Commonwealth v. Weeden, A., Aplt. ( 2023 )

[J-12-2023]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 19 WAP 2022
:
Appellee : Appeal from the Order of the
: Superior Court entered May 26,
: 2021 at No. 582 WDA 2020,
v. : affirming the Judgment of Sentence
: of the Court of Common Pleas of
: Allegheny County entered February
ANGELO WEEDEN, : 24, 2020 at No. CP-02-CR-
: 0000513-2019.
Appellant :
: ARGUED: April 18, 2023
OPINION
CHIEF JUSTICE TODD DECIDED: NOVEMBER 16, 2023
In this appeal by allowance, we consider whether a printed summary created by a
computerized system, “ShotSpotter,” which contemporaneously collects data regarding
potential gunshots and transmits the same to the subscribing police force, falls within the
purview of the Confrontation Clause when used as evidence in the course of a criminal
prosecution. For the reasons that follow, we conclude that, under the circumstances
presented, the admission of the document did not run afoul of Appellant Angelo Weeden’s
rights under the Confrontation Clause. Accordingly, we affirm.
I. Background
At approximately 5:30 p.m. on December 15, 2018, Alyssa Houston, Heather
Lamb, and Lamb’s eight-year-old daughter exited Lamb’s house and departed in Lamb’s
vehicle to go shopping. Houston noticed that Appellant was following directly behind
Lamb’s vehicle in his Volkswagen Jetta, tailing them down a narrow street.1 When Lamb
drove off of the main road to enter a residential area in the North Side neighborhood of
the City of Pittsburgh (the “City”), Appellant pulled around the driver’s side of her vehicle
and blocked its forward movement. Appellant then exited his vehicle and approached the
passenger side of Lamb’s car, prompting Houston, who was sitting in the passenger-side
front seat, to lock the car door. As Appellant aggressively attempted to pull the
passenger-side front door open, Lamb’s daughter yelled “gun,” and Lamb quickly placed
her car in reverse, backed around Appellant’s vehicle, and began to drive away.
Simultaneously, the occupants of Lamb’s vehicle heard four gunshots, two of which struck
Lamb’s vehicle on the rear passenger side. Consequently, Lamb drove to the police
station, and she and Houston reported the incident.
The following day, Appellant was arrested, and the Commonwealth charged him
with one count each of aggravated assault, person not to possess a firearm, carrying a
firearm without a license, and propulsion of missiles into an occupied vehicle, and three
counts of recklessly endangering another person.2 The case subsequently proceeded to
a jury trial, at which Houston and Lamb testified consistently with the foregoing.
Additionally, and relevant to the instant appeal, Detective Richard Baumgart, a 19-year
veteran with the City’s Bureau of Police (the “Bureau”), testified as a witness for the
Commonwealth, detailing the Bureau’s use of a gunfire detection program, “ShotSpotter.”
More specifically, Detective Baumgart testified that “ShotSpotter is a gun detection
program that is contracted through an outside party, by the [C]ity[,] through a company,
1 Notably, Houston had been romantically entwined with Appellant for six years.
Although
Houston ended the romantic relationship earlier in 2018, she and Appellant remained
friends until she ended the friendship altogether on the morning of December 15, 2018,
due, in part, to Appellant’s intrusiveness.
2 18 Pa.C.S. §§ 2702(a)(1), 6105(a)(1), 6106(a)(1), 2707(a), and 2705, respectively.
[J-12-2023] - 2
ShotSpotter,” noting that the ShotSpotter program covers certain areas within the City’s
limits with the aim of detecting, triangulating, and pinpointing the location of any loud
“bang, boom[,] or pop” noises via scientific algorithms. N.T., 12/4/19, at 92. Detective
Baumgart explained that, when ShotSpotter detects such a sound, the program
automatically documents the data and sends it, “[w]ithin seconds,” to a human operator
in California, who then reviews the noise to discern whether it was a gunshot. Id. at 95.
According to Detective Baumgart, “these operators have gone through . . . hundreds of
hours of training through ShotSpotter to be able to recognize the difference between the
pattern and the sound that they would hear with a fire cracker pattern and the sound that
they would . . . hear with a gunshot.” Id. The detective further expounded that, if a human
operator believes that a sound captured by the ShotSpotter program was a gunshot, the
operator will send the information back to the Bureau, which then dispatches officers to
the vicinity of the shots fired. Detective Baumgart related that, typically, this process
happens quickly, such that the Bureau receives notification of a shot within a minute after
the program initially detects a gunshot and dispatches its officers shortly thereafter.
Notably, Detective Baumgart acknowledged that ShotSpotter is “not completely
foolproof,” conceding that misidentifications may occur when a human operator errs in
determining whether a sound is a gunshot. Id. at 96. Indeed, Detective Baumgart stated
that, at times, “officers have been dispatched to gunshots where there weren’t gunshots,
and vice versa.” Id. Nevertheless, Detective Baumgart opined that the ShotSpotter
system is “very accurate” in detecting the presence of gunfire. Id. at 118.
Pertinent herein, the Commonwealth proffered into evidence, via Detective
Baumgart, a “ShotSpotter Investigative Lead Summary” (the “ShotSpotter Summary” or
the “Summary”) related to the underlying incident in this case,3 over the defense’s
3 The Commonwealth marked the Summary as “Commonwealth Exhibit 4.”
[J-12-2023] - 3
objection that admitting the Summary into evidence violated Appellant’s rights under the
Confrontation Clauses of the United States and Pennsylvania Constitutions,4 each of
which provides that an accused in a criminal prosecution has the right “to be confronted
with the witnesses against him.” See U.S. Const. amend. VI; Pa. Const. art. 1, § 9. With
respect to the Summary, Detective Baumgart explained that, when ShotSpotter detects
a relevant sound, the program automatically generates a written summary which provides
the date, time, and location of the suspected gunshot. He noted that, after the summary
is automatically generated, updates may be added by the ShotSpotter operators to depict
information obtained by the responding police officers.
Turning to the specifics of this case,5 Detective Baumgart testified that the
Summary showed that officers were dispatched to 3400 Shadeland Avenue on the City’s
North Side, at approximately 7:43 p.m. on December 15, 2018, after ShotSpotter detected
two possible gunshots fired at that location. On cross-examination, Detective Baumgart
acknowledged that, despite his training with the program, he had not been certified by
ShotSpotter and was not involved in preparing the Summary in this case. Detective
Baumgart further admitted that he was unsure whether the dataset contained in the
ShotSpotter Summary was ever reviewed by any human ShotSpotter operator, while
noting that a human review component typically occurs in the ShotSpotter process.
Notably, although the date of the shooting incident was December 15, 2018, the
Summary was not created until July 3, 2019, upon request by a ShotSpotter employee,
identified by company email address “TTRANH@SHOTSPOTTER.COM.” See
ShotSpotter Summary at 1 (Appendix D to Appellant’s Brief). In addition to providing the
4 Appellant also levied a hearsay objection.
5 Detective Baumgart conceded that he was not involved in the underlying investigation
in this matter.
