# Commonwealth v. Walker, D., Aplt.

> Supreme Court of Pennsylvania · January 28, 2026

URL: https://www.frixlaw.com/law-library/cases/11247347

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 28, 2026
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Dougherty, Kevin M.; Todd, Chief Justice Debra
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[J-8A-2025, J-8B-2025 and J-8C-2025]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA, : No. 38 EAP 2024
:
Appellee : Appeal from the Order of the
: Superior Court at No. 788 EDA
: 2022 entered on November 30,
v. : 2023, affirming the Judgment of
: Sentence of the Philadelphia County
: Court of Common Pleas at No. CP-
DERRICK WALKER, : 51-CR-0006112-2019 entered on
: March 1, 2022.
Appellant :
: ARGUED: March 5, 2025

COMMONWEALTH OF PENNSYLVANIA, : No. 39 EAP 2024
:
Appellee : Appeal from the Order of the
: Superior Court at No. 790 EDA
: 2022 entered on November 30,
v. : 2023, affirming the Judgment of
: Sentence of the Philadelphia County
: Court of Common Pleas at No. CP-
DERRICK WALKER, : 51-CR-0006114-2019 entered on
: March 1, 2022.
Appellant :
: ARGUED: March 5, 2025

COMMONWEALTH OF PENNSYLVANIA, : No. 40 EAP 2024
:
Appellee : Appeal from the Order of the
: Superior Court at No. 789 EDA
: 2022 entered on November 30,
v. : 2023, affirming the Judgment of
: Sentence of the Philadelphia County
: Court of Common Pleas at No. CP-
DERRICK WALKER, : 51-CR-0006113-2019 entered on
: March 1, 2022.
Appellant :
: ARGUED: March 5, 2025
Justice McCaffery delivers the Opinion of the Court with respect to Parts I,
II, III(A)-(B), and III(C)(iv), except for footnote 19, and announces the
judgment of the Court. The Opinion is joined in full by Justices Donohue
and Wecht. Justice Dougherty joins Part III(C)(i) to the extent it abrogates
the logical connection test.

OPINION

JUSTICE McCAFFERY DECIDED: January 28, 2026
In this discretionary appeal, we consider two questions which commonly arise in

criminal prosecutions. The first question concerns the consolidation of separate offenses

— here, three rapes of three different women on three different occasions — for a joint

jury trial. Although the consolidation of separate offenses is patently prejudicial to a

defendant, pursuant to Pennsylvania Rule of Criminal Procedure 582, separate offenses

may be tried together if, inter alia, “the evidence of each of the offenses would be

admissible in a separate trial for the other[.]” Pa.R.Crim.P. 582(A)(1)(a). In order to

determine this preliminary question, we examine Pennsylvania Rule of Evidence 404(b),

and, specifically, the parameters of the “common plan, scheme and design” (CPSD)

exception to the general rule precluding the admission of propensity evidence.

The second question concerns the admissibility of out of court statements in a

forensic report — here, rape kit reports — absent testimony from the author of said report.

We scrutinize whether admission of such reports violates a defendant’s constitutional

right to confront witnesses against him, and whether they are otherwise admissible under

our exceptions to the hearsay rule.

Because we conclude Appellant, Derrick Walker, is entitled to a new trial on both

claims, we vacate the judgment of sentence and remand for further proceedings.

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I. FACTS AND PROCEDURAL HISTORY

In July of 2019, Walker was arrested and charged with the rape of three different

victims on three separate occasions — P.C., in January of 2011; T.A., in December of

2014; and B.H., in January of 2015. Each victim underwent a sexual assault examination

after the attack, and, in each case, DNA from the purported perpetrator was recovered

and uploaded to the Combined DNA Index System (CODIS). 1 In December of 2018, a

CODIS search uncovered that the DNA samples taken from the three victims matched —

thus, police believed the victims were assaulted by the same perpetrator. That DNA

profile later was linked to Walker.

The relevant facts underlying each assault are as follows.

CP-51-CR-0006112-2019 (Docket No. 6112): On January 20, 2011, around

midnight, P.C. left her home in the Oxford Circle neighborhood in Philadelphia to walk to

a nearby 7-11 convenience store to purchase cigarettes. She was outside the store when

Walker, whom she did not know, approached, “flashed money at [her,] and said ‘you know

1 The FBI website describes CODIS as a tool that

blends forensic science and computer technology [to] enable[] federal,
state, and local forensic laboratories to exchange and compare DNA
profiles electronically, thereby linking serial violent crimes to each other and
to known offenders. …
CODIS generates investigative leads in cases where biological evidence is
recovered from the crime scene. Matches made among profiles in the
Forensic Index can link crime scenes together, possibly identifying serial
offenders. Based upon a match, police from multiple jurisdictions can
coordinate their respective investigations and share the leads they
developed independently. Matches made between the Forensic and
Offender Indexes provide investigators with the identity of suspected
perpetrators. Since names and other personally identifiable information are
not stored at [the National DNA Index System], qualified DNA analysts in
the laboratories sharing matching profiles contact each other to confirm the
candidate match.

https://le.fbi.gov/science-and-lab/biometrics -and-fingerprints/codis-2.

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what to do for this.’” N.T., 10/28/2021, at 50. Although P.C. testified that she was not a

prostitute and that she “had a bad feeling[,]” she followed Walker to the alley behind the

7-11; P.C. claimed she did so because she was scared. Id. at 13, 52. Once isolated,

Walker pushed P.C. to her knees and tried to force her to perform oral sex on him. When

she resisted, he punched her in the face and threw her body against a car that was parked

in the alley. Walker then forcibly pulled down P.C.’s pants and raped her. Afterwards,

P.C. pulled up her pants and followed him back to the front of the store. When Walker

told her he was going to get money to pay her, P.C. stated she was not a prostitute. He

then walked away, and P.C. ran home. She testified that she took off her clothes and

cried for hours until her husband woke up and called the police. P.C. went to the hospital

the next morning and underwent a sexual assault examination. The nurse examiner

prepared a rape kit report. Sperm recovered from a vulva swab resulted in a male DNA

profile that did not match any existing profiles in the database.

CP-51-CR-0006113-2019 (Docket No. 6113): On the morning of December 2,

2014, T.A., a recovering drug addict, attended a methadone program near 7th Street and

Girard Avenue in Philadelphia. After leaving the program around 11:00 a.m., she headed

to a nearby doughnut shop where she would often meet with friends. When she arrived,

Walker, whom she did not know, was standing outside. He inquired whether she was

interested in purchasing headphones. When T.A. expressed interest, Walker asked her

to walk up Girard Avenue with him because he also “had drugs on” him and did not want

to exchange anything on the street. N.T., 10/27/2021, at 55. As they walked, Walker put

his arm around T.A. She was not alarmed by this because of her prior experience

purchasing drugs — sellers would often put their arms around buyers to give the

appearance of familiarity. However, T.A. then felt a knife at the base of her neck. Walker

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calmly told her, “you’re going to do what I’m telling you to do” and “[w]e’re going to keep

walking.” Id. at 59.

Walker led T.A. across Girard Avenue towards an alley. As he did so, he took her

money and cell phone. When they reached the alley, Walker pushed T.A. to the ground

and forced her to perform oral sex on him. He then grabbed her face, turned her around,

and pushed T.A. against a fence before raping her. Next, Walker instructed T.A. to walk

in the opposite direction from him; he did not return her phone or money. T.A. ran to a

store a few blocks away, where she immediately called her boyfriend and the police. She

underwent a sexual assault examination at the Philadelphia Sexual Assault Response

Center (PSARC). The nurse examiner prepared a rape kit report. Sperm recovered from

a perianal swab resulted in a male DNA profile that did not match any existing profiles in

the database.

CP-51-CR-0006114-2019 (Docket No. 6114): B.H. recently moved to Philadelphia

and was living in the area of 55th and Thompson Streets. At approximately 11:30 a.m.

on January 12, 2015, as she was exploring the neighborhood, she asked a woman where

she could buy loose cigarettes (commonly known as “loosies”). As she attempted to

follow the woman’s directions, she ran into Walker, whom she had never met. B.H. then

asked him where she could purchase “loosies.” Walker responded that he sold them, but

did not have any on him at that time. He told her to follow him, which she did. Walker

led B.H. to the rear of a nearby house. B.H. handed Walker some money, and he then

entered the property. While she waited for him, B.H. made a phone call. After the call

ended, she “felt someone come behind [her], put their hand over [her] mouth, and trip

[her] forward onto the ground [and] on [her] stomach.” N.T., 10/28/2021, at 88. When

her attacker attempted to pull down her pants, she screamed; he then struck her in the

back with a tire iron. The attacker was able to remove her pants and forcibly rape B.H.

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while she begged him to stop. The attacker then fled. B.H. ran home and immediately

called the police, who were able to recover the tire iron. B.H. underwent a sexual assault

examination at PSARC, and the nurse examiner prepared a rape kit report. Sperm

recovered from a perianal swab resulted in a male DNA profile that did not match any

existing profiles in the database.

As noted above, it was not until December 2018 that law enforcement learned that

the unknown male DNA samples recovered from all three victims matched. In July 2019,

after the unknown male DNA profile was linked to Walker, Walker was arrested and

charged, at separate dockets, for each case.2 Retesting confirmed that Walker was the

source of the DNA recovered from each victim during the sexual assault examinations.

On November 20, 2019, the Commonwealth moved to consolidate the cases for

trial pursuant to Pennsylvania’s joinder rule, Rule 582.3 Relying upon the exceptions to

the admission of other bad acts evidence in Rule 404(b), the Commonwealth argued that

2 At Docket No. 6112, Walker was charged with two counts each of rape and involuntary

deviate sexual intercourse (IDSI), and one count each of unlawful restraint, sexual
assault, false imprisonment, indecent exposure, and simple assault for the January 2011
attack of P.C. See 18 Pa.C.S. §§ 3121(a)(1)-(2), 3123(a)(1)-(2), 2902(a)(1), 3124.1,
2903(a), 3127(a), and 2701(a), respectively. He was charged, at Docket No. 6113, for
the December 2014 assault of T.A. with two counts each of rape, IDSI, and kidnapping,
three counts of robbery, and one count each of unlawful restraint, sexual assault, false
imprisonment, theft by unlawful taking, receiving stolen property, possession of an
instrument of crime (PIC), indecent exposure, terroristic threats, simple assault, and
recklessly endangering another person (REAP). See 18 Pa.C.S. §§ 3121(a)(1)-(2),
3123(a)(1)-(2), 2901(a)(2)-(3), 3701(a)(1)(i)-(iii), 2902(a)(1), 3124.1, 2903(a), 3921(a),
3925(a), 907(a), 3127(a), 2706(a)(1), 2701(a), and 2705, respectively. For the January
2016 assault of B.H., Walker was charged with two counts of rape, and one count each
of unlawful restraint, sexual assault, false imprisonment, PIC, indecent exposure,
terroristic threats, simple assault, and REAP at Docket No. 6114. See 18 Pa.C.S. §§
3121(a)(1)-(2), 2902(a)(1), 3124.1, 2903(a), 907(a), 3127(a), 2706(a)(1), 2701(a), and
2705, respectively.
3 Rule 582 permits the joinder of offenses charged in separate informations if, inter alia,

“the evidence of each of the offenses would be admissible in a separate trial for the other
and is capable of separation by the jury so that there is no danger of confusion.”
Pa.R.Crim.P. 582(A)(1)(a).

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the evidence of each assault would be admissible in a trial for the others because the

assaults shared sufficient similarities to establish a common plan, scheme, or design, and

they demonstrated an absence of mistake, that is, they rebutted any claim by Walker that

the acts were consensual. Despite Walker’s objection to consolidation, the trial court

granted the Commonwealth’s motion following a hearing in December 2019.

Prior to trial, Walker filed a motion in limine seeking to preclude the Commonwealth

from introducing the PSARC rape kit reports for T.A. and B.H.4 The Commonwealth had

informed him that the nurses who performed the sexual assault examinations of those

victims were no longer employed by PSARC, and it intended to introduce the reports

through the testimony of PSARC’s nurse manager and clinical director, Allison Denman.

Walker insisted that admission of the reports through Denman’s testimony would violate

the Confrontation Clause under both the state and federal constitutions, as well as the

rule against hearsay. The trial court heard argument on the motion the first day of trial.

When the court asked Walker’s counsel if there was an objection “over and above the

introduction of the report[s] to facilitate [how] the rape kit[s] … [were] conducted and the

result and transfer of chain of custody[,]” counsel responded, “Yes, … that is my

objection.” N.T., 10/27/2021, at 14. Although the court denied Walker’s motion, it

commented that it “want[ed] to see the reports themselves [prior to their admission] just

to make sure that there [were] no testimonial type of portions therein that [could not] be

introduced over and above the rape kit itself[.]” Id. at 15.

