stating where trial court finds one sibling abused, court may determine other siblings dependent, even if they have not been abused
How later courts described this case
- stating where trial court finds one sibling abused, court may determine other siblings dependent, even if they have not been abused
- holding that where the individual who performed autopsy is unavailable to testify, a qualified testifying expert is one whose testimony was based upon his own conclusions after his own independent review of the file
Written by the judges who cited it.
The opinion
J-S19031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.M.K., MOTHER :
:
:
:
: No. 366 EDA 2022
Appeal from the Order Entered January 14, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000137-2021
IN THE INTEREST OF: N.M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.M.K., MOTHER :
:
:
:
: No. 367 EDA 2022
Appeal from the Order Entered January 14, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000137-2021
IN THE INTEREST OF: M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.M.K., MOTHER :
:
:
:
: No. 368 EDA 2022
Appeal from the Order Entered January 14, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000138-2021
IN THE INTEREST OF: M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
J-S19031-22
:
:
APPEAL OF: K.M.K., MOTHER :
:
:
:
: No. 369 EDA 2022
Appeal from the Order Entered January 14, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000138-2021
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 07, 2022
K.M.K (“Mother”) appeals from the January 14, 2022, orders entered in
the Court of Common Pleas of Philadelphia County, Juvenile Division (“trial
court”), adjudicating her children, N.M.M. (born in June of 2018) and M.M.
(born in February of 2020) (collectively “the Children”), dependent after the
trial court determined Mother was the perpetrator of abuse as to her infant,
G.M., who died on June 16, 2020. Further, on January 14, 2022, the trial
court entered orders finding that aggravated circumstances existed as to
Mother.1 After a careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Mother filed a separate notice of appeal as to each child (N.M.M. and M.M.)
for both trial court orders. The trial court also entered orders finding Father
to be a perpetrator of child abuse as to G.M., as well as aggravated
circumstances existed as to Father. Father filed separate notices of appeal,
which are docketed in this Court at 426 EDA 2022 and 427 EDA 2022. This
Court consolidated Father’s appeals, which we shall address in a separate
decision.
-2-
J-S19031-22
The trial court has aptly set forth the relevant facts and procedural
history as follows:
The Philadelphia Department of Human Services (“DHS”)
first became aware of this family on June 17, 2018, when DHS
received a General Protective Services (“GPS”) report alleging that
N.M.M. and Mother tested positive for marijuana at N.M.M.’s birth
in June [of] 2018. The report alleged that Mother was the primary
care provider for N.M.M. The GPS was determined to be valid.
On March 1, 2019, Community Umbrella Agency (“CUA”)
implemented In-Home Services in N.M.M.’s paternal
grandparents’ home where Mother resided. Mother was not
compliant with CUA services, including failure to complete
substance use assessments and parenting classes.
In February [of] 2020, Mother gave birth to twins, G.M. and
M.M. The twins were born premature, weighed three (3) pounds,
and had gastrointestinal issues. After spending several weeks in
the hospital, G.M. and M.M. were discharged on March 26, 2020,
to Mother’s care. Mother never notified DHS or CUA that she was
pregnant with G.M. and M.M. DHS and CUA did not learn of
Mother’s pregnancy or the twins’ birth until June 16, 2020.
On June 16, 2020, DHS received a GPS report alleging that
the Philadelphia Police Department (“PPD”) was called to the
family home at noon because G.M. was unresponsive. When
paramedics arrived, G.M. was pronounced dead. On June 17,
2020, the Philadelphia Medical Examiner’s Office (“M.E.”) stated
that G.M. had a healing rib fracture at the time of death.
On November 25, 2020, DHS received a Child Protective
Services (“CPS”) report stating that the June 17, 2020, M.E. report
on G.M.’s death confirmed that G.M. had a healing rib fracture,
and that based on the area of the fracture, it was consistent with
child abuse. The M.E. could not confirm whether the rib fracture
contributed to G.M.’s death. This report was indicated.
At the time of G.M.’s death, the Medical Examiner found that
G.M. had a healing right posterior third rib fracture, which was
consistent with inflicted trauma from child abuse. Additionally,
the Medical Examiner noted that G.M. had a hemorrhage on the
right side of her brain and a bilateral subdural hematoma. Mother
admitted to M.E. investigators that G.M. also suffered a seizure[,]
which lasted more than one minute, but she did not seek medical
attention for G.M. The Medical Examiner stated that the seizure
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could have been the result of the brain trauma G.M. suffered.
Mother was unable to explain the cause of G.M.’s injuries.
On February 5, 2021, DHS received a CPS report stating
that G.M.’s autopsy revealed that G.M.’s healing rib fracture
occurred two to three weeks prior to G.M.’s death, and that
intercranial hemorrhages were found in her brain. The report also
alleged that G.M. was four months old at the time of her death.
The CPS report alleged that G.M.’s head and rib injuries were
sustained on different occasions. The report also alleged that the
only explanation for G.M.’s head injury was inflicted trauma.
While the cause and manner of G.M.’s death was “undetermined,”
the CPS report stated that G.M.’s injuries were indicative of child
abuse.
On an unknown date, Mother and the Children, [N.M.M. and
M.M.,] began residing with the Children’s maternal uncle pursuant
to a Safety Plan. On February 5, 2021, Mother and the Children
moved to Pathways. That same day, DHS developed a Safety Plan
stating that Pathways staff would ensure the safety of the Children
and that their basic needs were met. This included 24-hour
supervision of Mother and the Children. When DHS visited Mother
at Pathways on February 8, 2021, Mother could not provide an
explanation as to the cause of G.M.’s injuries. Mother stated that
she and Father were G.M.’s primary caregivers. [On February 10,
2021, DHS filed dependency petitions as to N.M.M. and M.M.
requesting that they be adjudicated dependent and committed to
the custody of DHS, as well as that the trial court enter findings
of child abuse and aggravated circumstances against Mother and
Father based on G.M.’s unexplained injuries.] On February 27,
2021, CUA learned that Pathways was no longer able to monitor
Mother and the Children to the extent necessary under the terms
of the Safety Plan. That same day, DHS obtained an Order for
Protective Custody (“OPC”) for the Children and placed them in
foster care. At the March 1, 2021, shelter care hearing, the [trial]
[c]ourt lifted the OPC and ordered the temporary commitment to
DHS to stand. The Children were subsequently placed in Kinship
Care with their paternal grandmother.
