the other. More importantly, the methods

for these proofs can differ. In view of the complexity and interrelated workings of the

human body, expert testimony from a medical professional is needed to establish cause

of death. 7 By contrast, manner of death “may ordinarily be determined by a jury without

the assistance of expert witnesses.”8

Nonetheless, prosecutors very often do present expert testimony to establish the

manner of a murder victim’s death. The question we confront here is whether, in the

event such expert testimony—even though not required by law—is presented, must it

comply with the legal standards that apply to all expert testimony? The answer,

unequivocally, is yes.

3 See Manner of Death, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “manner
of death” as “[t]he circumstances under which the cause of death arose”).
4 Keith A. Findley & Dean A. Strang, Ending Manner-of-Death Testimony and Other
Opinion Determinations of Crime, 60 DUQ. L. REV. 302, 304 (2002).
5 Simon, supra note 2, at 266.
6 Id.
7 See also Commonwealth v. Brown, 139 A.3d 208, 220 (Pa. Super. 2016) (stating
that Pennsylvania “precedent requires that an expert opinion be offered to prove the
cause of death”), aff'd, 185 A.3d 316 (Pa. 2018).
8 Commonwealth v. Smith, 808 A.2d 215, 229 (Pa. Super. 2002) (citation omitted);
see also Brown, 139 A.3d at 217 n.18 (explaining that, under Pennsylvania law, “expert
testimony [is not] necessary to prove the manner of” death).

[J-86-2025] - 2
Background

Before discussing the law that leads us to that conclusion, it is important here to

recall the circumstances of this case, particularly for the benefit of readers who encounter

it here for the first time.

On June 6, 2012, Annemarie Fitzpatrick drowned in Muddy Creek, a tributary of

the Susquehanna River. Two years later, Annemarie’s husband, Joseph Fitzpatrick, was

charged with, and convicted of, her murder. We previously offered the following

summary:

On June 6, 2012, Fitzpatrick and Annemarie were riding on an all-terrain
vehicle (“ATV”) through a deep part of Muddy Creek, [which] 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.

[J-86-2025] - 3
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 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 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

[J-86-2025] - 4
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
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.

[J-86-2025] - 5
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.”), 5/4/2015-5/13/2015, 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.

[Fitzpatrick’s murder case] originally was assigned to the Honorable
Gregory M. Snyder. Prior to trial, Fitzpatrick filed an omnibus pre-trial

[J-86-2025] - 6
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. 9
At trial, the primary bone of contention between the parties was the manner of

Annemarie’s death. Fitzpatrick maintained that Annemarie had drowned after an ATV

accident, while the Commonwealth alleged that her death was a homicide. In light of this

disagreement, particular significance attached to Dr. Bollinger’s testimony, which we

previously recounted as follows:

Dr. Bollinger testified that, to a reasonable degree of medical certainty, the
cause of Annemarie’s death was drowning. While this conclusion was not
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

9 Commonwealth v. Fitzpatrick, 255 A.3d 452, 459-62 (Pa. 2021).

[J-86-2025] - 7
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. 10

On March 13, 2015, the jury found Fitzpatrick guilty of first-degree murder. That

same day, the trial court sentenced him to life in prison without the possibility of parole.

On May 22, 2015, Fitzpatrick filed post-sentence motions. He argued, inter alia, that the

Commonwealth’s evidence was insufficient as a matter of law to prove that Annemarie

had been murdered. 11 Following a hearing, the trial court agreed.

Even viewing the evidence in the light most favorable to the Commonwealth, the

trial court held, the Commonwealth had failed to prove, beyond a reasonable doubt, that

Annemarie’s death had been a homicide. “[A]t best, the Commonwealth showed [that

Fitzpatrick] had motive to kill his wife and perhaps even specific intent to kill his wife.”12

The problem, the trial court concluded, was that this evidence “in no way prove[d] beyond

a reasonable doubt that an unlawful killing occurred.” 13 “[F]or the jury to conclude that

10 Id. at 462-63 (citations modified).
11 Fitzpatrick also argued that the verdict was against the weight of the evidence and
that Annemarie’s note and email constituted inadmissible hearsay. See id. at 464.
12 Trial Court Opinion (“T.C.O.”), 9/1/2015, at 7.
13 Id.

[J-86-2025] - 8
Annemarie Fitzpatrick was unlawfully killed,” the court opined, the jury had no choice but

to “speculate that something untoward occurred at the creek.” 14

Dr. Bollinger’s expert testimony took center stage in the trial court’s analysis.

Throughout her testimony, Dr. Bollinger expressed her belief that Annemarie’s injuries

could have been caused by falling from the ATV by accident, or from being held

underwater by Fitzpatrick, or from the EMTs’ resuscitation attempts, or even from the

embalming process. All told, the trial court found, Dr. Bollinger testified that any of a

handful of equally possible and conjectural mechanisms could have caused the injuries,

a proposition which, in and of itself, precluded a finding of proof beyond a reasonable

doubt.

The trial court observed that, at the post-sentence motions hearing, when asked

to explain how Annemarie was killed, the Commonwealth responded with “a period of

rather telling silence.” 15 Although the Commonwealth could not offer an “articulable,

evidence-based theory of how Annemarie died,” 16 the trial court nonetheless considered

whether the balance of the Commonwealth’s evidence established the manner of

Annemarie's death beyond a reasonable doubt. The court focused on nine items of

evidentiary value.

First, the court considered Corporal Thierwechter’s accident reconstruction

testimony. The court found that, at most, Corporal Thierwechter’s testimony “served only

14 Id.
15 Id. at 10.
16 Fitzpatrick, 255 A.3d at 465.

[J-86-2025] - 9
to disprove Fitzpatrick’s version of events, and little more.” 17 The trial court stressed that

disproof of one theory is not affirmative proof of another, at least not beyond a reasonable

doubt. 18 The court then evaluated the following eight items:

1. A handwritten note reading “If something happens to me -- Joe.” The
note is dated June 6, 2012, the date Annemarie died, and it is signed
by her.

2. An email sent from Annemarie’s work email address to her home
email address with the subject line “If something happens to me.”
The body of the email reads, “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.” This email was also sent June 6, 2012, the day she died.

3. $1.7 million dollar insurance policies that [Fitzpatrick] would receive
upon his wife’s death. At trial, the parties stipulated that Annemarie,
who worked in insurance, took out all of these policies years before
her death.

4. A non-sexual, extramarital affair between [Fitzpatrick] and Jessica
Georg. Ms. Georg testified that she met [Fitzpatrick] in late April
2012. In their many pages of text messages, emails, and Facebook
communications, Ms. Georg testified that [Fitzpatrick] never spoke
an ill word about his wife. In fact, he always spoke very highly of her
and contemplated Annemarie being in his life for a long time because
of their two children. Annemarie was also aware of the affair before
she died.

5. Two Google searches conducted on [Fitzpatrick’s] work computer.
The first one inquired about insurance contestability periods and the
second one inquired about states [in which] polygraph tests are
admissible. Both of these searches happened within the few days
before Annemarie’s death.

6. [Fitzpatrick’s] lie to the police concerning the whereabouts of
Annemarie’s cell phone. [Fitzpatrick] testified that he concealed the
phone from the police because he did not want them finding out
about the affair.

17 Id. at 466.
18 T.C.O., 9/1/2015, at 10.

[J-86-2025] - 10
7. [Fitzpatrick’s] inconsistent statements about what happened on the
night of June 6, 2012. [Fitzpatrick] initially told investigators he and
Annemarie were down at the creek to celebrate their anniversary.
He later said that they went down to discuss the state of their
marriage. The Commonwealth states in its brief that [Fitzpatrick]
initially stated he put the ATV into gear and then later said it was
Annemarie.

8. The house. There was also mention of [Fitzpatrick’s] love for his
home that he built from the ground up, implying that [Fitzpatrick]
killed Annemarie because he did not want to lose the house.
However, there was no evidence presented to show that [Fitzpatrick]
would lose the house in a divorce or that he would not be able to
afford the house without Annemarie’s income. 19

While much of this evidence rendered Fitzpatrick “suspect” and “did not cast

[Fitzpatrick] in the most positive light,”20 the trial court concluded that the jury had been

required to venture a guess as to the manner of Annemarie’s death. The court opined

that the jury’s verdict was based upon “mere suspicion,” and that “gut feelings” are not

substitutes for evidentiary proof. 21 The trial court expressed “serious and real concerns

about the jury’s verdict,” so much so that it granted Fitzpatrick’s motion for a judgment of

acquittal and awarded him a new trial. The court concluded: “If Fitzpatrick did unlawfully

kill another human being, the Commonwealth did not prove it.” 22

Upon the Commonwealth’s appeal, the Superior Court reversed the trial court’s

order. 23 The panel described in detail the extent of Annemarie’s injuries and then noted

that Dr. Bollinger had testified, to a reasonable degree of certainty, that Annemarie’s

19 Id. at 11-13 (citations to Notes of Testimony omitted).
20 Id. at 14.
21 Id.
22 Id. at 15.
23 Commonwealth v. Fitzpatrick, 159 A.3d 562, 564 (Pa. Super. 2017). Fitzpatrick
also appealed. However, because he was awarded a new trial, the Superior Court held
that Fitzpatrick was not an aggrieved party, and, thus, quashed his appeal. Id. at 572.