As the jury trial continued, the Commonwealth presented testimony from the three

victims, the investigating police detectives, PSARC clinical director Denman, and a DNA

4 Notably, Walker did not file a motion to exclude the admission of P.C.’s rape kit report,

which was included in her medical records. See Commonwealth’s Exhibit 24. In fact,
Walker stipulated to the admission of P.C.’s medical records, agreeing they were “taken
in the regular course of business and they are certified medical records.” N.T.
10/29/2021, at 31. The sexual assault nurse examiner who prepared P.C.’s rape kit report
did not testify at trial.

[J-8A-2025, J-8B-2025 and J-8C-2025] - 7
expert. Walker did not testify or call any witnesses. His defense was that each of the

victims was engaging in prostitution and, therefore, the sexual encounters were

consensual. At the conclusion of trial, the jury found Walker guilty of rape, IDSI, and

sexual assault at Docket Nos. 6112 and 6113 (victims P.C. and T.A.), and rape, sexual

assault, and PIC at Docket No. 6114 (victim B.H.).5 On March 1, 2022, the trial court

imposed an aggregate sentence of 28 to 56 years’ imprisonment and required Walker to

register for life as a Tier III sexual offender pursuant to the Sexual Offenders’ Registration

and Notification Act (SORNA).6 See 42 Pa.C.S. §§ 9799.14(d)(1), (4) (designating rape

and IDSI as Tier III offenses); 9799.15(a)(3) (requiring Tier III offenders to register for life).

Walker filed a timely direct appeal at each docket, and the Superior Court consolidated

the appeals sua sponte.

Walker raised two issues on appeal: (1) whether the trial court abused its discretion

when it consolidated the separate cases for trial, and (2) whether the trial court’s

admission of the rape kit reports, absent testimony from the nurse examiners, violated his

right to confrontation under both the federal and state constitutions, or amounted to

inadmissible hearsay.

In its Pa.R.A.P. 1925(a) opinion, the trial court defended its decision to consolidate

the cases under the common, plan, scheme, and design exception to the rule prohibiting

propensity evidence. See Trial Court Opinion at 8-9; see also Pa.R.E. 404(b). The court

found the facts of each case were “strikingly similar” and Walker’s “modus operandi

corroborated the DNA matches” as well as the identity of Walker. Trial Court Opinion at

9, 13. The trial court also opined that “joinder of the three similarly patterned cases” was

5 The jury found Walker not guilty of PIC at Docket No. 6113, and the Commonwealth

nolle prossed the remaining charges.
6 The Commonwealth waived an assessment of Walker as a sexually violent predator

under SORNA. See 42 Pa.C.S. §9799.24.

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appropriate to counter Walker’s defense of consent. Id. at 10. Further, the court

concluded Walker was not prejudiced by the consolidation as the jury was capable of

separating the evidence of each offense.

With regard to the admission of the rape kit reports, the trial court found no violation

of the Confrontation Clause, under either the Sixth Amendment or Article I, Section 9,

because it determined the reports were not testimonial — “[w]hile part of [the] examination

was the collection of evidence, the primary goal … remained medical treatment of the

patient.” See Trial Court Opinion at 27-28 (explaining statements are testimonial when

they “were made under circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a later trial”) (citation omitted).

The court did not address Walker’s hearsay argument.

The Superior Court rejected both of Walker’s claims in a unanimous, unpublished

decision. See Commonwealth v. Walker, 309 A.3d 1082 (Pa. Super. 2023) (unpub.

memo.).

First, the Superior Court found no abuse of discretion in the trial court’s decision

to consolidate the cases for trial. Pertinently, the panel agreed with the trial court’s

determination that the evidence of each sexual assault would be admissible in a trial for

the others under the common plan, scheme, and design exception to the general

preclusion of other bad acts testimony. See id. at *6. It described the similarities between

the cases as “striking,” concluding Walker’s “pattern of assaults and the types of victims

he chose” possessed a “[s]ufficient commonality” to refute any assertion that they were

“merely coincidental[,]” but rather, supported a conclusion that the crimes were “so

logically connected[,] they share a perpetrator.” Id. (citation omitted). The Superior Court

also determined the evidence was capable of separation by the jury — as the assaults

were against different victims and occurred on different dates in different locations — and

[J-8A-2025, J-8B-2025 and J-8C-2025] - 9
that Walker did not demonstrate he was “unduly prejudiced by the consolidation.” Id.

Furthermore, in weighing the probative value of the evidence against its prejudicial effect,

the Court highlighted that evidence of the other assaults was necessary to bolster the

victims’ otherwise uncorroborated testimony regarding lack of consent. See id.

Second, the Superior Court concluded the trial court did not abuse its discretion

when it permitted the Commonwealth to introduce the rape kit reports for two of the victims

absent testimony from the nurses who prepared the reports. The panel agreed with the

trial court that, because the reports were not testimonial, Walker’s Confrontation Clause

rights were not violated. The Court agreed that the “primary purpose” of the reports was

to “render medical assistance and aid to the victims of sexual assaults[,]” and not to

establish past events in anticipation of a criminal prosecution. Walker, 309 A.3d at *8.

Further, with regard to Walker’s hearsay challenge, the Superior Court concluded the

reports were admissible under either the medical record exception or the business

records exception to the rule against hearsay. See id. at *8-*9 (citing Pa.R.E. 803(4)

(records which describe medical history, symptoms, or cause and are “reasonably

pertinent to [medical] treatment, or diagnosis”); 803(6) (records made at or near the time

of occurrence by person with knowledge and kept “in the course of a regularly conducted”

business activity). Accordingly, the Court affirmed Walker’s judgments of sentence.

II. ISSUES

Walker petitioned this Court for allowance of appeal, which we granted on the

following claims:

(1) Where this Court has previously split on the issue, what test should be
employed in determining when ‘other act’ evidence satisfies the ‘common
plan’ exception under Pa.R.E. 404(b); and under any of the possible tests
approved by this Court, did the lower courts err by applying such a diluted
standard that they improperly admitted prohibited propensity evidence
under the guise of ‘common plan’?

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(2) Is the admission of a rape kit report by a forensic nurse after a forensic
examination without any testimony by that nurse a violation of the
Confrontation Clause and inadmissible hearsay?

Commonwealth v. Walker, 317 A.3d 524, 525 (Pa. 2024).

III. CONSOLIDATION

A. Consolidation and Other Bad Acts Evidence

While Walker’s first issue focuses on Pennsylvania Rule of Evidence 404(b), it is

important to remember that, at bottom, the question before us concerns the consolidation

of three separately charged cases for a single trial. Thus, we begin with Pennsylvania

Rules of Criminal Procedure 582 and 583, which govern the joinder and severance of

offenses for trial. The decision to consolidate offenses in a single trial is within the trial

court’s sole discretion, which we will not reverse absent a determination that there was a

clear injustice to the defendant or a manifest abuse of discretion. See Commonwealth v.

Cousar, 928 A.2d 1025, 1037 (Pa. 2007).

Rule 582 permits offenses charged in separate informations to be consolidated for

trial if “the evidence of each of the offenses would be admissible in a separate trial for the

other and is capable of separation by the jury so that there is no danger of confusion[.]”

Pa.R.Crim.P. 582(A)(1)(a).7 The corresponding severance rule, Rule 583, authorizes a

court to sever offenses (or defendants) for trial “if it appears that any party may be

prejudiced by offenses or defendants being tried together.” Pa.R.Crim.P. 583. With these

rules in mind, this Court crafted the following test to determine whether joinder or

severance of separately-charged offenses is proper: (1) “whether the evidence of each of

the offenses would be admissible in a separate trial for the other;” (2) “whether such

7 Rule 582 also permits the joinder of separate cases for trial if the “offenses charged are

based on the same act or transaction.” Pa.R.Crim.P. 582(A)(1)(b). That part of the Rule
is not implicated here.

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evidence is capable of separation by the jury so as to avoid danger of confusion; and,”

(3) “if the answers to these inquiries are in the affirmative, whether the defendant will be

unduly prejudiced by the consolidation of offenses.” Commonwealth v. Lark, 543 A.2d

491, 497 (Pa. 1988). Thus, it is in this context — the first prong of the consolidation test

— that we turn to Pennsylvania Rule of Evidence 404(b).

Rooted in common law,8 Rule 404(b) precludes the admission of evidence of a

person’s other bad acts (including other crimes) for the purpose of demonstrating the

person’s bad character — in other words, the Commonwealth cannot present evidence

of a defendant’s other bad acts solely for the purpose of establishing the defendant’s

propensity to commit crimes (i.e., because he did it once, he probably did it again). See

Pa.R.E. 404(b)(1). However, subsection (b)(2) clarifies that other bad acts evidence may

be admissible if it is offered for another (legitimate) purpose. See Pa.R.E. 404(b)(2). Rule

404(b)(2) includes a non-exclusive list of other purposes, permitting other bad acts

evidence when it tends to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Id. In a criminal case,

regardless of the proffered exception, other bad acts evidence is admissible “only if the

probative value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(2).9

8 The Pennsylvania Rules of Evidence were adopted in 1998. Pennsylvania Rule of
Evidence 404(b) tracks the language of the corresponding federal rule. See Fed. R. Evid.
404(b).
9 This additional requirement — directing the trial court to weigh the relative probative and

prejudicial value of the proposed evidence — is not included in the federal rules. See
Fed. Rule Evid. 404(b)(2). Moreover, the federal rules explicitly permit a trial court to
admit evidence of “any other sexual assault[s]” committed by the defendant when he is
on trial for a sexual assault offense. Fed. Rule Evid. 413(a). Pennsylvania has not
adopted Federal Rule 413(a).

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The matter before us concerns another judicially-recognized exception to Rule

404(b) — when the other bad acts evidence demonstrates a defendant’s common plan,

scheme or design.10 The genesis of this evidentiary exception can be traced back to our

nineteenth century decision in Shaffner v. Commonwealth, 72 Pa. 60 (1872). The facts

in Shaffner read like a B-movie. Shaffner was on trial for poisoning his wife, Nancy. The

trial court permitted the Commonwealth to introduce evidence that Shaffner also poisoned

John Sharlock a few months earlier. Sharlock exhibited similar symptoms to Nancy

before his death, which occurred at Shaffner’s home. According to the Commonwealth,

the connection between the two deaths supplied the motive — Shaffner was having an

affair with Sharlock’s wife, and upon the deaths of their respective spouses, they each

collected life insurance proceeds.

Considering Shaffner’s challenge to the admission of his (purported) role in

Sharlock’s death during his trial for the murder of Nancy, this Court opined:

To make one criminal act evidence of another, a connection between
them must have existed in the mind of the actor, linking them together
for some purpose he intended to accomplish; or it must be necessary
to identify the person of the actor, by a connection which shows that he
who committed the one must have done the other. Without this obvious
connection, it is not only unjust to the prisoner to compel him to acquit
himself of two offences instead of one, but it is detrimental to justice to
burthen a trial with multiplied issues that tend to confuse and mislead the
jury. The most guilty criminal may be innocent of other offences charged
against him, of which, if fairly tried, he might acquit himself. From the nature
and prejudicial character of such evidence, it is obvious it should not be
received, unless the mind plainly perceives that the commission of the one
tends, by a visible connection, to prove the commission of the other by the
prisoner.

10 Rule 404(b), itself, is an exception to the general rule that all relevant evidence is

admissible. See Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007). Rule 401
defines evidence as relevant if: “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Pa.R.E. 401(a)-(b). Like the decision to consolidate or sever
cases for trial, we review evidentiary rulings for an abuse of discretion. Commonwealth
v. Yale, 249 A.3d 1001, 1007 (Pa. 2021).

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Shaffner, 72 Pa. at 65 (emphases added).

Turning to the matter before it, the Shaffner Court emphasized that in order to

introduce evidence of Sharlock’s murder during the trial for Nancy’s murder, both crimes

“must have been … contemplated by [Shaffner] as parts of one plan in his mind[;]” that

is, Shaffner must have “contemplated the death of Nancy before taking the life of

Sharlock.” Shaffner, 72 Pa. at 66 (emphases added). It was of this amorphous

preconceived plan that the Court found no supporting evidence in the record.

