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COMMONWEALTH PENNSYLVANIA v. CHARLES J. KARCH (01/17/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 17, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES J. KARCH, APPELLANT

APPEAL FROM THE JUDGMENT OF SENTENCE SEPTEMBER 5, 1984 IN THE COURT OF COMMON PLEAS OF NORTHHAMPTON COUNTY, CRIMINAL NO. 648 OF 1982.

COUNSEL

Bernard V. O'Hare, Jr., Bethlehem, for appellant.

John F. Spirk, Jr., Assistant District Attorney, Easton, for Com.

Spaeth, President Judge, and Cirillo and Shoyer,*fn* JJ. Spaeth, President Judge, files a dissenting opinion.

Author: Cirillo

[ 349 Pa. Super. Page 228]

After a trial by jury, appellant was convicted of driving under the influence. Post-trial motions were filed and subsequently denied. Appellant was sentenced to pay the costs of prosecution plus a $750.00 fine, and to serve a term

[ 349 Pa. Super. Page 229]

    of imprisonment of not less than thirty days nor more than one year.

Appellant raises two issues on appeal: 1) May the results of blood testing be admitted into evidence without calling the technician who performed the test as a witness; and 2) May the blood test results be admitted into evidence in a drunk driving case when the test does not establish the percentage of "alcohol by weight"?

Appellant's first contention is that the blood-alcohol test results are inadmissible unless the technician who performed the test is called to the witness stand. We disagree. It is well established that hospital records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms present. Commonwealth v. Di Giacomo, 463 Pa. 449, 345 A.2d 605 (1975); Morris v. Moss, 290 Pa. Super. 587, 435 A.2d 184 (1981); Commonwealth v. Seville, 266 Pa. Super. 587, 405 A.2d 1262 (1979); Commonwealth v. Green, 251 Pa. Super. 318, 380 A.2d 798 (1977) (en banc) (Spaeth, P.J. joining the majority Opinion). In Commonwealth v. Seville, supra, a case directly on point with the one sub judice, the Court held that blood-alcohol test results were properly admitted into evidence without the presence of the technician who performed the test. The Court reasoned that the test results were admissible under the hospital records exception to the hearsay rule: since a blood-alcohol test is basic and routine, it is highly reliable and thus rises beyond a mere opinion or conclusion to the level of medical fact. "No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts . . . or the existence of some readily ascertained substance or chemical within the body." Id. 266 Pa. Super. at 592, 405 A.2d at 1264. (Emphasis added). Even if the hospital records are hearsay, ". . . the elements of trustworthiness serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examination, which justifies admission of the writing or record without the necessity of calling all persons who may have had a hand in preparing it." Commonwealth v. Seville, 266 Pa. Super. at 592, 405 A.2d at 1265.

[ 349 Pa. Super. Page 230]

In the case at bar, as in Commonwealth v. Seville, supra, the physician who set the protocol for such laboratory procedures explained the blood test results of appellant, even though he was not present when the test was performed. The physician explained that he received and retained the records relative to the test performed, identified the lab and equipment used, and described the technician who performed the test as qualified with more than thirty years of experience. Based upon the logic espoused in the Seville case, nothing more is required for the admissibility of the blood-alcohol test results. Therefore, the blood test results were properly admitted into evidence and the weight afforded such tests was properly left for the jury to decide.

Alternatively, even without the records being introduced into evidence, the physician (Dr. Stein) could have expressed his medical opinion ". . . based in part on reports of others which are not in evidence but upon which the expert customarily relies in the practice of his profession." Commonwealth v. Gilliard, 300 Pa. Super. 469, 476, 446 A.2d 951, 954 (1982); see also Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). Since Dr. Stein was an acknowledged expert and the procedure was performed pursuant to the protocol which he established, his testimony alone, without the hospital records, would be admissible.

Finally, it is our opinion that the evidence produced against appellant was so overwhelming that the blood-alcohol test results were unnecessary. The arresting officer testified that he saw appellant's car cross the center line at an excessive speed and nearly strike parked cars on both sides of the street. After the officer stopped appellant's car, he observed appellant's "bloodshot watering eyes and . . . strong odor of alcohol." Appellant admitted to the officer that he had been drinking and in fact had too much to drink. The officer administered several field sobriety tests which appellant performed very poorly. We fail to see what more is needed to prove appellant was driving under the influence of alcohol on the night in question.

[ 349 Pa. Super. Page 231]

Appellant next alleges the blood-alcohol test results are inadmissible because the test does not establish the percentage of "alcohol by weight" as required by statute,*fn1 rather it establishes the "alcohol per volume". This issue has not been presented to our courts before, however, courts in other jurisdictions have held that statutes calling for blood-alcohol reading "by weight" are satisfied when the reading is expressed in terms of a percentage as the weight of alcohol per volume of blood.