[J-86-2025] - 11
injuries could have been caused by being held underwater until she drowned. Dr.

Bollinger also had testified that the lack of injuries to Fitzpatrick was inconsistent with his

version of events, i.e., an ATV accident. Viewed in the light most favorable to the

Commonwealth, the panel ruled, the evidence demonstrated that Annemarie was killed

unlawfully. The panel emphasized that Fitzpatrick was the only person with Annemarie

when she was killed, which conclusively demonstrated that he was the only possible

person that could be responsible for her death. Finally, the panel explained, there was

ample evidence to prove that Fitzpatrick had the specific intent to kill, including his

participation in an extra-marital relationship, his concern about losing his house in a

divorce from Annemarie, and the fact that he stood to gain a substantial amount of

insurance money upon Annemarie’s death. 24 The court vacated the trial court’s order

and remanded the case.

On remand, the trial court reinstated Fitzpatrick’s life sentence. Fitzpatrick again

submitted post-sentence motions. After those motions were denied, he filed another

appeal to the Superior Court. At issue in that appeal was the admissibility of the note that

Annemarie wrote in her day planner (“If something happens to me—JOE”) and the email

that she sent to herself (“if something happens to me . . . 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”). The Superior Court

24 Id. at 569-70.

[J-86-2025] - 12
held that the note was admissible under the state-of-mind hearsay exception 25 but that

the email constituted an inadmissible out-of-court statement of Annemarie’s belief. 26

We granted allowance of appeal 27 in order to decide “whether the note that

Annemarie wrote in her day planner . . . satisfies the state of mind hearsay exception.” 28

We observed that Annemarie’s statement was not an ordinary state-of-mind declaration,

but was instead a “compound statement that both demonstrates the speaker’s then-

existing state of mind[,] and, when offered for the truth of the matter asserted, proves a

fact that, if considered on its own, would be inadmissible hearsay.” 29 That is,

simultaneously, Annemarie’s note both expressed her state of mind, i.e., her fear of

Fitzpatrick, which would be admissible under Pa.R.E. 803(3), and identified Fitzpatrick as

her killer, an inadmissible out-of-court factual assertion. 30 We held that hearsay

statements that contain both a state of mind component and a “fact-bound” 31 component

generally are inadmissible, unless both components of the statement independently

25 Commonwealth v. Fitzpatrick, 204 A.3d 527, 532 (Pa. Super. 2019). Contradicting
itself, the Superior Court simultaneously held that the note was not offered for the truth of
the matter asserted, and, thus, was not hearsay. Id.; see also Pa.R.E. 803(3) (excluding
statements of a person’s then-existing state of mind from the rule prohibiting hearsay
unless it is “a statement of memory or belief to prove the fact remembered or believed
unless it relates to the validity or terms of the declarant’s will”).
26 Id. at 533.
27 Commonwealth v. Fitzpatrick, 223 A.3d 1287 (Pa. 2020) (per curiam).
28 Fitzpatrick, 255 A.3d at 470-71.
29 Id. at 472.
30 Id. at 472-73.
31 Id. at 480 (quoting Commonwealth v. Moore, 937 A.2d 1062, 1070 (Pa. 2007)).

[J-86-2025] - 13
satisfy a hearsay exception. 32 Annemarie’s note was inadmissible because the factual

component identifying Fitzpatrick as her killer was hearsay that did not fall within any

recognized exception. 33

Having found error, we then inquired as to whether that error was harmless. Such

an analysis required us to assess only the uncontradicted evidence of guilt in order to

determine whether that quantum of unchallenged evidence was so overwhelming that the

evidentiary error “could not have contributed to the verdict.”34 We recalled that the “main

issue in this case was whether Annemarie died accidentally or whether she was murdered

by Fitzpatrick.” 35 We emphasized that the “evidence pertaining to the manner in which

she died was contested, and contradicted, at trial in a number of ways . . . .”: 36

Most notably, Dr. Bollinger, the forensic pathologist who performed the
autopsy on Annemarie’s body, could not opine with a reasonable degree of
certainty on the manner of death. Dr. Bollinger repeatedly testified that the
significant blunt force trauma suffered by Annemarie could have been
caused by Fitzpatrick holding her under the water or by the impact of an
ATV accident. Under questioning from defense counsel, Dr. Bollinger
admitted that it was equally possible that either of these scenarios caused
the injuries. She went as far as to hypothesize that Annemarie’s injuries
also could have resulted from the efforts to resuscitate her at the scene, or
even from the embalming process. No one at trial definitively could explain
precisely how Annemarie died.

Because Dr. Bollinger’s testimony was disputed and inconclusive, the
Commonwealth was forced to attempt to prove the manner of death with
circumstantial evidence. That evidence was not so overwhelming as to
negate the prejudicial impact of the note. Significantly, Corporal

32 Id. (“That one aspect of a statement is admissible does not render all of a multi-
part statement admissible. Quite to the contrary, both components must independently
be admissible.”).
33 Id. at 482-83.
34 Id. at 484 (citation omitted).
35 Id.
36 Id. (emphasis in original).

[J-86-2025] - 14
Thierwechter’s accident reconstruction opinion testimony did not prove
Annemarie’s manner of death. As [the trial court] noted, at best, Corporal
Thierwechter’s expert opinion served to disprove Fitzpatrick’s versions of
events, as provided in his pre-trial statements to PSP investigators and in
his trial testimony. Disproof of one theory is not the equivalent of affirmative
proof of another. 37

After the dust settled, all that remained was evidence that Fitzpatrick had both the

motive and the opportunity to kill Annemarie. In light of the “significant prejudice injected

into a trial by evidence such as Annemarie’s note and the heavy emphasis placed upon

it by the prosecutor,” 38 we deemed the uncontradicted evidence insufficient to overcome

the prejudicial impact of the error. 39 We were not convinced—beyond a reasonable

doubt—that the trial court’s erroneous ruling was harmless. Thus, we remanded the

matter to the trial court for a new trial.

On April 21, 2022, upon remand, the Commonwealth filed a “Motion for a Date

Certain and Judge Certain Trial.” Due to the anticipated length and complexity of the trial,

as well as the significant number of witnesses that the Commonwealth intended to call,

some of whom were expert witnesses, the Commonwealth sought an order setting a firm

trial date before the original trial judge. The trial court scheduled a pretrial conference to

discuss the motion, this Court’s evidentiary ruling, outstanding discovery or motion issues,

and any other matters that required pre-trial disposition. 40 The trial court also directed

the Commonwealth to be prepared to advise the court on “what additional evidence or

witnesses, if any, it intends to present at a re-trial which was not previously presented”

and “[w]hether demonstrations or recreations of how the ATV went into the water are

37 Id. at 484-85.
38 Id. at 485.
39 Id.
40 Supplemental Order Scheduling Pre-Trial Conference, 4/26/2022, at 1-2.

[J-86-2025] - 15
admissible, given the apparent dissimilarities between such recreations and the actual

events.” 41

On May 6, 2022, the Commonwealth filed a memorandum in anticipation of the

pre-trial conference. The Commonwealth stated that it intended to call two new

witnesses, Pamela Gay, the York County Coroner, and James Caruso, M.D., an expert

witness who would opine on the manner of Annemarie’s death. 42 The Commonwealth

also addressed the trial court’s concerns over the admissibility of the demonstrative

evidence related to the recreation of the ATV accident. At Fitzpatrick’s initial trial,

Corporal Thierwechter, the PSP accident reconstructionist, had provided expert

testimony for the Commonwealth. Corporal Thierwechter had simulated the ATV accident

and had concluded that the accident could not have occurred in the way that Fitzpatrick

claimed. At Fitzpatrick’s re-trial, the Commonwealth intended to introduce video

recordings of Corporal Thierwechter’s accident reconstruction experiment. The events

depicted in the recordings (as well as the actual experiment), the Commonwealth argued,

were sufficiently similar to those on the day of the murder “to warrant admission…into

evidence, and…any dissimilarities would go to the weight of the evidence and not its

admissibility.”43

41 Id. at 2 (quotation marks and citation omitted).
42 Commonwealth’s Memorandum in Support of Its Positions During the Pre-Trial
Conference, 5/6/2022, at 1. The Commonwealth also argued that the evidence against
Fitzpatrick was sufficient to overcome a motion for a judgment of acquittal, id. at 1-7, that,
in response to a motion filed by Fitzpatrick, he should be held without bail pending and
during trial, id. at 7-8, and that, should Fitzpatrick open the door, Annemarie’s note and
email would be admissible as impeachment evidence, id. at 8-14. As these arguments
are not part of the present appeal, we do not discuss them further.
43 Id. at 14. See Commonwealth v. Spotz, 756 A.2d 1139, 1155 (Pa. 2000)
(“Experimental evidence . . . is admissible only if the conditions under which the
experiment is conducted are substantially similar to those at the time of the event in
question.”).