Additionally, the Court determined there was no evidence that Shaffner intended to marry

Sharlock’s wife, which would have made it “probable, that [he] took Sharlock’s life as

preparatory to taking Nancy’s life, and as the means of enabling him to marry” Sharlock’s

wife. Id. In fact, the two had been having an affair for years, even prior to their marriages

to their respective spouses. The lack of testimony indicating Shaffner intended to marry

Sharlock’s wife also undermined any intimation that Shaffner killed Sharlock before Nancy

so that Sharlock’s wife (assuming he intended to marry her) would obtain Sharlock’s life

insurance proceeds. See id. at 67. Accordingly, the Shaffner Court held the trial court

abused its discretion when it permitted evidence of Sharlock’s murder during Shaffner’s

trial for Nancy’s murder: “[I]t was … unjust to [Shaffner] to compel him, on his trial for the

murder of his wife, to defend himself against the charge of murdering Sharlock.” Id. at

68.

Thus, what evolved from Shaffner was a two-fold test to determine the admissibility

of (arguable propensity) evidence pursuant to the common plan, scheme or design

exception — other bad acts evidence was admissible if it demonstrated (1) a previously

conceived plan that linked the prior crime and present crime together for a singular

purpose or (2) crimes so similar that they must have been committed by the same actor.

See also Commonwealth v. Yale, 249 A.3d 1001, 1015 (Pa. 2021) (“[T]his Court has

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consistently required that evidence of a defendant's bad acts submit to two principles

derived from Shaffner and embedded in our decisional law: Bad act evidence is

admissible 1) if a logical connection exists between the bad act(s) and the crime charged,

linking them for a purpose the defendant intended to accomplish, or 2) if the bad acts

manifest a signature crime.”) (citation omitted).

The first Shaffner exception has been referred to by legal scholars as the “linked

acts” theory. See Edward J. Imwinkelried, Using a Contextual Construction to Resolve

the Dispute Over the Meaning of the Term “Plan” in Federal Rule of Evidence 404(B), 43

U. KAN. L. REV. 1005, 1014 (August 1995). Evidence of other crimes or bad acts is

admissible if the prosecutor establishes that the defendant formed “a single, overall grand

design” and that each bad act or crime is an “integral component[] of the same plan; each

criminal act is a stop or stage in the execution of the plan.” Id. at 1014-1015. Thus, the

key to the “linked plan” exception is one overarching goal.

The second Shaffner exception is commonly known as the defendant’s modus

operandi — “a pattern of criminal behavior so distinctive that investigators attribute it to

the work of the same person.” Black’s Law Dictionary (12th Ed. 2024) (“MODUS

OPERANDI”).

Although the Shaffner Court purported to limit the common plan, scheme or design

exception to bad acts committed for the purpose of an overarching common goal, or

signature crimes, over the years, this Court has relaxed the strict parameters surrounding

the exception. In Commonwealth v. Wable, 114 A.2d 334 (Pa. 1955), we described the

common plan, scheme or design exception as permitting evidence of a defendant’s other

bad acts when “there is such a logical connection between the crimes that proof of one

will naturally tend to show that the accused is the person who committed the other.” Id.

at 336-337 (emphasis added). In that case, Wable was on trial for the murder of a truck

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driver, who was sleeping in the cab of his truck along the Pennsylvania Turnpike. Id. at

335-336. The Commonwealth introduced evidence that, three days before the crime,

Wable murdered another truck driver sleeping in his truck parked on the Pennsylvania

Turnpike, and three days after the crime, he shot (but did not kill) a third truck driver who

was sleeping in his cab on an Ohio highway, near the Pennsylvania Turnpike; the third

victim identified Wable as his assailant. See id. In determining the evidence of the other

shootings was admissible at Wable’s trial for the first shooting, the Court highlighted that

Wable’s gun was used in all three crimes, Wable admitted he was present during all three

shootings (although he claimed another man shot the victims), and “there was an almost

uncanny similarity in all the details of their perpetration[.]” Id. at 337. Without expressly

invoking the modus operandi exception, the Court summarized that “it would be difficult

to conceive of a clearer example of crimes committed in the course of a common scheme,

plan, or design.” Id.

Since Wable, Shaffner’s two-pronged common plan, scheme, or design exception

morphed into a more general consideration as to whether the defendant’s other bad acts

share “sufficient similarities” with the offense on trial. In fact, a new test to determine

“similarity” arose following Wable — courts were to consider “the elapsed time between

the crimes, the geographical proximity of the crime scenes, and the manner in which the

crimes were committed.” Commonwealth v. Rush, 646 A.2d 557, 561 (Pa. 1994) (citation

omitted). In Rush, this Court determined that the trial court properly admitted evidence

of the defendant’s nearly decade-old conviction of robbery and assault at his murder trial

when “there [were] sufficient similarities to warrant the conclusion that one individual

committed both crimes.” Id. (emphasis added). Despite the time lapse between the prior

and present offenses, the Rush Court emphasized that the defendant was incarcerated

for most of the relevant period, both crimes occurred in “a similar geographic location[,]”

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and the crimes were committed in similar manner — in both instances, the defendant

lived in the same building as the victims (both young, black females) and gained entry

into their apartments without force, he restrained and stabbed the victims repeatedly with

knives from their own homes, he ransacked the apartments but stole only small valuables,

and before leaving, he cleaned the murder weapons. Id. See Commonwealth v. Miller,

664 A.2d 1310, 1318 (Pa. 1995) (evidence of rape and attempted murder of third woman

admissible at trial for rape and murder of two victims under common plan, scheme and

design exception; facts of the cases established that, over a five-year period, defendant

had a “common design in luring similar type victims into his vehicle, taking them to remote

areas for sexual purposes against their will and brutally beating them in a similar

manner”).

While the aforementioned cases involved a trial court’s decision to admit other bad

acts testimony, this Court applied the same analysis when reviewing a court’s decision to

consolidate cases for trial. See Commonwealth v. Clayton, 532 A.2d 385, 393 (Pa. 1987)

(similarities between murders of two drug dealers revealed a common scheme and

defendant’s identity sufficient to consolidate cases for trial; defendant confessed to both

murders as way to increase his influence in local drug trade, murders occurred three

months apart, and both victims were shot execution-style above bars with similar if not

the same weapon); Commonwealth v. Keaton, 729 A.2d 529, 537 (Pa. 1999)

(consolidation of murder case with two separate rape cases was proper as the cases

shared “similarities in the details of each crime[;]” victims were all black female, crack

cocaine addicts, who were acquainted with the defendant, the offenses all occurred at

night within a six-month period, and the defendant forced the victims into an abandoned

house in his neighborhood where he engaged in either bondage or strangulation, and

raped each victim); Commonwealth v. Newman, 598 A.2d 275, 278-279 (Pa. 1991)

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(consolidation of two rapes was proper as they demonstrated a “common design[;]” both

rapes occurred late at night in x-ray department at hospital when the defendant was the

only technician, both victims were females who suffered from a head injury, and both

rapes began with the defendant “kissing and hugging the victim and fondling their breasts”

before climbing on the exam table to rape them); Commonwealth v. Robinson, 864 A.2d

460, 481-483 (Pa. 2004) (trial court did not err in denying the defendant’s motion to sever

charges involving the murders of three separate victims for trial; the murders occurred in

the same “general locale” near the defendant’s residence over 11-month period, each

victim was an overweight white female whom the defendant did not know, all were beaten

and raped before being murdered “by hand or a hand-held instrument[,]” and the

defendant’s DNA was recovered from each crime scene).

The progressively watered-down application of the common plan, scheme, or

design exception was readily evident in Commonwealth v. Arrington, 86 A.3d 831 (Pa.

2014). In that case, Arrington was on trial for murdering his girlfriend, and the trial court

permitted the Commonwealth to admit evidence that Arrington had physically assaulted

three other ex-girlfriends; several of the prior incidents resulted in criminal convictions.

This Court applied a “common scheme” test which amounted to two questions: (1)

whether the probative value of the evidence outweighed the prejudice to Arrington; and

(2) whether “a comparison of the crimes … establish[ed] a logical connection between

them.” Id. at 842 (emphasis added) (citing Miller, 664 A.2d at 1318).

The Court determined that the evidence of Arrington’s abuse of his former

paramours “illustrated a distinct behavioral pattern that strengthened the prosecution’s”

entirely circumstantial case. Arrington, 86 A.3d at 844-845. Furthermore, the Court cited

“the shared characteristics of each relationship” to demonstrate Arrington’s “common plan

or scheme … to preserve intimate relationships through harassment, intimidation, and

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physical violence, culminating in the use of a deadly weapon.” Id. at 844. However, these

purported “shared characteristics” consisted of (1) monitoring the daily activities of his

girlfriends; (2) becoming violent when the women attempted to leave the relationship or

interacted with other men (3) “inflicting head or neck injuries with his fist, a handgun or

an edged weapon;” and (4) threatening or harming “members of his girlfriend’s family or

male acquaintances that he viewed as romantic rivals.” Id. (emphases added; footnote

omitted). Rather than require proof of a “common plan, scheme, or design,” the Court

permitted evidence that Arrington was a serial abuser — his prior bad acts and crimes

did not demonstrate a “modus operandi” nor did they reveal one common goal. Rather,

as then-Justice Saylor observed in his dissenting opinion, “as the decisional law

gravitates further and further away from the centering ground of signature crimes, the

identity/propensity distinction devolves to a matter of semantics.” Id. at 860 (Saylor, J.,

dissenting) (internal citation omitted).

Our most recent discussion of the common, plan, scheme and design exception

was the plurality decision in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017). Hicks

was tried for murdering the victim, a known prostitute and drug user. Parts of the victim’s

body were recovered from a road near Hicks’ home; her hands were not found at that

time. After the investigation led to Hicks as a potential suspect, the police obtained a

search warrant for his home and vehicle — they subsequently recovered the victim’s

hands in a ziplock bag in the wall of his bathroom, as well as the victim’s DNA on a scrub

brush.

Prior to trial, the Commonwealth provided notice of its intent to present evidence

that Hicks had assaulted eight other women “with whom [he] had a sexual and/or

prostitution-type relationship, which also involved the use of illegal narcotics such as

crack cocaine.” Hicks, 156 A.3d at 1119. It averred the evidence, which included

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beatings and threats, was relevant to prove Hicks’ “motive, identity and intent, as well as

to rebut any defense based on accidental death[;]” according to the trial court, the

testimony “would demonstrate a common scheme … to victimize prostitutes, or women

engaged in prostitution to satisfy their addiction to controlled substances, such as the

victim in the present case.” Id. Ultimately, the trial court permitted the testimony of three

of the proposed witnesses and instructed the jury that their testimony was for the “very

limited purpose of proving intent, motive, common plan or scheme and lack of accident.”

Id. at 1120 (citation and internal quotation marks omitted).

On direct appeal,11 this Court affirmed in a fractured opinion. Writing for the

Majority,12 Justice Dougherty focused on whether there was a “logical connection”

between the prior assaults and the present crime. Hicks, 156 A.3d at 1125. He cautioned

that “the mere repeated commission of crimes of the same class” was insufficient to

establish that connection; rather “[t]he device used must be so unusual or distinctive as

to be like a signature.” Id. at 1125-1126 (citation and internal quotation marks omitted).

Relying on the Court’s prior decision in Arrington, Justice Dougherty identified the

following facts as supporting a “logical connection” between Hicks’ prior assaults and the

victim’s murder:

In each case [Hicks]: (1) was introduced to drug-dependent women of
similar body types for purposes of using drugs; (2) showed a sexual interest
in the women, sometimes involving prostitution; (3) resorted to violence
when the women behaved in a way he found disagreeable; (4) inflicted
injuries on each woman by targeting her neck area with his hands, a sharp
edged object, or both; and (5) verbally threatened to kill each woman.

11 Hicks was convicted and sentenced to death, which triggers automatic review by this

Court on direct appeal. See 42 Pa.C.S. § 9711(h)(1).
12 Both then-Justice Todd and Justice Mundy joined the majority opinion. Then-Chief
Justice Saylor and then-Justice Baer both filed concurring opinions, agreeing the other
bad acts evidence was admissible, albeit on different bases. Justices Donohue and
Wecht each filed a dissenting opinion, asserting that Hicks was entitled to a new trial.

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Hicks, 156 A.3d at 1127 (footnote omitted). Justice Dougherty described these

similarities as a “‘virtual signature’ for purposes of proving common scheme, intent and

identity.” Id. at 1128. Further, while he recognized the prior bad acts evidence was “highly

prejudicial,” Justice Dougherty also determined it was “highly probative” since the

Commonwealth’s case was largely circumstantial. Id. Although he acknowledged the

victim’s hands were recovered from Hicks’ home, Justice Dougherty noted that the

defense suggested the victim may have died from an overdose, and that Hicks simply

disposed of her body after her death. See id. at 1128-1129. Accordingly, he determined

the trial court did not abuse its discretion when it permitted the Commonwealth to present

evidence of Hicks’ prior assault of prostitutes.