[J-12-2023] - 4
time, date, and location of the possible gunfire and a map of the same, the Summary
includes a general description of the ShotSpotter program.6 The Summary also explains
that the “shot count, times, and locations” contained therein “were automatically
calculated by the ShotSpotter system at the time of detection,” cautioning that those
values “are approximate and should be deemed as such,” and that “[t]he number of
individual shots [depicted] may not match the round count reported” on the first page of
the document “if an Incident Reviewer adjusted the round count during incident review
prior to publication.”7 Id. at 2.
6 Specifically, the Summary provides:
ShotSpotter uses strategically placed acoustic sensors to
detect and locate gunshots within a coverage area. The
locations of the gunshots are calculated using audio pulse
data and multilateration. Machine learning algorithms analyze
and classify the sounds before they are reviewed by acoustic
experts at the Incident Review Center. Within seconds,
Incident Reviewers add relevant tactical intelligence and
publish confirmed gunshots to ShotSpotter subscribers.
ShotSpotter Summary at 3.
7 The Summary includes an express disclaimer to this effect:
The Investigative Lead Summary is produced using data
automatically generated by the ShotSpotter system and has
not been independently reviewed by our Forensic Engineers.
Although it provides precise trigger-pull location and timing as
determined automatically by the ShotSpotter system, this
summary should only be used for initial investigative purposes
because the shot timing, location, and count could differ once
reviewed by a ShotSpotter Forensic Engineer. Factors, such
as obstructed or attenuated muzzle blast, weapon discharge
in an enclosed space, or if the weapon discharged is of .25 or
smaller caliber, may prevent the sensor(s) from detecting all
or some of the shots fired. This summary has been generated
solely for the purpose for which it is provided. Nothing herein
shall to any extent substitute for the independent investigation
of the shooting incident. The data and conclusions herein
(continued…)
[J-12-2023] - 5
The Commonwealth procured additional testimony surrounding the details of the
December 15, 2018 shooting incident via another member of the Bureau, Officer Jacob
Botzenhart, who was on duty when the Bureau received the relevant ShotSpotter
notification at approximately 7:43 p.m. on that date. Officer Botzenhart explained that,
while he was not one of the officers sent to investigate the possible gunshots recorded
by the ShotSpotter system, he eventually became the lead officer in charge of the
investigation, as, two minutes after the officers responded to the ShotSpotter report,
Houston and Lamb arrived at the police station and reported the shooting incident which
had occurred minutes earlier. According to Officer Botzenhart, Houston and Lamb
informed him that they had heard gunshots as they attempted to drive away from
Appellant in the vicinity of Shadeland Avenue. Officer Botzenhart related that, upon
subsequently searching the location at which the shots were allegedly fired, he and other
officers found no physical evidence of gunfire. Officer Botzenhart likewise conceded that
searches of Appellant’s home and vehicle yielded no physical evidence. However,
Detective James Sherer testified that he observed damage to Lamb’s car, which he
believed was caused by bullets striking the vehicle, and the Commonwealth introduced
photographs taken by Detective Sherer of that damage into evidence, without objection
from the defense.
For his part, Appellant proffered evidence indicating that he supported Houston
financially during their relationship, that she was unemployed in December 2018, and that
multiple people were supporting her financially at that time. Appellant also presented
testimony from two witnesses who attested that, on the evening of the shooting incident,
should be corroborated with other evidentiary sources such
as recovered shell casings and witness statements.
Id.
[J-12-2023] - 6
Appellant was with them playing video games and eating soup and did not leave until the
following morning.
Ultimately, the jury found Appellant guilty of the above-listed offenses,8 and the
trial court later sentenced him to an aggregate term of 10 to 20 years imprisonment.
Thereafter, Appellant appealed, asserting, inter alia, that the trial court violated his right
to confrontation under the state and federal constitutions by admitting the Summary into
evidence, as, in his view, the Summary was testimonial in nature, such that he should
have been afforded the opportunity to cross-examine the declarant who created it.9
Appellant maintained that his cross-examination of Detective Baumgart did not serve this
purpose because the detective had no role in creating the Summary.10
In its opinion issued pursuant to Pa.R.A.P. 1925(a), the trial court concluded that
Appellant was due no relief on his constitutional challenge, as he failed to specify
precisely who he wished to confront. The trial court reasoned that it could not “be found
to have erred in refusing Appellant his right to cross-examine a witness who simply does
not exist or has not been identified by Appellant.” Trial Court Opinion, 8/13/20, at 9.
Accordingly, the trial court rejected Appellant’s right-to-confrontation claim.
In a unanimous, published opinion authored by Senior Judge Dan Pellegrini, the
Superior Court affirmed. Commonwealth v. Weeden, 253 A.3d 329 (Pa. Super. 2021).
Noting that the Confrontation Clause “protects a criminal defendant’s right to confront
8 The trial court separately convicted Appellant of the persons not to possess a firearm
charge, as Appellant had a previous second-degree murder conviction.
9 While Appellant invoked our state constitution’s confrontation clause, which, as noted
above, employs the same language as its federal counterpart, he did not below – and
does not before us – argue that Pennsylvania’s right to confrontation is more expansive
than the federal right to confrontation.
10 Appellant also renewed his hearsay-based challenge to the Summary, and he
challenged the trial court’s rulings with respect to other evidence involved in his trial, but
those claims are not at issue before this Court.
[J-12-2023] - 7
witnesses testifying against him,” the court opined that it was “not possible to cross-
examine the declarant of the ShotSpotter [Summary] because it was automatically
generated by a computer system and was not prepared by a person.” Id. at 336 (citing
Crawford v. Washington, 541 U.S. 36, 51 (2004)). To that end, the court observed that
the Summary “was not altered or amended by any person and no one individual can be
considered its author.” Id. Indeed, the court emphasized that the Summary expressly
advised that the document was not independently reviewed by ShotSpotter’s forensic
engineers and that the data provided therein should be corroborated by other evidence,
such as witness statements.
Moreover, and in any event, the court concluded that introduction of the Summary
into evidence did not violate Appellant’s right to confrontation because the document was
not testimonial in nature. In this regard, the court stressed that “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.” Id. (citing
Commonwealth v. Brown, 185 A.3d 316, 325 (Pa. 2018)). The court noted that, rather,
“statements are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency and that the primary purpose of the document is to establish or
prove past events potentially relevant to later criminal prosecution.” Id. (citing Brown, 185
A.3d at 325). Bearing in mind these notions, the court found that, here, the Summary
was not created to establish or prove past events for purposes of a subsequent criminal
prosecution. Instead, the court determined that the Summary, which was computer-
generated and sent to the Bureau within two minutes of the ShotSpotter system’s
detection of possible gunshots, “was provided during the unfolding of an ongoing
emergency or what was likely an emergency situation,” as the detection of gunfire
“signaled an immediate crisis involving potential serious injury.” Id. Thus, the court
[J-12-2023] - 8
concluded that the Summary was not testimonial in nature and, therefore, did not
implicate Confrontation Clause concerns. Accordingly, the court affirmed Appellant’s
judgment of sentence.
Appellant subsequently filed a petition for allowance of appeal with our Court, and
we granted review on 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.