[J-86-2025] - 16
The trial court conducted the pre-trial conference on the record. The

Commonwealth discussed with the court the two new witnesses that it intended to call at

Fitzpatrick’s re-trial. The Commonwealth explained that it intended to call York County

Coroner Pamela Gay to testify that she had certified the manner of Annemarie’s death as

a homicide on the death certificate in 2014, two years after Annemarie’s death. 44

Although Gay did not view the body and did not conduct any tests on the body, 45 she

based her conclusion upon “her review of the circumstances surrounding the death.”46

Next, in view of this Court’s evidentiary ruling, the Commonwealth had attempted to “find

somebody who is an expert in not only pathology but knows the field of aquatic deaths

and specifically drowning deaths.”47 That search led to Dr. Caruso, who would render an

opinion at Fitzpatrick’s re-trial on the manner of Annemarie’s death. 48

In the meantime, Fitzpatrick filed a motion and brief requesting release on bail

pending his re-trial. On May 24, 2022, the trial court held a hearing, at which, upon the

agreement of both parties, the court took judicial notice of the evidence presented during

Fitzpatrick’s first trial. The only live witnesses were Fitzpatrick and his father. The latter

testified that, if released on bail, Fitzpatrick could live with him. As evidence of the

strength of its case, and presumably to demonstrate that it had remedied its earlier

inability to prove the manner of Annemarie’s death, the Commonwealth submitted an

expert report from Dr. Caruso, who opined that the manner of Annemarie’s death likely

was homicide. The trial court took the matter under consideration and recessed the

44 N.T., 5/6/2022, at 3-4.
45 Id. at 5.
46 Id. at 4.
47 Id. at 6.
48 Id.

[J-86-2025] - 17
hearing. On June 3, 2022, the trial court granted Fitzpatrick’s motion, releasing him on

supervised bail.

In an opinion accompanying its order, the trial court explained that Article I, Section

14 of the Pennsylvania Constitution precludes bail for an offender charged with a crime

for which life in prison is a prescribed penalty where the “proof is evident or presumption

great.”49 In Commonwealth v. Talley, this Court held that the standard “proof is evident

or presumption great” requires that, to meet its burden, the Commonwealth must produce

a “substantial quantity of legally competent evidence.” 50 That evidence must be such that

it is “substantially more likely than not that an accused is nonbailable.” 51

The trial court noted that this Court had found that the erroneous admission of

Annemarie’s note was not harmless, in significant part because Dr. Bollinger could not

“offer a definitive opinion on the manner of death.”52 To correct this “possible

shortcoming,”53 the Commonwealth supplemented the record with Dr. Caruso’s written

report. The trial court noted Dr. Caruso’s acknowledgement that:

[t]his case is difficult for two reasons. First and foremost, there is only one
witness to the events that resulted in Ann[e]marie Fitzpatrick’s death and
that individual is accused of being responsible for it. The other complication
is that the clothing was never made available for examination, and the body
was embalmed prior to the autopsy being performed, with a 2 ½ day

49 Order Granting Supervised Bail, 6/6/2022, at 2-3; PA. CONST. art. 1, § 14; see also
Commonwealth v. Talley, 265 A.3d 485, 523 (Pa. 2021).
50 Talley, 265 A.3d at 524.
51 Id. at 525.
52 Order Granting Supervised Bail, 6/6/2022, at 6 (quoting Fitzpatrick, 255 A.3d at
463).
53 Id.

[J-86-2025] - 18
postmortem interval. Dr. Bollinger had to perform an autopsy under
suboptimal conditions. 54

Dr. Caruso opined that “the likelihood of the events just preceding Ann[e]marie

Fitzpatrick’s death occurring as described by her husband, to a reasonable degree of

medical certainty, is minimal at best.”55 The trial court rejected Dr. Caruso’s position, as

it appeared to suffer from the same shortcoming we had noted earlier: “[d]isproof of one

theory is not the equivalent of proof of another.” 56 Dr. Caruso also had placed significant

weight upon Corporal Thierwechter’s reenactment experiments, which Dr. Caruso

described as “imperfectly designed.” 57 The trial court pointed out that Dr. Caruso

frequently used equivocal language in explaining his conclusions, words such as “more

likely,” “unlikely,” “possibly,” and “at least problematic.”58

The trial court acknowledged that Dr. Caruso was “eminently qualified” to offer an

opinion on the cause of death, but that, as to manner of death, he could only speculate. 59

Dr. Caruso stated that he held his opinions to a “reasonable degree of medical

certainty.”60 However, the use of these “magic words” did not, the court stressed,

necessarily mean that the opinion satisfied the applicable standard. 61 Because Dr.

Caruso’s opinion was based only upon disproof of an alternative theory, equivocal

54 Id. (quoting Consultation Report on the Death of Ann[e]marie Fitzpatrick, 2/8/2022,
at 2-3).
55 Consultation Report on the Death of Ann[e]marie Fitzpatrick, 2/8/2022, at 3.
56 Order Granting Supervised Bail, 6/6/2022, at 7 (quoting Fitzpatrick, 255 A.3d at
485).
57 Consultation Report on the Death of Ann[e]marie Fitzpatrick, 2/8/2022, at 4.
58 Order Granting Supervised Bail, 6/6/2022, at 7-8.
59 Id. at 7.
60 Id. at 8.
61 Id.

[J-86-2025] - 19
conclusions, and “imperfectly designed” experiments, the trial court could not “conclude

that the Commonwealth has met its burden, by a substantial quantity of legally competent

evidence, that the manner of death was the result of an unlawful killing.” 62

On June 8, 2022, the Commonwealth filed an emergency petition in the Superior

Court, seeking to stay the trial court’s bail order. The intermediate court issued an order

temporarily granting the request and directing Fitzpatrick to respond to the

Commonwealth’s petition. On January 5, 2023, the Superior Court granted the

Commonwealth’s petition, reversed the trial court, and remanded the case to the trial

court with the directive to revoke, and then deny, bail. The court did not explain the ruling.

Meanwhile, on June 30, 2022, the Commonwealth had filed a motion in limine in

the trial court. The Commonwealth sought a ruling on the admissibility of the recordings

of the ATV accident reconstruction and Dr. Caruso’s expert testimony. 63 On August 15,

2022, the parties appeared before the trial court for another pre-trial conference. The

defense sought a continuance of the scheduled re-trial date in order to explore the

possibility of securing its own expert to review, and possibly counter, the

Commonwealth’s new evidence. The trial court granted the request and postponed the

re-trial. 64 While discussing potential new trial dates, the trial court reminded the parties

that it had yet to rule on the Commonwealth’s motion in limine. 65 The court expressed

some concern over whether Dr. Caruso’s opinion meets the “standard of within a

reasonable degree of medical certainty,” when the court and the parties were “operating

62 Id. at 9 (emphasis in original).
63 Fitzpatrick filed a brief in opposition to the Commonwealth’s motion in limine on
January 5, 2023.
64 N.T., 8/15/2022, at 7.
65 Id. at 4.

[J-86-2025] - 20
on the basis of a letter at this point.” 66 The Commonwealth stated that it planned to call

as a witness “Dr. Caruso in order to aid [the court] with making that determination on [its]

pretrial motion” prior to trial. 67

On January 10, 2023, Dr. Caruso testified at a pre-trial hearing. He explained that,

as a forensic pathologist, he performs autopsies and, based upon his findings, offers

opinions on both the cause and the manner of a deceased’s death. 68 Dr. Caruso reviewed

copious materials related to Annemarie’s death. These included Annemarie’s medical

records, the autopsy report, trial transcripts, hundreds of photographs (including

photographs of the autopsy, of Fitzpatrick, and of the scene of the death), reports relating

to the reconstruction of the ATV accident, interviews with Fitzpatrick and emergency

medical personnel, and the audio recording of the 911 phone call. 69 After reviewing these

materials, Dr. Caruso concluded that the manner of death, in his opinion, was homicide. 70

Dr. Caruso confirmed that part of the process in deciding the manner of one’s death was

the exclusion of other possible explanations. 71 Because Annemarie’s body bore

significant physical injuries and Fitzpatrick had suffered nearly none, Dr. Caruso believed

that the death could not have occurred in the accidental manner suggested by Fitzpatrick,

a conclusion that contributed to Dr. Caruso’s opinion that Annemarie’s death was a

66 Id. at 5.
67 Id.
68 N.T., 1/10/2023, at 14. Based upon his extensive qualifications, and having
received no objection or opposition from the defense, the trial court certified Dr. Caruso
as an expert in the field of forensic pathology. Id. at 21.
69 Id. at 22-26.
70 Id. at 64.
71 Id. at 66.

