Confrontation Clause; Testimonial Statements
Commonwealth v. Weeden, 253 A.3d 329 (Pa. Super. 2021), allocatur granted May 11, 2022, appeal docket 19 WAP 2022
This case arises from Angelo Weeden’s (Weeden) conviction for assault on his former girlfriend, Alyssa Houston (Houston). The relevant factual and procedural background, as summarized by Superior Court on appeal, is as follows:
At Weeden’s December 2019 jury trial, Houston testified that she and Weeden remained friends after they ended their romantic relationship. However, Houston ended the friendship on the afternoon of December 15, 2018, because of Weeden’s intrusiveness into her life and her new romantic relationship. Later that day, at about 5:30 p.m., Houston, [Heather] Lamb [(Lamb)] and [Lamb’s eight-year-old daughter (Child)], left Lamb’s house and got into Lamb’s vehicle to go shopping. Houston noticed Weeden’s Volkswagen Jetta parked nearby and Weeden began to drive directly behind them down a narrow street. When Lamb left the main road to enter a residential area, Weeden pulled up around the drivers’ side of her car and blocked it, preventing her from moving forward.
Weeden exited his vehicle and approached the passenger side of Lamb’s car where Houston was sitting. Houston locked her car door and Weeden aggressively attempted to pull it open. Lamb quickly put her car in reverse and backed around Weeden’s vehicle. As Lamb drove away, Houston heard four gunshots, two of which struck their vehicle on the passenger side. They drove to the police station and reported the incident. . . .
City of Pittsburgh Police Department Detective Richard Baumgart testified regarding the department’s use of a gun detection program called ShotSpotter technology in its investigations. Detective Baumgart explained that this program uses scientific algorithms and sensors to pinpoint the location of possible gunshots. The system detects gunfire within a 30-foot radius and automatically generates a report that gives the date, time and location of the shots. Once the report is generated, trained operators immediately listen to the audio recordings to verify the report before sending it to the police department. Police officers are typically dispatched to the area very quickly after a gunshot is detected, within one to two minutes. All officers in the department, including Baumgart who trained colleagues, are taught to understand how the ShotSpotter system operates and how to use it as a resource when shots are fired. The operators and police have also been trained to differentiate between the sound of gunshots and other similarly loud sounds, such as a firecracker pattern.
The Commonwealth marked the ShotSpotter report generated in the instant case, titled “ShotSpotter Investigative Lead Summary” as Exhibit 4. . . . This document was generated by the ShotSpotter computer system and was not amended by any individual.
On cross-examination, Detective Baumgart testified that he had not been certified by ShotSpotter not did he prepare the report in this case.
Slip op. at 2-4 (internal citations omitted). The trial court admitted the report over the objection by defense counsel on grounds of hearsay and confrontation clause errors:
Detective Baumgart testified to the substance of the report, specifically, that two shots were detected by the ShotSpotter system on December 15, 2018, at 7:43 p.m. in the area of 3400 Shadeland Avenue. The detective opined that although the system was not 100 percent precise in detecting the presence of gunfire, it was, in his experience, “very accurate.”
Slip op. at 6
The jury found Weeden guilty of one count each of aggravated assault, person not to possess a firearm, carrying a firearm without a license, propulsion of missiles into an occupied vehicle, and three counts of recklessly endangering another person. Weeden’s appeal challenged, among other alleged errors, the admission of the ShotSpotter report on Confrontation Clause grounds.
On appeal, Weeden argued that the ShotSpotter report was testimonial in nature “because it was offered to prove the precise time and location of the gunshots, and that he should have been afforded the opportunity to cross-examine the declarant of the document.” Slip op. at 10. Weeden maintained that Detective Baumgart’s testimony was lacking because he was not involved with the creation of the ShotSpotter report.
Superior Court laid out the principles of the Confrontation Clause, which protects a criminal defendant’s right to confront witnesses testifying against him. Superior Court explained that testimonial statements of an absent witness can only be admitted where the declarant is unavailable and where the defendant had a prior opportunity to cross-examine. In concluding that there are no Confrontation Clause issues with the ShotSpotter report, Superior Court first explained that it was not possible to cross-examine the declarant of the report because the report was automatically generated by a computer system. Superior Court pointed to the disclaimer explaining that the report had not been independently reviewed by ShotSpotter’s forensic engineers and that the data should be corroborated with other evidentiary sources. Further, Superior Court stated that the report was not amended or altered by any individual and that “no one individual could be considered its author.” Slip op. at 11.
Superior Court next addressed the testimonial nature of the ShotSpotter report. “Statements to police are testimonial and thus subject to Confrontation Clause restraints when their primary purpose is to establish or prove past events for purposes of proof at a criminal trial.” Slip op. at 12 (quoting Commonwealth v. Brown, 185 A.3d 316, 325 (Pa. 2018 (internal quotations omitted). “ Generally, statements are nontestimonial when made under circumstances objectively indicating that the primary purpose of the statement is to enable police to meet an ongoing emergency.” Slip op. at 12. Statements are testimonial when there is no ongoing emergency and the primary purpose “is to establish or prove past events potentially relevant to the later criminal prosecution.” Slip op. at 12. Applying the law to the facts of this case, Superior Court concluded that the primary purpose of the ShotSpotter report was not to establish or prove past events related to a later criminal prosecution. “Instead, the computer-generated report was sent to the police department within one to two minutes of the ShotSpotter system’s detection of gunshots. It was provided during the unfolding of an ongoing emergency or what was likely an emergency situation.” Slip op. at 12. Therefore, Superior Court concluded, the ShotSpotter report was not testimonial in nature and did not raise Confrontation Clause concerns.
The Supreme Court granted allocatur to consider the following issue:
Whether a “Shotspotter Investigative Lead Summary” written report, which purports to show the time and location of a shooting incident and was offered as substantive evidence to the jury at trial, is testimonial in nature and subject to the protections afforded under the Confrontation Clause enshrined in the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.
For more information, contact Kevin McKeon or Dennis Whitaker.