In Commonwealth v. Brooks, 366 Mass. 423, 319 N.E.2d 901 (1974), the Supreme Judicial Court of Massachusetts reasoned that even though the concentration of fluids is properly expressed as the weight of alcohol per unit of volume, a reference to the concentration as "percentage by weight" (as required by the statute), does not make it inadmissible. "In medical and other scientific usage, the concentration of alcohol in the blood is frequently expressed as milligrams of alcohol per milliliters of fluid." Commonwealth v. Brooks, 366 Mass. at 430, 319 N.E.2d at 906, quoting Alcohol and Highway Safety, A Report to the Congress from the Secretary of Transportation, U.S. Department

[ 349 Pa. Super. Page 232]

    of Transportation (1968). This measurement is a weight/volume and is functionally equivalent to the percent by weight which is stated in most statutes. Commonwealth v. Brooks, supra.

Measuring body fluids has usually been accomplished through the use of fluids "by volume" and not "by weight"; therefore, the resulting measurements are usually given as "weight-volume" and not "weight-weight". See Harger, Medicolegal Aspects of Chemical Tests of Alcoholic Intoxication, 39 J. of Crim.L. & Criminology 402 (1948).

Additionally in City of Monroe v. Robinson, 316 So.2d 119 (La.1975), the court was presented with a similar question. The Court in that case quoted Watts, Some Observations on Police Administered Tests for Intoxication, 45 N.C.Law Rev. 34, 50 n. 53 (1966):

As the pioneering blood-alcohol laboratory reports and studies used the weight/volume quantification, it inevitably happened that the blood-alcohol 'percentage' figures seized upon by the non-expert lawyers, legislators, and traffic safety enthusiasts were in fact the weight/volume percentage figures. All the widely used testing instruments that report in terms of 'percentage' or 'percentage by weight' of alcohol in the blood actually utilize the weight/volume percentage quantifications.

The article went on to say that unless stated to the contrary, any blood-alcohol percentage figures are expressed in weight/volume measurements.

Bearing all of the above in mind, it would be difficult to conceive that the statute intended the only admissible blood-alcohol test results had to be measured in terms of alcohol by weight and nothing else. We hold that the language of 75 Pa.C.S. § 1547(d) allows the admission of blood-alcohol test results which establish the "alcohol per volume." Therefore the test results as admitted were in compliance with 75 Pa.C.S. § 1547(d).

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

[ 349 Pa. Super. Page 233]

SPAETH, President Judge, dissenting:*fn*

The principal issue on this appeal is whether the admission of a hospital record containing the results of a chemical analysis of appellant's blood for its alcohol content violated appellant's right to confrontation. In combination, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), hold that where a hearsay statement is important evidence and cross-examination of the declarant is not "wholly unreal," the Confrontation Clause requires the prosecution to prove the declarant's unavailability. Applying this test to the facts of this case, I conclude that the admission of the hospital report violated appellant's right to confrontation. The hearsay statement in the report was that the amount of alcohol by weight in appellant's blood was .243. This evidence was not merely important but devastating. The prosecution, however, did not prove the unavailability of the technician who had tested appellant's blood. Appellant was thereby denied the opportunity to try to show by cross-examination of the technician that the test had been improperly conducted. I should therefore vacate appellant's sentence and remand for a new trial.*fn1

1

Appellant was charged with driving under the influence of alcohol*fn2 and various summary offenses.*fn3 At the trial the

[ 349 Pa. Super. Page 234]

Commonwealth presented two witnesses, Officer Steven Lindstedt of the Freemansburg Police Department, and Dr. Robert Stein. Their testimony may be summarized as follows.

In the early morning hours of May 26, 1982, Officer Lindstedt saw a car driven by appellant cross the center line, exceed the speed limit, and nearly strike parked cars on both sides of the street. N.T. 14-21. The officer sounded his siren, and when appellant pulled over, the officer noticed appellant's "bloodshot watering eyes and . . . a strong odor of alcohol . . . ." N.T. 24. Appellant admitted to the officer that he had been drinking and had had too much to drink. N.T. 24, 27. He performed several field sobriety tests "very poorly:" he "was swaying from side to side," "was very unsure of himself," and during the finger to nose test, "he would touch or stumble [ sic ; " fumble?"] around his face . . . ." N.T. 25-26. After arresting appellant for driving under the influence, the officer took him to the Easton Hospital for a blood test. There he saw the hospital laboratory technician, John Cosha, draw a sample of appellant's blood.*fn4 N.T. 35.

Dr. Stein testified that he "was involved in setting up a protocol procedure [set of directions] for the taking of blood tests for driving under the influence, . . . in conjunction with the pathologists and Easton Hospital", and that copies of the reports of blood tests done at the hospital were sent to his office. N.T. 83-84. The doctor then identified Commonwealth Exhibit No. 1 as a form he had received at his office. The form is entitled "Easton Hospital Drug Monitoring-Toxicology Chart Copy" and purports to report that on May 26, 1982, blood was drawn from appellant at 2:40