[J-86-2025] - 21
homicide. 72 When asked on direct examination whether he held these opinions to a

reasonable degree of medical certainty, Dr. Caruso said “yes.” 73

However, during cross-examination, Dr. Caruso was compelled to give ground.

After extensively examining the factors that led to Dr. Caruso’s opinion, including the

injuries to Annemarie’s body, the toxicology evidence, and the “imperfectly designed”

recreation attempt, defense counsel asked Dr. Caruso whether it was “equally possible”

that the manner of death was accidental. Dr. Caruso retreated from his earlier opinion,

now stating that, “manner is actually more likely than not, not to a reasonable degree of

medical certainty.” 74 Defense counsel then asked Dr. Caruso to restate his level of

certainty. Dr. Caruso repeated that “[it’s] not held to a reasonable degree of medical

certainty. It’s more likely than not.” 75 Dr. Caruso then stated that he “think[s] the manner

of death is homicide.” 76

The trial court sought clarification concerning the level of certainty with which Dr.

Caruso held this opinion. Once more, Dr. Caruso stated that the standard that he used

was “more likely than not.” 77 The following exchange then occurred:

THE COURT: When you talk about the manner of death being a homicide,
that opinion is held more likely than not, not to a reasonable degree of
scientific certainty?

72 Id. at 73.
73 Id. at 75.
74 Id. at 171 (emphasis added).
75 Id.
76 Id. at 171-72.
77 Id. at 173.

[J-86-2025] - 22
[DR. CARUSO]: Yes. 78

The trial court concluded the hearing and took the matter under consideration. On

January 20, 2023, the Commonwealth filed a “Post-Hearing Motion In Support of Its

Motion In Limine,” arguing that Dr. Caruso’s testimony was admissible as competent

expert testimony because, at all times, Dr. Caruso was unequivocal in his belief that the

manner of Annemarie’s death was homicide. The Commonwealth maintained that the

use of conditional language did not render his opinion equivocal or inadmissible, when

that opinion, read in its entirety, was definitive and certain. “The law does not require

every utterance from a medical expert to be certain, positive, and without reservation or

exception.”79 The Commonwealth insisted that Dr. Caruso never deviated from his

opinion that Annemarie was unlawfully killed.

In a March 20, 2023 order, the trial court denied the Commonwealth’s motion in

limine. 80 The court held that Dr. Caruso could testify as to the cause of Annemarie’s

death, but not as to its manner. After summarizing the legal standards governing

admission of expert testimony, which require that “the opinion of an expert witness must

be rendered within a reasonable degree of medical certainty” and further require courts

78 Id. at 173-74; see also id. at 202 (“It’s up to me as the expert to analyze and decide
which ones I find valid. At the end of the day, I found that a homicide for manner to me
in my opinion is more likely than an accident . . . .”) (emphasis added).
79 Commonwealth’s Post-Hearing Motion In Support of Its Motion In Limine,
1/20/2023, at 1 (unpaginated) (citation omitted).
80 In its order, the trial court disposed of other pending matters raised by the
Commonwealth. For instance, the court granted the Commonwealth’s motion to deny a
challenge raised by Fitzpatrick to Dr. Caruso’s methodology under Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), and it granted the Commonwealth’s request to set a date
certain for the re-trial to commence. Order Resolving Pre-Trial Motions and Scheduling
Trial, 3/20/2023, at 1. The trial court denied the Commonwealth’s “request to present
evidence of the ATV experiments conducted by the State Police.” Id. at 2. The Superior
Court reversed that ruling on appeal. However, because Fitzpatrick did not seek
allowance of appeal on that issue, no further discussion of it is required here.

[J-86-2025] - 23
to consider an expert’s testimony in its entirety, 81 the trial court reviewed Dr. Caruso’s

testimony. The court found that testimony to be equivocal and uncertain. The court could

not ignore the fact that Dr. Caruso often hedged his testimony with terms such as

“unlikely,” “possibility,” “I don’t think,” “probably,” and “consistent with.” 82 The court found

determinative Dr. Caruso’s testimony that he did not hold the opinion that the manner of

Annemarie’s death was homicide to a reasonable degree of scientific certainty. Dr.

Caruso opined only that homicide was “more likely than not.” 83

Drawing from Commonwealth v. Smith, 84 the trial court explained that manner of

death, be it suicide, homicide, accident, etc., is something that ordinarily can be

determined by the jury without the assistance of an expert. 85 Because Dr. Caruso’s

opinion on manner of death failed to meet the criteria for the admission of expert

testimony, that was “clearly the case here.” 86 The jury would have to decide manner of

death on its own. “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 the other evidence which [the court]

expect[ed] to be presented in the case and drawing their own conclusions.” 87

81 Id. at 11-12 (quoting Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super.
2004); Griffin v. Univ. of Pittsburgh Med. Ctr., Braddock Hosp., 950 A.2d 996, 1000 (Pa.
Super. 2008)).
82 Id. at 13.
83 Id. (quoting N.T., 1/10/2023, at 171, 172, and 173-74).
84 808 A.2d 215 (Pa. Super. 2002).
85 Id. at 229.
86 Order Resolving Pre-Trial Motions and Scheduling Trial, 3/20/2023, at 14.
87 Id.

[J-86-2025] - 24
The Commonwealth appealed. In a divided, published opinion, the Superior Court

reversed. 88 The Superior Court commenced its examination of the admissibility of Dr.

Caruso’s testimony with the following statement from Smith:

The cause of a death is usually established by the opinion testimony of
medical experts, whereas a conclusion upon the question of whether a
death from ‘external causes of violence’ was ‘accidental, suicidal, or
homicidal’ may ordinarily be determined by a jury without the assistance of
expert witnesses. 89

The panel criticized the trial court for relying too heavily upon this one sentence

from Smith and for concluding that Dr. Caruso’s testimony “[was] prohibited because he

is an expert, and manner of death determinations are for the jury to decide after listening

to the evidence.” 90 The trial court’s holding, at least as it was framed by the Superior

Court, misread Smith. The line quoted above from Smith used the word “may,” not “shall,”

when describing the applicable standard for proving the manner of a person’s death. 91

According to the panel, Smith stated only that a jury is permitted to decide the manner of

death without the assistance of expert testimony, which does not mean that the

Commonwealth is precluded from submitting expert testimony in order to assist the jury

in that determination.

The panel deemed the trial court’s holding erroneous because that holding

purportedly “forc[ed] the jury to have to rely on circumstantial and demonstrative evidence

88 Commonwealth v. Fitzpatrick, 316 A.3d 987, 990 (Pa. Super. 2024). The Superior
Court also reversed the trial court’s ruling regarding the admissibility of the evidence
pertaining to the recreation of the ATV accident. As noted above, that issue no longer is
part of this appeal.
89 Smith, 808 A.2d at 229 (citation omitted).
90 Fitzpatrick, 316 A.3d at 999.
91 Id.

[J-86-2025] - 25
to determine manner of death for themselves.” 92 The panel perceived that its first task

was to “determine if and when it is permissible for an expert to testify as to manner of

death.” 93 The majority outlined the differences between cause and manner of death. The

former, the majority explained, must be “definite” because it “refers to the but-for cause

of death such as the specific injury or disease.” 94 However, the latter—manner of death—

need only be “probable” because it is an issue that can be decided by a jury alone. 95 That

being the case, the majority concluded, “[i]n many circumstances, the jury comes to its

own conclusion on manner of death based on the evidence, but if a witness does testify

as to manner of death, the statements need only be ‘probable’ because they are opinions,

not facts.”96

The majority turned to the applicability of Griffin, a case extensively relied upon by

Fitzpatrick. 97 In Griffin, an expert testified in a medical malpractice trial in which the

primary factual issue was causation of the plaintiff’s shoulder injury. 98 The expert testified

that there was a 51% chance that the plaintiff’s injury was caused by the hospital and a

49% chance that it was caused by a seizure. 99 On appeal, the Superior Court “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

92 Id.
93 Id.
94 Id. at 1000.
95 Id. (quoting Smith, 808 A.2d at 229).
96 Id. (footnote omitted).
97 The trial court also cited Griffin. See Order Resolving Pre-Trial Motions and
Scheduling Trial, 3/20/2023, at 12-13; see also supra note 81.
98 950 A.2d at 998.
99 Id. at 999.