Commonwealth v. Weeden, 278 A.3d 305 (Pa. 2022) (order).11
II. Arguments
Presently, Appellant argues that the Superior Court erred in concluding that
admission of the ShotSpotter Summary into evidence at trial did not violate his right to
confrontation because the Summary was not prepared by a person and was not
testimonial in nature. First addressing the underlying nature of the Summary, Appellant
maintains that the document was testimonial, as it was not created in response to an
ongoing emergency. In that regard, Appellant stresses that, while the initial
communication made by ShotSpotter to the Bureau upon detecting possible gunshots
was intended to assist law enforcement in promptly responding to the scene of an alleged
shooting, the Summary itself “was generated over six months after the alleged shooting,”
thus “undermin[ing] the Superior Court’s determination that the purpose of the [Summary]
11 Whether the admission of the ShotSpotter Summary into evidence violated Appellant’s
rights under the Confrontation Clause is a question of law, for which our standard of
review is de novo and our scope of review is plenary. See Commonwealth v. Yohe, 79
A.3d 520, 530 (Pa. 2013) (citation omitted).
[J-12-2023] - 9
was to respond to an emergency.” Appellant’s Brief at 17. Indeed, Appellant asserts that,
because he was taken into police custody pursuant to an arrest warrant the day after the
alleged shooting incident, there was clearly no ongoing emergency at the time the
Summary was generated on July 3, 2019, as the Commonwealth’s prosecution of
Appellant “was well underway.” Id. Based on the delayed creation of the Summary,
Appellant contends that its intended purpose was undoubtedly “to prove at trial that
gunshots were fired at a specific time and location.” Id.Appellant further argues that the creation of the Summary included a significant
human component, emphasizing the disclaimer language included therein which
indicates that the report is reviewed by a human. Relatedly, Appellant highlights that, in
his testimony, Detective Baumgart clarified that, generally, ShotSpotter includes a human
review process, although the detective was unsure whether such a process occurred in
this case. Appellant claims that the Superior Court’s conclusion that the creator of the
Summary may not be subject to cross-examination because the Summary was computer-
generated overlooks the human involvement in the creation of ShotSpotter summary
reports, including the fact that the reviewer has the ability to adjust and add to a report.
From Appellant’s perspective, the Superior Court’s determination that the Summary was
not altered or amended by any person is inconsistent with the record evidence, as, in his
view, it is unclear whether the Summary included any human amendments or intervention
“because the Commonwealth’s witness had no knowledge of whether any of that
occurred.” Id. at 22.
Asserting that the Summary was “plainly testimonial in nature,” given that, in his
view, it was offered “to prove the precise time and location of the alleged shooting
incident,” id., Appellant maintains that he should have been “afforded an opportunity to
confront the declarant with respect to this evidence,” id. at 22-23 (emphasis omitted).
[J-12-2023] - 10
Appellant notes that, during sidebar, defense counsel argued that he had a right to cross-
examine whichever human inspector had input in the Summary; Appellant proffers that,
consistent with his counsel’s argument in this regard, he was, at the very least, entitled to
cross-examine the human ShotSpotter operator who reviewed the initial data when the
ShotSpotter system first detected the potential gunshots in this incident. Furthermore,
Appellant suggests that, “to the extent that a [f]orensic [e]ngineer also reviewed the data,
that person . . . also [should have been] subject to cross-examination.” Id. at 23.
According to Appellant, his ability to confront these witnesses involved in reviewing and
potentially altering the data contained in the ShotSpotter Summary was paramount to his
defense, and the trial court’s decision to admit the Summary into evidence without
permitting him the opportunity to challenge the information contained therein via cross-
examination deprived him of his constitutional right to confrontation.
Relatedly, Appellant contends that Detective Baumgart served as nothing more
than a “surrogate witness” with respect to the ShotSpotter Summary, as “he had no role
in creating the [Summary] and thus could not speak to its reliability.” Id. at 24. In this
vein, Appellant maintains that the detective’s testimony did not satisfy Appellant’s
confrontation rights because the United States Supreme Court has disapproved of
surrogate testimony. See Bullcoming v. New Mexico, 564 U.S. 647, 661 (2011) (stating
that “the analysts who write reports that the prosecution introduces must be made
available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and
the veracity of Mother Teresa’” (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305,
320 n.6 (2009)). Appellant also notes that an appellate court in Illinois concluded that a
trial court erred in admitting a ShotSpotter summary into evidence.12 See People v.
12 Notably, the prosecution in that case conceded that the summary was testimonial in
nature.
[J-12-2023] - 11
Robinson, 2022 WL 123358 (Ill. App. Ct. 2022). Finally, Appellant suggests that the
Summary is inherently unreliable,13 noting that the disclaimer included in the document
“makes it clear that the document is not intended for use at trial.” Appellant’s Brief at 25.
With little in the way of analysis, Appellant likewise contends that the “mandatory human
review of [the] machine-generated evidence demonstrates the limits of [ShotSpotter’s]
reliability.”14 Id. at 26. Thus, Appellant urges our Court to reverse the Superior Court’s
decision and determine that the trial court erred in admitting the Summary into evidence. 15
13 The Commonwealth responds that Appellant waived this reliability-based challenge to
the Summary’s admissibility by failing to raise it before the trial court. The Commonwealth
also suggests that, to the extent that Appellant attempts to incorporate such a claim into
his overall argument that the Summary was testimonial in nature, he neglected to
sufficiently develop his argument, again rendering it waived. We agree that Appellant
failed to preserve his challenge to the Summary on reliability grounds, as he did not raise
such a claim in the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court
are waived and cannot be raised for the first time on appeal.”); cf. Commonwealth v.
Wallace, 289 A.3d 894, 908 (Pa. 2023) (declining to consider an appellant’s
authentication challenge to GPS data because he raised only a hearsay-based challenge
to the evidence before the lower courts, rendering the authentication-based claim waived
under Pa.R.A.P. 302(a)). Regardless, Appellant’s reliability argument falls beyond the
scope of the question we accepted for consideration, which plainly focuses on the
testimonial nature of the Summary under the Confrontation Clause, not the reliability
thereof.
14 Appellant additionally undertakes a harmless error analysis, arguing that admission of
the Summary into evidence prejudiced him, that the Summary was not cumulative of other
evidence adduced at trial, and that his conviction was otherwise based solely on
circumstantial evidence, which he believes he countered by way of his alibi defense. In
light of our disposition, however, we need not further detail Appellant’s argument in this
regard, as we conclude that the trial court did not err in admitting the Summary into
evidence.
15 The Innocence Project, Inc., and the American Civil Liberties Union of Pennsylvania
filed an amicus brief in support of Appellant. Therein, amici predominantly argue that the
ShotSpotter system is unreliable and untested, scientifically, despite the fact that
Appellant failed to preserve a reliability or authentication-based challenge to the
Summary. In so doing, amici deride the ShotSpotter system as “fundamentally
subjective,” Amici’s Brief at 5, given that the software does not automatically send out an
alert to law enforcement upon capturing a loud noise or automatically create a summary
report, but, instead, utilizes ShotSpotter operators, who “are not forensic audio experts,”
(continued…)
[J-12-2023] - 12
The Commonwealth counters that Appellant misapprehends the nature of the
evidence at issue, maintaining that, “when the focus is properly placed on the actual
information that was admitted by the trial court—information that was strictly computer-
to send out such alerts following a brief review of the detected sound, id. at 7. From
amici’s perspective, “[e]very stage of ShotSpotter’s gunshot detection process . . . is
unvetted and riddled with opportunities for human intervention and error.” Id. at 8.
