APPEAL FROM THE JUDGMENT OF SENTENCE SEPTEMBER 5, 1984 IN THE COURT OF COMMON PLEAS OF NORTHHAMPTON COUNTY, CRIMINAL NO. 648 OF 1982.
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.
[ 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.
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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.
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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
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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.
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
Appellant was charged with driving under the influence of alcohol*fn2 and various summary offenses.*fn3 At the trial the
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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
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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 ...