[ 349 Pa. Super. Page 235]

    a.m., and was tested at 2:50 a.m., and that the results of the test were "Alcohol 243.7 mg/dl". The form is initialed, and Dr. Stein testified that the initials were John Cosha's. N.T. 86. The form does not record when the entries on it were made, the type of test conducted, the type of machine used, or otherwise whether the protocol that the doctor had set up had been followed. See 28 Pa.Code § 5.103 (approving equipment used for blood analysis "by means of gas chromatography, enzymatic procedures, distillation procedures, or diffusion procedures" provided that the equipment is not prohibited and is located in a clinical laboratory licensed by the Department of Health). Appellant objected to admission of the form, stating in part that "there would be no ability on the part of the defendant to make any effective cross-examination concerning the intricacies of the test with respect to the manner in which the sample was drawn, the manner in which the sample was protected, the type of testing that was done, the nature of the equipment and related inquiries that are very material to the validity of this test." N.T. 88-89. The trial court overruled the objection, and Dr. Stein proceeded to explain the results of the test as meaning "243.7 milligrams per deciliter." N.T. 89. "That's a measure of the actual physical amount of alcohol in the blood." Id. On cross-examination he further explained: "That's 243 milligrams, which is a weight measure for a deciliter, which is an amount of fluid." N.T. 95. "That refers to milligrams percentage that then becomes a percentage of the alcohol in the blood." N.T. 96. When asked, "A percentage by weight or a percentage by quantity?" the doctor replied, "By weight and volume." Id. Appellant testified that he had had three pony bottles of Rolling Rock between 11:00 p.m. and 1:00 a.m. N.T. 110-11. He further states that he did not stray from the right lane, exceed the speed limits except perhaps when shifting and then perhaps only 5 m.p.h. above the speed limit, or have any close calls with the cars parked along the road. N.T. 112, 114. After the police officer stopped appellant, he admitted he had difficulty getting his owner's card and driver's license out, N.T. 117, and he may have staggered

[ 349 Pa. Super. Page 236]

    for a couple of seconds as he got out of the car because he works standing and after sitting for awhile he sometimes has this problem, N.T. 131. In regard to the field sobriety tests, appellant testified that he did perform the finger to nose test but may not have pointed where the officer wanted him to, N.T. 119, that he was unable to walk heel to toe but would not be able to do that anyway without looking, N.T. 119-20, that he did not fall when he walked toward the officer, N.T. 120, and that he did not tell the officer that he had drunk too much but only that he had been drinking, N.T. 121. The jury nevertheless convicted appellant of driving while under the influence of alcohol.

2

Before considering appellant's argument that his right to confrontation was violated, we should consider his arguments that the Easton Hospital report was inadmissible because (a) the Commonwealth failed to lay a proper foundation for the results of the blood test, (b) the results did not present a measure of alcohol by weight in appellant's blood, and (c) the report does not fit within the business record exception.*fn5 I reject each of these arguments.

     a

Appellant's argument that the Commonwealth failed to lay a proper foundation for the results of the blood test turns upon whether the test was conducted by a qualified person. Chemical tests to determine the amount of alcohol in a driver's blood are provided for by 75 Pa.C.S. § 1547. Subsection (g), as in effect when appellant was arrested, provided that

[i]f for any reason a person is physically unable to supply enough breath to complete a chemical test, a physician or nurse or a technician acting under a physician's direction may withdraw blood for the purpose of determining its alcoholic content. The chemical analysis of the blood

[ 349 Pa. Super. Page 237]

    taken under these circumstances shall be admissible in evidence in the same manner as are the results of the breath chemical test. . . . .

75 Pa.C.S. § 1547(g).

The admissibility of breath chemical tests was governed by subsection (c), which provided:

In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle while under the influence of alcohol, the amount of alcohol in the defendant's blood, as shown by a chemical analysis of his breath or blood, which analysis was conducted with equipment of a type approved by the Department of Health and operated by qualified personnel, shall be admissible in evidence.

75 Pa.C.S. § 1547(c) (emphasis added).

"Qualified personnel" meant "a physician or a technician acting under the physician's direction or a police officer who has fulfilled [certain] training requirements . . . ." 75 Pa.C.S. § 1547(a). Appellant argues that the Commonwealth did not establish that the test of his blood was performed by "qualified personnel", Brief for Appellant at 9-10, and that this failure rendered the report inadmissible. See Commonwealth v. Sweet, 232 Pa. Super. 372, 335 A.2d 420 (1975) (statutory elements of foundation for test are necessary for admission of the test results).*fn6

I am not persuaded by this argument. Dr. Stein testified that the technician who administered the test "[was] certified and qualified to perform this type of analysis," N.T. 86, and that a protocol devised by him was in use at Easton Hospital on May 26, 1982, when the test was performed, N.T. 83-84. I think that this testimony was sufficient to show that the test was performed by "a technician acting under the physician's direction." 75 Pa.C.S. § 1547(a). Appellant concedes that if the protocol established by Dr. Stein

[ 349 Pa. Super. Page 238]

    was followed by the technician, then the technician was qualified within the meaning of 75 Pa.C.S. § 1547(a), Brief for Appellant at 9-19, but he argues that Dr. Stein was unable to say on the basis of his own knowledge that the protocol was in fact followed, and further, that the hospital report did not say it was, id. I acknowledge that this argument has some force. I think, however, that it goes to the weight of the evidence rather than to whether a sufficient foundation was laid to justify its admission. Cf. Commonwealth v. Gilbert, 254 Pa. Super. 579, 386 A.2d 101 (1978) (evidence that police officer had taken course of instruction on equipment and was certified to administer test sufficient to satisfy requirement that test be administered by qualified personnel).