Likewise, amici claim that the algorithm used in the ShotSpotter system is flawed and
unreliable at detecting gunfire and its precise location, stressing that the ShotSpotter
company has not permitted outside experts to test the veracity of the program. Amici
posit that “flawed” forensic evidence, including from technological means similar to the
ShotSpotter program, is a “leading cause of wrongful convictions,” id. at 17, noting that
jurors oft “give outsized weight to forensic evidence,” id. at 20 (citation omitted).
Amici next echo Appellant’s contention that the Summary constitutes testimonial
evidence, suggesting that Bullcoming, supra, supports the position that, without testimony
from an individual involved in preparing the document, admission thereof violated
Appellant’s right to confrontation. According to amici, several state courts have “similarly
found the admission of scientific reports alone, to violate the right to confrontation,” id. at
23, including the Delaware Supreme Court, see Martin v. State, 60 A.3d 1100, 1109 (Del.
2013) (concluding that admission of a blood-analysis report into evidence without
testimony from the author of that report violated the defendant’s right to confrontation).
Additionally, amici contend that the introduction of ShotSpotter summaries as evidence
runs afoul of defendants’ due process rights, asserting that “confrontation rights are an
indispensable element of the due process afforded to the accused.” Amici’s Brief at 26.
The Pennsylvania Association of Criminal Defense Lawyers (“PACDL”) also submitted an
amicus brief in support of Appellant, principally arguing that the Summary constitutes
inadmissible hearsay which does not fall within the business exception to the rule against
hearsay. Tangentially, PACDL asserts that the Summary is testimonial in nature and,
thus, subject to the Confrontation Clause, deriding the Superior Court’s determination that
the ShotSpotter Summary was not subject to confrontation because it was not prepared
by a person. In PACDL’s view, this was a mischaracterization of the Summary, given that
the document was specifically requested by a ShotSpotter representative and was
reviewed, and potentially supplemented, by another ShotSpotter operator. Lastly, like
Appellant’s other amici, PACDL challenges the Summary on reliability grounds,
suggesting that the Commonwealth failed to produce evidence describing the ShotSpotter
process and demonstrating that the program provides accurate results, consistent with
Pa.R.E. 901(b)(9) (requiring, for authentication purposes, “[e]vidence describing a
process or system and showing that it produces an accurate result”). PADCL urges our
Court to expound upon this provision of our Rules of Evidence, which it claims has never
been developed in the context of authentication, despite the proliferation of digital and
machine-generated proof in criminal trials.
[J-12-2023] - 13
generated prior to being memorialized on paper—it is clear that the evidence was
nontestimonial” and, thus, that admission of the document did not violate Appellant’s
confrontation rights. Commonwealth’s Brief at 13. The Commonwealth suggests that, to
find to the contrary, this Court would have to “elevate the piece of paper that the
ShotSpotter data was printed on above the data itself.” Id. at 16-17. In relation to this
contention, the Commonwealth offers that Detective Baumgart clearly testified that the
ShotSpotter system automatically generates a report containing the time, date, and
location of possible gunfire the moment a relevant noise is detected, and provides near-
immediate notification to law enforcement, such that the Summary, while not printed until
July 3, 2019, contained only information which was contemporaneously created and
recorded on December 15, 2018. Indeed, the Commonwealth avers that it is the initial
statement — i.e., “the immediate ShotSpotter alert as to the time, location, and number
of gunshots” — which is “actually at issue here,” and which was clearly intended to assist
law enforcement in addressing an ongoing emergency. Id. at 29. The Commonwealth
likens this data to other evidence deemed admissible by the high Court and this Court
over right-to-confrontation challenges. See Davis v. Washington, 547 U.S. 813, 827
(2006) (determining that a 911 recording which included the victim’s statements
identifying the defendant as her assailant was nontestimonial, as the 911 call “was plainly
a call for help against a bona fide physical threat,” in which the victim was merely providing
statements “necessary to be able to resolve the present emergency, rather than simply
to learn . . . what had happened in the past” (emphasis original)); Commonwealth v.
Dyarman, 73 A.3d 565, 574 (Pa. 2013) (finding that certificates demonstrating the
calibration and accuracy of a breathalyzer machine “were not prepared for the primary
purpose of providing evidence in a criminal case, let alone for the primary purpose of
accusing” the defendant, and, therefore, were “nontestimonial for purposes of the
[J-12-2023] - 14
Confrontation Clause”). In any event, the Commonwealth claims that Appellant waived
his assertion that the print date of the Summary proves that it is testimonial in nature, as
he failed to raise this aspect of his argument before the trial court.
Moreover, the Commonwealth challenges Appellant’s contention that the
Summary included a significant human review component which would render it
testimonial in nature, stressing that Detective Baumgart’s testimony and the Summary
itself readily contradict Appellant’s position. Specifically, the Commonwealth highlights
the Summary’s language which indicates that it was “produced using data automatically
generated by the ShotSpotter system and has not been independently reviewed by our
Forensic Engineers.” See ShotSpotter Summary at 3. The Commonwealth further
emphasizes that Detective Baumgart expressly testified that a forensic review is only
conducted with respect to a specific ShotSpotter incident at the request of police and that
such review was not requested or conducted in the case sub judice.
Relatedly, the Commonwealth discounts Appellant’s belief that he was entitled to
confront whichever human initially reviewed the incident when ShotSpotter first detected
the gunshots on December 15, 2018, arguing that Detective Baumgart’s testimony
illuminated that the Summary did not include any data other than that which was
automatically generated by ShotSpotter’s computer system. Nevertheless, the
Commonwealth asserts that any contribution by an incident reviewer would have been so
limited in scope that it would not have run afoul of the Confrontation Clause. According
to the Commonwealth, such limited involvement from an incident reviewer would have
been brief, “nearly instantaneous,” and “undertaken long before any knowledge that
[Appellant] or some other individual was believed to be involved in a criminal offense.”
Commonwealth’s Brief at 34. In that regard, the Commonwealth contends that the
circumstances of this case render it distinguishable from scenarios in which evidence was
[J-12-2023] - 15
deemed testimonial in nature due to human involvement, including Melendez-Diaz, 557
U.S. at 310-11 (holding that affidavits reporting the results of a forensic analysis which
concluded that a seized substance was cocaine were testimonial, as the affidavits were
“functionally identical to live, in-court testimony”), and Bullcoming, 564 U.S. at 660(determining that a laboratory report, which indicated the defendant’s blood alcohol
content, was testimonial because it included an analyst’s “representations, relating to past
events and human actions not revealed in raw, machine-produced data”). The
Commonwealth maintains that, in those cases, the individuals handling the challenged
evidence, “with no emergency ongoing, conducted thorough, after-the-fact analyses or
examinations for the primary purpose of proving prior events potentially relevant to a
future criminal prosecution.” Commonwealth’s Brief at 34-35. By contrast, the
Commonwealth suggests that, here, the ShotSpotter incident reviewer, to the extent
actually involved, sought “not to establish such past events[,] but, rather, to aid police by
alerting them that gunshots had been fired in a certain area,” so that law enforcement
could appropriately respond to an ongoing emergency situation. Id. at 35. Thus, the
Commonwealth urges our Court to hold that the ShotSpotter Summary is not testimonial
in nature and does not fall within the purview of the Confrontation Clause.16 17
16 Like Appellant, the Commonwealth engages in a harmless error analysis, arguing that
there was ample evidence justifying Appellant’s convictions even without the inclusion of
the Summary into evidence. However, as with Appellant’s corresponding argument, we
will not reproduce, at length, the Commonwealth’s arguments on this issue, given that our
disposition eliminates the need to conduct a harmless error analysis in this case. See
supra note 14.