[J-86-2025] - 26
proof on civil plaintiffs is generally by a preponderance of the evidence, or 51 percent.” 100

Although the Griffin expert used the “magic words” 101—reasonable degree of medical

certainty—“it became apparent from the totality and the substance of his entire testimony

that he only actually opined that [the hospital’s actions were] more likely than seizure on

a 51-49 basis, i.e., a nearly equal basis.” 102 The Griffin court held that this “degree of

certainty is akin to an opinion stating that the alleged cause could very properly account

for the injury or that it more likely than not caused the injury, both of which do not meet

the requisite degree of medical certainty.” 103 Thus, there was “insufficiently competent

expert evidence on the critical element of causation,”104 because the expert’s ultimate

opinion was not held “to the legally requisite degree of certainty.”105

Here, the Superior Court found Griffin to be distinguishable. First, the panel

highlighted, “[t]his is not a medical malpractice case, let alone a civil case.” 106 Second,

Griffin concerned only the cause of a shoulder injury, not a person’s death. Finally, and

“[m]ost importantly, the expert in Griffin testified to the cause of injury, not manner of

injury.” 107 Because “manner of injury, let alone manner of death, was absent from our

discussion in Griffin,”108 the panel here deemed that precedent inapplicable.

100 Fitzpatrick, 316 A.3d at 1000 (internal quotation marks omitted).
101 Griffin, 950 A.2d at 1001.
102 Id. at 1003.
103 Id. (internal quotation marks and citations omitted).
104 Id. at 1004.
105 Id. at 1003.
106 Fitzpatrick, 316 A.3d at 1001.
107 Id.
108 Id. (emphasis in original).

[J-86-2025] - 27
The majority found other decisions from this Court and from its own Court to be

more relevant and applicable. For instance, in Commonwealth v. Jacobs, 109 we held that

a medical expert could testify to the manner of an infant’s death because the expert had

offered a medical opinion, not a legal conclusion. 110 In Commonwealth v. Woodward, 111

we discerned nothing improper about a forensic pathologist offering a medical opinion

regarding the manner of a toddler’s death when the defendant had argued that the child

had accidentally drowned. 112 In Commonwealth v. Yale, 113 a defendant charged with

murdering his wife called two experts to opine that the death had been accidental. 114 The

Commonwealth, which had called an expert during its case-in-chief, countered the two

defense experts by calling another expert during rebuttal. The defendant, who was

convicted, argued on appeal that the Commonwealth should have been precluded from

calling the second expert during the rebuttal stage, maintaining that such testimony only

could be introduced during the Commonwealth’s case-in-chief. The Superior Court

disagreed, finding nothing erroneous or inadmissible in the substance, scope, or timing

of the testimonies of the Commonwealth’s experts. 115 The Yale court “noted nothing

improper about the fact that the expert, after viewing the medical evidence and explaining

the victim’s injuries and their probable causes, testified as to both cause of death and

109 639 A.2d 786 (Pa. 1994).
110 Id. at 790.
111 129 A.3d 480 (Pa. 2015).
112 Id. at 488-89. The appellant in Woodward did not challenge the admissibility or
substance of the expert’s opinion, and this Court did not directly address the issue. The
substance of the expert’s opinion was mentioned only as part of this Court’s recitation of
the background of the case.
113 150 A.3d 979 (Pa. Super. 2016).
114 Id. at 981.
115 Id. at 982-83.

[J-86-2025] - 28
manner of death in his medical opinions, regardless of what point in the trial the testimony

occurred.”116

Synthesizing Jacobs, Woodward, and Yale, the panel below concluded that,

although a jury is permitted to determine the manner of a person’s death without the

assistance of expert testimony, when the Commonwealth nonetheless elects to present

such testimony to aid the jury, the expert opinions need only be “probable,” not held to a

reasonable degree of certainty, because “they are medical opinions, not legal conclusions

or facts.”117 The panel noted that it is the jury’s role to assign the weight to be afforded a

qualified expert’s testimony, a function that it deemed particularly “germane” in manner

of death expert testimony, “because expert testimony is opinion, and the jury need not

take the expert’s opinion on manner of death as fact.”118 Furthermore, the court held,

although generally an expert must “base the substance of his opinion on a reasonable

degree of certainty instead of mere speculation,” the expert does not have to express the

opinion using those “magic legal words.” 119 Instead, the court held, an expert’s opinion

is admissible “as long as [that] opinion is sturdy.” 120

Applying these novel standards, the panel determined that the trial court had

abused its discretion in finding that Dr. Caruso’s testimony lacked the requisite

sturdiness. 121 Although Dr. Caruso used terms such as “possibility,” “unlikely,” “I don’t

think,” and “consistent with,” the panel explained, Dr. Caruso asserted that these terms

116 Fitzpatrick, 316 A.3d at 1003.
117 Id. at 1003-04.
118 Id. at 1004.
119 Id.
120 Id.
121 Id. at 1005.

[J-86-2025] - 29
often are used by medical examiners and coroners. 122 Dr. Caruso specifically testified

that the phrase “more likely than not” is a common term used in his field. 123 The court

held that Dr. Caruso’s failure to use the “magic legal words” of “to a reasonable degree

of medical certainty” at every turn in his testimony did not render his testimony speculative

or incompetent. The opinion only had to be “probable,” not “definitive.” 124 Because the

panel held that an opinion on the manner of death must only be probable, such an opinion

never needs to be held to a reasonable degree of certainty. 125

The majority opined that its holding was “compatible” with this Court’s decision in

Commonwealth v. Spotz. 126 In that case, a pathologist testified as an expert on both the

cause and the manner of a murder victim’s death, even though the pathologist was not

the coroner who performed the autopsy. The pathologist explained that, generally, it was

the coroner’s “province” to make manner of death determinations and admitted that he

did not hold his opinion to a reasonable degree of certainty. After being convicted of

murder and sentenced to death, the defendant appealed, arguing, inter alia, that the

pathologist was unqualified to be an expert and did not state his opinion to a reasonable

degree of certainty. 127

We held that the pathologist was qualified to testify as to the manner of death,

even though, generally, those determinations fall within the coroner’s “province.” That

did not mean that no other professional can be qualified to make that determination. We

122 Id.
123 Id. at 1005-06.
124 Id. at 1006.
125 Id.
126 756 A.2d at 1160.
127 Id.

[J-86-2025] - 30
noted that the pathologist in the case also performed autopsies and had on many

occasions rendered manner of death determinations. Thus, we held, the pathologist was

qualified to offer expert testimony. 128

We then reiterated that an expert does not need to use any particular “magic

words” 129 when offering opinion testimony. Rather, courts are required to consider the

entirety and the substance of an expert’s testimony in order to ensure that the proffered

opinion was not based upon speculation alone. Regardless of how the opinion is stated,

it is the court’s job to ensure that the expert’s opinion is based upon a reasonable degree

of certainty. 130 The panel below asserted that this was precisely what it had done when

it held Dr. Caruso’s testimony to be admissible. Like the expert in Spotz, Dr. Caruso is a

pathologist and, as such, is permitted to offer his opinion at Fitzpatrick’s re-trial. Any

equivocation or uncertainty in his opinion goes to the weight to be assigned to that

opinion, but not to its admissibility. 131

Judge Lazarus disagreed, criticizing the panel’s majority for adopting and applying

an “inappropriately lenient standard” for the admission of expert testimony regarding the

manner of one’s death. 132 Although she agreed that an expert witness need not use any

128 Id.
129 Id.
130 Id.
131 Fitzpatrick, 316 A.3d at 1006.
132 Judge Lazarus concurred in part and dissented in part. Id. at 1007 (Lazarus, J.,
concurring and dissenting). Judge Lazarus agreed with the Superior Court majority that
the trial court had erred in finding the demonstrative ATV accident reconstruction
evidence to be inadmissible. Thus, she joined that portion of the Superior Court’s majority
opinion. Id. As noted, that issue is not relevant in this appeal. See supra note 88.