As noted previously, then-Justice Todd and Justice Mundy joined Justice

Dougherty’s majority opinion. Then-Justice Baer agreed that the evidentiary ruling was

“a close call,” but avoided the issue by determining any error was harmless in light of the

“overwhelming, and indeed, uncontradicted, evidence as to the manner of the victim’s

death.” See Hicks, 156 A.3d at 1139, 1142 (Baer, J., concurring).

Then-Chief Justice Saylor also filed a concurring opinion. He agreed with Justice

Donohue’s dissent that the Court has, over the years, “incorrectly blended various distinct

grounds for relevance associated with proffered, uncharged conduct” and “substantially

diluted the putatively stringent standard associated with at least one of these, namely,

proof of identity via a modus operandi theory.” Hicks, 156 A.3d at 1130 (Saylor, C.J.,

concurring). Nevertheless, Chief Justice Saylor remarked that identity was not actually

at issue in the case. See id. at 1131. Hicks admitted he was with the victim when she

died, but insisted the cause of her death was an accidental overdose, and he simply

disposed of her body. Rather, Chief Justice Saylor opined “the evidence was employed

by the prosecution primarily to establish the actus reus of the murder by corroborating”

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the testimony of the Commonwealth’s expert witness that the victim’s death was the result

of “homicidal violence.” Id. (citation omitted). Accordingly, he concluded the logical

relevance of the evidence was to negate Hicks’ defense that the victim’s death was an

accident. To achieve this result, Chief Justice Saylor employed the “doctrine of chances.”

Id. at 1132.

Chief Justice Saylor explained that, pursuant to the doctrine of chances,

[T]he proponent does not offer the evidence of the uncharged misconduct
to establish an intermediate inference as to the defendant’s personal,
subjective bad character. Rather, the proponent offers the evidence to
establish the objective improbability of so many accidents befalling the
defendant or the defendant becoming innocently enmeshed in
suspicious circumstances so frequently.

Hicks, 156 A.3d at 1133 (citing Edward J. Imwinkelried, An Evidentiary Paradox:

Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of

Logical Relevance, the Doctrine of Chances, 40 U. RICH. L. REV. 419, 437 (January,

2006)) (emphasis in original). He also cited the following test employed in Colorado

courts to limit the use of this doctrine: (1) are the other acts “roughly similar to the charged

crime[;]” (2) is the number of “unusual occurrences” involving the defendant more frequent

than the rate for the general population; and (3) “is there a real dispute between the

prosecution and the defendant over whether the actus reus occurred[.]” Id. at 1136 (citing

People v. Everett, 250 P.3d 649, 658 (Colo. App. 2010)).

Applying that test to the evidence admitted at trial, Chief Justice Saylor concluded

that Hicks’ prior bad acts were “roughly similar” and of “a sufficient number … to dispel

the appearance of coincidence[.]” Hicks, 156 A.3d at 1137. Moreover, considering that

Hicks’ defense was that, while he was with the victim when she died and later disposed

of her body, he did not murder her, Chief Justice Saylor determined the doctrine of

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chances supplied a “logical non-character-based relevance criterion” to admit evidence

of Hicks’ prior bad acts. Id.

Justice Donohue authored a strong dissent, proclaiming that “the Majority

contort[ed] the exceptions to the prohibition against the admission of bad acts evidence”

in a manner which undermines the purpose of the rule. Hicks, 156 A.3d at 1142

(Donohue, J., dissenting). While Shaffner crafted two exceptions to the rule precluding

(propensity) evidence of a defendant’s other bad acts — when there is a logical

connection between the acts linked for a common purpose or a signature crime — Justice

Donohue stated that the Wable Court conflated the two. See id. at 1146. She observed

that the facts in Wable revealed the defendant employed a “distinct signature method” of

executing his crimes; however, the Wable Court “indicated that because of the striking

similarities between the [other] bad acts and the crimes charged, the bad acts were

probative of a common scheme.” Id. (emphasis added). According to Justice Donohue,

that decision led this Court to merge these separate requirements, and approve the

admission of other bad acts with “striking similarities” to the crime charged as proof of a

common scheme. Id. She cited Arrington as “the unfortunate culmination of the conflation

of the requirements to establish a signature crime with those necessary to establish a

common scheme or plan[.]” Id. at 1151.

Justice Donohue proposed that we return to the strict limits placed on the

admission of other bad acts evidence outlined in Shaffner. Pursuant to the signature

crime exception, Justice Donohue would limit the admission of other bad acts evidence

to those acts which share an “uncanny similarity in all the details” to the present crime,

“making it impossible not to ‘identify the person of the actor.’” Hicks, 156 A.3d at 1145

(citation omitted). In other words, she pressed for a true modus operandi exception,

where the other bad acts evidence is “so nearly identical in method as to earmark them

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as the handiwork of the accused.” Id. (citing Rush, 646 A.2d at 560-561). Moreover,

pursuant to the common plan, scheme, and design exception, Justice Donohue would

also permit other bad acts evidence it if is “possible to conclude that the bad acts and the

charged crime were ‘both contemplated by the [defendant] as parts of one plan in his

mind’ such that ‘it is obvious’ that committing the prior act ‘was part of his purpose’ in

committing the charged crime.” Id. at 1144 (citation and footnote omitted). In other words,

the other acts were part of a larger plan that included the crime charged. She concluded

that the other bad acts admitted in Hicks did not satisfy either exception. Rather, the

Majority’s decision permitted “the admission of random, unlinked acts so long as it is

possible to discern some similarity with the charged crime, no matter how attenuated or

unintentional.” Id. at 1156.

Further, Justice Donohue rejected then-Chief Justice Saylor’s application of the

doctrine of chances as “merely an excuse for admitting otherwise inadmissible propensity

testimony.” Hicks, 156 A.3d at 1149. She also opined that the trial court’s error in

admitting the other bad acts evidence was not harmless. See id. at 1156-1157.

Justice Wecht authored a dissenting opinion, encouraging this Court to

“scrupulously” adhere to the purpose of Rule 404(b) and “strictly limit[]” the admission of

other bad acts evidence, as the “numerous and broad” exceptions create a danger of

devouring the rule itself. Hicks, 156 A.3d at 1158 (Wecht, J., dissenting). While he agreed

with Justice Donohue’s merits analysis, Justice Wecht would have found the error

harmless, particularly since the victim’s hands were discovered in Hicks’ home.

Nevertheless, because the Commonwealth conceded throughout the trial that the prior

bad acts evidence was essential to its prosecution, and any error in its admission would

not be harmless, Justice Wecht opined that he would enforce the Commonwealth’s

concession and grant a new trial. See id. at 1158-1159.

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With this background in mind, we turn to the arguments of the parties.

B. Argument of the Parties

Walker calls for a return to Shaffner’s “narrowly-tailored” common plan, scheme,

or design exception to the preclusion of Rule 404(b) evidence. Walker’s Brief at 19. First,

he advocates for a “linked plan” requirement, demanding “clear forethought of criminal

purpose that encompasses, from day one, the intent to commit the charged and

uncharged acts.” Id. at 20, 26 (emphasis in original). Each bad act would be an essential

part of this “integrated plan” to achieve a specific goal. Id. at 27. Second, Walker presses

for a more rigorous application of the modus operandi exception, where the “acts must

share a unique, signature-like identifier.” Id. at 28. He insists that this Court’s lax

application of the purported common plan, scheme, or design exception has led to the

admission of “random, unlinked acts so long as it is possible to discern some similarity

with the charged crimes, no matter how attenuated or unintentional.” Id. at 37 (citing

Hicks, 156 A.3d at 1154 (Donohue, J., dissenting)).

Nonetheless, Walker insists that under either the limited Shaffner test, or this

Court’s more tolerant “shared similarities” test, the trial court should not have consolidated

his three rape cases for trial. Walker’s Brief at 45-46. First, there was no evidence

presented that Walker had a preconceived plan to commit the sexual assaults. Second,

the similarities between the crimes were typical of any “stranger rape” case — Walker’s

methodology did not constitute a modus operandi. Id. at 46-47 (he approached two of

the victims, and the third approached him; he employed two different weapons in two of

the rapes and no weapon in the third; and he pressured only two of the three victims to

perform oral sex). In fact, the only link between the crimes was the discovery of Walker’s

DNA. Third, Walker contends that even if the evidence of each rape would be admissible

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in a trial for the others, the court failed to “weigh the probative value of the evidence

against its potential for prejudice” as required by Rule 404(b)(3). Id. at 48. In fact, he

notes the Commonwealth conceded that this “corroborative evidence” was required to

prove Walker’s guilt and support the victims’ testimony that they did not consent to have

sex with Walker. Id. at 49-50. Walker maintains that this violates the explicit purpose of

Rule 404(b) — to prevent a jury from accumulating evidence against a defendant to infer

a criminal disposition. Id. Accordingly, he insists he should be granted a new trial.

The Commonwealth responds that Walker confuses the more limited, identity-

based “signature crimes” exception to the preclusion of other bad acts evidence — which

is not relevant here13 — with the “common plan or scheme” exception. Commonwealth’s

Brief at 10, 15 (emphasis omitted). In applying the latter exception, the Commonwealth

maintains that we should continue, as we have done for decades, “to evaluate whether

there is a logical connection between the acts sought to be tried together.” Id. at 10

(emphasis added). It describes this approach as “more reasonable” than Walker’s push

for an “overarching scheme or conspiracy” which is not found in the plain language of the

Rule. Id. at 11. Moreover, the Commonwealth distinguishes the test enunciated in

Shaffner on its facts, noting that the record in that case did not support the trial court’s

reason for permitting the other acts evidence, that is, the murder of Sharlock was the

motive for the murder of Nancy. See id. at 21-22.

Turning to this case, the Commonwealth insists “there was certainly a logical

connection between the three rapes committed under broadly similar circumstances.”

Commonwealth’s Brief at 14. In each case, Walker met the victim, a vulnerable

13 The Commonwealth concedes that when other bad acts evidence is admitted to
establish the defendant’s identity, “a more exacting standard of uniqueness” is required.
Commonwealth’s Brief at 18. It notes that because here “identity was uncontested[,]” the
less stringent test should apply. Id. at 19.

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stranger,14 on a public street, and lured her to a secluded outside area where he assaulted

her. He employed physical force to control the victims and, in two cases, used a weapon.

Moreover, the victims were all between the ages of 21 and 38 years old. The

Commonwealth argues that the other acts evidence was not used to prove Walker’s

identity as the attacker, but rather, to rebut his defense that the victims consented to the

sexual encounter. See id. at 15. It remarks that it was “hardly unfair to allow the [jury] to

see how enormously unlucky [Walker] would have [had] to be to be falsely accused in the

same way not merely once, or twice, but three times in a relatively discrete period of time.”

Id. at 16. Finally, the Commonwealth maintains the probative value of the evidence

concerning the other rapes far outweighed any potential prejudice to Walker.15 See id. at

23.

C. Discussion

i. Logical Connection Test

While both parties and the lower courts focused on the exceptions to Rule 404(b),

our analysis must begin with Rule 582. After all, at issue is the trial court’s decision to

consolidate separately charged offenses for a joint trial. That decision is, naturally, a

pretrial determination. It is made before a defendant is required to reveal any defense he

14 According to the Commonwealth, “[e]ach victim had some real or perceived
vulnerability, including drug use and the third victim’s stated unfamiliarity with the area.”
Commonwealth’s Brief at 15.
15 The Office of the Attorney General of Pennsylvania (OAG) submitted an amicus brief

in support of the Commonwealth that largely tracks the Commonwealth’s argument. It
insists that this Court’s application of the common plan, scheme, or design exception
since Shaffner has not been lax, but rather “the product of years of dedication, experience,
and hard work” in an effort to adapt the law to our changing society. Amicus Brief at 12-
13. The OAG leans into the “doctrine of chances” as an alternative basis for other acts
evidence. It emphasizes that “[c]rime is often an act of opportunity” so that a “‘plan’ should
logically include an offender’s opportunistic resort to criminal techniques that succeeded
for him previously.” Id. at 15. Here, the OAG insists the other acts evidence was relevant
to rebut Walker’s defense of consent.

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may have to the crimes charged. As noted supra, consolidation of separate informations

is permitted if, in the trial court’s discretion, “the evidence of each of the offenses would

be admissible in a separate trial for the other and is capable of separation by the jury so

that there is no danger of confusion[.]” Pa.R.Crim.P. 582(A)(1)(a). In considering whether

the evidence of each offense would be admissible in a separate trial for the others, we

are required to turn to Rule 404(b)(2) and its exceptions to the rule precluding evidence

of a defendant’s other bad acts or crimes.