     b

Appellant also argues that the results of the blood test were inadmissible because the measure, 243.7 milligrams per deciliter, was a weight to volume measure. See Dr. Stein's testimony, N.T. 95-97. In appellant's view, the statute required that it be a weight to weight measure.*fn7

The provisions in the statute referring to "the amount of alcohol by weight", 75 Pa.C.S. § 1547(d), can be traced to

[ 349 Pa. Super. Page 239]

    the Act of July 28, 1961, P.L. 918, § 1, 75 P.S. § 624.1, which applied only to breath tests.*fn8 This statute did not and still does not provide guidance regarding the measurement of "the amount of alcohol by weight", but some guidance is provided by the fact that the statute was derived from recommendations of committees of the National Safety Council and American Medical Association. Pa. House Leg.J., June 13, 1961, at 2266-67 (remarks of Rep.Fineman). Professor Harger, an original member of the committee that drafted the National Safety Council recommendations, later wrote that the measurement is "usually given as weight-volume and not weight-weight." Medicolegal Aspects of Chemical Tests of Alcohol Intoxication, 39 J.Crim.L. & Criminology 402 (1948). The measurement term "by weight" is commonly used throughout the United States, usually without explanation of how it is to be computed.*fn9 See Commonwealth v. Brooks, 366 Mass. 423, 429 n. 6, 319 N.E.2d 901, 905 n. 6 (1974). Statutes that do specify how the measurement "by weight" is to be computed, however, generally specify weight/volume. Id. Moreover, weight/volume is the scientifically accepted method of computing blood alcohol concentrations. See id. at 430, 319 N.E.2d at 906.*fn10 See also Uniform Vehicle Code Annotated

[ 349 Pa. Super. Page 240]

§ 11-902(b), Historical Note (Annual Supplement 1970) (Code measure "based on a weight/volume ratio [ ] [is] consistent with accepted scientific practice"); Watts, Some Observations on Police Administered Tests for Intoxication," 45 N.C.Law Rev. 34, 50 n. 53 (1966) ("It can be safely assumed in the entire field of chemical testing that, unless the contrary is indicated, all blood-alcohol percentage figures express weight/volume relationships.").

Given this background, it cannot be maintained that the reference in the statute to "the amount of alcohol by weight" unambiguously means that the amount of alcohol is to be measured by a ratio of weight to weight; the reference may equally readily be understood to provide for a weight to volume measurement and that is the way I believe the statute should be construed, for that is the measurement consistent with accepted scientific practice and with the scientific community's understanding of measurement "by weight." See Monroe v. Robinson, 316 So.2d 119 (La.1975); Commonwealth v. Bernier, 366 Mass. 717, 322 N.E.2d 414 (1975); State v. Lockamy, 65 N.C.App. 75, 308 S.E.2d 750 (1983); State v. McKinney, 605 S.W.2d 842 (Tenn.Crim.App.1980). Cf. 1 Pa.C.S. § 1903 (formerly 46 P.S. § 533) ("technical words and phrases and such others as have acquired a peculiar and appropriate meaning . . . shall be construed according to such peculiar and appropriate meaning or definition"). It follows from this conclusion that amount of alcohol in appellant's blood was measured in compliance with 75 Pa.C.S. § 1547(d).

     c

Appellant also argues that the hospital report containing the results of the blood test did not fall within the business record exception to the hearsay rule. This argument is in two parts: first, whether the report was authenticated by a "qualified witness", 42 Pa.C.S. § 6108(b); and second, if it was, whether the entry recording the results of the blood

[ 349 Pa. Super. Page 241]

    test represented "[a] record of an act, condition or event," id.

     i

The Uniform Business Records as Evidence Act, Act of July 6, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6108, provides:

(b) General Rule. -- A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

(c) Definition. -- As used in this section "business" includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.

Id.

Dr. Stein did not state the nature of his affiliation with the Easton Hospital. It therefore may not be said that when he testified to the identity of the hospital report containing the entry that recorded the results of the blood test, he was testifying as "the custodian" of the report. The statute makes plain, however, that testimony either by the custodian " or other qualified witness" may suffice. 42 Pa.C.S. § 6108(b) (emphasis added). The question we must decide, therefore, is whether Dr. Stein was such another witness.

Our Supreme Court has stated that a witness is qualified to identify a business record if the witness "possess[es] adequate knowledge of the regularity of the recordkeeping process . . . ." In re Estate of Indyk, 488 Pa. 567, 573, 413 A.2d 371, 374 (1979). Here, the record shows that Dr. Stein set up the protocol for the test; he regularly received from the hospital copies of reports of blood tests; among these, he received a copy of the report of the test of appellant's blood; he could identify the technician who drew the sample of appellant's blood and then tested it; and he could say

[ 349 Pa. Super. Page 242]

    that the technician was certified to perform the test, and that the equipment used was approved by the Department of Health. I think that this evidence was enough to show that the doctor was "qualified" to testify to the report's "identity and the mode of its preparation; and if it was made in the regular course of business at or near the time . . . ." 42 Pa.C.S. § 6108(b).

     ii

Not every entry in a business record is admissible; it must be "[a] record of an act, condition or event . . . ." 42 Pa.C.S. § 6108(b). In considering appellant's argument that the entry recording the results of the blood test was not such a record, I have found the cases by no means as clear as they might be.

In Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), it was argued that the trial court should have admitted the entry in a hospital record of the doctor's admitting diagnosis of the injuries sustained by the defendant's friend; it was the defendant's contention that he had killed the victim in an effort to protect his friend. In sustaining the trial court's refusal to admit the entry, our Supreme Court stated that "[t]he law is clear that hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given. Medical opinion contained in the records and proffered as expert testimony is not admissible however where the doctor is not available for cross-examination." Id., 463 Pa. at 455-56, 345 A.2d at 608 (citations omitted). The entry of the doctor's admitting diagnosis, the Court stated, was "in the nature of expert opinion testimony and accordingly was properly excluded." Id., 463 Pa. at 456, 345 A.2d at 608. In Commonwealth v. Campbell, 244 Pa. Super. 505, 368 A.2d 1299 (1976), I expressed the view, in dissent, that under DiGiacomo, an entry in a hospital record that spermatozoa had been found in the prosecutrix's vagina should have been excluded as an opinion that "the untrained layman would not be competent to make." Id., 244 Pa. Superior Ct. at 514, 368 A.2d at 1303 (SPAETH, J., dissenting);

[ 349 Pa. Super. Page 243]

Judge HOFFMAN was also of this view. Id., 244 Pa. Superior Ct. at 511, 368 A.2d at 1302. The majority of the court, however, were of the view that the trial court had "correctly analyzed the finding of spermatozoa . . . as one of fact. Tests to determine the presence of sperm are basic and routine and leave little room for error. Either there was spermatozoa present in her vagina or there was not." Id., 244 Pa. Superior Ct. at 510, 368 A.2d at 1301. In reaching this conclusion, the majority acknowledged DiGiacomo, but it cited it for the limited proposition that "conclusions" were inadmissible, going on to say that "[u]ltimately, every fact can be considered a conclusion," but that "[w]hen a circumstance becomes very routine or basic it is designated as a fact." Id., 244 Pa. Superior Ct. at 509-10, 368 A.2d at 1301. Thus the majority indicated that DiGiacomo should be understood as not forbidding the admission of every entry in a hospital record that stated a conclusion, or expressed an opinion; when the trial court could properly find the conclusion so "basic and routine" as to "leave little room for error", the entry could be admitted as a record of "fact." This view was in its general approach very similar to the approach taken by Justice ROBERTS and Justice POMEROY in their concurring opinions in DiGiacomo, 463 Pa. at 452-62, 345 A.2d at 608-11. It was also similar to Federal practice. See Fed.R.Evid. 803(6) (providing for the admission of an entry of "opinions, or diagnoses", with the trial court having discretion to exclude the entry if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness"); see also 4 J. Weinstein and M. Berger, Weinstein's Evidence para. 803(6)[6] (1985).

In subsequent decisions this court has adhered to, and has developed, the view expressed by the majority in Campbell. See Commonwealth v. Sabb, 269 Pa. Super. 206, 409 A.2d 437 (1979) (hospital record showing presence of sperm admissible); Commonwealth v. Seville, 266 Pa. Super. 587, 405 A.2d 1262 (1979); and see Emerick v. Carson, 325 Pa. Super. 308,

[ 349 Pa. Super. Page 244472]

A.2d 1133 (1984); Commonwealth v. Gilliard, 300 Pa. Super. 469, 446 A.2d 951 (1982).

In Seville the opinion was by Judge HESTER; Judge MONTGOMERY concurred in the result; I also concurred in the result, with a concurring statement. The issue was the same as the issue that we are discussing here -- the admissibility under the Uniform Business Records as Evidence Act of an entry in a hospital record stating the results of a blood alcohol test. Judge HESTER held that the entry was admissible as "in the realm of medical fact." Id. 266 Pa. Super. at 594, 405 A.2d at 1266. His review of the authorities persuaded him that "[t]he standarized, precise calculations used in arriving at the final result [of a blood alcohol test] leave little room for error." Id., 266 Pa. Superior Ct. at 593, 405 A.2d at 1265.*fn11

Although Judge HESTER's opinion did not command a majority, the principle enunciated by it has been adopted by subsequent panels of this court and therefore now binds this panel. In Commonwealth v. Gilliard, supra, the panel, citing Seville with approval, held that a doctor could testify to the results of a toxicology report even though he did not perform the tests, id. 300 Pa. Super. at 476, 446 A.2d at 954, and in Emerick v. Carson, supra, the panel held hospital records showing blood alcohol test results admissible, citing Seville as having "recognized that blood alcohol tests are undeniably accurate and that their results should be viewed as medical facts," id. 325 Pa. Super. at 314 n. 1, 472 A.2d at 1136 n. 1. Cf. Morris v. Moss, 290 Pa. Super. 587, 435 A.2d 184 (1981) (admission of hospital record showing patient conscious held error; determination not a routine