[J-86-2025] - 31
specific “magic words,” any expert opinion still must be held to a reasonable degree of

certainty in order to be admissible. 133

Noting that this principle is “routinely” applied to all expert opinions, 134 Judge

Lazarus objected that the panel unjustifiably exempted manner of death opinions from

this “long-recognized standard.” 135 This error, she observed, placed the Superior Court

here in direct conflict with this Court’s holding in Spotz, in which we held that “manner of

death must be held to our Commonwealth’s requisite degree of medical certainty.”136

In order to sidestep this principle, Judge Lazarus asserted, the panel “embark[ed]

upon a lengthy dicta-led journey” that ended by “mischaracterizing the holding in

Spotz.”137 In order to exempt manner of death opinion testimony from governing

standards, the panel majority “blatantly mischaracterize[d]” the law in a way that allows

manner of death opinions to be stated only in terms of probability, as opposed to

reasonable medical certainty. 138 This allowed the panel to mold Dr. Caruso’s speculative

opinion into something compatible with Spotz. In reality, the panel majority’s novel

holding was “in direct conflict” with Spotz, 139 where this Court applied the “same standard”

to expert opinions on both manner of death and cause of death. 140 Judge Lazarus pointed

133 Fitzpatrick, 316 A.3d at 1007 (Lazarus, J., concurring and dissenting).
134 Id. (citing Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015);
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa. Super. 2012); Commonwealth
v. Radford, 236 A.2d 802 (Pa. 1968)).
135 Id.
136 Id. (citing Spotz, 756 A.2d at 1160).
137 Id.
138 Id.
139 Id.
140 Id. at 1007-08.

[J-86-2025] - 32
out that Spotz expressly stated that expert opinions on manner of death must be based

upon a “reasonable degree of medical certainty, rather than mere speculation.” 141

Judge Lazarus found “unpersuasive” the majority’s attempt to distinguish manner

of death opinion testimony from all other types of expert testimony. 142 She noted that

Pa.R.E. 702 “makes no distinction among types of experts or types of expert opinion

testimony.”143 To the contrary, the principle that all expert opinion testimony, without

exception, must be offered to a reasonable degree of certainty “has been the law of this

Commonwealth for decades.”144

Analysis

We granted allowance of appeal in order to address the following two issues:

Did the Superior Court err, and contravene this Court’s and its own
controlling precedent, when it ruled that an expert witness hired years after
a death could opine that the manner of death was homicide and not have
to hold that opinion to a reasonable degree of certainty, a standard [Dr.
Caruso] himself admitted was not met, saying “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.”?

Did the Superior Court err when it used a standard of “probable” for
determining manner of death when that standard was legislatively set for
coroners’ reports and not for use at trial, a point omitted by the Superior
Court majority? 145

This case presents a relatively straightforward question of law. In order to be

admissible, must all expert opinions be held to a reasonable degree of certainty, or are

141 Id. at 1008 (quoting Spotz, 756 A.2d at 1160).
142 Id.
143 Id.
144 Id.
145 Commonwealth v. Fitzpatrick, 330 A.3d 394 (Pa. 2024) (per curiam). Because the
two issues upon which we granted allocatur are interrelated, we address them as one.

[J-86-2025] - 33
expert opinions as to manner of death held to a lower standard? Fitzpatrick maintains

that Pennsylvania law has been clear and consistent and that, regardless of the discipline

involved, all expert opinions must be held to a reasonable degree of certainty. 146 The

Commonwealth, on the other hand, argues that manner of death and cause of death have

always been treated differently, as the former is not a legal conclusion, but rather a

medical opinion that may be rendered using a probability standard. For this reason, the

Commonwealth contends, testimony as to manner of death need not be stated to a

reasonable degree of certainty in order to be admissible. 147 We agree with Fitzpatrick.

Expert witnesses “enjoy a privileged place in U.S. courtrooms,” 148 much more so

than lay witnesses. Lay witnesses typically are limited to testifying about facts or events

that they personally observed; such witnesses generally are prohibited from offering

opinion testimony. 149 The expert, on the other hand, is called as a witness specifically to

offer his or her opinion. 150 Unlike the lay witness, the expert’s testimony is not limited to

what he or she personally observed. 151 Moreover, the expert witness is permitted to offer

an opinion that “embraces an ultimate issue” in a case, whereas the lay witness may not

do so. 152

146 Fitzpatrick’s Br. at 14.
147 Commonwealth’s Br. at 30.
148 Findlay & Strang, supra note 4, at 304.
149 See id.
150 Pa.R.E. 702 (“A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion . . .”).
151 Pa.R.E. 703 (“An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed.”) (emphasis added).
152 Pa.R.E. 704.

[J-86-2025] - 34
That experts can testify to matters beyond the scope permitted to lay witnesses

does not mean that expert testimony knows no bounds. A party seeking to present expert

testimony must demonstrate that the testimony falls within the strictures of Rule 702 of

the Pennsylvania Rules of Evidence, which provides as follows:

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. 153

The rule does not speak to how certain an expert must be in his or her opinion in

order for that opinion to be admissible. This gap is backfilled by the rule’s comment,

which states that “Pa.R.E. 702 does not change the requirement that an expert’s opinion

must be expressed with reasonable certainty.” 154 The comment correctly acknowledges

that the reasonable degree of certainty standard is an evidentiary prerequisite to the

admission of expert opinion testimony. This principle has been embedded—without

exception—in our law for decades.

The term “reasonable degree of certainty” did not originate in Pennsylvania. It is

believed to have taken root in Chicago, Illinois, around the turn of the 20th century. 155 The

153 Pa.R.E. 702.
154 Pa.R.E. Cmt. (citing McMahon v. Young, 276 A.2d 534 (Pa. 1971)).
155 See Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About
“Reasonable Medical Certainty,” 57 MD. L. REV. 380, 407 (1998). Lawyers there coined
the term in order to soften perceived tension between two evidentiary rules governing
(continued…)

[J-86-2025] - 35
term first appeared in a published legal opinion in 1916, in Fellows-Kimbrough v. Chicago

City Railway Co., 156 a personal injury case. 157 The phrase dropped out of reported

opinions until 1931, when it began to appear frequently in workers’ compensation

cases. 158 From there, the use of “reasonable degree of medical certainty” increased and,

in short order, became part of the “normal lexicon” used by the Illinois bench and bar in

nearly every area of law. 159 However, the fact that lawyers were using the phrase did not

mean that it carried any legal weight. It was not until 1937, in Shell Petroleum Corporation

v. Industrial Commission, 160 that the phrase was elevated from local parlance to legal

significance. There, the Supreme Court of Illinois vacated an award of damages, finding

that the award was not supported by sufficient evidence because an expert witness, a

physician, had failed to testify to “any reasonable medical certainty of a causal

relationship between the blow on the head and the employee’s total break down.”161

In the decades that followed Shell Petroleum, the phrase spread across the

country, eventually appearing for the first time in a published opinion in Pennsylvania in

expert testimony. Id. The Illinois Supreme Court had enacted the “reasonable-certainty
rule,” which prohibited experts from opining on the amount of potential damages in a civil
lawsuit, and the “ultimate-issue rule,” which banned experts from taking definitive
positions on disputed issues that traditionally had to be resolved by juries. Id.
156 111 N.E. 499, 502 (Ill. 1916).
157 See Lucy Johnson-Walsh, et al., The Unreasonably Uncertain Risks of
“Reasonable Medical Certainty” in Child Abuse Cases: Mechanisms for Risk Reduction,
66 DRAKE L. REV. 253, 257 (2018).
158 See id.
159 Id. at 258.
160 10 N.E.2d 352 (Ill. 1937).
161 Id. at 354.

[J-86-2025] - 36
1968. 162 Then, but for a smattering of decisions, 163 the phrase effectively disappeared

from Pennsylvania case law. Its absence is most noticeable from this Court’s opinion in

McMahon v. Young. 164 In that case, a medical expert, while opining on causation in a

personal injury case, testified that: (1) “the automobile accident is consistent with that

sort of injury”; (2) “there is probably a cause and effect relationship”; and (3) “my opinion

is there is an arthritis which is consistent with traumatic arthritis.” 165 This Court noted that

an expert opinion is substantive evidence that, if believed, can suffice to prove an element

of a cause of action. But, in order to do so, the opinion must be direct and “made with

sufficient certainty.” 166 Because the expert’s testimony lacked that certainty, and instead

was expressed in terms of probability, it was “not enough” to constitute competent

evidence. 167 However, despite the local and national emergence of the reasonably

certain standard, the McMahon Court did not use that phrase.

Finally, in the early-to-mid-1970s, the standard saw a “virtual explosion in usage”

in Pennsylvania, including in decisions of this Court. 168 For instance, in Commonwealth

v. Webb, 169 two brothers were convicted of murder after they assaulted another man in a

162 See DeVirgiliis v. Gordon, 243 A.2d 459, 460 (Pa. Super. 1968) (Hannum, J.,
dissenting).
163 Lewin, supra note 155, at 451 n.342 (“The phrase appeared in only one other state
court opinion from the 1960s and in only sixteen more cases prior to 1975.”).
164 276 A.2d 534 (Pa. 1971).
165 Id. at 535 (parenthetical marks removed).
166 Id.
167 Id.
168 Lewin, supra note 155, at 451 n.342.
169 296 A.2d 734 (Pa. 1972).