On January 14, 2022, [the trial court] held an Adjudicatory
and Child Abuse hearing for [N.M.M. and M.M.2]. Counsel for DHS
____________________________________________
2 We note Mother and Father were both present at the hearing and
represented by counsel. Also, the trial court appointed Margaret Jefferson,
Esquire, as the guardian ad litem/advocate for the Children.
-4-
J-S19031-22
called their first witness, DHS Supervisor, Ms. Michelle Ludwig.
(N.T., 1/14/2022, at 13-60). Ms. Ludwig testified that the
Children first became known to DHS in June 2018 when DHS
received a GPS report alleging that Mother and N.M.M. tested
positive for marijuana at N.M.M.’s birth. [Id.] at 15[.] Ms. Ludwig
testified that DHS determined the GPS report was valid and
implemented In-Home Services for the family. Id. at 15-19. Ms.
Ludwig stated that her team was assigned this case on June 16,
2020, when DHS received a subsequent GPS report that the
Children’s sibling, G.M., passed away. Ms. Ludwig stated that her
unit was assigned this case because she supervised the fatality
and near fatality unit. Id. at 20-25. At this point, CUA was still
providing the family with In-Home Services. [Id. at 16.] Ms.
Ludwig further testified that, at the time of G.M.’s death, the
Children were in Mother’s care. Id. at 14-18. Ms. Ludwig testified
that the June 2020 GPS report noted that G.M. sustained a rib
fracture. However, because G.M.’s autopsy had not been
completed, DHS could not confirm the cause of the injury, and the
GPS report was determined to be invalid. [Id. at 16-17.]
Ms. Ludwig testified that DHS received a CPS report for
serious physical injury on November 25, 2020, alleging that G.M.
sustained a rib fracture that was consistent with child abuse. [Id.
at 17.] Specifically, Ms. Ludwig testified that the allegations in
the CPS report included “causing bodily injury to a child through
recent act or failure to act.” [Id. at 19.] Ms. Ludwig noted that
the report indicated Mother and Father as the alleged perpetrators
and the victim child as G.M. Id. at 3-8. Ms. Ludwig further
testified that, after receiving the CPS report, she visited Mother
and explained the extent of G.M.’s injuries. [Id. at 21-22.] The
Children were then transported to St. Christopher’s Hospital to
have full skeletal surveys conducted based on the concerns
regarding G.M.’s rib fracture. [Id. at 21.] Ms. Ludwig testified
that throughout her investigation Mother was unable to provide
an explanation as to how G.M. could have sustained the injuries,
and [she] denied any knowledge of G.M.’s injuries. [Id. at 21-
22.] Ms. Ludwig also testified that Mother and Father were the
only identified caregivers for G.M. [Id. at 23.] The CPS report
was indicated. Id. at 11-13.
Ms. Ludwig testified that DHS received an additional CPS
report on February 5, 2021, with allegations against Mother and
Father for causing serious bodily injury to a child through recent
act or failure to act. [Id. at 29.] Ms. Ludwig testified that this
CPS report involved a head injury sustained by the victim child,
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G.M., and indicated Mother and Father as the perpetrators. Id.
at 17-23. Ms. Ludwig testified that Mother could not provide an
explanation as to how G.M. could have sustained a head injury.
[Id. at 31.] Ms. Ludwig also testified that Mother did not state
anyone else who cared for G.M. when she sustained the head
injury. [Id. at 32.] This CPS report was indicated and stated that
G.M. sustained injuries consistent with child abuse while in the
sole care of Mother and Father. Id. at 7.
Ms. Ludwig further testified that[,] when she concluded her
investigation, DHS had concerns regarding [the] safety and
present danger to the Children in Mother’s care. [Id. at 43-44.]
Ms. Ludwig stated that due to these safety concerns[,] as well as
G.M.’s unexplained injuries, it was in the best interests of [N.M.M.
and M.M.] for DHS to obtain an OPC in order to ensure their safety.
[Id. at 44.]
On cross-examination by the Child Advocate, Ms. Ludwig
testified that she became aware that Mother hid her pregnancy
and the birth of G.M. and M.M. from CUA. [Id. at 45.] Ms. Ludwig
also testified that she…had concerns regarding reports of domestic
violence between Mother and Father. [Id. at 48.]
Counsel for DHS then called their next witness, acting Chief
Medical Examiner for the Philadelphia Medical Examiner’s Office,
Dr. Albert Chu. [Id. at 62-126.] Dr. Chu testified that he is
currently employed at the Philadelphia Medical Examiner’s Office
(“M.E.”) as the acting Chief Medical Examiner. [Id. at 63.] Dr.
Chu testified that he has been employed by the Philadelphia M.E.
since July 2014[,] and [he] has been the acting Chief Medical
Examiner since August 2021. Prior to his current position, Dr. Chu
was employed as the Deputy Chief Medical Examiner at the
Philadelphia Medical Examiner’s Office. Dr. Chu further testified
that he specializes in forensic pathology and is certified by the
American Board of Pathology in anatomic, clinical, and forensic
pathology. [Id. at 63.] Dr. Chu also testified that he has been
qualified as an expert in forensic pathology in a court of law over
two hundred (200) times. [Id. at 64.] On cross-examination by
Mother’s Counsel, Dr. Chu testified that he was not certified as an
expert in child abuse. [Id. at 67.] Th[e] [trial court] qualified Dr.
Chu as an expert in forensic pathology. [Id.]
Dr. Chu testified that he was the direct supervisor for Dr.
Lyndsey Emery, the assigned pathologist who performed G.M.’s
autopsy. [Id. at 66, 69.] Dr. Chu stated that he was familiar with
this case, and [he] also reviewed Dr. Emery’s reports in
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preparation for the January 14, 2022, hearing. [Id. at 67.] Dr.
Chu testified that his role as Dr. Emery’s supervisor on this case
was to provide guidance through conferences, assist in
formulating a final opinion as to the cause and manner [of] death,
[and]…to finalize and approve the autopsy report. [Id. at 69-70.]
Dr. Chu stated that most of his recollection of this case stemmed
from his review of Dr. Emery’s Final Diagnosis Report in
preparation for the January 14, 2022, hearing. [Id. at 71.] Dr.
Chu testified that autopsy and final diagnosis reports are recorded
and kept in the regular course of business by the Medical
Examiner’s Office. [Id. at 71-72.] Dr. Chu further testified that
a report of examination[,] as well as a report of final diagnosis[,]
were generated in this manner for G.M.’s case.
