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May 23, 1974

UNITED STATES of America ex rel. Arthur LURRY
Robert L. JOHNSON, Superintendent, Graterford Prison

Bechtle, District Judge.

The opinion of the court was delivered by: BECHTLE

BECHTLE, District Judge.

 Presently before the Court is a petition for a writ of habeas corpus in which relator attacks his March 23, 1972, conviction by a jury for rape, statutory rape, sodomy, and corrupting the morals of a minor child. *fn1" Realtor contends that he was denied the right of confrontation of an adverse witness guaranteed by the Sixth Amendment when the state trial judge permitted a records custodian from Philadelphia General Hospital to read into evidence certain portions of a medical report compiled by a staff physician who had conducted a physical examination of the two young girls immediately after the alleged rape.

 The record establishes that the relator through direct appeal has sufficiently exhausted his available state remedies so as to merit this Court's consideration of his constitutional claims. Pursuant to Rule 46 of the Local Rules of Civil Procedure, this habeas corpus matter was initially referred to United States Magistrate Edwin E. Naythons. In a report filed on January 25, 1974, Magistrate Naythons recommended that we conduct an evidentiary hearing to determine whether petitioner is entitled to habeas corpus relief. The report specifically suggested that the Commonwealth be required to present evidence concerning the absence of the examining physician at the trial of this matter.

 This Court concurred with Magistrate Naythons insofar as the report recommended that an evidentiary hearing be held. A hearing was scheduled for February 22, 1974, for the sole purpose of determining why the doctor whose report was read into evidence by the records custodian was not available to testify at relator's trial. In lieu of the scheduled hearing, the Commonwealth stipulated that no effort was made by the prosecution to ascertain the availability of the examining physician for trial. The Commonwealth further stipulated that no subpoena was issued upon the doctor.

 In order to properly focus upon the precise issue presented in the petition for habeas corpus relief, it is necessary to briefly outline the relevant testimony adduced during Lurry's trial. The evidence is substantially as follows:

 On December 14, 1970, Linda Cunningham, Michelle Daniels, and Geraldine Howell were shopping in downtown Philadelphia. At the time of this occurrence, Linda was fifteen years old and Michelle was sixteen. The girls, by chance, met the defendant and two companions at a penny arcade. After walking around for a short time, the group (consisting at that point of six people) went to a liquor store on Chestnut Street, at which time defendant and one of his friends bought some vodka. The six individuals then went to a house near the intersection of 38th and Aspen Streets in Philadelphia. Upon arriving at the house, the group went to one of the bedrooms on the second floor and ate sandwiches purchased from a store located near the house in question. Shortly thereafter, Geraldine and David Wilkes, one of relator's friends, left the house.

 Linda and Michelle testified that relator physically threatened them and forced each girl to have sexual intercourse with him without their consent. The victims also testified that relator ordered Earl Wilkes, another companion, to take Michelle Daniels to the other bedroom and threatened to kill Earl unless he raped Michelle. Both girls also testified that Earl Wilkes and the relator alternately forced them to engage in sexual intercourse several more times that night. Finally, the two girls stated that Lurry physically coerced them to commit sodomy upon him.

 Officer Harold Hooks of the Philadelphia Police Department testified that in the early morning hours of December 15 he was approached near the intersection of 38th and Haverford Streets by members of the Cunningham, Daniels and Howell families. Based on information received, the officer proceeded to a particular house on Aspen Street. Once inside the house, Officer Hooks went up to the second floor. He there found relator asleep in bed clad only in underwear and the two girls in another bedroom in a frightened and hysterical state.

 The medical records librarian from Philadelphia General Hospital then read into evidence parts of the medical reports prepared by Dr. Thomas V. Sedlacek in conjunction with his examination of Michelle Daniels and Linda Cunningham on December 15, 1970. The pelvic examination of Michelle Daniels revealed a torn and bleeding hymen and evidence of trauma, tenderness, and inflammation of internal sexual organs. Laboratory specimens were collected, including smears and saline washings taken from the vaginal area. A clinical microscopic examination of the specimens was performed and revealed the presence of male spermatozoa. With regard to Linda Cunningham, the pelvic examination disclosed lacerations of the vagina, torn hymen, and similar indicia of tenderness and inflammation. The microscopic analysis of specimens taken from Linda Cunningham also revealed the presence of male spermatozoa.

 The basis of petitioner's constitutional claim is that the testimony concerning the medical reports was not subject to cross-examination because the records custodian had no personal knowledge or understanding of the contents of the report. Relator argues that the admission in evidence of the medical reports without an opportunity to cross-examine the doctor as to his findings contained therein violated his constitutional right to confrontation guaranteed by the Sixth Amendment.

 The Commonwealth's position is that the medical reports were properly admitted in evidence pursuant to the Pennsylvania Uniform Business Records Act, 28 P.S. § 91b and, as such, the relator's right to confront an adverse witness was not violated. It is further submitted by the prosecution that the examinations performed and the reports prepared reflect the routine and customary practices of the staff ...

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