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decided: December 28, 1977.


No. 712 April Term, 1976, Appeal from the Order of the Court of Common Pleas, Family Division, Juvenile Section of Allegheny County, of No. J710 of 1975


Daniel T. Zamos, Assistant Public Defender, Pittsburgh, for appellant.

Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a concurring opinion. Cercone, J., files a dissenting opinion in which Price and Van der Voort, JJ., join.

Author: Hoffman

[ 252 Pa. Super. Page 304]

Appellant contends that the lower court incorrectly permitted the introduction of written hearsay evidence on which it based its adjudication of delinquency as defined by the Juvenile Act.*fn1 We agree and, therefore, remand for another hearing.

[ 252 Pa. Super. Page 305]

On March 30, 1976, appellant, age thirteen, appeared in Juvenile Court in the Court of Common Pleas of Allegheny County in response to a petition filed by his probation officer. The petition alleged that on March 5, 1976, while appellant was at Western Psychiatric Institute and Clinic for psychiatric evaluation,*fn2 Dr. Solmani, appellant's treating psychiatrist, found appellant in his room showing another patient how to inject morphine. The evidence presented at the hearing consisted of a written report prepared by Dr. Solmani which was read into the record by Dr. Director, a resident at the Institute. In the report, appellant's psychiatrist stated that he observed appellant instructing another patient in the use of morphine and that appellant admitted possession of the morphine and syringes found in his room.*fn3 Although defense counsel objected to the admission of the hearsay statements contained in the report, the court admitted the report as a hearsay exception within the Uniform Business Records as Evidence Act.*fn4 The court adjudicated

[ 252 Pa. Super. Page 306]

    appellant delinquent, based on his violation of the Controlled Substance, Drug Device and Cosmetic Act,*fn5 and placed him in detention. This appeal followed.

Appellant contends that the statements contained in the hospital report, the sole basis of his conviction, constitute improperly admitted hearsay evidence in violation of the Juvenile Act.*fn6 Our courts have held that hospital report which satisfy the requirements of the Uniform Business Records as Evidence Act*fn7 are admissible to show the facts of hospitalization, symptoms, and treatment. Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974); Paxos v. Jarka Corp., 314 Pa. 148, 171 A. 468 (1934); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975); Myers v. Genis, 235 Pa. Super. 531, 344 A.2d 691 (1975).

[ 252 Pa. Super. Page 307]

However, medical opinion contained in such reports and offered as expert testimony is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion. DiGiacomo, supra. Commonwealth v. McCloud, supra, illustrates our courts' reluctance to permit the introduction of uncross-examined medical opinion evidence in criminal cases. Appellant in McCloud was charged with murder, an offense in which causation is an essential element. The Court reasoned that because the legal cause of death is often a conclusion based on conflicting medical opinion, the person offering the opinion must be present at trial for cross-examination regarding the accuracy and reliability of his opinion.

In the instant case, the lower court's adjudication of delinquency was based on appellant's violation of the Controlled Substance, Drug, Device and Cosmetic Act. The Commonwealth attempts to prove an essential element of the offense, possession of a controlled substance, solely on the basis of a doctor's written statement that appellant had morphine in his possession. The doctor's statement identifying the drug was an opinion reporting a conclusion that a lay person is not competent to make. McCormick, Evidence, p. 726 (2d ed. 1972). Because the doctor who prepared the report was not present at the hearing, there was no opportunity to cross-examine him and to challenge the methods used to arrive at his opinion. Further, the doctor who read the report into the record at the hearing conceded that he had no personal knowledge of the statements contained in the report. Consequently, the out-of-court testimony supporting appellant's conviction was totally insulated from any challenge to its veracity and reliability. DiGiacomo, supra; Paxos, supra.

Moreover, when the Commonwealth charges a juvenile with an offense which would constitute a crime if committed by an adult, the Due Process Clause of the Fourteenth Amendment requires proof beyond a reasonable

[ 252 Pa. Super. Page 308]

    doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Johnson, 445 Pa. 270, 284 A.2d 780 (1971). Thus, the lower court must base its adjudication of delinquency on evidence that proves that the facts supporting the adjudication are true beyond a reasonable doubt. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Consequently, inadmissible hearsay evidence may not provide the basis for an adjudication of delinquency. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Farms Appeal, 216 Pa. Super. 445, 268 A.2d 170 (1970).*fn8 In the instant case, because the statements contained in the hospital report are not within an exception to the hearsay rule, they do not provide sufficient support for the delinquency adjudication.

Finally, even if the reporting doctor's identification of the drug was not opinion evidence, the lower court's admission of the report into evidence was, nevertheless, constitutional error. As our Supreme Court has stated: "The purpose of offered evidence can determine its admissibility with respect to the confrontation clause." McCloud, supra, 457 Pa. at 314, 322 A.2d at 656. Although the Court recognized the validity of the Uniform Business Records as Evidence Act, the Court noted that the Act "is applicable only to the extent that it does not conflict with either the Pennsylvania or United States Constitutions." McCloud,

[ 252 Pa. Super. Page 309]

    supra, 457 Pa. at 311, n. 1, 322 A.2d at 654.*fn9 In the instant case, the statements contained in the report constitute the sole basis for the drug charge on which the lower court based its adjudication of delinquency. To preclude appellant from cross-examining the only testimony supporting his conviction is to deny to him the right to confront his accusers as guaranteed by the Sixth Amendment of the United States Constitution and Article 1, ยง 9 of the Pennsylvania Constitution.

Accordingly, we vacate the lower court's adjudication of delinquency and order a new hearing.

SPAETH, Judge, concurring:

I do not read the record quite as Judge CERCONE does. As Judge HOFFMAN notes at p. 305 n. 3, it is unclear what records were in evidence, and what they contained.*fn1 However, for purposes of discussion I am willing to accept Judge CERCONE's statement of the record. On that basis, I agree with Judge CERCONE that the statements in question were admissible as within the business records exception to the rule against hearsay evidence; but I agree with Judge ...

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