Dr. Chu testified that[,] while there were no acute injuries,
there was evidence of prior injuries to G.M.’s head, brain, and ribs
found during G.M.’s autopsy. [Id. at 80.] Specifically, G.M.’s
autopsy showed old subdural and subarachnoid hemorrhages[,]
as well as an injury to the brain due to the interruption of blood
flow. Id. Dr. Chu testified that there was also evidence of a
healing rib fracture. Id. Dr. Chu specified that the head, brain,
and rib injuries did not occur immediately around the time of
G.M.’s death. Id. Dr. Chu testified that [neither] routine CPR
administered at the time of death, routine caregiving, nor co-
sleeping with her twin would have caused G.M.’s rib fracture. [Id.
at 84-85.] Dr. Chu also testified that based on her age G.M. could
not have caused this injury to herself. Dr. Chu testified that G.M.’s
rib injury was most consistent with inflicted trauma. [Id. at 86.]
Dr. Chu could not make a conclusion as to the cause of G.M.’s
brain injuries, stating that those types of injuries can occur in
various ways, including from birth trauma, significant force
inflicted to the head, shaking, or accidentally. [Id. at 90-94.] Dr.
Chu further testified that there was no indication…that G.M.
sustained any birth trauma that may have caused the brain
injuries. [Id. at 92-94.] Dr. Chu testified that the cause and
manner of G.M.’s death was undetermined, but her death was not
ruled as natural or accidental. [Id. at 95, 97.] Dr. Chu further
testified that it was likely that G.M.’s injuries—specifically the rib
fracture—were the result of abuse. [Id. at 97-98.] Dr. Chu
testified that his finding was also included in the M.E. Final
Diagnosis report regarding G.M. [Id. at 98.]
On cross-examination by the Child Advocate, Dr. Chu
testified that the M.E. office found that G.M.’s brain injuries were
blunt impact injuries. [Id. at 105.] Dr. Chu also gave his opinion
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that G.M.’s injuries may have been caused by forceful shaking of
the head without impact. Id. at 91. Dr. Chu further testified that
these types of injuries can be sustained due to a fall, car accident,
or other traumatic incident, but that the M.E. office has no
documentation that G.M. was ever involved in any traumatic
incident. [Id. at 106-07.]
On cross-examination by Mother’s Counsel, Dr. Chu testified
that he did not prepare a report for the January 14, 2022[,]
hearing, but that he reviewed the M.E.’s records regarding this
case prior to the hearing. [Id. at 115.] Dr. Chu stated that he
reviewed the M.E. investigator’s reports during the January 14,
2022[,] hearing. [Id. at 118.] Dr. Chu testified that he was not
involved in G.M.’s autopsy nor did he review Dr. Emery’s autopsy
or final diagnosis reports contemporaneously. [Id. at 119.]
On redirect examination, Dr. Chu testified that there was no
medical documentation from the M.E. office to account for G.M.’s
brain injuries nor was there any indication in G.M.’s primary care
physician records that account for these injuries. [Id. at 125.]
Dr. Chu further testified there was no indication that G.M.’s
premature birth caused G.M.’s rib fracture. If the rib fracture had
been birth-related, this injury would have been resolved by the
time she was four-months old—G.M.’s age at the time of her
death. Id. at 122-25[.]
Mother’s Counsel called [one] witness, current CUA Case
Manager, Ms. Olivia Robinson. [Id. at 128-39.] Ms. Robinson
stated that she was assigned this case on October 10, 2021. [Id.
at 128.] Ms. Robinson testified that[,] since she was assigned the
case, Mother has been compliant with CUA, signed all releases of
information, provided proof of employment, and completed
parenting in December 2020. [Id. at 128-30.] Ms. Robinson
testified that she had not been able to conduct a home assessment
on Mother’s home. [Id. at 129.] Ms. Robinson further testified
that she observed Mother’s visits with the Children, which were
consistent, and that Mother and the Children were bonded. [Id.
at 129-31.]
On cross-examination, Ms. Robinson testified that she had
safety concerns regarding Mother due to G.M.’s unexplain[ed]
injuries. [Id. at 132.] She further testified that the Children are
currently placed in Kinship Care with their paternal grandmother.
[Id. at 132-33.]
Following argument [by] counsel, on January 14, 2022, the
[trial court entered an order finding] that there was clear and
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convincing evidence to adjudicate [N.M.M. and M.M.] dependent
based on present inability and to find child abuse as to Mother.
[The trial court ordered N.M.M. and M.M. be removed from
Mother’s and Father’s home and continued placement by DHS in
Kinship Care through Turning Points with paternal grandmother.]
[The trial court] also [entered an order finding] that clear and
convincing evidence was presented to make a finding of
aggravated circumstances as to Mother.[3]
Mother timely filed [four] notices of appeal and a Concise
Statements of Errors Complained of on Appeal on January 27,
2022, and an amended Concise Statement…on February 13, 2022.
[This Court consolidated the appeals.]
Trial Court Opinion filed 2/18/22, at 2-10 (footnotes omitted) (footnotes
added).
On appeal, Mother sets forth the following issues in her “Statement of
the Questions Involved” (verbatim):
1) Whether the trial court erred as a matter of law or abused its
discretion when it determined that G.M. was the victim of child
abuse, and that the Appellant K.M.K. (Mother) was responsible
for that abuse?
2) Whether the trial court erred as a matter of law where it
determined that N.M.M. and M.M. (the Children) met the
definition of dependent children?
3) Whether the trial court erred as a matter of law and abused its
discretion when it ordered that it was clearly necessary to
remove the Children from their parents’ care?
4) Whether the trial court erred as a matter of law of [sic] abused
its discretion when it found that that [sic] aggravated
circumstances [e]xisted as to [M]other?
____________________________________________
3 Based on the testimony indicating that both parents were the primary
caregivers of G.M., N.M.M., and M.M. at the time G.M.’s injuries were inflicted,
the trial court also entered an order finding Father to be a perpetrator of child
abuse. The trial court also entered an order finding aggravated circumstances
as to Father.
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5) Whether the trial court erred as a matter of law or abused its
discretion when it admitted into evidence and relied upon the
expert testimony of Doctor Albert Chu?
6) Whether the trial court erred as a matter of law or abused its
discretion when it admitted and relied upon DHS Exhibit 7?