The overarching objective of Rule 404(b) in a criminal case is to guard against a

conviction based solely on a defendant’s bad character or perceived propensity to

commit crimes. The key word, however, is “solely.” Both the Rule itself and our case law

permit evidence of a defendant’s other bad acts or crimes when that evidence is relevant

for another legitimate purpose. See Pa.R.E. 404(b)(2) (providing non-exclusive list of

other relevant purposes). The problem is, over the years, those “other purpose”

exceptions have threatened to swallow the intention of the Rule. This is especially true

of the judicially-crafted common plan, scheme, or design exception.

As envisioned in Shaffner, the common plan, scheme or design exception was

limited. Evidence of other crimes or bad acts committed by the defendant was admissible

in two circumstances: (1) when the acts were each an integral part of one plan in the

defendant’s mind to achieve a common goal; or (2) when the prior act was so similar to

the one charged that “he who committed the one must have done the other.” Shaffner,

72 Pa. at 65. Although both Shaffner exceptions are often discussed in connection with

the common plan, scheme, or design exception, the second exception — the modus

operandi exception — more appropriately applies to the “identity” exception listed in Rule

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404(b)(2).16 This exception may be invoked when the other acts or “crimes of the accused

(are) so nearly identical in method as to earmark them as the handiwork of the accused.”

Commonwealth v. Morris, 425 A.2d 715, 720 (citing 1 McCormick On Evid. § 190 at 449

(2d Ed. 1972)). It requires more than “the mere repeated commission of crimes of the

same class[;]” instead, “[t]he devise used must be so unusual or distinctive as to be like

a signature.” Id. (citing 1 McCormick On Evid. § 190 at 449 (2d Ed. 1972)). As the

Commonwealth concedes in its brief, the identity-based, signature crime exception is not

implicated here. See Commonwealth’s Brief at 19.

Nevertheless, in affirming the trial court’s decision to consolidate Walker’s three

rape cases for trial, the Superior Court rested upon the “common plan or scheme

exception,” while referring to the “striking” similarities between each of the assaults.

Walker, 309 A.3d at *6 (finding a “[s]ufficient commonality of factors between the incidents

[to] dispel[] the notion that they are merely coincidental and permit[] the contrary

conclusion that they are so logically connected[,] they share a perpetrator”) (citation

omitted). As mentioned above, this “logical connection” or “sufficient similarities” test,

invoked by the Superior Court, arose from our decisions in Rush, Miller, and Arrington.

See Rush, 646 A.2d at 560-561; Miller, 664 A.2d at 1318-1319; Arrington, 86 A.3d at 842.

The test does not demand the same high level of similarities between the acts as

admission under the modus operandi or signature crime exception. See 1 McCormick

On Evid. § 190.3 (9th ed.) (“The pattern and characteristics of the crimes must be so

unusual and distinctive as to be like a signature.”) (footnote omitted). Nor does the “logical

connection” test require proof of an overarching plan or scheme linking the criminal acts

together, as envisioned in Shaffner. See Shaffner, 72 Pa. at 65. Rather, it appears to be

16 See Pa.R.E. 404(b)(2) (while evidence of a defendant’s other bad acts is inadmissible

to prove the defendant’s character, it may be admissible “for another purpose, such as
proving … identity[, but] only if the probative value of the evidence outweighs its potential
for unfair prejudice”).

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a hybrid of these two traditional exceptions — while there is no previously conceived plan

linking the bad acts, they are similar enough for a jury to conclude the same perpetrator

committed them. However, the time has come for this Court to acknowledge that the

“logical connection” test runs afoul of the purpose of Rule 404(b) and invites the admission

of impermissible propensity evidence.

As a leading commentator observed, “[i]f anything, the rule against using character

evidence to prove conduct on a particular occasion applies even more strongly in criminal

cases.” 1 McCormick On Evid. § 190 (9th Ed.). Our case law has strayed from the

traditional exceptions to the preclusion of other bad acts evidence and teetered on the

line of allowing propensity evidence in the name of a common plan, scheme or design,

resulting in undue prejudice to defendants. Today, a common plan or scheme simply

requires “shared characteristics” between the crimes and the victims. This is readily

apparent in our decisions in Hicks and Arrington.

In Hicks, we permitted evidence of the defendant’s prior assault of women during

his murder trial. The other women, like the victim, were drug-dependent. They each

testified that they had sexual encounters with the defendant, that also involved drugs, and

he became violent after an argument, which led him to threaten and choke them. See

Hicks, 156 A.3d at 1121-1122. In contrast, the murder victim’s body parts were recovered

in various garbage bags along the road; her head and hands were severed. The only

evidence of the defendant’s relationship with the victim was the testimony of the victim’s

friend, who stated the victim brought the defendant to her friend’s home a few days before

her body was found and the victim seemed “nervous and withdrawn.” Id. at 1117. There

was no evidence the defendant had assaulted the victim.

Similarly, in Arrington, the defendant was on trial for murdering the victim, his

former girlfriend, whom he had physically abused for years, and harassed and threatened

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after she filed a criminal complaint against him. See Arrington, 86 A.3d at 837-838. At

trial, the Commonwealth presented evidence that the defendant had physically assaulted

three other former girlfriends, then attempted to preserve those relationships through

harassment, and harmed or threatened to harm their male friends. See id. at 844. Again,

we agreed the evidence was admissible “to establish [the defendant] acted pursuant to a

common plan or scheme.” Id.

Neither Hicks nor Arrington involved “signature” crimes. While the defendants’

other bad acts were clearly “similar” to the offense for which he was on trial, they could

not be characterized as “so unusual or distinctive as to be like a signature.” See Morris,

425 A.2d at 720 (citation omitted). The same is true here. In two of the cases, Walker

initiated contact with the victims; the third victim approached him. Two of the assaults

occurred in the late morning; the third assault occurred near midnight. Each sexual

assault occurred in a different Philadelphia neighborhood. Although Walker convinced

all three victims to follow him to a secluded area, in one case, he held a knife to her neck

while doing so. He did not otherwise physically assault that victim; however, he punched

another victim, and struck the third victim with a tire iron. He forced two of the three

victims to perform oral sex on him before raping them. He robbed only one victim. One

rape occurred three years before the other two. Plainly, the three rapes for which Walker

was charged cannot be linked as signature crimes.

Nor do the three charged rape cases satisfy Shaffner’s common plan or scheme

exception. There was no evidence presented that Walker had a preconceived goal in

mind, other than satisfying his own salacious interests. Rather, the evidence reasonably

suggested he raped women when he was presented with the opportunity to do so. The

crimes were not linked together in order to achieve a common goal. See Shaffner, 72

Pa. at 66 (evidence of Sharlock’s poisoning would have been admissible in trial for

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Nancy’s death if the Commonwealth had presented evidence that the defendant

“contemplated the death of Nancy before taking the life of Sharlock[;]” i.e., for the purpose

of marrying Sharlock’s wife).

Thus, in this case, consolidation of the three rape cases was proper only if we

continue to endorse the “logical connection” test in Arrington and Hicks. However, as we

have already determined, this test ignores the purpose of Rule 404(b) and allows for the

admission of pure propensity evidence. We conclude it is time to return to the origin of

the common plan, scheme, or design exception, and limit the admission of other bad acts

evidence to those cases involving a common goal (i.e., “linked plan”) or a signature crime.

ii. Common Goal Test

The common plan, scheme, or design exception has become a misnomer. We

have never recognized a common plan, a common scheme, and a common design as

three distinct exceptions. Rather, this Court has used the terms interchangeably. See

Hicks, 156 A.3d at 1128 (noting the circumstances between the cases “present a ‘virtual

signature’ for purposes of proving common scheme, intent and identity”); id. at 1146

(“common scheme exception should be limited to circumstances from which a true plan

or motive can be inferred”) (Donohue, J., dissenting); Arrington, 86 A.3d at 844 (evidence

of defendant’s assaults of other women admissible to show he “acted pursuant to a

common plan or scheme”); Miller, 664 A.2d at 1318 (evidence of defendant’s prior

offenses established his “common design in luring similar type victims into his vehicle,

taking them to remote area for sexual purposes against their will and brutally beating them

in a similar manner”); Newman, 598 A.2d at 278-279 (consolidation of separate rape

offenses proper; evidence of each incident would have been admissible in trial for the

other under “common design” exception).

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Indeed, the use of all three terms seems to be repetitive. Black’s Law Dictionary

defines “scheme” as “[a]n artful plot or plan, usu[ally] to deceive others[,]” and “design”

as “[a] plan or scheme.” Black’s Law Dictionary (12th Ed. 2024) (“SCHEME”) (emphasis

added); id. (“DESIGN”) (emphasis added). However, drawing from our decision in

Shaffner, we can interpret a “common design” as a signature crime — a defendant

exhibits a “common design” when the facts of the other bad acts and the offense on trial

are so unique and distinctive that they must have been committed by the same culprit.

The signature crime, or modus operandi, exception is most relevant when the identity of

the perpetrator is at issue.

Similarly, Shaffner and its progeny lead us to a clear definition of the “common

plan or scheme” exception. In order to admit a defendant’s other bad acts or crimes under

this exception, the Commonwealth must demonstrate that those bad acts or crimes are

linked to one common goal and are part of a plan to accomplish that goal. Perhaps a

defendant intended to murder the victim but did not own a firearm or have a firearm

license. A few days before the murder, he broke into his neighbor’s home to steal a gun

which he intended to (and later did) use as the murder weapon. Under the common plan

exception, the evidence of the burglary and unlawful possession of the firearm would be

admissible during the defendant’s trial for the murder (and vice versa). All of the crimes

committed by the defendant were linked to, and part of, his preconceived plan to achieve

a common goal — murder the victim.

That is not to say that every crime or bad act must have been contemplated in the

formulation of the common plan. Instead, what is required is that acts were committed in

furtherance of a singular goal. Consider, for example, a defendant who robs a bank.

During his getaway, he leads police on a highspeed chase and hits a pedestrian. He

initially escapes and breaks into a home to lie low. A few days later, he steals a car before

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he is arrested. Under the common plan or scheme exception, each of the defendant’s

crimes (robbery, assault, burglary, and theft) would be admissible in a trial for the others,

as they were all committed in furtherance of a common goal — to rob the bank and escape

with the proceeds.

Turning back to Walker’s case, the Commonwealth failed to present any evidence

of a preconceived plan or common goal linking the three rapes together. Surely, Walker’s

desire to rape women is not enough. And, as discussed supra, the facts of each rape

were not so unique or distinctive as to qualify as signature crimes. Rather, the

Commonwealth and the lower courts relied on the “logical connection” between these

similar stranger rapes, a far too lax interpretation of the common plan, scheme or design

exception, which we now reject.

Our decision today is not so much a break from prior rulings as it is a reaffirmation

of the vital safeguards Rule 404(b) provides in criminal prosecutions. By permitting other

bad acts evidence based solely on a “logical connection” between similar crimes, we run

the very real risk of admitting pure propensity evidence.

Notably, however, the Commonwealth provides an additional basis to support the

lower courts’ rulings. It emphasizes the relevance of the other crimes to rebut Walker’s

defense that the victims consented to the sexual encounters. See Commonwealth’s Brief

at 15. Along this same reasoning, the Commonwealth invokes the “doctrine of chances,”

asserting: “It was hardly unfair to allow the fact finder to see how the enormously unlucky

[Walker] would have to be to be falsely accused in the same way not merely once, or

twice, but three times in a relatively discrete period of time.” Id. at 16.

This Court has rarely employed the “doctrine of chances” and when we have, it

has been to admit evidence of a defendant’s other bad acts to rebut the defendant’s claim

that the victims’ deaths were the result of an accident. See Commonwealth v. Donahue,

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549 A.2d 121, 127 (Pa. 1988) (admitting evidence that defendant had previously abused

another child “as probative” of whether the injuries the child suffered in the case on trial

were accidental, as the defendant claimed); Commonwealth v. Boykin, 298 A.2d 258,

261-262 (Pa. 1972) (plurality) (permitting police detective to testify in rebuttal that

defendant, on trial for smothering her infant, had confessed to smothering two other

infants in her care to stop them from crying; “these previous admissions [are] logically

relevant to a determination of whether [the infant’s] death was due to an innocent

accident” as defendant claimed). Moreover, these cases involved the admission of other

bad acts evidence during trial — not the consolidation of separate cases for a joint trial.

That distinction is significant. While the Commonwealth insists the three rape cases

should have been tried together to rebut Walker’s defense of consent, the decision to

consolidate cases was made pretrial, when the defense strategy was still unknown. The

Commonwealth may have correctly presumed that Walker would assert a consent

defense since his DNA was recovered during the victims’ sexual assault examinations.

