CONFRONTATION CLAUSE OF THE CONSTITUTION NOT VIOLATED BY ADMISSION OF MEDICAL RECORDS OF VICTIM
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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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Notice of Claim Later than 60 Days After Expiration is Too Late
Post 5089
Injury at Massage Causes Suit Against Therapist
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Hiscox Insurance Company (“Hiscox”) moved the USDC to Dismiss a suit for failure to state a claim because the insured reported its claim more than 60 days after expiration of the policy.
In Mluxe Williamsburg, LLC v. Hiscox Insurance Company, Inc., et al., No. 4:25-cv-00002, United States District Court, E.D. Missouri, Eastern Division (May 22, 2025) the trial court’s judgment was affirmed.
FACTUAL BACKGROUND
Plaintiff, the operator of a massage spa franchise, entered into a commercial insurance agreement with Hiscox that provided liability insurance coverage from July 25, 2019, to July 25, 2020. On or about June 03, 2019, a customer alleged that one of Plaintiff’s employees engaged in tortious ...
ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Posted on June 2, 2025 by Barry Zalma
Post 5087
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Read the full article and the full issue of ZIFL June 1, 2025 at https://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-06-01-2025.pdf
Zalma’s Insurance Fraud Letter – June 1, 2025
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ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Read the full article and the full issue of ZIFL June 1, 2025 at https://lnkd.in/gTWZUnnF
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 ...
No Coverage if Home Vacant for More Than 60 Days
Failure to Respond To Counterclaim is an Admission of All Allegations
Post 5085
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In Nationwide Mutual Insurance Company v. Rebecca Massey, Civil Action No. 2:25-cv-00124, United States District Court, S.D. West Virginia, Charleston Division (May 22, 2025) Defendant Nationwide Mutual Insurance Company's (“Nationwide”) motion for Default Judgment against Plaintiff Rebecca Massey (“Plaintiff”) for failure to respond to a counterclaim and because the claim was excluded by the policy.
BACKGROUND
On February 26, 2022, Plaintiff's home was destroyed by a fire. At the time of this accident, Plaintiff had a home insurance policy with Nationwide. Plaintiff reported the fire loss to Nationwide, which refused to pay for the damages under the policy because the home had been vacant for more than 60 days.
Plaintiff filed suit ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
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/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
A Heads I Win, Tails You Lose Story
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Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...