CONFRONTATION CLAUSE OF THE CONSTITUTION NOT VIOLATED BY ADMISSION OF MEDICAL RECORDS OF VICTIM
Post 4908
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Michael McCullough appealed from the judgment of sentence imposed following his convictions for one count each of aggravated assault, person not to possess a firearm, carrying a firearm without a license and recklessly endangering another person.
In Commonwealth Of Pennsylvania v. Michael McCullough, No. 824 WDA 2022, No. J-A18038-24, 2024 PA Super 221, Superior Court of Pennsylvania (September 24, 2024) McCullough challenged his conviction on constitutional ground claiming he was unable to confront a witness against him.
FACTS – 10-20 YEARS IN JAIL
On March 4, 2019, authorities responded to a shooting in downtown Pittsburgh. The victim, Lawrence Toombs, was encountered laying on the sidewalk near the intersection of Liberty Avenue and Seventh Street with two bullet wounds in the left, upper chest. The jury was shown video footage of the shooting, still photographs of the shooting and video footage of the suspect’s flight from the scene. Gunshot testing of McCullough’s right hand was positive for gunshot residue.
Following his conviction of the above-mentioned charges, Appellant was sentenced to an aggregate term of 10 to 20 years of incarceration followed by a 2-year period of probation.
CLAIMS ON APPEAL
Appellant raises the following two claims in this appeal:
1. Whether the trial court abused its discretion and/or erred by allowing the medical records and certification that the medical records were the victim’s medical records when the certification was testimonial and in violation of the Confrontation Clause of the Sixth Amendment?
2. Whether the trial court abused its discretion and/or erred by allowing redacted medical records into evidence when redacted medical records are not permitted to be entered into evidence under the medical records exception to the hearsay rule when the records were not a true and complete reproduction?
Appellant first argued that his rights to confrontation were violated when the Commonwealth failed to produce a witness at his trial who could testify that the copy of the victim’s medical records that were admitted at trial were true and accurate.
Issues related to whether the admission of evidence violated an accused’s rights under the Confrontation Clause are questions of law. The Sixth Amendment’s Confrontation Clause generally prohibits the admission of hearsay statements that are “testimonial” in nature. Stated differently, testimonial evidence has a primary purpose of creating an out-of-court substitute for trial testimony.
If a statement is not intended to be used to prove an element of a crime, the statement may be non-testimonial. Examples of this would include calibration and accuracy certificates for Breathalyzers or other devices that test the alcohol content of someone’s breath. These certificates merely certify the reliability of the device.
Looking at the purpose served by the evidence the court noted that the records in question are medical records relating to treatment given to the non-testifying victim for injuries suffered in the shooting. Because the victim did not testify, the prosecutor sought to introduce the victim’s medical records and accompanying certification to establish the victim’s injuries. As objective information, the records are not testimonial for the Court of Appeals’ purposes.
Since a medical records certificate does not vouch for the substance of those records but merely certifies that the hospital furnished accurate copies of records, the certificate was not testimonial. Accordingly, there was no Confrontation Clause violation.
The victim’s personal identifying information contained in the medical records was irrelevant at Appellant’s trial. The only purpose served by the medical records was to show that the victim in this case suffered a serious bodily injury. The jury did not need to know the victim’s address, birthdate, social security number, or who his insurance company was.
The information about the victim’s injuries was not limited to the medical records in question. Video evidence of the incident showed Appellant raise his arm while holding a firearm and shoot twice directly at the victim. The victim was also found lying in a pool of blood, and Detective Corey Adelsberger testified to inspecting the victim and discovering two gunshot wounds.
The Court of Appeals concluded that the Appellant suffered no prejudice and is not entitled to relief on his claims so the judgment of sentence affirmed.
ZALMA OPINION
The US Constitution gives a criminal defendant the right to confront witnesses against him. McCullough tried to defeat his conviction by claiming he was not allowed to confront the custodian of records of the hospital that treated the victim he shot twice. Since all the custodian attested to was that the copy prepared was an accurate copy of the victims records. There was no testimony and the records established that the victim suffered serious injuries which, when added to the testimony of the police officer who found him in a pool of blood with two bullet wounds to the chest who was available to confront. A serious criminal seeking appellate relief for his obvious guilt.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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ZIFL Volume 30, Number 2
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5260
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ This issue contains the following articles about insurance fraud:
Read the full 19 page issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/01/ZIFL-01-15-2026.pdf.