However, we cannot sanction the admission of highly prejudicial other bad acts evidence

based on the Commonwealth’s anticipatory rebuttal of a potential defense. “It is well-

established that the defendant has no duty to present evidence and may instead rely on

the presumption of innocence and the Commonwealth’s burden of proof.” Yale, 249 A.3d

at 1018 (citing Commonwealth v. Smith, 17 A.3d 873, 908 (Pa. 2011) (emphasis added)).

We cannot tolerate the admission of highly prejudicial “similar” bad acts evidence in the

name of rebutting a defense that the defendant has not yet asserted.17 Thus, we

17 Again, we emphasize that the question before us concerns the (pretrial) consolidation

of Walker’s separate rape cases under the common plan, scheme, or design exception.
The admission of evidence to rebut a potential consent defense is not the question before
us. If Walker chooses to present a consent defense during his retrials, the
Commonwealth then may seek to admit evidence of the other rape cases on the basis of
(continued…)

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conclude the consolidation of separate offenses for a joint trial is permitted if, inter alia,

the evidence of each offense would be admissible in a trial for the others as an exception

to the rule precluding propensity evidence. See Pa.R.Crim.P. 582(A)(1)(a); Pa.R.E.

404(b). When the admissibility of the defendant’s other bad acts is premised upon the

common plan, scheme, or design exception, the Commonwealth must establish either:

(1) the offenses constitute “signature crimes” — that is, they are so unique and distinctive

that they must have been committed by the same perpetrator — or; (2) the offenses were

linked to achieve a common goal.18 See Shaffner, 72 Pa. at 65. Moreover, a court may

another Rule 404(b)(2) exception. We offer no opinion on the potential success of such
a motion.
18 The Dissent views this Court’s Rule 404(b) jurisprudence since Shaffner differently —

Wable was an “opportunity to further hone and define” the admissibility standard for other
acts evidence and Hicks “whittled the contours of the common plan, scheme, or design
exception[.]” Dissenting Opinion at 14-15. Indeed, the Dissent insists our case law since
Shaffner has endeavored “to craft a workable standard for the use of other acts evidence
to prove a common plan, scheme, or design in the modern era.” Id. at 20. Thus, when
identity is not at issue, the Dissent proposes a common plan, scheme, or design exception
where other acts evidence is admissible so long as there are “certain similarities” between
the crime charged and those other acts; in other words, the defendant acted in
accordance with his own “‘criminal playbook’ of sorts.” Id. at 21, 29.

The Dissent’s viewpoint certainly has some appeal — obviously, a defendant
whose DNA matched the rape kit samples from three separate victims of three separate
stranger rapes on three different dates committed all three rapes, right? Therein lies the
problem. Absent any evidence that the crimes were linked to achieve a common goal, or
that the facts of each rape were so similar that they constituted a “signature crime,” the
likelihood that a jury would convict the defendant solely because he is a “bad” man — he
was accused of rape three times! — is extreme. This type of propensity evidence is
precisely what Rule 404(b)(1) intended to preclude.

Moreover, the Dissent focuses primarily on the admissibility of other acts evidence
during trial. As noted supra, the evidence of the other rapes may be admissible during
trial for another purpose — that is, to rebut a defense of consent. However, we are
concerned with the consolidation of multiple, separate crimes for a joint trial. Our
application of the common plan, scheme, or design exception should be even more
discerning in these circumstances.

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not grant consolidation under another Rule 404(b) exception premised upon an assumed

defense before the defendant presents that defense at trial.

iii. Justice Dougherty’s Concurrence

In the concurrence section of his Concurring and Dissenting Opinion, Justice

Dougherty agrees the time has come to reject the logical connection test. Nonetheless,

he proposes we leave open the possibility that — in another case with different facts —

we might admit other acts evidence under the “unlinked plan” theory. Concurring and

Dissenting Opinion at 6. He describes this theory as requiring a plan — i.e., forethought

by the defendant — with “[p]reparatory steps” that “were committed in a manner nearly

identical” to the other charged offenses. Id. at 11-13 (citation omitted; emphasis in

original). In other words, in Justice Dougherty’s view, prior bad acts evidence that

satisfies a modus operandi may be admissible in a case where identity is not at issue.

However, Justice Dougherty also proposes that “since the evidence is not being used to

prove identity, there would be no need for the acts to be signature-like or especially

distinct.” Id. at 12 n.6. At best, the “unlinked plan theory” is another name for modus

operandi evidence; at worst, it is the logical connection test with a plan. Suffice it to say,

had Walker’s crimes demonstrated a true modus operandi, this Court would certainly

permit consolidation, despite the fact that DNA evidence purportedly identifies him as the

culprit.

iv. Mandate

Accordingly, in the present case, the trial court abused its discretion when it

granted the Commonwealth’s motion to consolidate the three rape cases for trial. The

evidence of each of the offenses would not be admissible in a separate trial for the others

pursuant to the common plan, scheme and design exception to the prohibition against

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propensity evidence. Thus, Walker is entitled to a new trial in each case.19 We therefore

vacate the judgment of sentence and remand for further proceedings.

19 Justice Dougherty also strongly advocates that upon remand the Commonwealth may
still seek to consolidate the cases “on some other theory, like lack of consent or the
doctrine of chances.” Concurring and Dissenting Opinion at 18. Addressing these in
reverse order, we have already explained that the doctrine of chances has been
employed in this Commonwealth sparingly, and only to admit prior bad acts evidence
during trial to rebut a defendant’s claim that the victim’s injures or death was accidental.
See supra at 35. While Justice Dougherty cites then-Chief Justice Saylor’s discussion of
the doctrine in Hicks, one Justice’s endorsement in a concurring opinion (that was not
joined by any colleagues) is not grounds for our wholesale adoption of the theory.
Moreover, as discussed supra, the doctrine is inapplicable in this pretrial setting. If, during
trial for one of the incidents, Walker asserts that he mistakenly believed the victim
consented to the sexual acts, the Commonwealth may request to admit the evidence of
the other acts to prove an absence of mistake or accident. See Donahue, 549 A.2d at
127 (evidence of defendant’s prior abuse of another child was “probative” to rebut
defendant’s assertion that injuries child suffered in case on trial were accidental).

However, Justice Dougherty proposes the other crimes evidence may also be
admissible to prove the victims’ lack of consent, which is an element of the crime of rape,
and therefore is not limited to rebuttal. See Concurring and Dissenting Opinion at 17-18
(citing Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004)). In Boczkowski, before
the trial for the murder of defendant’s second wife, the Commonwealth filed a motion in
limine to introduce evidence that the defendant had been arrested for the murder of his
first wife, who died under very similar circumstances. See Boczkowski, 846 A.2d at 439.
Although the trial court ruled the evidence was admissible only in rebuttal, the Superior
Court, in a divided opinion following an interlocutory appeal, affirmed in part and reversed
in part. See id. The majority concluded the Commonwealth could admit the evidence
during its case-in-chief. See id. at 440. On appeal following the defendant’s first-degree
murder conviction and death sentence, we rejected the defendant’s claim that the
evidence was admissible only in response to the defendant’s defense of accident: “At
least for purposes of a homicide prosecution, where the victim, of course, is unavailable,
we reject the notion that proof of an absence of accident is admissible only for responsive
purposes.” Id. at 444. We went on to discuss the facts of the case, noting that the
defendant’s version of events “clearly suggested an accidental death[;]” thus, the prior
acts evidence was important for the Commonwealth to “demonstrate [the] implausibility”
that the victim’s death was accidental. Id. at 444-445 (defendant told paramedics: victim
consumed 14 beers on the night of her death; he left her in the hot tub while he took a
shower; and when he returned he found her unconscious and face up). While the
Boczkowski Court concluded that prior bad acts evidence in that case was admissible in
the Commonwealth’s case-in-chief — regardless of any alleged defense — a close
reading confirms that decision was influenced by the particular facts of that case. Thus,
Boczkowski does not affect our ruling here.
(continued…)

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IV. RAPE KIT REPORTS

A. Confrontation Clause & Hearsay

Both before the Superior Court and in this appeal, Walker’s challenge to the

admission of the rape kit reports is two-fold. He asserts the admission of the reports

violated both his constitutional right to confront witnesses against him and the

Pennsylvania Rules of Evidence precluding hearsay.

The Sixth Amendment to the United States Constitution guarantees all criminal

defendants the right to confront their accusers in a public trial.20 See U.S. CONST. amend

VI (“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with

the witnesses against him[.]”). Thus, absent a defendant’s opportunity to cross-examine

a witness, that witness’s out of court statements are not admissible at trial. Traditionally,

however, the United States Supreme Court permitted the admission of these out of court

statements if the declarant was unavailable, and the statements bore “adequate indicia

of reliability[,]” that is, they either fell within a “firmly rooted hearsay exception” or

displayed “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56,

66 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004).

In Crawford, supra, however, the Supreme Court returned the Confrontation

Clause to its roots. The Court recognized that “the Framers would not have allowed

While we acknowledge the Commonwealth may assert other theories for
consolidating the three cases upon remand, we note that none of the other Justices joined
the Concurring and Dissenting Opinion, which seems to support joinder based upon the
doctrine of chances or lack of consent.
20 The Sixth Amendment is applicable to the states through the Fourteenth Amendment.

See Commonwealth v. Le, 208 A.3d 960, 972 n.11 (Pa. 2019). Moreover, our own
Constitution provides the same protection. See Pa. CONST., Art. 1, § 9 (“In all criminal
prosecutions the accused hath a right … to be confronted with the witnesses against
him[.]”). Walker does not argue that the Pennsylvania Constitution provides greater
protection against Confrontation Clause violations than the Sixth Amendment.

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admission of testimonial statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.” Crawford, 541 U.S. at 53-54 (emphases added). Accordingly, the

Supreme Court abrogated the “amorphous, if not entirely subjective, concept” of reliability

set forth in Roberts, and held that “[w]here testimonial evidence is at issue, … the Sixth

Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Id. at 63, 68. Because Crawford concerned the

admission of a witness’s tape-recorded statement following a police interrogation —

clearly, a “testimonial statement” — the Court deemed it unnecessary to provide a

comprehensive definition of the term. See id. at 52, 68. However, the Crawford Court

detailed the following examples of “testimonial statements:”
ex parte in-court testimony or its functional equivalent — that is, material
such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially[;] …
extrajudicial statements ... contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions[; and]
statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial[.] …
Id. at 51-52 (citations and internal quotation marks omitted; emphases added).

Two years later, in Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court

clarified that not all statements made to police during the course of an investigation qualify

as testimonial for purposes of the Confrontation Clause: “Statements are nontestimonial

when made in the course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency.” Id. at 822. Notably, the Court reiterated its focus on the

primary purpose of the out of court statement, explaining statements are “testimonial

when the circumstances objectively indicate … that the primary purpose of the

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interrogation is to establish or prove past events that may be relevant in a future

prosecution.”21 Id. (footnote omitted; emphasis added).

Plainly, however, both Crawford and Davis concerned traditional statements by

witnesses to police. Beginning with Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009), the Supreme Court recognized this Sixth Amendment protection applies equally

to forensic reports. In that drug-trafficking case, the prosecution was permitted to admit

into evidence “affidavits reporting the results of forensic analysis which showed that the

material seized by police and connected to the defendant was cocaine” absent the in-

person testimony of the analysts. Id. at 307. The Court concluded that was error. The

affidavits, by their very name, constituted “testimonial statements.” Id. at 310. The Court

opined that the “sole purpose of the affidavits was to provide prima facie evidence of …

the analyzed substance” and function as an alternative to “live, in-court testimony[.]” Id.

21 That focus is clear from the Davis Court’s holdings. Davis involved two appeals — one
from the Supreme Court of Washington (Davis v. Washington), and the other from the
Supreme Court of Indiana (Hammon v. Indiana). See Davis, 547 U.S. at, 817, 819. In
each case, the defendant was charged with domestic abuse crimes, and the victim failed
to appear at trial. In Davis, the court permitted the prosecution to introduce into evidence
the victim’s statements to the 911 operator. The Supreme Court concluded the
statements were nontestimonial because “the circumstances of [the victim’s] interrogation
objectively indicate[d] its primary purpose was to enable police assistance to meet
an ongoing emergency.” Id. at 828 (emphasis added).