Mother’s Brief at 3 (suggested answers omitted).4
Mother’s first, second, third, and fourth issues are related. She
challenges the trial court’s finding that G.M. was a victim of child abuse and
Mother was a perpetrator of the child abuse as provided for under the CPSL.5
She further contends that, absent sufficient evidence that G.M. was a victim
of child abuse and/or that Mother was the perpetrator of the child abuse, the
trial court’s dependency determination as to N.M.M. and M.M. is erroneous, as
is the trial court’s finding that aggravated circumstances existed. Mother
further challenges the trial court’s dependency disposition of removing N.M.M.
and M.M. from Mother’s home and placing them in Kinship Care.
The Pennsylvania Supreme Court has set forth our standard of review
for dependency cases as follows:
The standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
[trial] court’s inferences or conclusions of law. We review for
abuse of discretion[.]
____________________________________________
4 We have renumbered Mother’s issues for the ease of discussion.
5 Child Protective Services Law (“CPSL”), 23 Pa.C.S.A. §§ 6301-6387.
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In the Interest of L.Z., 631 Pa. 343, 111 A.3d 1164, 1174 (2015) (quotation
marks and quotation omitted).
Where, as in the case sub judice, the trial court deems parents to be
perpetrators of child abuse under the CPSL, we note that “[although]
dependency proceedings are governed by the Juvenile Act[6]…the CPSL
controls determinations regarding findings of child abuse, which the [trial]
courts must find by clear and convincing evidence.”7 In the Interest of L.V.,
209 A.3d 399, 417 (Pa.Super. 2019) (citations and footnotes omitted)
(footnote added). “[T]he [Juvenile] Act and the [CPSL] must be applied
together in the resolution of child abuse complaints under the [CPSL and]
reference must be made to the definition sections of both the [Juvenile Act]
and the [CPSL] to determine how that finding [of child abuse] is interrelated.”
In the Interest of J.R.W., 631 A.2d 1019, 1023 (Pa.Super. 1993).
“As part of [a] dependency adjudication, a court may find a parent…to
be the perpetrator of child abuse[ ] as defined by the…CPSL.” In the Interest
of S.L., 202 A.3d 723, 728 (Pa.Super. 2019) (quotation marks and quotations
omitted). Under the CPSL, “child abuse” is defined as “intentionally,
____________________________________________
6 Pennsylvania Juvenile Act (“Juvenile Act”), 42 Pa.C.S.A. §§ 6301-6375.
7 “Clear and convincing evidence” is defined as evidence that is “so clear,
direct, weighty[,] and convincing as to enable the trier of fact to come to a
clear conviction, without hesitance, of the truth of the precise facts in issue.”
In the Interest of C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc)
(quotation marks and quotation omitted).
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knowingly, or recklessly doing” one of many acts, including causing bodily
injury8 to a child through any recent act or failure to act.9 See 23 Pa.C.S.A. §
6303(b.1) (defining “child abuse”).
Recently, in In the Interest of C.B., 264 A.3d 761 (Pa.Super. 2021)
(en banc), this Court relevantly set forth the following:
Section 6381 of the CPSL, which governs evidence in court
proceedings, states that “[i]n addition to the rules of
evidence…relating to juvenile matters, the rules of evidence in this
section shall govern in child abuse proceedings in court[.]” 23
Pa.C.S.A. § 6381(a). Specifically,
Section 6381(d)]provides for an ‘attenuated’ standard of
evidence in making a legal determination as to the abuser in child
abuse cases [where] a child has suffered serious physical
injury...as would ordinarily not be sustained or exist except by
reason of the acts or omissions of the parent or other person
responsible for the welfare of the child. [In the Interest of
J.R.W., 631 A.2d at 1023 (quotation marks and quotation
omitted). See 23 Pa.C.S.A. § 6381(d).]
____________________________________________
8 The CPSL defines “bodily injury” as “[i]mpairment of physical condition or
substantial pain.” 23 Pa.C.S.A. § 6303(b.1) (defining “bodily injury”).
9 In In the Interest of C.B., 264 A.3d 761, 773 (Pa.Super. 2021) (en banc),
this Court held that a trial court’s culpability determination as to whether the
child abuse was intentional, knowing, or reckless is “superfluous.” We held:
Under Section 6381 of the CPSL, a petitioning party is not required
to establish that the parent or caregiver perpetrated the abuse
“intentionally, knowingly, or recklessly.” Rather, in Section 6381
cases, “the fact of abuse suffices to establish prima facie evidence
of abuse by the parent or person responsible,” permitting
petitioners to “prove their case with only the physical evidence of
injuries that would not ordinarily be sustained but for the action
[or inaction] of the parents or responsible person and the
implausible statements of the parents and responsible persons.”
Id. (quotation and citations omitted).
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In In the Interest of N.B.-A., ___ Pa. ___, 224 A.3d 661
(2020), the Pennsylvania Supreme Court rather recently
reiterated the appropriate standard of proof for a finding of child
abuse:
The requisite standard of proof for a finding of child
abuse pursuant to Section 6303(b.1) of the CPSL is
clear and convincing evidence. [A] petitioning party
must demonstrate the existence of child abuse by the
clear and convincing evidence standard applicable to
most dependency determinations, 42 Pa.C.S.[A.] §
6341(c)[]….However, in certain situations, the
identity of the abuser need only be established
through prima facie[10] evidence. As an appellate
court, we are required to accept the findings of fact
and credibility determinations of the trial court, if they
are supported by the record; however, [an appellate]
court is not bound by the [trial] court’s inferences or
conclusions of law.
Id. at 668 (citation omitted).
***
Section 6381(d) of the CPSL, found under the subchapter
titled “Miscellaneous Provisions,” establishes a rebuttable,
evidentiary presumption when a child sustains abuse not
ordinarily suffered absent acts or omissions of a parent or other
responsible party. Under such circumstances, “the fact of abuse
suffices to establish prima facie evidence of abuse by the parent
or person responsible.” In the Interest of L.Z., 631 Pa. 343,
111 A.3d 1164, 1167 (2015).
To aid the [trial court] in determining whether a child has
been abused, “the Legislature deemed it wise and necessary to
establish a different evidentiary standard for finding child abuse
by a parent or person responsible for the child’s care, one in
____________________________________________
10Prima facie evidence is “[s]uch evidence as, in the judgment of the law, is
sufficient to establish a given fact, or the group or chain of facts constituting
the party’s claim or defense, and which if not rebutted or contradicted, will
remain sufficient.” In the Interest of L.Z., supra, 111 A.3d at 1184 (citation
omitted).