[ 349 Pa. Super. Page 245]

    finding of fact but an application of scientific principles; Seville quoted with approval). I therefore conclude that the entry of the results of the blood alcohol test of appellant's blood was an entry of fact within the requirement of the Uniform Business Records as Evidence Act, that to be admissible, a business record must be "[a] record of an act, condition or event . . . ." 42 Pa.C.S. § 6108(b).*fn12

3

If this were a civil case, the foregoing conclusions would end my inquiry. The United States Supreme Court has held, however, that the Confrontation Clause is not congruent with the hearsay evidence rule. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d (1970). Accordingly, in a criminal case the admission of hearsay, even though within an exception to the rule against hearsay evidence, may violate the defendant's right to be confronted by his accusers. I must therefore consider appellant's final argument, that if the record of the results of the blood alcohol test was within the business record exception to the rule against hearsay, as I have concluded it was, still, admission of the record was a violation of his right to confrontation.*fn13

     a

The United States Supreme Court has long considered the conflict between admitting hearsay evidence and preserving the defendant's right to confrontation. See, e.g., Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (dying declaration); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (former trial testimony).

[ 349 Pa. Super. Page 246]

The Court has consciously avoided formulating a uniform rule, California v. Green, supra 399 U.S. at 162, 90 S.Ct. at 1937, proceeding instead on a case-by-case basis. In Ohio v. Roberts, supra, the Court affirmed its intention to continue to proceed in this manner, id. 448 U.S. at 64, 65 n. 9, 100 S.Ct. at 2939 n. 9, but at the same time it suggested that the following "general approach" was "discernible [from its past decisions]":

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. [Citations and footnote omitted; we quote from and discuss this footnote, infra. ]

The second aspect operates once the witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such truthworthiness that "there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S. [97,] 107 [54 S.Ct. 330, 333, 78 L.Ed. 674] [1934].

Id. at 65, 100 S.Ct. at 2538.

This statement, however, is attended by certain difficulties. Perhaps the principal difficulty is the uncertainty caused by the Court's statement that the prosecution has the burden of producing, or demonstrating the unavailability of, the declarant "[i]n the usual case." (And see also the Court's later statement, id. at 66, 100 S.Ct. at 2539, that "the Confrontation Clause normally requires a showing [of unavailability].") This qualification necessarily suggests the question, When will the prosecution not have the burden because the case is not a "usual", or "normal[]", case?

[ 349 Pa. Super. Page 247]

The Court supplied no answer to this question, except as an answer may be suggested by the Court's footnote to its statement that "[i]n the usual case", the prosecution has the burden of demonstrating unavailability. This footnote, footnote 7, reads in part as follows:

A documentation of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness . . . .

448 U.S. at 65 n. 7, 100 S.Ct. at 2539 n. 7.

In Dutton the issue was whether the Confrontation Clause precluded testimony of what a co-conspirator had said even though the declarant was apparently available. It was held that the Confrontation Clause did not preclude admission of the testimony. In the view of the plurality, the hearsay in question was of marginal significance to the prosecution:

[ 349 Pa. Super. Page ]

This case does not involve evidence in any sense "crucial" or "devastating," . . . . It does not involve the use, or misuse of a confession made in the coercive atmosphere of official interrogation, as did Douglas [ v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)], Brookhart [ v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966)], Bruton [ v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)], and Roberts [ v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968)]. It does not involve any suggestion of prosecutorial misconduct or even negligence, as did Pointer [ v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)], Douglas, or Barber [ v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)]. It does not involve the use by the prosecution of a paper transcript, as did Pointer, Brookhart, and Barber. It does not involve a joint trial, as did Bruton and Roberts. And it certainly does not involve the wholesale denial of cross-examination, as did Brookhart.

400 U.S. at 87, 91 S.Ct. at 219.

[ 349 Pa. Super. Page 248]

In addition, the plurality found that the hearsay had such indicia of reliability that "the possibility that cross-examination of [the declarant] could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal." Id. at 89, 91 S.Ct. at 220.

     b

Since Ohio v. Roberts, both Federal and State courts have considered the issue of when the prosecution has the burden of producing, or demonstrating the unavailability of, the declarant. The cases involve a variety of situations, and it is probably impossible, and in any event the attempt would not be useful here, to reconcile all of them.*fn14 A generalization,

[ 349 Pa. Super. Page 249]

    however, is that the courts have not attempted to state a general rule. Instead, adopting the approach implied in footnote 7 in Roberts, they have for the most part proceeded on a case-by-case basis, imposing the burden of proving unavailability or not depending on their appraisal of the relative weights of the factors identified in Dutton, i.e. the importance of the evidence and the usefulness of cross-examination. For our purposes, of course, the most pertinent of these decisions are our Supreme Court's and our own, and while these are perhaps not entirely uniform,*fn15 they nevertheless make plain enough what our decision here must be.

In Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971), the hearsay in question fell within the state of mind exception. The issue of the prosecution's burden of proof was not implicated, for the declarant was the victim of the homicide of which the defendant had been convicted, but the case is important to our consideration because the Court specifically rested its analysis on Dutton. Quoting Dutton, and also Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court defined its task as appraising how "crucial", Dutton, or "damaging", Bruton, the hearsay was, and how important cross-examination was to its evaluation. After examining the record by this standard, the Court concluded that the Confrontation Clause did

[ 349 Pa. Super. Page 250]

    not preclude admission of the hearsay; the hearsay tended to prove the relationship between the declarant and the defendant, and that the relationship did exist was shown by other evidence, the admissibility of which was not questioned. Id. 443 Pa. at 243-44, 279 A.2d at 25-26.

In Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), the issue of the prosecution's burden of proving unavailability was the central issue. There the Court held that the Confrontation Clause precluded admission of an entry in an autopsy report on the cause of death. The Court, citing Dutton and quoting from its earlier decision in Thomas, noted that the autopsy report might have been properly admitted to establish the fact of death, that the autopsy had been performed, or the identity of the person who performed it, id., 457 Pa. at 315, 322 A.2d at 656, but held that to prove the cause of death, use of the autopsy report "as a business records exception to the hearsay rule . . . is impermissible unless the accused is afforded the opportunity to confront and cross-examine the medical examiner who performed the autopsy, absent a compelling necessity", id. It appeared that the Commonwealth had not called the medical examiner to testify because he was attending a convention. The Court expressly found that this did not "constitute[] a sufficiently compelling necessity to override the constitutional mandate." Id., 457 Pa. at 315 n. 5, 322 A.2d at 657 n. 5. The Court pointed out that "[t]he defense would have been able to submit the reliability of the examiner's opinion to the jury's scrutiny. Any weakness could have been unearthed." Id., 457 Pa. at 313, 322 A.2d at 655 (footnote omitted). The Court acknowledged that "production of a critical witness may be inconvenient", id., 457 Pa. at 316, 322 A.2d at 657, but held that the right of confrontation could not be denied on the basis of inconvenience to the prosecution. "Here", the Court said, "the Commonwealth could have produced the maker of the autopsy report, but did not." Id., 457 Pa. at 317, 322 A.2d at 657.

[ 349 Pa. Super. Page 251]

In Commonwealth v. Pinkins, 343 Pa. Super. 44, 493 A.2d 1365 (1985), this court considered the issue of the prosecution's burden of proving unavailability. The hearsay in question was within the co-conspirator exception to the hearsay rule. The record showed that the Commonwealth "failed either to produce [the declarant] or to adduce reasons for his unavailability." Id., 343 Pa. Superior Ct. at 52, 493 A.2d at 1369. The Commonwealth contended, however, that it was not required to prove unavailability, and that the defendant "had a chance to subpoena [the declarant] but chose not to do so." Id., 343 Pa. Superior Ct. at 52, 493 A.2d at 1369. The majority of the panel, quoting footnote 7 of Roberts, noted that "[a] demonstration of unavailability [by the prosecutor] is not always required," and that in Roberts, this proposition was supported by citation of Dutton. The majority then proceeded to examine the record and concluded that the hearsay was not "of peripheral significance at most" (quoting Dutton, 400 U.S. at 87, 91 S.Ct. at 219), but rather, "sharply tipped the scales against the [defendant]", id., 343 Pa. Superior Ct. at 54, 493 A.2d at 1370, because it tended to prove his "complicity in the enterprise", id., 343 Pa. Superior Ct. at 51, 493 A.2d at 1368. "Because", the majority stated, "the independent evidence upon which the Commonwealth relied for introduction of the out-of-court statements was so tenuous, it was highly important that any out-of-court statements be unequivocal and that the declarant be subject to searching cross-examination." Id., 343 Pa. Superior Ct. at 51, 493 A.2d at 1369. In these circumstances, the majority held, the Commonwealth did have the burden of demonstrating unavailability, and since it had failed to meet that burden, admission of the hearsay was precluded by the Confrontation Clause. Judge ROWLEY, in dissent, did not disagree on the applicability of Dutton. Rather, he stated that in his view of the record, the hearsay was corroborated by the defendant's own statements and in any event was not crucial to the case, so that his application of Dutton led him to conclude that the Confrontation Clause was not violated.

[ 349 Pa. Super. Page 252]

In Commonwealth v. McNaughton, 252 Pa. Super. 302, 381 A.2d 929 (1977), this court held that even if under DiGiacomo a doctor's statement in a hospital report (identifying the drug the defendant was charged with possessing) was admissible under the business record exception, still, under the Supreme Court's decision in McCloud, admission of the report violated the defendant's right to confrontation because the report was the "sole basis for the drug charge." Id., 252 Pa. Superior Ct. at 309, 381 A.2d at 932.