Conversely, in Hammon, when the police responded to a reported domestic
disturbance call, the victim told the police that “nothing was the matter.” Davis, 547 U.S.
at 819 (citation omitted). After they continued to investigate and isolated the victim from
the defendant, the victim completed a “battery affidavit,” in which she confirmed that the
defendant had physically abused her. See id. at 820. When the victim failed to appear
for trial, the trial court permitted the officer to testify as to the victim’s statements and
allowed the prosecution to enter the “battery affidavit” into evidence as a present sense
impression. See id. The Supreme Court, however, concluded the statements in Hammon
were “not much different from the [albeit more formal] statements [the Court] found to be
testimonial in Crawford.” Id. at 829. “There was no emergency in progress” and “the
primary, if not indeed the sole, purpose of the interrogation was to investigate a
possible crime[.]” Id. at 829-830 (emphases added).

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at 310-311 (citation and quotation marks omitted). Thus, the Melendez-Diaz Court held:

“Absent a showing that the analysts were unavailable to testify at trial and that [Melendez-

Diaz] has a prior opportunity to cross-examine them, [he] was entitled to ‘be confronted

with’ the analysts at trial.”22 Id. at 311 (citation and footnote omitted).

Two years later, the Supreme Court considered whether the testimony of a

“surrogate analyst” was sufficient to satisfy the constitutional requirements of the

Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S. 647 (2011). Bullcoming

involved a drunk driving prosecution in which the “[p]rincipal evidence” against Bullcoming

was “a forensic laboratory report certifying [his] blood-alcohol concentration was well

above the threshold” for prosecution. Id. at 651. The prosecution did not call the analyst

who tested the blood sample and signed the certification as a witness; rather, it introduced

the report as a “business record” during the testimony of a scientist who worked at the

same laboratory, but did not observe or review the analysis. Id. at 655. The Supreme

Court determined the admission of the lab report, absent testimony from its author,

violated Bullcoming’s Confrontation Clause rights.

First, the Court considered the state’s assertion that the testimony of the surrogate

witness was sufficient because he was a qualified expert witness with respect to the

testing equipment and the laboratory’s procedure. See Bullcoming, 564 U.S. at 661. The

Court, however, rejected that claim, emphasizing the Confrontation Clause does not

tolerate “questioning one witness about another’s testimonial statements” simply because

22 Notably, the Melendez-Diaz Court rejected the state’s argument that the affidavits were

“akin to” records of regularly conducted business activity, admissible at trial as an
exception to the hearsay rules. See Melendez-Diaz, 557 U.S. at 321. The Court
explained: “Business and public records are generally admissible absent confrontation
not because they qualify under an exception to the hearsay rules, but because — having
been created for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial — they are not testimonial.” Id. at 324
(emphasis added).

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a court believes that technique “provides a fair enough opportunity for cross-

examination.” Id. at 662 (emphasis added). The Supreme Court also rejected the state’s

assertion that the report was nontestimonial, concluding, as in Melendez-Diaz, the

“document [was] created solely for an evidentiary purpose … made in aid of a police

investigation[.]” Id. at 664 (citation and quotation marks omitted). Thus, the Court

determined Bullcoming was entitled to a new trial.23

The Supreme Court’s next foray into the parameters of the Confrontation Clause

with respect to forensic evidence was its (now abrogated) plurality decision, Williams v.

Illinois, 567 U.S. 50 (2012) (plurality), abrogated by Smith v. Arizona, 602 U.S. 779 (2024).

In that case, Williams was on trial for rape. Law enforcement sent swabs from the victim’s

sexual assault examination to Cellmark, a laboratory which produced a DNA profile. At

trial, the prosecution called a DNA expert who matched the profile provided by Cellmark

to Williams; no analyst from Cellmark testified. See id. at 60-61 (plurality). Williams

objected when the expert testified that the profile provided by Cellmark was “produced

from semen found on the victim’s vaginal swabs.” Id. at 57. Notably, the Cellmark report

was not admitted into evidence, and the expert “did not quote or read from the report; nor

did she identify it as the source of any of the opinions she expressed.” Id. at 62.

The Court’s fractured decision provided two primary bases for admitting the

expert’s testimony. Four justices, led by Justice Alito,24 determined that this “basis

evidence” was admissible, not for its truth, but to “help the factfinder understand the

23 In an opinion concurring in part, Justice Sotomayor emphasized that the case did not

concern the testimony of a reviewer or supervisor who had some (perhaps oversight)
involvement in the testing procedure, or an expert who provided an “independent opinion
about underlying testimonial reports that were not themselves admitted into evidence.”
See Bullcoming, 564 U.S. at 672-673 (Sotomayor, J., concurring in part).
24 Chief Justice Roberts, as well as Justices Kennedy and Breyer, joined Justice Alito’s

opinion.

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expert’s thought process and determine what weight to give the expert’s opinion.”

Williams, 567 U.S. at 78. Five justices disagreed, concluding that the only purpose of

introducing the “basis evidence” was for its truth. See id. at 106 (Thomas, J., concurring);

129-130 (Kagan, J., dissenting).25 However, Justice Thomas agreed with the plurality’s

second basis for finding no constitutional violation — the Cellmark report did not qualify

as a “witness[] against” Williams because it was “not prepared for the primary purpose of

accusing a targeted individual.” See id. at 82, 84 (plurality). While he disagreed with the

plurality’s “targeted individual” focus, Justice Thomas concluded the report was

nontestimonial because it lacked “the solemnity of an affidavit or deposition,” as it was

neither “a sworn nor a certified declaration of fact.” Id. at 111 (Thomas, J., dissenting).26

As discussed infra, the Court recently abrogated this decision.

Guided by Melendez-Diaz, Bullcoming, and Williams, this Court, over the past

decade, has considered several Confrontation Clause claims in the context of forensic

reports. In Commonwealth v. Dyarman, 73 A.3d 565 (Pa. 2013), we held that “the

admission of accuracy and calibration certificates for breath test machines without

testimony from the individual who performed the testing and prepared the certificates” did

not violate the defendant’s constitutional right to confront witnesses against him. Id. at

566. We concluded the certificates were “nontestimonial in nature because they were not

prepared for the primary purpose of providing evidence in a criminal case[.]” Id. at 569

(emphasis added).

That same year, in Commonwealth v. Yohe, 79 A.3d 520 (2013), we considered

whether a defendant’s Confrontation Clause rights were violated when the author of the

forensic toxicology report testified to establish the defendant’s blood alcohol content at

25 Justices Scalia, Ginsburg and Sotomayor joined Justice Kagan’s dissenting opinion.

26 In Smith, discussed infra, the Court abrogated Justice Alito’s “basis evidence” test. See

Smith, 602 U.S. at 792-800.

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trial, but the lab technicians who tested the defendant’s blood samples did not testify.

First, relying upon Melendez-Diaz and Bullcoming, we determined that the toxicology

report was testimonial. See id. at 554-555 (concluding “the report was made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial and was plainly created for an

evidentiary purpose”) (citations and internal quotations omitted). Nevertheless, we

observed that while those decisions require testimony by the analyst before a forensic

report is admitted, they “left unresolved precisely who the analyst is or, in circumstances

involving multiple analysts, which analyst or analysts must testify.” Id. at 538 (emphases

added).

After distinguishing Melendez-Diaz (no live testimony) and Bullcoming (testimony

by an uninvolved surrogate analyst), this Court determined that testimony of the

supervisor “who examined [the raw] data [supplied by the lab technicians] and formed his

own independent expert opinion,” which he expressed in both his report and live

testimony, was sufficient to protect Yohe’s Confrontation Clause rights. Yohe, 79 A.3d at

539. Indeed, the testifying supervisor was “the analyst whose statements in the [forensic

report] constitute[d] the testimony triggering the right to confrontation.” Id. at 563

(emphasis added).

More recently, in Commonwealth v. Brown, 185 A.3d 316 (Pa. 2018), we applied

this same jurisprudence to conclude that an autopsy report is testimonial in nature and

may not be introduced into evidence absent accompanying testimony by its author. See

id. at 329. Although we recognized that some other jurisdictions consider autopsy reports

nontestimonial “because they are not created primarily for presentation in a criminal

trial[,]” we emphasized that Pennsylvania law “requires the preparation of autopsy reports

in all cases of sudden, violent, and suspicious deaths, or deaths by other than natural

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causes[,]” and, if the medical examiner concludes the death was the result of a criminal

act, the law requires him to report that result to the local district attorney. Id. (citations

omitted). Thus, we held that “the primary purpose for preparation of an autopsy report

under these circumstances is to establish or prove past events potentially relevant to a

later criminal prosecution[.]” Id. Although the medical examiner who authored the

autopsy report did not testify at Brown’s trial, we determined the court’s decision to admit

the report through the testimony of another medical examiner was harmless error.27 See

id.

That brings us to the United States Supreme Court’s June 2024 decision in Smith

v. Arizona, 602 U.S. 779 (2024). Smith, like Melendez-Diaz, involved a forensic drug test

report. Law enforcement officers seized purported drugs from a shed and sent them to a

lab for forensic analysis. The assigned analyst tested the items and documented her

results — that the items were, in fact, controlled substances — in a report. See id. at 790.

However, prior to trial, the prosecution amended its witness list to indicate that the

assigned analyst would no longer be testifying at trial; instead, a “substitute expert” would

provide an “independent opinion on the drug testing performed” by the assigned analyst.

Id. (citations omitted). This substitute expert, “who had not participated in any of the

relevant testing[,]” provided general testimony regarding the scientific testing performed

and the laboratory’s policies and procedures, before confirming that in his “independent

27 This Court’s most recent discussion of the parameters of the Confrontation Clause

protections was in Commonwealth v. Weeden, 304 A.3d 333 (Pa. 2023). In that case,
we considered whether the admission of a summary report from a “ShotSpotter” gun
detection program violated a defendant’s rights under the Confrontation Clause. In
concluding that it did not, we emphasized the testimony of the detective, who explained
that “when ShotSpotter detects a relevant sound [i.e., a gunshot], the program
automatically generates a written summary which provides the date, time, and location of
the suspected gunshot.” Id. at 336. Applying the United States Supreme Court’s “primary
purpose test[,]” we concluded the ShotSpotter summary is nontestimonial because the
primary purpose of recording the data is “to assist law enforcement in responding to an
ongoing emergency.” Id. at 350 (footnotes omitted).

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opinion” the items tested were controlled substances. Id. at 791. After Smith was

convicted, the Arizona Court of Appeals affirmed, concluding the substitute expert “could

constitutionally present his independent expert opinions as based on his review of [the

assigned analyst’s] work.” Id. at 792 (citation and internal quotation marks omitted). The

Supreme Court granted certiorari review.

Writing for the Majority, Justice Kagan employed a two-step analysis to determine

whether the admission of the assigned analyst’s statements through the testimony of the

substitute expert violated Smith’s constitutional right to confront witnesses against him:

(1) were the statements offered for their truth; and if so (2) were the statements

testimonial? See Smith, 602 U.S. at 792-793, 800 (explaining the Confrontation Clause

applies only to “testimonial hearsay,” and “those two issues are separate from each

other”) (emphasis omitted).

Justice Kagan first considered whether the statements of the assigned analyst

were admitted for their truth. See Smith, 602 U.S. at 793 (“[T]he Clause ‘does not bar the

use of testimonial statements for purposes other than establishing the truth of the matter

asserted.’”) (citing Crawford, 541 U.S. at 60 n.9). She explained that the “whole point” of

disclosing the assigned analyst’s statements was for their truth, as the statements

provided “a basis for the jury to credit” the substitute expert’s opinion. Id. at 795 (citation

omitted). She noted: “[T]ruth is everything when it comes to the kind of basis testimony

presented here.” Id. Justice Kagan highlighted that the Confrontation Clause is

implicated because “the defendant ha[d] no opportunity to challenge the veracity of the

out-of-court assertions that are doing much of the work.” Id. at 796. Thus, she concluded

the underlying statements of the assigned analyst were admitted for their truth. See id.

at 800 (explaining the substitute expert “effectively became [the assigned analyst’s]

mouthpiece”).

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Next, Justice Kagan turned to the second step test of the Confrontation Clause

test — determining whether the out-of-court (hearsay) statements were testimonial. See

Smith, 602 U.S. at 800. She explained that this consideration “focuses on the ‘primary

purpose’ of the statement, and in particular on how it relates to a future criminal

proceeding.” Id. (citation omitted). Because Smith did not challenge the testimonial

aspect of the statements in his petition for certiorari — but rather, “took [it] as a given that

they were” testimonial — Justice Kagan concluded the issue was not “fit for [the Court’s]

resolution” at that time. Id. at 801. Indeed, Smith asserted that the state “forfeited” any

assertion that the statements were not testimonial by failing to address the matter below;

the state, however, denied that claim. See id. Thus, the Court vacated the judgment and

remanded the matter to the Arizona Court of Appeals to consider whether the statements

were testimonial. See id. at 803.