[J-86-2025] - 37
social club. 170 At their trial, a pathologist testified that the injuries inflicted during the

assault caused the victim’s death. On appeal, the bothers argued to this Court that the

evidence had been insufficient to prove that their actions had caused the victim’s death,

because the pathologist did not state his conclusion beyond a reasonable doubt. 171

Noting that beyond a reasonable doubt is a legal standard, not an evidentiary one, this

Court rejected the brothers’ argument. We held that the pathologist’s opinion, which was

stated “with a reasonable degree of medical certainty,” was sufficient to prove

causation. 172 Two years later, in Commonwealth v. Stoltzfus, 173 this Court, drawing

largely from Webb, once more held that, in order for expert medical testimony to be

admissible, the expert must “entertain a reasonable degree of medical certainty for his

conclusions.” 174

This Court’s insistence that expert testimony be held to a reasonable degree of

certainty did not end with that initial “explosion.” We routinely have applied this standard

ever since. In Commonwealth v. Edmiston, we opined that “[a] medical opinion is

sufficient to support a finding when given with a reasonable degree of medical

certainty.”175 In Spotz, a forensic pathologist at a capital murder case testified that the

“cause of death” was his “province, what did the person die of,” and that the “manner of

death” was the “province of the coroner.”176 The pathologist explained that the coroner,

170 Id. at 735.
171 Id. at 737.
172 Id.
173 337 A.2d 873 (Pa. 1975).
174 Id. at 879 (citation omitted).
175 634 A.2d 1078, 1084 (Pa. 1993).
176 756 A.2d at 1160.

[J-86-2025] - 38
not the pathologist, “puts all the facts together, including the autopsies, and consequently

certifies the manner of death.” 177 Despite this purported separation of duties, the

pathologist nonetheless opined on the manner of death. On appeal, the convicted

defendant argued that the pathologist was not qualified to speak to manner of death. This

Court rejected the argument, finding that the pathologist was more than qualified because

he had performed autopsies and had testified to manner of death hundreds of times.

Simply because the pathologist believed that manner of death determinations were not

the “province” of a pathologist does not, ipso facto, mean that a pathologist is unqualified

to opine on the subject. 178 The defendant also had argued that the pathologist’s opinion

was not admissible because it was not stated to a reasonable degree of certainty. This

Court found the argument unpersuasive because we have never required that an expert

use any “magic words.” 179 A court must review the substance of the testimony, which,

however stated, must demonstrate that the opinion was “based on a reasonable degree

of medical certainty rather than upon mere speculation.” 180 Most recently, in

Commonwealth v. Walters, albeit in the context of expert opinion testimony regarding the

cause, not manner, of death, we reiterated that medical opinions must be “entertained [to]

a reasonable degree of medical certainty.” 181 Adhering to this long, unbroken line of

177 Id.
178 Id.
179 Id.
180 Id.
181 323 A.3d 151, 157 (Pa. 2024) (quoting Commonwealth v. Williams, 316 A.2d 888,
891 (Pa. 1974)).

[J-86-2025] - 39
precedents, the Superior Court also consistently has required expert testimony to be held

to this standard. 182

This level of certainty is not limited to medical opinions. It applies to expert

opinions of every variety. For instance, in Povacz v. Pennsylvania Public Utility

Commission, we held that expert opinions as to whether smart meters emit radio

frequencies in public utility cases must be “rendered to a reasonable degree of scientific

certainty.”183 In Barbour v. Commonwealth, Department of Transportation, Bureau of

Driver Licensing, we held that an expert opining on whether a driver was capable of

making a knowing refusal to submit to chemical testing for consumption of alcohol was

required to hold that opinion to a reasonable degree of certainty. 184 In Detterline v.

D'Ambrosio’s Dodge, Inc., the Superior Court deemed admissible the opinion of an expert

accident reconstructionist that was held to a reasonable degree of certainty. 185 And, in

Peerless Dyeing Co., Inc. v. Industrial Risk Insurers, the Superior Court rejected an

expert’s opinion that damaged boilers caused injury to a plaintiff where that opinion was

not held to the requisite standard, which left the jury to speculate about what caused the

injuries. 186 In short, since the reasonable degree of certainty standard first was introduced

182 See, e.g., Griffin, 950 A.2d at 1000; Vicari v. Spiegel, 936 A.2d 503, 510-11 (Pa.
Super. 2007); Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004);
Commonwealth v. Passmore, 857 A.2d 697, 713 (Pa. Super. 2004); Corrado v. Thomas
Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa. Super. 2001); Eaddy v. Hamaty, 694
A.2d 639, 642 (Pa. Super. 1997).
183 280 A.3d 975, 1006 (Pa. 2002).
184 732 A.2d 1157, 1160 (Pa. 1999).
185 763 A.2d 935, 940 (Pa. Super. 2000).
186 573 A.2d 541, 547-48 (Pa. Super. 1990). The Superior Court broadly, but
correctly, stated that “[i]t is settled that, to be competent, expert testimony must be stated
with reasonable certainty.” Id. at 547.

[J-86-2025] - 40
in Pennsylvania, our courts have applied it uniformly and to every expert discipline. Our

research has uncovered no exceptions.

The foremost secondary sources summarizing Pennsylvania law are in accord.

Professors Packel and Poulin, authors of the expert testimony sections of West’s

Pennsylvania Practice manual, describe the standard as a “certainty requirement,” which

“has evolved into a formula in which counsel and the courts ask an expert to express his

or her opinion ‘with reasonable medical certainty,’ or with ‘reasonable certainty’ in some

other field of expertise.” 187 Professor Ohlbaum, author of the definitive treatise on

Pennsylvania evidence, unequivocally states that “[a]n expert must hold an opinion to a

reasonable degree of professional certainty.” 188 Similarly, Pennsylvania’s Civil

Suggested Standard Jury Instruction advises jurors in a civil trial that “[a]n expert witness

gives [his or her] opinion, to a reasonable degree of professional certainty, based upon

the assumption of certain facts.” 189

The above survey of Pennsylvania authorities demonstrates that Pennsylvania law

is unmistakably clear. Our case law, evidentiary rules, and supporting secondary

materials require that an expert hold his or her opinion to a reasonable degree of certainty

in order to be admissible in legal proceedings. Those same authorities recognize no

exception to the rule. Thus, when the Superior Court below crafted an exception for

expert opinions touching upon the manner of an alleged murder victim’s death, that court

187 Leonard Packel & Anne Bowen Poulin, Certainty of expert testimony, 1 West's Pa.
Prac., Evidence § 702-6 (4th ed. 2025) (citations omitted).
188 Edward D. Ohlbaum, Ohlbaum on the Pennsylvania Rules of Evidence, § 702.07
(2025).
189 Pa. SSJI (Civ) § 4.80 (2024). The criminal jury instruction manual does not use
the same phrase, but nothing in our cases suggests that expert testimony is understood
differently in criminal and civil courts.

[J-86-2025] - 41
had to circumvent the heavy, binding weight of the history and consistency of these

authorities. The court’s attempt to do so was erroneous.

To start, the panel’s majority mischaracterized the trial court’s ruling. The trial court

cited Smith for the proposition that proof of the manner of one’s death does not require

expert testimony. The trial court correctly recognized that a jury may resolve the issue

solely by relying upon the circumstantial evidence presented at trial. The Superior Court’s

majority, however, read the trial court’s recitation of these basic premises as prohibiting

expert testimony on the manner of death in a murder case. 190 The trial court did no such

thing. The trial court instead correctly recognized that, when a party elects to present

expert opinion testimony on the manner of death, that testimony must comport with the

rules governing the introduction of all expert testimony. At no point did the trial court state

that expert testimony is entirely prohibited on this topic. The court held only that, in this

case, Dr. Caruso’s testimony did not meet the standards for admissibility of expert

testimony.

Having misread the trial court’s ruling, the panel’s majority felt bound to decide

anew whether a party is permitted to present expert testimony as to the manner of death.