17 The Pennsylvania Office of Attorney General (“OAG”) submitted an amicus brief
supporting the Commonwealth’s position. Therein, OAG asserts that the Confrontation
Clause does not apply to the Summary because it contains no out-of-court statements
from human witnesses. In that regard, OAG contends that the Confrontation Clause
extends only to “witnesses” against an accused, and not to information automatically
generated by machine, proffering that several federal courts have concluded as much.
See OAG’s Brief at 6 (discussing cases). Indeed, OAG avers that, because “computer
(continued…)
[J-12-2023] - 16
III. Analysis
As noted above, the Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.
This right of confrontation was extended to the individual states via the Fourteenth
Amendment.18 See Pointer v. Texas, 380 U.S. 400, 403 (1965) (“We hold today that the
software cannot testify in open court for the jury to observe its demeanor and credibility,”
id. at 8, machine-generated data simply does not implicate the concerns which the
Confrontation Clause was intended to address. In OAG’s view, although human beings
certainly program such computer systems in the first instance, thus permitting those
systems to automatically generate raw data, “the way to test whether computer systems
were programmed correctly is through authentication principles designed for mechanical
processes, not Confrontation Clause principles designed for human ‘witnesses.’” Id. To
underscore the lack of human involvement in ShotSpotter’s initial process, OAG
emphasizes that “[n]o human being has the brainpower to generate precise raw data of
th[e] kind” collected by the ShotSpotter program — namely, the timing of gunshots down
to the thousandth of a second and the specific longitudes and latitudes of those gunshots
based on triangulation technology. Id. at 9-10.
Relatedly, OAG maintains that the ShotSpotter Summary was nontestimonial, as the data
reflected therein was captured automatically and sent immediately to first responders to
enable them to address an ongoing emergency. According to OAG, the goal of the police
response prompted by the ShotSpotter report “was not to bring [Appellant] into court,” but
was, instead, intended “to end the physical threat and treat any injured persons.” Id. at
12.
OAG also avers that Appellant, by raising concerns about the Summary’s reliability and
accuracy, overlooks that Pa.R.E. 901 provides a means to test the reliability and accuracy
of automated computer programs via the process of authentication. OAG posits that,
because Appellant failed to invoke Rule 901 before the trial court, he may not now
challenge the reliability and accuracy of the Summary through alternate means.
18The Constitution of our Commonwealth likewise delineates an accused’s right to
confrontation, providing that, “[i]n all criminal prosecutions the accused hath a right . . . to
be confronted with the witnesses against him.” Pa. Const. art. 1, § 9. As Appellant has
not asserted that the Pennsylvania Constitution affords him greater protection than the
United States Constitution with respect to the right to confrontation, see supra note 9, our
analysis “would be the same under both the United States Constitution and the
Pennsylvania Constitution.” In re N.C., 105 A.3d 1199, 1210 n.15 (Pa. 2014) (citation
omitted).
[J-12-2023] - 17
Sixth Amendment’s right of an accused to confront the witnesses against him is likewise
a fundamental right and is made obligatory on the States by the Fourteenth
Amendment.”). Significantly, the Supreme Court of the United States has explained that
“[t]he central concern of the Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845
(1990). The Confrontation Clause’s language and “historical underpinnings” evince that
the Clause safeguards a defendant’s right to confront witnesses who “bear testimony”
against him or her; as such, the right to confrontation applies only to testimonial
statements. Melendez-Diaz, 557 U.S. at 309 (citation omitted).
In the past two decades, the high Court has grappled with the intended scope of
the Confrontation Clause in a bevy of cases relevant to our current inquiry, placing a
paramount focus on the purpose for which a statement was made in discerning whether
a statement is testimonial and, thus, invokes the Clause’s protections. First, in Crawford,
a decision issued in 2004, the Court overruled Ohio v. Roberts, 448 U.S. 56, 66 (1980),
under which testimonial witness statements were generally deemed admissible for
Confrontation Clause purposes following a judicial determination of reliability. Pivoting
from Roberts’ “amorphous notions of ‘reliability,’” Crawford, 541 U.S. at 61, the Crawford
Court held that, where testimonial evidence is sought to be admitted, “the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination,” id. at 68. While the Court declined to provide a
comprehensive definition of the term “testimonial,” it nonetheless proclaimed that the term
encompasses, at a minimum, prior testimony and statements made during police
interrogations. Id.[J-12-2023] - 18
Two years later, in Davis v. Washington, supra, the high Court considered the
meaning of testimonial in the context of statements made to law enforcement personnel
during an emergency call and at the scene of a reported domestic disturbance. In the
first of the two companion cases considered by the Davis Court, Michelle McCottry spoke
to a 911 operator while in the midst of a domestic disturbance with her then-boyfriend,
Adrian Davis. During that telephone call, McCottry stated that Davis was beating her with
his fists, and she identified him by his full name in response to questions posed by the
operator. Police officers arrived at the scene of the incident within four minutes of the
911 call and found McCottry visibly shaken, with fresh injuries on her forearm and face.
Consequently, Davis was arrested and charged with a felony violation of a domestic no-
contact order.
At Davis’s trial, the prosecution called as witnesses the two police officers who
responded to the 911 call; while the officers related that they observed fresh injuries on
McCottry upon arriving at the scene, neither could identify the cause of those injuries.
Thus, over Davis’s objection pursuant to the Confrontation Clause, the prosecution
admitted the recording of McCottry’s 911 call. The jury ultimately convicted Davis.
In Hammon v. Indiana, No. 05-5705, the companion case to Davis, police officers
responded to a reported domestic disturbance at the home of Hershel and Amy Hammon,
whereupon they found Amy alone on the front porch of the house, looking frightened.
Initially, Amy claimed that nothing was wrong, but, upon further questioning from the
officers, she completed an affidavit, in which she detailed Hershel’s physical attack on
her. The State of Indiana thereafter charged Hershel with domestic battery and a
probation violation, and the matter proceeded to a bench trial, at which the trial court
admitted Amy’s affidavit into evidence, despite her absence and over Hershel’s objection.
The trial court convicted Hershel.
[J-12-2023] - 19
Expanding upon Crawford’s brief foray into testimonial versus nontestimonial
statements, the Davis Court held that:
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.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.
Davis, 547 U.S. at 822. The Court clarified that its holding in this regard pertained to
police interrogations because the statements relevant to the cases before it were clearly
the result of differing types of police interrogations.19 However, the Court stressed that it
did not intend to imply “that statements made in the absence of any interrogation are
necessarily nontestimonial,” opining that “[t]he Framers were no more willing to exempt
from cross-examination volunteered testimony or answers to open-ended questions than
they were to exempt answers to detailed interrogation.” Id. at 822 n.1.
