Statements made to undercover officer were testimonial and should not have been admitted at Defendant’s trial.

The PA Superior Court has decided the case of Commonwealth v. Lu, No. 2658 EDA 2017 (Pa. Super. November 13, 2019), holding that the trial court erred by admitting the testimonial statement of a witness who was unavailable at trial since Lu did not have the opportunity to cross-examine her.

Lu appealed from the judgment of sentence of 3 to 6 months’ incarceration, followed by 4 years’ probation, imposed after the trial court convicted him, following a non-jury trial, of conspiracy, and promoting, managing, or supervising a house of prostitution business. 

On appeal, Lu claimed that the trial court’s admission of an out-of-court statement by an unavailable witness violated his Sixth Amendment right to confrontation. 

Lu was arrested and charged with the above-stated offenses. Prior to his non-jury trial, the Commonwealth filed a motion in limine, seeking to admit the hearsay statements that [a purported prostitute] made to an undercover officer, namely her remark that Lu was “the manager [of the house of prostitution under investigation.]” 

The trial court ruled that the statements were admissible under the hearsay exception set forth in Pa.R.E. 803(25)(E) (permitting the admission of a hearsay statement “made by the party’s coconspirator during and in furtherance of the conspiracy”).

The trial court did not comment on Lu’s argument that the admission of the statement would violate his Sixth Amendment right to confront witnesses against him, but it implicitly rejected that claim by ruling that the statement was admissible. 

The Superior Court explained that Lu’s Confrontation Clause issued turned on whether the witness’s statement to the undercover officer was testimonial or non-testimonial. 

As set forth in Davis v. Washington, 547 U.S. 813 (2006), “[s]tatements are non[-]testimonial 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. 

Here, the Superior Court concluded that “there was no real, or perceived, emergency occurring at the time [the witness] made the at-issue statement to [the undercover officer.] It found that “the primary purpose of [the officer’s] interrogation was ‘to establish or prove past events potentially relevant to later criminal prosecution.’”

Further, the Court found it apparent that “the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution.” Thus, the witness’s statement to the undercover officer that Lu was “the manager” was testimonial. Accordingly, the Superior Court concluded that the trial court erred by admitting it when the witness was unavailable and Lu did not have the opportunity to cross-examine her. 

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-S45009-19o%20-%2010421920187146297.pdf?cb=1

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