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contrast to the overall standard for determining dependency
under the Act.” Id. The J.R.W. Court recognized:
This lessened standard of establishing abuse by
the caretakers [under Section 6381(d)], coupled with
the clear and convincing evidence necessary to find
dependency, has been imposed by the Legislature as
the standard which the [trial court] must apply in
deciding abuse cases. Prima facie evidence is not the
standard that establishes the child has been abused,
which must be established by clear and convincing
evidence; it is the standard by which the court
determines whom the abuser would be in a given
case. There is no conflict, constitutional or otherwise,
with the clear and convincing evidence standard
imposed by the Act to establish child abuse. The
Legislature has determined that the likelihood clearly
established abuse has occurred, other than at the
hands of the custodian, is so small that prima facie
evidence the custodian has caused the injury, either
by acts or omissions, is all that is required. We find
no defect in this reasoning. Such a standard provides
maximum protection for the child victim or other
children in the community who might be subject to
similar abuse if the alleged abuser was not identified
and permitted free access to the victim or other
vulnerable children. It is not equivalent to a finding
of guilt in a criminal proceeding which could result in
deprivation of freedom. Thus[,] the [L]egislature has
balanced the needs of society and children for
protection against the abuser’s possible patterned
behavior and his/her right to freedom unless found
guilty beyond a reasonable doubt.
Id. at 1024. See [In the Interest of] L.Z., [supra,] 111 A.3d
at 1184 (“The Legislature, however, carved out a very limited
exception to these more stringent evidentiary standards, allowing
for the possibility of identifying the perpetrator of abuse based on
prima facie evidence in cases where the abuse is “of such a nature
as would ordinarily not be sustained or exist except by reason of
the acts or omissions of the parent[.]”).
Under Section 6381(d), a parent or other responsible
caregiver may rebut the prima facie presumption with evidence:
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[d]emonstrating that the parent or responsible person
did not inflict the abuse, potentially by testifying that
they gave responsibility for the child to another person
about whom they had no reason to fear or perhaps
that the injuries were accidental rather than abusive.
The evaluation of the validity of the presumption
would then rest with the trial court evaluating the
credibility of the prima facie evidence presented
by...[DHS]…and the rebuttal of the parent or
responsible person.
[In the Interest of] L.Z., [supra,] 111 A.3d at 1185….A parent
does not actually have to be physically present with the child at
the time of the abuse for the presumption to apply to that parent.
Id. at 1185-86.
In the Interest of C.B., 264 A.3d at 770-73 (emphasis omitted) (bold in
original) (footnotes omitted) (footnote added) (quotation and citations
omitted).
In addressing Mother’s claim that the evidence insufficiently established
that G.M. was the victim of child abuse and Mother was the perpetrator of the
abuse, the trial court relevantly indicated the following:
[The trial court] determined that…child abuse was
supported by clear and convincing evidence. [The trial court]
heard credible testimony from DHS Supervisor, Ms. Michelle
Ludwig, that the Children’s welfare and safety were at risk in
Mother’s care. Ms. Ludwig testified that in June 2020, DHS
received a GPS report alleging that the Children’s sibling, G.M.,
passed away. At the time of the June 2020 [CPS] report, In-Home
Services had already been implemented after N.M.M. tested
positive for marijuana at birth. Following the June 2020 [CPS]
report, Ms. Ludwig testified that DHS received two (2) CPS reports
on November 25, 2020, and February 5, 2021, containing
allegations of child abuse in connection to G.M.’s death.
Specifically, the November 25, 2020, CPS report alleged that G.M.
sustained a healing rib fracture consistent with child abuse. The
February 5, 2021, [CPS] report alleged that G.M. also sustained
head and brain trauma prior to her death. Both CPS reports
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indicated Mother and Father as the perpetrators of abuse of the
victim child, G.M.
Ms. Ludwig further testified that, throughout her
investigation, Mother was never able to provide an explanation for
how G.M. sustained the injuries. Ms. Ludwig further testified that
Mother was the primary caregiver for G.M. and no other caregivers
were identified for G.M. Ms. Ludwig stated that, when she
concluded her investigation, DHS had active safety concerns for
[N.M.M. and M.M.] based on G.M.’s indicated and unexplained
injuries, and that removal from Mother’s care was necessary to
ensure the Children’s safety and well-being. Current CUA Case
Manager, Ms. Olivia Robinson, also expressed present safety
concerns for the Children in Mother’s care given G.M.’s
unexplained injuries.
Ms. Ludwig’s testimony was corroborated by Acting Chief
Medical Examiner, Dr. Albert Chu. Dr. Chu testified that G.M.’s
autopsy revealed evidence of a healing rib fracture, which likely
occurred “a few weeks” prior to her death. Dr. Chu credibly
testified that neither G.M.’s premature birth, CPR administered at
the time of death, nor co-sleeping with her twin could have caused
this type of injury. Dr. Chu also testified that, based on G.M.’s
age, this injury could not have been self-inflicted. Dr. Chu
testified that G.M.’s rib injury was most consistent with inflicted
trauma. Dr. Chu further testified that G.M.’s autopsy also
revealed old head and brain injuries. Dr. Chu described the
various ways this type of brain injury can occur, including birth
trauma, blunt force trauma, shaking, or due to a fall, car accident,
or other traumatic incident. Dr. Chu testified that the M.E. has no
medical documentation to account for G.M.’s brain injuries.
However, Dr. Chu further testified that there was no indication of
any birth trauma, which may have caused the brain injuries, and
[the] M.E. has no documentation that G.M. was involved in a fall,
car accident, or other traumatic incident. Dr. Chu also testified
that the M.E. office found that G.M.’s brain injuries were blunt
impact injuries.
G.M.’s rib fracture and brain injuries sustained prior to her
death greatly concern [the trial court]. The indicated CPS reports
from November 25, 2020, and February 5, 2021, stated that G.M.
sustained injuries consistent with child abuse while in the primary
care of Mother. Additionally, Mother [has been unable] to provide
a plausible explanation for the cause of G.M.’s injuries….Dr. Chu
testified that CPR administered at the time of death could not have
caused G.M.’s rib fracture because it was a healing injury, which
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likely occurred a “few weeks” prior to her death. Dr. Chu also
testified that, because G.M. was four months old at the time of
her death, she could not have caused this type of injury to herself,
nor could the injury have been caused by co-sleeping with her
twin. Dr. Chu provided credible testimony that G.M.’s rib fracture
was likely caused by abuse. Although Dr. Chu could not provide
a definitive explanation for how G.M. sustained the head and brain
injuries, he testified that there was no evidence that these injuries
were caused by birth trauma or involvement in a traumatic
accident. While the cause and manner of G.M.’s death were
undetermined, her death was not ruled natural or accidental. The
testimony also reflected outstanding dependency issues regarding
[a] prior history of domestic violence, substance abuse, and
concerns regarding Mother’s parenting capacity….Mother’s
continued inability to provide an explanation as to how G.M. was
seriously inured and later died in her care remains a barrier to
reunification [with N.M.M. and M.M.] at this time.