Applying its holding to the scenario presented in Davis, the Court concluded that
McCottry’s statements to the 911 operator during the emergency call were nontestimonial
in nature. In so concluding, the Court reasoned that a 911 call, at least at the outset, “is
ordinarily not designed primarily to ‘establish or prove’ some past fact, but to describe
current circumstances requiring police assistance.” Id. at 827 (brackets omitted). Indeed,
the Court emphasized that “the nature of what was asked and answered in Davis, . . .
viewed objectively, was such that the elicited statements were necessary to be able to
resolve the present emergency, rather than simply to learn . . . what had happened in the
19 The Court noted that, even if 911 operators “are not themselves law enforcement
officers, they may at least be agents of law enforcement when they conduct interrogations
of 911 callers,” and, thus, the Court deemed “their acts to be acts of the police” under the
circumstances of Davis. Davis, 547 U.S. at 823 n.2.
[J-12-2023] - 20
past.” Id. (emphasis original). From the Court’s perspective, under the circumstances,
“any reasonable listener would recognize that McCottry . . . was facing an ongoing
emergency,” as her 911 call “was plainly a call for help against [a] bona fide physical
threat.” Id. Hence, the Court determined that the “primary purpose” of McCottry’s
statements to the 911 operator “was to enable police assistance to meet an ongoing
emergency,” such that the statements were nontestimonial and beyond the scope of the
Confrontation Clause. Id. at 828.
Conversely, in Hammon, the Davis Court found that the police officers’
interrogation of Amy in response to the reported domestic disturbance was clearly “part
of an investigation into possibly criminal past conduct,” given that, once the officers
arrived on the scene, there was no emergency in progress and no immediate threat of
harm to Amy’s person or property. Id. at 829-30. According to the Court, when the
officers questioned Amy after her initial response that nothing was wrong, they sought not
to determine what was happening, “but rather ‘what happened,’” evincing that “the
primary, if not indeed the sole, purpose of the interrogation was to investigate a possible
crime . . . .” Id. The Court opined that Amy’s statements to police, in essence, amounted
to “an obvious substitute for live testimony,” rendering them “inherently testimonial.” Id.Juxtaposing Amy’s statements in Hammon against McCottry’s statements in Davis, the
Court explained:
The statements in Davis were taken when McCottry was
alone, not only unprotected by police (as Amy Hammon was
protected), but apparently in immediate danger from Davis.
She was seeking aid, not telling a story about the past.
McCottry’s present-tense statements showed immediacy;
Amy’s narrative of past events was delivered at some remove
in time from the danger she described.
Id. at 831-32.
[J-12-2023] - 21
The Court next contended with the definition of testimonial under the Confrontation
Clause in Melendez-Diaz, supra, wherein the Court was tasked with determining whether
affidavits20 which reported the results of a forensic analysis — and, critically, included a
bald representation that the seized substance was examined and found to contain
cocaine — were testimonial. These affidavits were admitted into evidence at Melendez-
Diaz’s trial on drug charges, over his objection that, pursuant to Crawford, the analysts
who certified the results via the affidavits were required to testify in person. Exploring the
primary purpose of the documents, the Court opined that the affidavits undoubtedly “f[e]ll
within the ‘core class of testimonial statements’” described in Crawford, Melendez-Diaz,
557 U.S. at 310, given that they were “functionally identical to live, in-court testimony,” id.
at 310-11. Indeed, the Court explained that the affidavits were admitted at Melendez-
Diaz’s trial to prove that the substance in his possession was indeed cocaine, which was
“the precise testimony the analysts would be expected to provide if called at trial.” Id. at
310. Therefore, the Court concluded that the affidavits, which 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 311 (quoting Crawford, 541
U.S. at 52), were testimonial statements, such that “the analysts were ‘witnesses’ for
purposes of the Sixth Amendment,” id.In 2011, the Court again considered two cases involving challenges brought under
the Confrontation Clause. In the first case, Michigan v. Bryant, 562 U.S. 344 (2011), the
trial court admitted as evidence against the defendant, Richard Bryant, statements made
by the victim – identifying and describing his assailant – to police officers who had
discovered him fatally wounded in a parking lot. Significantly, the Court deemed these
20 The affidavits were described, under Massachusetts law, as “certificates of analysis.”
However, the high Court determined that the documents were “quite plainly affidavits.”
Melendez-Diaz, 557 U.S. at 310.
[J-12-2023] - 22
circumstances to require it, for the first time, to consider the “ongoing emergency”
language employed in Davis in the context of “a nondomestic dispute, involving a victim
found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose
location was unknown at the time the police located the victim.” Id. at 359. This scenario,
the Court explained, raised the question of whether an “ongoing emergency” may
“extend[] beyond an initial victim to a potential threat to the responding police and the
public at large.” Id.To that end, the Court highlighted that Davis and Hammon “involved domestic
violence, a known and identified perpetrator, and, in Hammon, a neutralized threat,” such
that the Davis Court “focused only on the threat to the victims and assessed the ongoing
emergency from the perspective of whether there was a continuing threat to them.” Id. at
363 (citation omitted). Accordingly, the Bryant Court found that the assessment of the
emergency situation in those matters was of narrow scope, focusing solely on the victims,
without contemplating threats to the public or police. Indeed, the Court reasoned that
“[a]n assessment of whether an emergency that threatens the police and public is ongoing
cannot narrowly focus on whether the threat solely to the first victim has been neutralized
because the threat to the first responders and public may continue.” Id. (citations
omitted). Likewise, the Court reasoned that “the duration and scope of an emergency
may depend in part on the type of weapon employed,” again differentiating the
circumstances before it from Davis, wherein both perpetrators utilized only their fists in
attacking their victims, thus allowing the police to bring the victims to safety simply by
removing them from the vicinity of the perpetrators. Id. at 364. Bearing in mind the
foregoing, the Court concluded that the victim’s statements made to police in the parking
lot while mortally wounded were properly admitted at trial and did not violate Bryant’s right
to confrontation, given that, when the victim made the relevant statements, “there was an
[J-12-2023] - 23
ongoing emergency . . . where an armed shooter, whose motive for and location after the
shooting were unknown, had mortally wounded [the victim] within a few blocks and a few
minutes of the location where the police found [the victim].” Id. at 374.
In the second Confrontation Clause case decided by the Court in 2011,
Bullcoming, supra, the Court addressed the prosecution’s use of a forensic laboratory
report containing a certification which the prosecution introduced via the testimony of a
scientist who did not sign the certification, perform the underlying test detailed therein, or
observe the test. See 564 U.S. at 652. Ultimately, the Court deemed the scientist’s
testimony to be “surrogate testimony” which did “not meet the constitutional requirement,”
as the defendant enjoyed the right “to be confronted with the analyst who made the
certification, unless that analyst [was] unavailable at trial, and the accused had an
opportunity, pretrial, to cross-examine that particular scientist.” Id. In so doing, the Court
determined that, “[i]n all material respects, the laboratory report . . . resemble[d] those in
Melendez–Diaz,” falling within the “core class” of testimonial statements, as the
documents contained representations from the certifying scientist regarding issues which
were solely evidentiary in nature, “made in aid of a police investigation.”21 Id. at 664-65.
Thus, the Court concluded that admission of the report into evidence violated the
Confrontation Clause.