The court correctly concluded that a party, in fact, could do so. However, the court

immediately committed another error. The court held that such an expert was not obliged

to hold his or her opinion on the issue to a reasonable degree of medical or scientific

certainty. Instead, the panel found, an expert’s opinion on this topic need only be

“probable.” 191 This, according to the panel, was because manner of death is an issue

that a jury often determines on its own. Apparently, the panel believed that, because the

opinion evidence was not required, that opinion did not have to comply with the law

190 Fitzpatrick, 316 A.3d at 999.
191 Id. at 1000.

[J-86-2025] - 42
governing such testimony. The court cited no authority in support of this novel, and

patently erroneous, proposition, nor are we aware of any. To the contrary, as we made

clear above, all “expert[s] must hold an opinion to a reasonable degree of professional

certainty.”192

The court then compounded its error. The panel posited that manner of death

opinions need only be “probable” because “they are opinions, not facts.” 193 The court did

not offer any explanation of why this type of opinion is exempt from the rules governing

opinions. Nor did the court explain its apparent belief that these rules would apply

differently if the expert testified to “facts.”194 We do not follow the logic of the panel’s

analysis. We only state once more that all expert opinion testimony must comply with the

same governing rules. Those rules do not allow for more-likely-than-not opinions.

The Superior Court’s majority then attempted—unsuccessfully—to reconcile its

holding with Pennsylvania’s unambiguous case law. First, the court took aim at its own

decision in Griffin. In that case, an expert offered an opinion that differed in no substantive

way from Dr. Caruso’s testimony in the case sub judice. The expert in Griffin opined that

it was 51% likely that medical personnel caused the injury to the plaintiff and that it was

49% likely that the injury resulted from a seizure. The Griffin court held that this more-

likely-than-not opinion was inadmissible, because it did not meet the “requisite degree of

medical certainty” standard. 195 Griffin is on all fours with the present matter. Dr. Caruso

also testified that he believed that it was more-likely-than-not that Annemarie’s death was

a homicide, not an accident. That opinion, too, is inadmissible under Griffin. However,

192 Ohlbaum, supra note 188.
193 Fitzpatrick, 316 A.3d at 1000 (emphasis added).
194 Id.
195 Griffin, 950 A.2d at 1003.

[J-86-2025] - 43
the panel below concluded otherwise. The panel attempted to distinguish Griffin on two

fronts. First, the panel surmised that Griffin was inapplicable because it was a civil

malpractice case, not a criminal case. We fail to see how that matters. The Superior

Court below made no attempt to explain why it does. The Pennsylvania Rules of

Evidence apply equally to civil and criminal cases. Rule 702 is not limited to any category

of cases. So long as a party in a legal proceeding is offering expert testimony, Rule 702

governs. Thus, an appellate court decision enforcing that rule is not distinguishable

merely because the subject matter of the underlying legal dispute is different. Griffin

stands for the principle that expert opinions must be held to a reasonable degree of

certainty, not to a bare probability. That principle certainly applies in criminal cases.

The panel then sought to distinguish Griffin because the expert testimony being

challenged pertained to the cause of a plaintiff’s injury, not to the manner of one’s

death. 196 The distinction also is of no relevance. The Griffin court’s ruling was not

predicated upon the particular topic of the expert’s opinion. Rather, the import of Griffin

is that expert opinions must be held to the reasonable certainty standard. Probability of

belief is insufficient for admissibility under Rule 702. This rule is universally applicable,

regardless of the topic of the proffered expert opinion. That the Griffin court did not

mention manner of death does not mean that its rule can be summarily disregarded. To

the contrary, Griffin correctly identified the rule. That rule applies to all expert opinions.

The court below correctly noted that an expert’s opinion is not admissible simply

because it is accompanied by certain “magic words.” 197 An opinion will be admissible so

long as the substance of the testimony, when read it its entirely, comports with the

governing law. Instead of acknowledging that the law requires an opinion to be held to a

196 Fitzpatrick, 316 A.3d at 1001.
197 Id. at 1004.

[J-86-2025] - 44
reasonable degree of certainty, the panel held that an opinion must only be “sturdy.”198

The panel did not identify any parameters for this newly-concocted sturdiness measure.

The panel did not define the term “sturdy,” let alone provide guidance to courts as to how

to apply this novel tool. It is unknown in our jurisprudence.

The panel did stress that expert testimony must be based in fact, not in

possibilities, cannot amount to conjecture or surmise, and need not amount to an

expression of absolute certainty. 199 However, those concerns are not new. They

adequately are addressed by the reasonable certainty standard. These well-known

limitations on expert testimony provide no cause to manufacture a new standard, certainly

not one that applies to only one type of expert testimony, and surely not one that requires

a court to determine whether testimony is “sturdy,” a term that is incapable of being

reliably and consistently applied.

Applying its newly-minted standard for admissibility, the Superior Court found that

Dr. Caruso’s testimony was sufficiently “sturdy” to warrant admission at Fitzpatrick’s re-

trial. Even though Dr. Caruso equivocated frequently and stated unambiguously that his

opinion was not held to a reasonable degree of certainty, the panel nonetheless found

that opinion to be admissible because, in its view, Dr. Caruso only had to believe it

“probable” that Annemarie’s death was a homicide. 200 This conclusion, the panel stated,

was consistent with this Court’s holding in Spotz, because Dr. Caruso, like the pathologist

in Spotz, explained his medical background and the medical basis for his opinion. In the

panel’s view, because Dr. Caruso reached his opinion using the same level of certainty

198 Id.
199 Id. (quoting Commonwealth v. Ward, 188 A.3d 1301, 1311 (Pa. Super. 2018)).
200 Id. at 1006.

[J-86-2025] - 45
that coroners apparently use, the testimony was admissible, regardless of how Dr. Caruso

articulated that standard in his testimony.

The Superior Court’s ruling is in no way consistent with Spotz. There, we held that

a qualified forensic pathologist could testify to the manner of a murder victim’s death,

even though, according to that pathologist, that typically was a decision made by a

coroner. Regardless of the expert’s occupation, or the traditional roles assigned to that

occupation, our concern was with the substance of the expert’s opinion and our job was

to ensure that the opinion was “based on a reasonable degree of medical certainty rather

than upon mere speculation.” 201 Contrary to the Superior Court’s attempts to align its

ruling with Spotz, we did not hold that the pathologist’s testimony was admissible simply

because he formulated his opinion in the same manner that other pathologists or coroners

do. We instead found the pathologist’s opinion admissible because the pathologist held

the opinion to a reasonable degree of certainty. The Superior Court’s diminution of the

reasonable certainty standard cannot be squared with our application of the full measure

of that standard in Spotz.

All that remains is an analysis of whether Dr. Caruso’s manner of death opinion

was admissible. When viewed using the correct legal standard, it is clear that it was not.

Although Dr. Caruso initially testified that he held his opinion to a reasonable degree of

certainty, 202 our analysis cannot rest upon his singular utterance of those “magic

words.” 203 The remainder of Dr. Caruso’s testimony demonstrates that those “magic

words” were not an accurate description of Dr. Caruso’s level of certainty with regard to

his opinion on the manner of Annemarie’s death.

201 Spotz, 756 A.2d at 1160.
202 N.T., 1/10/2023, at 75.
203 See Spotz, 756 A.2d at 1160.

[J-86-2025] - 46
Dr. Caruso’s testimony was at times equivocal and speculative. Dr. Caruso

frequently conditioned his observations and opinions with phrases such as “unlikely,”

“possibility,” and “probably.” Such terms, by themselves, do not necessarily render an

expert’s testimony so speculative as to be inadmissible. However, the conditional nature

of such terms cannot be ignored, particularly when Dr. Caruso made clear that his opinion

was not held to the applicable legal standard. On cross-examination, Dr. Caruso

unambiguously testified that, “manner is actually more likely than not, not to a reasonable

degree of medical certainty.” 204 When asked a second time, Dr. Caruso once more stated

that “[it’s] not held to a reasonable degree of medical certainty. It’s more likely than

not.”205 Offered one last chance to clarify his opinion, Dr. Caruso stated that he “thinks”

that the manner of death was homicide. 206

Given the fact that Dr. Caruso first claimed that his opinion was held to a

reasonable degree of certainty and then asserted that it was not, the trial court naturally

sought clarification. The trial court asked Dr. Caruso if his opinion on manner of death

was “held more likely than not, not to a reasonable degree of scientific certainty?”207 Dr.

Caruso answered “Yes.” 208 Because more likely than not falls below the level of certainty

required for the admission of expert testimony, the trial court correctly held that Dr.

Caruso’s testimony pertaining to the manner of Annemarie’s death was inadmissible.

Disposition

204 N.T., 1/10/2023, at 171 (emphasis added).
205 Id.
206 Id. at 171-72.
207 Id. at 173.
208 Id. at 174.

[J-86-2025] - 47
We reverse the Superior Court’s order to the contrary and we remand this case for

further proceedings consistent with this opinion.

Chief Justice Todd and Justices Donohue, Dougherty, Mundy, Brobson and

McCaffery join the opinion.

[J-86-2025] - 48

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11243995. Public record. Not legal advice.