The Contents of the January 15, 2026 Issue of ZIFL Includes:
Use of the Examination Under Oath to Defeat Fraud
The insurance Examination Under Oath (“EUO”) is a condition precedent to indemnity under a first party property insurance policy that allows an insurer ...
ERISA Life Policy Requires Active Employment to Order Increase in Benefits
Post 5259
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In Katherine Crow Albert Guidry, Individually And On Behalf Of The Estate Of Jason Paul Guidry v. Metropolitan Life Insurance Company, et al, Civil Action No. 25-18-SDD-RLB, United States District Court, M.D. Louisiana (January 7, 2026) Guidry brought suit to recover life insurance proceeds she alleges were wrongfully withheld following her husband’s death on January 9, 2024.
FACTUAL BACKGROUND
Jason Guidry was employed by Waste Management, which provided life insurance coverage through Metropolitan Life Insurance Company (“MetLife”). Plaintiff contends that after Jason’s death, the defendants (MetLife, Waste Management, and Life Insurance Company of North America (“LINA”)) engaged in conduct intended to confuse and ultimately deny her entitlement to...
Failure to Respond to Motion to Dismiss is Agreement to the Motion
Post 5259
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In Mercury Casualty Company v. Haiyan Xu, et al., No. 2:23-CV-2082 JCM (EJY), United States District Court, D. Nevada (January 6, 2026) Plaintiff Mercury Casualty Company (“plaintiff”) moved to dismiss. Defendant Haiyan Xu and Victoria Harbor Investments, LLC (collectively, “defendants”) did not respond.
This case revolves around an insurance coverage dispute when the parties could not be privately resolved, litigation was initiated in the Eighth Judicial District Court of Nevada. Plaintiff subsequently filed for a declaratory judgment in this court.
On or about April 15, 2025, the state court action was dismissed with prejudice pursuant to a stipulation following mediation. Plaintiff states that the state court dismissal renders its ...
Court Must Follow Judicial Precedent
Post 5252
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Insurance Policy Interpretation Requires Application of the Judicial Construction Doctrine
In Montrose Chemical Corporation Of California v. The Superior Court Of Los Angeles County, Canadian Universal Insurance Company, Inc., et al., B335073, Court of Appeal, 337 Cal.Rptr.3d 222 (9/30/2025) the Court of Appeal refused to allow extrinsic evidence to interpret the word “sudden” in qualified pollution exclusions (QPEs) as including gradual but unexpected pollution. The court held that, under controlling California appellate precedent, the term “sudden” in these standard-form exclusions unambiguously includes a temporal element (abruptness) and cannot reasonably be construed to mean ...
Lack of Jurisdiction Defeats Suit for Defamation
Post 5250
Posted on December 29, 2025 by Barry Zalma
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He Who Represents Himself in a Lawsuit has a Fool for a Client
In Pankaj Merchia v. United Healthcare Services, Inc., Civil Action No. 24-2700 (RC), United States District Court, District of Columbia (December 22, 2025)
FACTUAL BACKGROUND
Parties & Claims:
The plaintiff, Pankaj Merchia, is a physician, scientist, engineer, and entrepreneur, proceeding pro se. Merchia sued United Healthcare Services, Inc., a Minnesota-based medical insurance company, for defamation and related claims. The core allegation is that United Healthcare falsely accused Merchia of healthcare fraud, which led to his indictment and arrest in Massachusetts, causing reputational and business harm in the District of Columbia and nationwide.
Underlying Events:
The alleged defamation occurred when United ...
Zalma’s Insurance Fraud Letter
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ZIFL Volume 29, Issue 24
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/
Zalma’s Insurance Fraud Letter
Merry Christmas & Happy Hannukah
Read the following Articles from the December 15, 2025 issue:
Read the full 19 page issue of ZIFL at ...