Finally, a year later, the Court issued an opinion announcing the judgment of the
Court in Williams v. Illinois, 567 U.S. 50 (2012), wherein a plurality of the Court seemingly
21 Pertinently, in her concurring opinion, Justice Sonia Sotomayor emphasized that the
Court was not speaking to the propriety of a prosecuting authority’s use of “only machine-
generated results, such as a printout from a gas chromatograph,” given that the forensic
reports at issue contained a scientist’s statements, including with respect to the forensic
procedures utilized in assessing the defendant’s blood alcohol concentration.
Bullcoming, 564 U.S. at 673 (Sotomayor, J., concurring). As such, Justice Sotomayor
cautioned that the Court’s opinion did not “decide whether[] . . . a State could introduce
(assuming an adequate chain of custody foundation) raw data generated by a machine
in conjunction with the testimony of an expert witness.” Id. at 674 (citation omitted).
[J-12-2023] - 24
expanded the “primary purpose” inquiry in considering the interplay of the Confrontation
Clause and expert testimony. At the defendant’s bench trial on various sexually-based
offenses, including rape, the prosecution proffered testimony from an expert witness who
relied on the results of a DNA report (detailing the results of the rape kit performed on the
victim) which was not admitted into evidence or shown to the finder-of-fact, was not
quoted by the expert witness or read aloud, and was not identified by the witness as the
source of her opinions. Noting that “[i]t has long been accepted that an expert witness
may voice an opinion based on facts concerning the events at issue in a particular case
even if the expert lacks first-hand knowledge of those facts,” id. at 67, the Court
distinguished Bullcoming and Melendez-Diaz, in which the forensic reports in question
were introduced into evidence to prove the truth of the matter asserted therein, whereas
the DNA report introduced at Williams’ rape trial was not. Thus, the Court found that the
expert witness’s testimony relying on the DNA report did not violate the defendant’s right
to confrontation.
Notably, the Court further opined that, even if the DNA report had been introduced
into evidence, there would have been no Confrontation Clause violation because the
report “plainly was not prepared for the primary purpose of accusing a targeted individual.”
Id. at 84. From the Court’s perspective, “the primary purpose of the [DNA] report, viewed
objectively, was not to accuse [the defendant] or to create evidence for use at trial.” Id.
Instead, the Court reasoned that the document’s “primary purpose was to catch a
dangerous rapist who was still at large, not to obtain evidence for use against [the
defendant], who was neither in custody nor under suspicion” at the time of the document’s
creation. Id. Accordingly, the Court concluded that the expert’s testimony and the DNA
report fell beyond the purview of the Confrontation Clause.
[J-12-2023] - 25
In his concurring opinion, Justice Clarence Thomas opined that the plurality had
essentially created a new primary purpose test, which he viewed as chiefly focused upon
whether a statement was intended to accuse a targeted individual engaged in criminal
conduct; however, Justice Thomas submitted that this version of the test “lacks any
grounding in constitutional text, in history, or in logic.” Williams, 567 U.S. at 114 (Thomas,
J., concurring in result). In dissent, Justice Elena Kagan wrote that the expert’s testimony
was “functionally identical to the ‘surrogate testimony’ that New Mexico proffered in
Bullcoming.” Id. at 124 (Kagan, J., dissenting).22 Moreover, Justice Kagan, like Justice
Thomas, derided the plurality’s newly declared focus of the primary purpose test,
stressing that none of the Court’s prior cases “has ever suggested that,” to be testimonial
in nature, “the statement must be meant to accuse a previously identified individual.” Id.
at 135 (citation omitted). Relatedly, Justice Kagan criticized the plurality’s determination
that the DNA report was intended to respond to an ongoing emergency in which a rapist
was still at large, finding such a characterization of the DNA report to be an unjustifiable
stretch of both the Court’s prior “ongoing emergency” jurisprudence and the facts of the
case. Id. at 136. In sum, Justice Kagan would have concluded that the DNA report was
inadmissible, absent the testimony of any analysts involved in its creation, based on
Melendez-Diaz and Bullcoming.
With this background in mind, we return to the case sub judice. For the following
reasons, we find that the ShotSpotter Summary is nontestimonial in nature under the high
Court’s primary purpose test,23 given that the ShotSpotter system recorded the data in an
22 Justices Antonin Scalia, Ruth Bader Ginsburg, and Sonia Sotomayor joined in Justice
Kagan’s dissent.
23 While, as discussed, Williams arguably invoked a new primary purpose test which
focuses on whether a statement targets a specific individual for future prosecution, this
innovation was endorsed by only a plurality of the Court; accordingly, we will adhere to
the primary purpose test set out in the Court’s decisions spanning from Crawford to
(continued…)
[J-12-2023] - 26
effort to assist law enforcement in responding to an ongoing emergency.24 Plainly,
examining the circumstances of the Summary’s creation objectively, as the high Court
instructs, see Bryant, 562 U.S. at 360 (“[T]he relevant inquiry is not the subjective or actual
purpose of the individuals involved in a particular encounter, but rather the purpose that
reasonable participants would have had, as ascertained from the individuals’ statements
and actions and the circumstances in which the encounter occurred.”); Davis, 547 U.S.
at 822 (“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation
Bullcoming. Nevertheless, even under the Williams version of the primary purpose test,
we would conclude that the Summary is not testimonial, as it clearly did not accuse
Appellant, or any other individual, but, instead, merely informed law enforcement that
gunshots had been fired, without regard to who fired them. See Dyarman, 73 A.3d at 574
(“Whether Williams creates a ‘new’ test, superseding Melendez–Diaz and Bullcoming,
does not need to be addressed here, for the certificates at issue are nontestimonial for
purposes of the Confrontation Clause under both Melendez–Diaz/Bullcoming and
Williams.”). Notably, when the Bureau dispatched its officers to investigate whether shots
had indeed been fired at the Shadeland Avenue location indicated by the ShotSpotter
Summary, Houston and Lamb had not yet appeared at the police station to report that
Appellant had fired shots at them.
24 As a prefatory matter, we agree with the Commonwealth that the July 3, 2019 print date
of the Summary is ultimately irrelevant, as the raw data contained in the Summary was
collected contemporaneously to the December 15, 2018 shooting incident underlying
Appellant’s convictions. In our view, the relationship between ShotSpotter’s initial raw
data collection and the subsequent inclusion of that data in printed form is analogous to
an initial recording of a 911 call and the subsequent copying of that recording to a disc or
drive for purposes of use at trial. Plainly, extraction of the data for such use in no way
alters the underlying purpose for which such data was collected. Here, it is undisputed
that the ShotSpotter system compiled the relevant data on December 15, 2018, and the
formatting of that same data for use at trial (i.e., the Summary) did not supersede the
initial emergency response function of the data. Cf. State v. Jackson, 748 S.E.2d 50, 55
(N.C. Ct. App. 2013) (“[W]e hold that the tracking data from the electronic monitoring
device worn by defendant stored on the secured server is a data compilation and that
Exhibit 16, the CD containing the video file plotting the data from defendant’s electronic
monitoring device on the evening of 30 July 2009, is merely an extraction of that data
produced for trial.”).
[J-12-2023] - 27
is to enable police assistance to meet an ongoing emergency.”), the Summary falls within
the class of nontestimonial statements.
Indeed, the record reveals that the ShotSpotter program automatically calculates
shot counts, times, and locations the moment a relevant sound is detected by the acoustic
sensors and records this information in its system. See ShotSpotter Summary at 2; N.T.
