The medical findings and diagnoses of Dr. Sedlacek were based on the patients' observable physical condition and did not involve an opinion or judgment susceptible to disagreement or varying interpretations among competent physicians. The microscopic examination of the smears and saline washings which revealed the presence of male spermatozoa involved not a complex analysis of subjective symptoms but rather a routine hospital procedure based on clearly objective data. The presence of male spermatozoa, the ruptured and bleeding hymen, and related internal lacerations are factual phenomena disclosed by clinical examinations undertaken by competent hospital personnel. The medical reports, prepared by the doctor simultaneously with the physical examinations, were submitted and filed in the regular course of the hospital's business.
In addition, the examinations were conducted and the reports prepared under conditions in which the motive to falsify or exaggerate is simply not present. That medical reports prepared in the regular course of a hospital's operation, where the necessity for accuracy and preciseness is critical, are inherently reliable is self-evident.
While nonconsensual intercourse is the primary element of the crime of rape, the hospital records merely corroborated the victims' testimony that they had been subjected to forcible sexual intercourse by the relator. The two young girls testified in length with respect to the nature and extent of the sexual assaults perpetrated by Arthur Lurry and Earl Wilkes.
The case of United States v. Johns-Manville Corporation, 231 F. Supp. 690 (E.D.Pa.1964), involved the admission of documentary evidence pursuant to the Federal Business Records Act, 28 U.S.C. § 1732(a), which is the Federal counterpart of the Pennsylvania Uniform Business Records Act, 28 P.S. § 91b. The trial judge in the above case recognized that all documents arguably covered by 28 U.S.C. § 1732(a) may not be admissible in a criminal trial and "that the trial judge has the duty to determine whether such documents are constitutionally admissible under the Sixth Amendment guarantee of confrontation." 231 F. Supp. at p. 695. In accord, McDaniel v. United States, 343 F.2d 785, 789 (5th Cir. 1965).
This Court has studied at considerable length the entire transcript of the state court proceedings and the legal memoranda submitted by the Commonwealth and the relator. Based upon such review, the Court has concluded that relator's constitutional right of confrontation was not violated by the admission of the medical reports pursuant to the statutory exception to the hearsay rule. The conflict between the values protected by the confrontation doctrine and the admission of evidence pursuant to well-settled exceptions to the hearsay law has been recognized by several courts. See, e.g., California v. Green, supra 399 at p. 155, 90 S. Ct. 1930; United States v. Lipscomb, 435 F.2d 795, 802 (5th Cir. 1970); Otney v. United States, 340 F.2d 696 (10th Cir. 1965). To resolve this apparent conflict, the trial judge must consider the offense charged, the essential elements of the offense, the character of the evidence sought to be introduced, and, most importantly, the reliability and trustworthiness of the proffered evidence. Only when the above factors have been weighed and analyzed in the context of a particular case may the necessity for actual confrontation and cross-examination be determined. In regard to the instant case, the Court believes that the medical reports were sufficiently reliable and trustworthy to warrant their admission through the testimony of the records custodian. As indicated above, the reports contained medical findings based on objective physical data not reasonably susceptible to varying interpretations. The custodian testified that the reports were kept in the regular course of the hospital's business.
Finally, we are unable to perceive the necessity or importance of cross-examination of the examining physician under the facts of this case. The defendant testified on his own behalf and denied raping or assaulting the two girls. The hospital records did not directly implicate the relator in the crimes charged but corroborated the detailed testimony of the victims. The jury could have believed or disbelieved the testimony of Arthur Lurry, notwithstanding the contents of the report, in that both Linda and Michelle testified as to the participation of Earl Wilkes in the sexual attacks.
For the reasons heretofore stated, relator's petition for a writ of habeas corpus will be denied.