Nevertheless, Justice Kagan offered a few “thoughts” for the court on remand.

Smith, 602 U.S. at 801. Specifically, she directed the appellate court to be exacting —

that is, to determine “exactly which of [the assigned analyst’s] statements [were] at issue”

and what the primary purpose of those specific statements were. Id. at 802. Justice

Kagan noted that “some records of lab analysts will not have an evidentiary purpose” and

only those that have “a focus on court” should be deemed testimonial. 28 Id. (citation

omitted).

28 Justices Sotomayor, Kavanaugh, Barrett, and Jackson joined the Majority Opinion.

Justices Thomas and Gorsuch joined all but part III of the Majority — the testimonial
question — and both filed opinions concurring in part. Justice Thomas noted he
“continue[s] to adhere to [his] view that the Confrontation Clause is implicated” only when
the extrajudicial statements are in “formalized testimonial materials.” Smith, 602 U.S. at
804 (Thomas, J., concurring in part) (citation and internal quotation marks omitted).
Justice Gorsuch believed any guidance on the testimonial issue was ill-advised and
questioned the Court’s continued reliance on the “primary purpose” test. Id. at 805-807
(Gorsuch, J., concurring in part). Justice Alito filed an opinion concurring in the judgment,
which Chief Justice Roberts joined. Justice Alito agreed that the substitute expert
(continued…)

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As noted supra, the Superior Court gave short shrift to Walker’s constitutional

Confrontation Clause challenge — concluding the reports were not testimonial — and,

instead, determined that the rape kits reports were admissible under the Pennsylvania

Rules of Evidence as an exception to the hearsay rule. It is well-established that hearsay

is an out-of-court statement offered in evidence “to prove the truth of the matter

asserted[.]” Pa.R.E. 801(c). While such statements are generally inadmissible, the

Pennsylvania Rules of Evidence provide several exceptions to the rule against hearsay,

two of which are implicated here: a statement made for medical diagnosis or treatment

and a record of a regularly conducted business activity. See Pa.R.E. 803(4), (6).

Pursuant to Rule 803(4), an out-of-court statement is admissible if it is reasonably

pertinent to “medical treatment or diagnosis in contemplation of treatment” and describes

the patient’s medical history or symptoms, or the general cause thereof, “insofar” as it is

related to treatment or diagnosis. Pa.R.E. 803(4). See Commonwealth v. Smith, 681

A.2d 1288, 1291-1292 (Pa. 1996) (“[T]he declarant must make the statement for the

purpose of receiving medical treatment” and “the statement [must] be pertinent to

medical treatment.”) (emphasis added and footnote omitted). Records of a regularly

conducted business activity are also admissible as an exception to the hearsay rule under

the strict parameters set forth in Rule 803(6), which include a record made at or near the

time of an event, during the regular course of business, and testimony by a custodian or

qualified witness. See Pa.R.E. 803(6)(A)-(E). Nevertheless, the Comment to the Rule

clarifies: “If offered against a defendant in a criminal case, an entry in a record may be

excluded if its admission would violate the defendant’s constitutional right to confront the

witnesses against him or her, see Melendez-Diaz[.]” Pa.R.E. 803(6), Comment.

“stepped over the line” when he provided his opinion that the assigned analyst complied
with the laboratory’s procedures and her testing was accurate. Id. at 819-820 (Alito, J.,
concurring). In his view, however, the testimony violated the Federal Rules of Evidence,
not the Confrontation Clause. See id.

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B. Arguments of the Parties

Walker challenges the admission of the rape kit reports on two bases — the

Confrontation Clause and hearsay. First, he asserts the admission of the reports absent

the testimony from the nurses who performed the sexual assault examinations violates

his constitutional right to confront witnesses against him. See Walker’s Brief at 51.

Walker insists the rape kit reports are testimonial; therefore, “the supervisor with no

personal knowledge of the reports at issue could [not] be a substitute surrogate witness

for Confrontation Clause purposes.” Id. at 52 (citing Bullcoming, 564 U.S. at 651-652).

Further, he maintains the lower courts misinterpreted his objection. Walker insists he

“sought to exclude only the rape kit part of the report prepared by the forensic nurse, with

no objection to the statements made by the complainants to the nurse.”29 Id. at 54

(emphasis in original). However, the Superior Court improperly reviewed his objection as

a challenge to the report as a whole and determined the primary purpose of the report

was to provide medical care, not to prove events potentially relevant in a possible later

criminal prosecution. See id. at 55.

Walker contends that the parts of the report recounting “[t]aking swabs from the

alleged victims of sexual assaults, processing them, and preparing a report for a rape kit

has nothing to do with [medical] diagnosis or treatment.” Walker’s Brief at 58. The only

purpose of these statements by the nurse examiner, he maintains, was “to prove past

events and be potentially relevant to a later prosecution[.]” Id. Indeed, without the nurse

examiner’s statement in the report that the swabs were taken from the victim, “the forensic

[DNA] testing that followed … and an alleged match would be irrelevant.” Id. at 58-59.

Walker emphasizes that the Confrontation Clause applies to forensic evidence, and that

29 Walker’s concession on this point is specious. Since the two victims who were the
subjects of the objectionable rape kit reports testified at trial, Walker clearly had the
opportunity to cross-examine them regarding any statements they purportedly made to
the absent nurse examiners.

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only the nurse who had actually processed the swab and prepared the report should be

permitted to testify about that process. See id. at 61. Because the nurse examiners who

prepared the rape kit reports at issue here were not available to testify at trial, Walker

argues that admission of the two rape kits reports violated his Confrontation Clause

rights.30

Assuming the reports survive his constitutional challenge, Walker also maintains

the rape kit reports constitute inadmissible hearsay. See Walker’s Brief at 63-64. In his

view, the reports were offered for their truth, and do not qualify under any exception to

the rule against hearsay — in particular, the reports do not constitute statements made

for medical diagnosis or treatment or business records. See Walker’s Brief at 63, 65.

Thus, Walker maintains the rape kit reports should not have been admitted at trial.31

The Commonwealth insists Walker confused the victims’ medical records (i.e., the

rape kit reports) with the forensic DNA laboratory report. See Commonwealth’s Brief at

26. The forensic scientist who performed the DNA comparison analysis testified at trial.

However, because “the information in the medical records proffered through [the]

authentication witness was not testimonial — and the nurses who recorded the medical

30Without any evidentiary basis, Walker implies that the unavailability of the nurse
examiners may be the result of some misconduct. See Walker’s Brief at 63.
31 Walker raises an additional challenge pursuant to Pennsylvania Rule of Criminal
Procedure 574. See Walker’s Brief at 64. That rule permits the Commonwealth to offer
into evidence “a forensic laboratory report supported by a certification [from the analyst]
in lieu of testimony” by the analyst if the Commonwealth files and serves the defendant
with written notice of its intention to do so no less than 20 days before trial. Pa.R.Crim.P.
574(a), (b)(1). Within ten days of receiving such notice, the defendant may object and
file a written demand requiring the analyst to testify. See Pa.R.Crim.P. 574(c)(1).

Walker argues that because the Commonwealth did not follow the notice and
demand provision here the trial court should have barred admission of the rape kit reports.
See Walker’s Brief at 64. We summarily reject this argument because Walker did not
object to the admission of the rape kit report on this basis in the trial court. Thus, he
waived any potential claim.

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information conducted no tests or analysis —” the Commonwealth argues “no

Confrontation Clause violation occurred.” Id. The Commonwealth maintains that the line

of cases Walker relies upon — Smith, Bullcoming, and Brown — concern “whether … the

person who scientifically examines and analyzes evidence and prepares a report based

upon its findings must generally testify and be subject to cross[-]examination before that

report is introduced.” Id. at 27. Here, conversely, the subject nurse examiners simply

recorded “what happened during the medical examination[.]”32 Id. at 28.

As for Walker’s hearsay challenge, the Commonwealth argues the rape kit reports

were admissible under either the medical treatment or regularly conducted business

records exceptions in Rule 803. See Pa.R.E. 803(4), (6). It emphasizes that Denman’s

testimony was limited to the general medical information contained in the report — the

parties were not permitted to ask her about any responses the victims provided regarding

their attacker — as well as “how such reports are prepared and the methodology of the

chain of custody.” Commonwealth’s Brief at 32. Moreover, the Commonwealth notes

that the victims, themselves, “testified to the examination they underwent when they

arrived at the hospital.” Id. at 33.

C. Discussion
We begin with Walker’s Confrontation Clause challenge, as we conclude it is

dispositive. A challenge to the admission of evidence based upon a violation of a

defendant’s Confrontation Clause rights presents a question of law, “for which our

32 In its amicus brief, the OAG insists the trial court properly found the primary purpose of

the “nurses’ reports was to render medical assistance to sexual assault victims.” Amicus
Brief at 22. It maintains that “even if evidence preservation was a collateral purpose, the
primary purpose of the nurses’ reports … was clearly not ‘creating evidence for the
purpose of … prosecution.’” Id. at 23 (emphasis added) (citing Ohio v. Clark, 576 U.S.
237, 246 (2015)). Nevertheless, the OAG asserts that any error in admitting the rape kit
reports was harmless since Walker did not contest his identity as the source of the DNA
recovered from the victims; indeed, his defense was consent. See id.

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standard of review is de novo and our scope of review is plenary.” Brown, 185 A.3d at

324 (citation omitted).

Justice Kagan’s two-part test in Smith requires that we first examine whether the

out of court statements — the rape kit reports — were offered into evidence for their

truth.33 See Smith, 602 U.S. at 792. The only logical conclusion is that they were. The

reports detailed the victims’ descriptions of the assaults and their post-assault behaviors,

as well as the nurse examiners’ own observations concerning the victims’ demeanor and

injuries. Importantly, the reports also listed the “Evidence Collected,” which included oral,

vulvar, vaginal, cervix, rectal, and perineum swabs during T.A.’s examination, and vulvar,

vaginal, cervix, and perineum swabs during B.H.’s examination. See Sexual Assault

Forensic Examination Form (victim T.A.),12/2/2014, at 12; Sexual Assault Forensic

Examination Form (victim B.H.), 1/12/2015, at 12. Under the heading “chain of custody,”

the reports further noted that the evidence was bagged, labeled, and secured in a sealed

locker room; each rape kit was also assigned a control number. See Sexual Assault

Forensic Examination Form (victim T.A.),12/2/2014, at 13; Sexual Assault Forensic

Examination Form (victim B.H.), 1/12/2015, at 13. Clearly, the purpose of these

statements in the reports was to establish that the nurse examiners collected the swabs

from the victims that were later used to identify their attacker’s DNA. The reports were

admitted for their truth.

33 Amicus suggests that the Supreme Court’s decision in Smith is “extremely
circumscribed” since the Court did not determine if the reports at issue were testimonial,
and Justice Kagan’s “general thoughts” on that topic constitute dicta. See Amicus Brief
at 23 n.1. We disagree. Justice Kagan’s two-step test, discussed infra, is merely an
amalgamation and simplification of the Court’s Confrontation Clause discussions over the
years. Although Justice Kagan remanded for the state appellate court to consider
whether the reports were testimonial in the first instance, she clearly embraced the long
standing “primary purpose” test. Smith, 602 U.S. at 800. Further, her general “thoughts”
on the testimonial issue, while dicta, were joined by a majority of the Justices. See id. at
801-802.

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Next, Smith directs us to consider whether the reports are testimonial. See Smith,

602 U.S. at 800. A statement is testimonial if its “primary purpose … is to establish or

prove past events potentially relevant to a later criminal prosecution and … any person

creating the report would reasonably believe it would be available for use at a later

criminal trial.” Brown, 185 A.3d at 418 (emphasis added). See also Davis, 547 U.S. at

822 (statements made during police interrogation are testimonial if the “primary purpose

of the interrogation is to establish or prove past events potentially relevant to a later

prosecution”); Bullcoming, 564 U.S. at 664 (“document created solely for an ‘evidentiary

purpose’ … made in aid of a police investigation, ranks as testimonial”). There can be no

dispute that the primary purpose of the rape kit reports is to establish past events (i.e.,

the sexual assault examination and evidence recovered) relevant to a later potential

criminal prosecution.

Indeed, formally, the report is titled, “Sexual Assault Forensic Examination Form,”

and colloquially, we refer to it as a rape kit report. Assuming there was a rape or sexual

assault in the first place leads to the presumption that the information in the report will

later be used in a criminal prosecution. It is not described as a medical examination, but

rather, as a “forensic” examination. Black’s Law Dictionary defines “forensic” as “[u]sed

in or suitable to courts of law or public debate” and “[o]f, relating to, or involving the

scientific

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11247347. Public record. Not legal advice.