***
[W]hile the petitioning party in a dependency action must
demonstrate the existence of child abuse by clear and convincing
evidence, the identity of the abuser need only be established by
prima facie evidence. Under Section 6381, the fact of abuse is
sufficient [to] establish prima facie evidence of abuse by the
parent or person responsible for the child’s welfare….Specifically,
the CPSL establishes the following rebuttable evidentiary
presumption for finding child abuse by a parent or person
responsible for the Child’s care:
Evidence that a child has suffered child abuse of
such a nature as would ordinarily not be sustained or
exist except by reason on the acts or omissions of the
parent or other person responsible for the welfare of
the child shall be prima facie evidence of child abuse
by the parent or other person responsible for the
welfare of the child.
23 Pa.C.S.A. § 6381(d).
***
Applying 23 Pa.C.S.A. § 6381(d) and the relevant law to this
case, the [trial court] properly determined that Mother was the
perpetrator of the abuse. The victim child, G.M., was in the
primary care and control of only Mother and Father during the
time the injuries were discovered. Additionally, medical evidence
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from G.M.’s autopsy demonstrated that the injuries sustained
were “of such a nature as would not ordinarily be sustained or
exist except by reason of the acts or omissions of the parent.” 23
Pa.C.S.A. § 6381(d). Specifically, the two indicated CPS reports
from November 25, 2020, and February 5, 2021, stated that
G.M.’s injuries were consistent with child abuse. Mother and
Father were the named perpetrators of abuse on the indicated CPS
reports. Dr. Chu testified that G.M.’s rib injury was most
consistent with inflicted trauma from abuse. The M.E. found that
G.M.’s brain injuries were blunt impact injuries. While the cause
and manner of G.M.’s death were “undetermined,” G.M.’s death
was not ruled natural or accidental.
Based on…the rebuttable presumption defined in 23
Pa.C.S.A. § 6381(d), [the trial court] properly determined that
prima facie evidence existed to determine that Mother was the
perpetrator of abuse. Throughout…[this] case, Mother has been
unable to provide an explanation as to how G.M. could have
sustained the rib fracture and brain injuries. However, the
evidence clearly established that Mother and Father were the
primary caregivers for G.M. at the time of her death and that
G.M.’s injuries occurred while G.M. was in their primary care. G.M.
sustained injuries of such a nature that would not ordinarily be
sustained but for the acts or omissions of the person responsible
for the welfare of the child. While [the trial court] was unable to
determine which parent perpetrated the abuse, it properly found
Mother perpetrated the abuse by omission even if she did not
inflict any of the injuries. [The trial court] also properly
determined that Mother failed to rebut the evidentiary
presumption in Section 6381(d) by failing to present evidence
establishing that G.M. was not in her care when the injuries
occurred, or that she had no reason to believe that G.M. would be
unsafe in Father’s care.
Trial Court Opinion, filed 2/18/22, at 14-20 (citations and footnote omitted).
We find no abuse of discretion or error of law in the trial court’s
reasoning. Specifically, contrary to Mother’s argument, we agree with the trial
court that DHS established by clear and convincing evidence that G.M. was a
victim of “child abuse” as defined by the CPSL. Medical testimony established
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that the four-month-old infant, G.M., suffered rib, head, and brain injuries,
which were the result of non-accidental trauma that occurred while Mother
was responsible for G.M.’s welfare. See In the Interest of C.B., supra.
Moreover, Mother could not provide an explanation of how the injuries
occurred.
Under these facts, the trial court properly applied the evidentiary
presumption found at 23 Pa.C.S.A. § 6381(d), which establishes a prima facie
case of abuse by the persons who were responsible for the child when the
abuse occurred, and properly found Mother failed to rebut this presumption.
See In the Interest of C.B., supra.11
As this Court has held, the rebuttable presumption is necessary to
ensure the safety of a child (and the child’s siblings) when the child has been
under her parents’ care, has been abused, and the identity of the perpetrator
cannot be established. See id.
In essence, [the rebuttable presumption] forces caregivers either
to come forward with the identity of the perpetrator of abuse or
be assigned fault where it was their responsibility to care for the
____________________________________________
11 Similar to the case sub judice, in In the Interest of C.B., supra, DHS
established, by clear and convincing evidence, that a five-month-old infant
suffered injuries that were neither accidental nor self-inflicted and were of
such a nature that they would not ordinarily be sustained except by reason of
the acts or omission of the parent or other person responsible for the infant’s
welfare. This Court held the trial court properly found the infant was the victim
of “child abuse” as defined by the CPSL. Id. at 776. We further held the trial
court properly applied the Section 6381(d) presumption since the parents
were the primary caretakers of the infant, and the parents failed to rebut the
presumption by establishing the infant was not in their care when he suffered
his injuries. See id.
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child and keep the child safe. As emphasized by our Supreme
Court…“when a child is in the care of multiple parents or other
persons responsible for care, those individuals are accountable for
the care and protection of the child whether they actually inflicted
the injury or failed in their duty to protect the child.” [In the
Interest of L.Z., supra, 111 A.3d at 1185.]
In the interest of C.B., 264 A.3d at 77-78.
Accordingly, for all of the aforementioned reasons, we conclude the trial
court properly found that Mother was a perpetrator of child abuse under
Section 6381(d).
Regarding Mother’s challenge to the trial court’s adjudication of N.M.M.
and M.M. as dependent, she claims that, since G.M. was not a victim of child
abuse and/or Mother was not a perpetrator of the abuse, the trial court’s
dependency determination is erroneous. However, having found Mother was
a perpetrator of abuse as to G.M., we find her issue challenging the trial court’s
adjudication of dependency as to N.M.M. and M.M. moot. See In the Interest
of C.B., supra (finding moot parents’ challenge to trial court’s adjudication of
dependency as to multiple children where trial court found parents
perpetrators of abuse as to one child); In the Interest of R.P., 957 A.2d
1205, 1213 (Pa.Super. 2008) (stating where trial court finds one sibling
abused, court may determine other siblings dependent, even if they have not
been abused).