Finally, in Commonwealth v. Green, 251 Pa. Super. 318, 380 A.2d 798 (1977), while we did not expressly cite Dutton, our analysis was consistent with it. There the admission of an entry in a medical report was held not to violate the defendant's right to confrontation. Citing DiGiacomo, we emphasized that the entry ("excoriations of the left elbow and right forehead") was of a "readily observable physical condition . . . as easily . . . ascertained by the lay person as by the trained physician." Id., 251 Pa. Superior Ct. at 323, 380 A.2d at 801. The need for confrontation was therefore minimal.

Several conclusions are apparent from these decisions:

First: Whether the Confrontation Clause precludes the admission of hearsay is not to be decided by application of any general rule. Thus it may not be said that hearsay within a particular exception to the rule against hearsay, as, for example, the business record exception, is, or is not, inadmissible because of the Confrontation Clause. Ohio v. Roberts, supra; California v. Green, supra; Commonwealth v. Thomas, supra.

Second: "In the usual case", however, the Confrontation Clause requires that the prosecution "either produce, or demonstrate the unavailability of, the declarant." Ohio v. Roberts, supra 448 U.S. at 65, 100 S.Ct. at 2538.

Third: In some cases, the prosecution need not demonstrate unavailability. These cases are cases in which the hearsay was not "crucial" but rather "peripheral" to the

[ 349 Pa. Super. Page 253]

    prosecution, and where the possibility that cross-examination would have shown the hearsay to be unreliable was "wholly unreal." Dutton v. Evans, supra 400 U.S. at 87, 89, 91 S.Ct. at 219; and see Ohio v. Roberts, supra 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7.

Fourth: Whether hearsay is "crucial" or "peripheral" will depend on the particular facts of the case. Where the hearsay tended to prove a fact already proved by other evidence the admissibility of which was not questioned, it has been found peripheral. Commonwealth v. Thomas, supra. See also Commonwealth v. Green, supra. Hearsay has been found "crucial" where it tended to prove an element of the offense, Commonwealth v. McCloud, supra (cause of death); Commonwealth v. McNaughton, supra (identification of contraband), or "sharply tipped the scales" against the defendant, Commonwealth v. Pinkins, supra.

Fifth, and finally: Although Dutton identified two factors to be considered -- the importance of the evidence and the usefulness of cross-examination -- it is apparent that when the hearsay is "crucial", the argument that the prosecution has the burden of demonstrating the unavailability of the declarant is, while not quite irrebuttable, nevertheless very compelling. Thus, in Dutton, the United States Supreme Court held that unavailability must be demonstrated unless the possibility of showing unreliability was "wholly unreal"; and in no case identifying the hearsay as crucial evidence has either our Supreme Court or this court found that standard satisfied.

     c

When the foregoing principles are applied to the facts of this case, it is apparent that admission of the hospital record violated appellant's rights under the Confrontation Clause.

Appellant was arrested and charged with driving under the influence. The Commonwealth's evidence consisted only of the testimony of the arresting police officer and of Dr. Stein. Dr. Stein read the hospital record entry recording the blood test results, and offered expert testimony on the effect of alcohol on a person of appellant's size and

[ 349 Pa. Super. Page 254]

    build. The blood test was done solely for the purposes of possible prosecution for driving under the influence, and the results, .243 percent, not only linked appellant to the offense but gave rise to the presumption that he was under the influence of alcohol. See 75 Pa.C.S. § 1547(d). Appellant's testimony either contradicted the officer's or provided an explanation for the officer's observations. The test results were, therefore, in every sense of the word, "crucial" to the prosecution. Indeed, it is fair to say that the results must have done much more than "sharply tip[] the scales" against appellant, Commonwealth v. Pinkins, supra; in the language of the United States Supreme Court in Dutton v. Evans, the results must have been "devastating." 400 U.S. at 87, 91 S.Ct. at 219.

It is equally plain that one may not dismiss as "wholly unreal", Dutton v. Evans, supra, the possibility of cross-examination showing that the test results were unreliable. One may accept as true the proposition that "'[p]roviding a careful technique is used'", Commonwealth v. Seville, supra 266 Pa. Super. at 593, 405 A.2d at 1265, the margin of error in the results of a blood alcohol test should be small. The issue, however, was whether a careful technique was used, and on that issue it is by no means "wholly unreal" to suppose that cross-examination might have been important. Dr. Stein had not seen the test conducted; the hospital report contained no information, either regarding whether the test had been conducted according to the protocol designed by Dr. Stein, or regarding the equipment used; and Dr. Stein, not having seen the test conducted, could not supply any of this missing information. To state the point differently: because appellant was denied the right of cross-examining the technician, he was wholly unable to challenge the test results.

The test results being "crucial", and the prospect of cross-examination of the technician not being "wholly unreal", it was the Commonwealth's burden either to produce, or demonstrate the unavailability of, the technician. The Commonwealth, however, did not meet its burden, for it

[ 349 Pa. Super. Page 255]

"failed either to produce [the technician] or to adduce reasons for his unavailability." Commonwealth v. Pinkins, supra, 343 Pa. Super. at 52, 493 A.2d at 1369.*fn16


*fn* The Honorable Kendall H. Shoyer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.


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