Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division at No. 1044 CA 1987.
Allen H. Smith, York, for appellant.
Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
Wieand, Popovich and Hester, JJ.
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This is an appeal from the judgment of sentence entered after appellant's conviction by a jury on the charge of driving under the influence of alcohol, 75 Pa.C.S.A. §§ 3731(a)(1) and 3731(a)(4). Herein, the appellant, Thomas L. Kravontka, raises an issue which heretofore has not been expressly addressed by the courts of our Commonwealth: Whether admission of blood alcohol test results, pursuant to the business records exception to the hearsay rule, without the presence of the lab technician who performed the blood analysis violated his Sixth Amendment right of confrontation. In addition, he questions: Whether a proper foundation was laid for the admission of the results of his blood alcohol test; and whether the results of his blood alcohol test were properly admitted under the business records exception to the hearsay rule, 42 Pa.C.S.A. § 6108. Finding no error in the lower court's decision, we affirm.
On March 21, 1987, Officer Jeffrey Foust stopped the appellant after witnessing his vehicle turn left in front of approaching traffic against a steady red light. While asking the appellant for his license and registration, the officer smelled a "strong odor" of alcohol on the appellant's breath, saw his eyes were "blood shot" and noticed his speech was "mush-mouthed and slurred." The appellant was then asked to perform a field sobriety test. Unable to perform the heel-to-toe walk without losing his balance, the appellant stated, "You might as well take me to the hospital for a blood test." The appellant was arrested and taken to Memorial Osteopathic Hospital where, with his consent, a blood test was performed. The blood test revealed the appellant had a .108% blood alcohol content.
At trial, the officer testified about the circumstances surrounding the appellant's arrest. He also testified that, in his opinion, the appellant was not capable of safe driving. Charlene McGrath, laboratory services manager at Memorial Osteopathic Hospital, also testified as a witness for the
[ 384 Pa. Super. Page 349]
Commonwealth. Ms. McGrath testified that she had custody over the hospital's laboratory records which included the record of the appellant's blood test. She also testified concerning the contents of the record of the appellant's blood test, including the result. She noted that Memorial's laboratory was approved by the Pennsylvania Department of Health as a clinical laboratory to perform blood tests. Upon the Commonwealth's request, the court took judicial notice of the fact that Memorial's laboratory was approved to perform blood alcohol analysis. See Pennsylvania Bulletin, Vol. 16, No. 42, October 18, 1986 (semi-annual issue covering the date of appellant's test).
Based on the evidence, the appellant was found guilty by a jury of driving while "under the influence of alcohol to a degree which renders a person incapable of safe driving" and while "the amount of alcohol by weight in the blood of the person is 0.10% or greater." 75 Pa.C.S.A. §§ 3731(a)(1), 3731(a)(4). Post verdict motions were filed and denied. The appellant was sentenced, and this appeal followed.
We will first address the constitutional issue raised by the appellant.*fn1 The appellant alleges that the admission of the record of his blood test by way of the business records exception to the hearsay rule without the presence of the blood analyst violated the Confrontation Clause.*fn2 While this issue has not been expressly addressed by the courts of this Commonwealth, we addressed an almost identical issue in Commonwealth v. Karch, 349 Pa. Super. 227, 502 A.2d 1359 (1986): "May the results of blood testing be admitted into evidence without calling the technician who
[ 384 Pa. Super. Page 350]
performed the test as a witness[.]" 502 A.2d at 1360. The majority held that the test results were properly admitted despite the absence of the technician. In so ruling, the court stated:
It is well established that hospital records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms present. (Citations omitted). In Commonwealth v. Seville, [266 Pa. Super. 587, 405 A.2d 1262 (1979)], 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 ...