Jury Trial, 12/4/19, at 92-93. As indicated in the Summary, within seconds of the initial
data retrieval, the ShotSpotter program transmits the information pertaining to the number
of shots, timing, and location to the subscribing police force, which may then dispatch
officers to the location of the possible shooting.25 See ShotSpotter Summary at 3. In the
instant case, this is precisely the manner in which the events unfolded: the ShotSpotter
system detected gunfire at Shadeland Avenue in the North Side neighborhood of
Pittsburgh; the program simultaneously collected the relevant data related to the gunfire;
and the program, within seconds, transmitted the data pertaining to the possible shooting
to the Bureau, thus permitting it to send officers to investigate. See id. at 1-2.
Given the contemporaneous nature of the data collection and transmission, we
conclude that the primary purpose of the Summary was not “to establish or prove past
events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822. In this
regard, we find that the ShotSpotter Summary is similar to the statements at issue in
Davis and Bryant, which the high Court found to be nontestimonial. Just as the victim’s
statements to police in Bryant were uttered for the primary purpose of assisting the police
in apprehending an armed and dangerous assailant who posed a threat to the public, and
McCottry’s statements to the 911 operator in Davis were meant to address an ongoing
domestic violence situation, the data in the Summary was created to aid law enforcement
25 Appellant does not dispute that the ShotSpotter operates in this manner, nor does he
claim that the system deviated from this process with respect to the December 15, 2018
shooting incident.
[J-12-2023] - 28
in combating a particular instance of gun violence and, more specifically, to permit the
Bureau to immediately dispatch officers to the Shadeland Avenue location to investigate
and discern whether shots had been fired. The ShotSpotter Summary’s function
distinguishes it from the evidence deemed testimonial in cases such as Melendez-Diaz
and Bullcoming, wherein forensic reports essentially functioned as substitutes for live
testimony, see Melendez-Diaz, 557 U.S. at 310 (finding that the analysts’ affidavits were
“incontrovertibly . . . affirmation[s] made for the purpose of establishing or proving some
fact” in a criminal proceeding); Bullcoming, 546 U.S. at 664 (determining that the
certificate in question served the same purpose as the affidavits in Melendez-Diaz), as
well as Hammon, in which the victim’s statements to police after the domestic violence
incident had abated were made during “an investigation into possibly criminal past
conduct,” see Davis, 547 U.S. at 829.
Our conclusion that the ShotSpotter Summary is nontestimonial also comports with
our own jurisprudence interpreting and applying the high Court’s primary purpose test.
Indeed, in Dyarman, supra, we determined that the admission of accuracy and calibration
certificates for breathalyzer testing machines did not violate the defendant’s Sixth
Amendment right to confrontation, despite the lack of testimony from the individual who
performed the testing and prepared the certificates. In doing so, we explained that the
circumstances surrounding the creation of the certificates — including that the certificates
did not prove any element of the offense, provided no information regarding the defendant
or her blood alcohol concentration, and were prepared weeks before the defendant
committed her driving under the influence offense — established that “they were not
prepared for the primary purpose of providing evidence in a criminal case.” Dyarman, 73
A.3d at 569.
[J-12-2023] - 29
We reached the opposite conclusion in Yohe, supra. Specifically, therein, we
found that a toxicology report was testimonial under the Confrontation Clause, as it
addressed the main fact at issue at Yohe’s trial — i.e., whether he was driving while
intoxicated — “by identifying the alcohol content of his blood,” thus “serving the identical
function of live, in-court testimony.” Yohe, 79 A.3d at 537 (citing Melendez-Diaz, 557 U.S.
at 311). We explained:
In all material respects, the Toxicology Report at issue herein
resembles those in Melendez–Diaz and Bullcoming, because
here, as in those cases, a law enforcement officer provided
evidence to a laboratory for scientific testing, which produced
a report concerning the result of this analysis formalized in a
signed document.
Id. (citations omitted).26
More recently, in Brown, supra, we considered whether an autopsy report was
testimonial in nature when introduced into evidence to prove the victim’s cause of death,
without corresponding testimony from the report’s author. Observing that Pennsylvania
law “requires the preparation of autopsy reports in all cases of sudden, violent, and
suspicious deaths, or deaths by other than natural causes[] . . . to determine whether the
death occurred as the result of a criminal act,” 185 A.3d at 329 (citing 35 P.S. § 450.503;
16 P.S. § 1237), and that coroners conducting such autopsies must “consult and advise
the local district attorney to the extent practicable,” id. (citing 16 P.S. § 1242), we
determined that the primary purpose for preparation of an autopsy report “is to establish
or prove past events potentially relevant to a later criminal prosecution,” id. Thus,
because the coroner who prepared the autopsy report was not present at trial to proffer
26 Nevertheless, we concluded that Yohe’s right to confrontation had not been violated,
as the Commonwealth properly offered the testimony of the scientist who analyzed the
data and certified and signed the toxicology report at Yohe’s trial. See Yohe, 79 A.3d at
541.
[J-12-2023] - 30
his testimony, we concluded that admission of the report into evidence ran afoul of the
defendant’s Sixth Amendment right.
While Dyarman, Yohe, and Brown did not, as here, focus upon the “ongoing
emergency” facet of the primary purpose test, they nonetheless remain instructive in
assessing the other circumstances under which the Summary was created. Specifically,
just as the accuracy and calibration certificates at issue in Dyarman bore no direct relation
to the defendant or her criminal trial, as they were completed weeks before she committed
her offense, the Summary contains no references whatsoever to Appellant, and the data
depicted therein was collected before he became a suspect in the shooting incident. In
this regard, the Summary also diverges in function from the toxicology report and autopsy
report at issue in Yohe and Brown, respectively, given that those documents were created
with the purpose of serving as proof at trial — the toxicology report to establish the
defendant’s blood alcohol concentration, and the autopsy report, by virtue of the statutes
governing its creation, to demonstrate the circumstances of the victim’s death; by
contrast, the Summary is little more than a tool to aid law enforcement in responding to
potentially dangerous emergency situations involving gunfire.
For these reasons, we hold that, under the standards set forth by the high Court,
and consistent with our own jurisprudence, the ShotSpotter Summary is nontestimonial
in nature, such that admission of the document at Appellant’s trial did not run afoul of
Appellant’s Sixth Amendment right to confrontation.27 Accordingly, we affirm the order of
the Superior Court.
27 In light of our determination that the Summary is not testimonial under the Confrontation
Clause, we leave for another day the question of whether a purely machine-generated
statement implicates the Confrontation Clause despite the lack of a human declarant. We
likewise need not determine whether the Summary is generated solely by machine, as
the Commonwealth asserts, despite the evidence indicating human involvement in the
ShotSpotter process. Indeed, human involvement notwithstanding, the data contained in
(continued…)
[J-12-2023] - 31
Justices Donohue, Dougherty, Wecht, Mundy and Brobson join the opinion.
Justice Wecht files a concurring opinion.
Justice Brobson files a concurring opinion in which Justice Dougherty joins.
the Summary was generated in response to an ongoing emergency, similar to the 911
call in Davis, which indubitably involved human questioning and screening, and human
responses.
[J-12-2023] - 32