Regarding Mother’s averment that, after the trial court adjudicated
N.M.M. and M.M. dependent, the trial court erred in its disposition of placing
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the Children in the custody of DHS and Kinship Care, we disagree.12 Mother
argues the trial court erred since its determination was made based on an
erroneous finding that G.M. suffered abuse and Mother was a perpetrator of
the abuse. However, as indicated supra, we hold the trial court did not err in
its finding of child abuse perpetrated by Mother. Thus, Mother is not entitled
to relief on this claim. See In re R.P., supra.
In her next issue, Mother contends the trial court erred in holding that
aggravated circumstances existed as to Mother. Specifically, she avers that,
since there was no evidence G.M. suffered abuse and/or that Mother was a
perpetrator of the abuse, the trial “court also erred in finding that aggravated
circumstances existed as to Mother.” Mother’s Brief at 48. However, as
indicated supra, we hold the trial court did not err in its finding of child abuse
perpetrated by Mother. Thus, Mother is not entitled to relief on this claim.13
See In re R.P., supra.
____________________________________________
12 If the court finds that a child is dependent, then the court may make an
appropriate disposition of the child to protect the child’s physical, mental and
moral welfare, including allowing the child to remain with the parents subject
to supervision, transferring temporary legal custody to a relative or public
agency, or transferring custody to the juvenile court of another state. 42
Pa.C.S.A. § 6351(a). In re D.A., 801 A.2d 614 (Pa.Super. 2002) (en banc),
Here, the trial court determined it was in the best interest of N.M.M. and M.M.
to remove them from their parents’ care and place them with paternal
grandmother through Kinship Care.
13If the trial court adjudicates a child dependent, and either the county agency
or the child’s attorney has alleged aggravated circumstances exist, the court
must then determine the veracity of those allegations. See 42 Pa.C.S.A. §§
(Footnote Continued Next Page)
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Mother next contends the trial court erred in permitting the expert
testimony of Chief Medical Examiner Dr. Albert Chu. Specifically, she contends
Dr. Chu’s expert opinions regarding the manner and cause of G.M.’s injuries
violated Pa.R.E. 703 since he was merely a conduit for the opinions of Dr.
Lyndsey Emery, who completed the autopsy/autopsy reports and was
unavailable to testify at the dependency hearing.
Questions concerning the admissibility of evidence are
within the sound discretion of the trial court[,] and we will not
reverse a trial court’s decision concerning admissibility of evidence
absent an abuse of the trial court’s discretion. An abuse of
discretion is not merely an error of judgment[ but, rather, is] the
overriding or misapplication of the law, or the exercise of
judgment[,] that is manifestly unreasonable, or the result of bias,
prejudice, ill-will[,] or partiality, as shown by the evidence of
record. If in reaching a conclusion the trial court overrides or
misapplies the law, discretion is then abused[,] and it is the duty
of the appellate court to correct the error.
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa.Super. 2020) (citation
omitted).
____________________________________________
6341(c.1), 6351(e)(2). If the court finds by clear and convincing evidence
that aggravated circumstances do exist, it must consider whether reasonable
efforts to prevent or eliminate the need to remove the child or to preserve and
reunify the family should be made or continue to be made. See id.
In the case sub judice, the trial court found “aggravated circumstances”
existed under the following circumstances:
(2) The child or another child of the parent has been the victim of
physical abuse resulting in serious bodily injury, sexual violence
or aggravated physical neglect by the parent.
42 Pa.C.S.A. § 6302(2) (defining “aggravated circumstances”). The trial court
directed efforts shall continue to be made to preserve the family and reunify
N.M.M. and M.M. with Mother and Father.
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As a general rule, “expert testimony is admissible, in all cases, civil and
criminal alike, when it involves explanations and inferences not within the
range of ordinary training[,] knowledge, intelligence and experience.”
Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766, 788 (2014). The
admissibility of expert testimony is governed generally by Rule 702 of the
Pennsylvania Rules of Evidence, which provides:
Rule 702. Testimony by Expert Witnesses.
A witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or otherwise specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702 (bold in original).
The law provides that:
expert testimony is incompetent if it lacks an adequate basis in
fact. While an expert’s opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not competent
evidence. This means that expert testimony cannot be based
solely upon conjecture or surmise. Rather, an expert’s
assumptions must be based upon such facts as the jury would be
warranted in finding from the evidence. Accordingly, the
Pennsylvania Rules of Evidence prescribe a threshold for
admission of expert testimony dependent upon the extent to
which the expert’s opinion is based on facts and data.
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa.Super. 2012)
(citation omitted). Thus, an adequate basis in fact must enable the expert to
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opine with a reasonable degree of certainty and is incompetent if it lacks an
adequate basis. See id.
With regard to the bases of opinion testimony by experts, Pa.R.E. 703,
upon which Mother relies, relevantly provides the following:
Rule 703. Bases of opinion testimony by experts
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be
admissible in evidence.
Pa.R.E. 703 (bold in original).
Furthermore, it is noteworthy that “Pa.R.E. 705 requires an expert
witness to testify as to the facts or data upon which the witness’s opinion is
based, whether or not the facts or data would otherwise be admissible in
evidence.” In the Interest of D.Y., 34 A.3d 177, 182 (Pa.Super. 2011) (en
banc) (citation omitted). That is, the rules allow expert opinion testimony
based in part on otherwise inadmissible facts and data contained in a report
upon which experts in the field would reasonably rely in forming an opinion.
Id.
“When the expert witness has consulted numerous sources, and uses
that information, together with his own professional knowledge and
experience, to arrive at his opinion, that opinion is regarded as evidence in its
own right and not as [inadmissible] hearsay in disguise.” Woodard v.
Chatterjee, 827 A.2d 433, 444-45 (Pa.Super. 2003) (quotations omitted).
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However, it is well-settled that “an expert may not act as a mere conduit
of hearsay or transmitter of extrajudicial information.” Commonwealth v.
Towles, 630 Pa. 183, 106 A.3d 591, 606 (2014) (quotation omitted). As the
Comment to Pa.R.E. 703 provides:
An expert witness cannot be a mere conduit for the opinion of
another. An expert witness may not relate the opinion of a non-
testifying expert unless the witness has reasonably relied upon it
in forming the witness’s own opinion.
Pa.R.E. 703, Comment.
In interpreting the Comment to Pa.R.E. 703, this Court has held:
An “expert” should not be permitted simply to repeat another’s
opinion or data without bringing to bear on it his own expertise
and judgment. Obviously, in such a situation, the non-testifying
expert is not on the witness stand and truly is unavailable for
cross-examination. The applicability of the rule permitting experts
to express opinions relying on extrajudicial data depends on the
circumstances of the particular case and demands the exercise,
like the admission of all expert testimony, of the sound discretion
of the trial court. Where…the expert uses several sources to arrive
at his or her opinion, and has noted the reasonable and ordinary
reliance on similar sources by experts in the field, and has coupled
this reliance with personal observation, knowledge and
experience, we conclude that the expert’s testimony should be
permitted.
Woodard, 827 A.2d at 444-45 (quotations omitted). See generally
Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 306 (2010) (“[A] medical
expert who did not perform the autopsy may testify as to the cause of death
as long as the testifying expert is qualified and sufficiently informed[.]”)
(citation omitted)); Commonwealth v. Brenner, 256 A.3d 38 (Pa.Super.
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filed May 18, 2021) (unpublished memorandum)14 (holding forensic expert
permitted to offer expert testimony where she formed an independent
conclusion and testified to that conclusion based on her review of both
inadmissible facts and data contained in another non-testifying forensic
expert’s report).
The rule governing expert testimony is born, in part, out of the following
premise:
The expert is assumed to have the mastery to evaluate the
trustworthiness of the data upon which he[,] or she[,] relies, both
because the expert has demonstrated his[, or her,] expert
qualifications and because the expert regularly relies on and uses
similar data in the practice of his[,] or her[,] profession.
Primavera v. Celotex Corp., 608 A.2d 515, 519 (Pa.Super. 1992). The data
relied upon by the expert in reaching his, or her, conclusions and opinions
must be “the kind of data used daily by experts in making judgments, reaching
diagnoses, and taking action.” Id. at 519-20.
In the case sub judice, DHS offered Chief Medical Examiner Dr. Chu as
an expert in the field of forensic pathology, and after the parties examined Dr.
Chu regarding his qualifications, the trial court accepted him as an expert in
the specified field. N.T., 1/14/22, at 63-67. Dr. Chu testified he was familiar
with the autopsy of G.M. since he directly supervised Dr. Lyndsey Emery, who
____________________________________________
14 Pursuant to Pennsylvania Rule of Appellate Procedure 126, unpublished,
non-precedential memorandum decisions of the Superior Court filed after May
1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).
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performed the autopsy. Id. at 66. He testified that, in relation to the instant
matter, he provided guidance to Dr. Emery, and “because there was a pretty
prolonged period of time between when the autopsy was initially done and the
case was finally classified,…the case [came] up for periodic review[.]” Id. at
70. Thus, Dr. Chu conferenced with Dr. Emery to give her guidance regarding
G.M.’s autopsy and “to help [her] formulate a final opinion as to the cause and
manner of death.” Id. Dr. Chu admitted that he “did not actually sign off” on
Dr. Emery’s final cause and manner of death; however, he “perform[ed]
consultations and conferences with Dr. Emery as her supervisor on this case.”
Id. at 70-71.
Dr. Chu testified he reviewed the autopsy reports, including the Final
Diagnoses Report, which were prepared by Dr. Emery, in formulating his
opinions for the hearing. Id. at 71-72. He noted these reports are of the type
regularly created and relied upon by the Medical Examiner’s Office. Id. Dr.
Chu then opined that G.M.’s injuries to her head, brain, and rib did not occur
immediately around the time of G.M.’s death. Id. at 80. He opined G.M.’s rib
fracture resulted from “some kind of inflicted injury[,]” such as someone
squeezing G.M.’s chest hard. Id. at 84. He further opined G.M.’s head and
brain injuries resulted from “some kind of significant force being applied to
the head[,] such as an impact or shaking.” Id. at 91. He indicated “[i]t’s
possible” the injuries contributed to G.M.’s death. Id. at 94. He offered an
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opinion, to a reasonable degree of medical certainty, that G.M.’s injuries were
due to physical abuse. Id. at 97-98.
Here, contrary to Mother’s contention, we conclude the trial court did
not violate Pa.R.E. 703 in permitting Dr. Chu to render his expert opinions.
The record reveals Dr. Chu had independent knowledge of G.M.’s autopsy and
was sufficiently informed of the matter. Using his own professional expertise
and experience, he formed an independent conclusion and testified to that
conclusion based on his own knowledge of the autopsy, as well as the facts
and data contained in the autopsy reports. See In the Interest of D.Y.,
supra. He testified that the facts and data he relied upon in forming his
opinions were of the type reasonably relied upon by experts in the particular
field. See Pa.R.E. 703.
Thus, contrary to Mother’s contention, we conclude Dr. Chu did not “act
as a mere conduit” for Dr. Emery’s opinions. See Woodard, supra. Rather,
he rendered his opinions based on his own expertise and judgment. See id.
Accordingly, we hold the trial court did not err in permitting Dr. Chu to offer
his opinions as to the manner and cause of G.M.’s injuries. See generally
Commonwealth v. Buford, 101 A.3d 1182 (Pa.Super. 2014) (holding that
where the individual who performed autopsy is unavailable to testify, a
qualified testifying expert is one whose testimony was based upon his own
conclusions after his own independent review of the file).
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In her final issue, Mother contends the trial court erred in admitting into
evidence DHS Exhibit #7, which was the Philadelphia Medical Examiner’s
Office Final Diagnoses Autopsy Report (“autopsy report”) under the business
record exception to the hearsay rule.
Initially, we note that, during the hearing, Mother’s counsel objected to
the “opinion testimony” contained within the autopsy report. N.T., 1/14/22,
at 74. That is, Mother’s counsel indicated:
It is opinion testimony that is not admissible. The document
as to maybe simple data could be admissible, but any opinion is
an opinion of Dr. Emery’s, and which is obviously unreliable since
Dr. Chu did not do what Dr. Emery did back in 2020. So, it’s
totally unreliable and should be inadmissible.
Id. at 74. The trial court overruled the objection. Id. at 76.
Assuming, arguendo, the opinions contained in the autopsy report were
inadmissible under the business records exception to the hearsay rule, Mother
was not prejudiced by the court’s error since the report was cumulative of Dr.
Chu’s properly admitted expert opinions. See Brenner, supra (holding that
where forensic report was testimonial hearsay and improperly admitted due
to author being unavailable and the defendant not having a prior opportunity
to cross-examine him, the introduction of the report was harmless since
cumulate of other expert’s proper testimony).
For all of the foregoing reasons, we affirm the trial court’s orders.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2022
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