*1 A.2d 605 Pennsylvania COMMONWEALTH DIGIACOMO, Appellant. Marlo Pennsylvania. Supreme Court of Argued Oct. 1974.
Decided Oct. *3 appel- Pittsburgh, Stephen Dean, Swem, P. J. John lant. Eberhardt, Atty., Hickton, Robert L. Dist. J.
John Tighe, First Attys., Paulick, M. John Asst. Dist. Louis R. appellee. Pittsburgh, for Atty., Dist. Asst. O’BRIEN, EAGEN, ROB- J., JONES, and C.
Before POMEROY, MANDERINO, JJ. ERTS, NIX THE
OPINION COURT OF NIX, Justice. appeal
This direct from a conviction of murder in the degree second from results an altercation which occurred Allegheny County during a tavern in pro- which the prietor fatally eight shot the back seven or times by appellant. Appellant presses assignments two of er- justify judgment ror to the reversal of the of sentence grant and the agree a new trial. We do not and now affirm. 28, 1974,
On appellant, October DiGiacomo, Mario friend, Hruska, his John went to the “Some Place Else” by Raymond Tavern owned Anderson, the victim. Dur- ing the evening, course of the fight erupted between Hruska and sequence Anderson. In the of events which followed, appellant fired the shots which caused Ander- son’s death. trial, appellant At causing admitted death of Anderson but asserted that he fired the shots in protect friend, an effort to Hruska, from serious bod- ily injury. assignment The first charges of error improperly prevented from Hruska testifying thereby appellant denied his Sixth Amend- Right Compulsory ment Process. unquestioned
Is is that our Federal Constitution right provided assures the of an accused to be with adequate opportunity present his version of the inci *4 Washington dent to the trier of fact. v. Texas, 388 U.S. 14, 18, 1920, 87 18 In (1967); S.Ct. L.Ed.2d 1019 Re Oliver, 257, 273, 333 U.S. 68 92 682 S.Ct. L.Ed. (1948). recognition right, of this this Court has re
quired the of, Commonwealth to advise the defense and to make possible, available to the defense is all known eyewitnesses, Jones, Commonwealth v. 452 Pa. 308 (1973); Gray, A.2d 598 Commonwealth v. 441 Pa.
453 Carter, Pa. (1970); 427 486 Commonwealth v. 271 A.2d (1967). held 284 have however that 53, 233 A.2d We eye duty its witness an no to call as Commonwealth has or believe, after examination if there witness is reason investigation, of that witness v. unworthy of belief. Commonwealth be unreliable (1959); 872 Horn, 585, 150 A.2d 395 Pa. Palermo, 28, 81 (1951). 368 Pa. A.2d 540 witness, Hruska, the knowl
Here existence by edge possessed concerning events, fateful and him alleged defense. The his whereabouts known were appeal instant violation of the Amendment Sixth allegation improperly in is the that the Commonwealth to elect and caused him to invoke timidated witness thereby privilege him Fifth made his and Amendment If the record out as defense witness. bore unavailable ap merit in contentions, there would substantial these pellant’s position. Texas, U.S. S. Webb 409 93 Cf. Smith, (1972); Ct. 330 United States v. L.Ed.2d U.S.App.D.C. 66, 478 F.2d witness, by Hruska, subpoenaed was both prosecution ad- The Commonwealth the defense. aas the court that it would not call Mr. Hruska vised that he witness because were of the view was dur- worthy of concedes that belief. The Commonwealth ing preparation its trial Mr. Hruska interviewed. evi- During was advised that interview, Mr. Hruska suggested he eyewitnesses strongly other from dence accessory He might to this crime. well been At right against self-incrimination. of his also advised interview, Hruska communicat- point after this Mr. some Fifth to' Amend- his intention invoke the defense ed to in the matter. privilege if he was called as a witness ment Although appellant alleged and intimida threats transpired during the no tion, evidence of what there is prosecutor Mr. pre-trial between the conference beyond the Commonwealth that conceded Hruska *5 set forth Interestingly, above. there was no effort on part of the defense to introduce additional evidence support which would their claim that the witness had been coerced to remain silent.1 See Sistrunk, 655, 334 460 Pa. A.2d
doWe not believe under the facts of this case prosecutor that the conduct improper was or that he violated the Sixth rights appellant. Amendment First, significant it is prosecutor did fact have evidence from other sources which would tend to es tablish Mr. Hruska’s criminal involvement in this mur Secondly, suggest der. there was no evidence to prosecute depend decision upon to ver whether his sion of the event favorable to the defense or the advising Commonwealth. The mere of one individual rights his justifiable doing where there is a occasion for so, infringe upon does not in turn the constitutional rights of though another even the election to exercise rights may deprive those possible the other of a advan tage in his Here, proper defense. there was a occasion advising for possible Mr. consequences Hruska subsequently and thus fact that he privilege elected to invoke his if called as a witness impermissible infringement appellant’s upon con rights. stitutional appellant’s supra
The Texas, reliance on Webb clearly misplaced. gratu- judge In that case trial itously singled only proceed- out the defense witness and possible punishment ed admonish him as to perjury. As a result of re- these remarks the witness testify. properly fused to That Court concluded that the particular strong selection of witness, excessively this admonition, assumption and the unwarranted this may properly fact that Mr. Hruska invoked his Fifth privilege questions concerning shooting Amendment to avoid prevent being did not him from called to establish that he had been intimated or threatened Commonwealth. right lie, due intended violated defendant’s witness *6 “effectively it off the process that drove witness Here, the occasion for the admonition stand.” where threat, its not of was obvious and nature was a finding parallel there is no basis with the facts Webb, supra. brief, appellant more serious alludes to a
problem concerning
reference, during
prosecutor’s
summation,
to the
of the defense to call Mr.
failure
Hruska,
appellant’s friend,
prosecutor’s sug
and the
gestion thereby
justify
that this
infer
omission would
called,
ence
if
witness
testified ad
position.
versely
appellant’s
to
While defense counsel
made,
they
objected
to these remarks when
were
suggested
objection
propriety
to
and
remarks
preserved
post-trial
on
mo
properly
inference
v.
accordingly
Commonwealth
tions and
it is waived.
Bronaugh,
634,
Common
(1975);
459 Pa.
171
331 A.2d
(1974); Com
Reid,
357,
458 Pa.
wealth v.
Appellant’s second final concerns and judge’s permit trial of certain refusal to the introduction hospital who the records records where the doctor made permitted testify. to The records were was unavailable prove hospitalization the duration to fact of and diagnosis or medical stay, but not to show Appellant opinion. asserts that were admissible injuries show Mr. Hruska’s as well. records are ad
The law clear hospitalization, treatment missible show fact 1939, May 4, prescribed, symptoms given. Act of and 91b; 28 P.L. No. P.S. § § Mobley, (1973); 201 Platt John 450 A.2d 622 Pa. Co., 652, 66 Hancock Mutual Insurance 361 Pa. A.2d Life opinion 266 Medical contained proffered expert testimony as is not admissible how-
ever where the doctor is not available for cross-examina- Appeal, tion. See Jones 449 Pa. A.2d 117 (1972). Here, appellant attempted custodian have the testify admitting of records diagnosis as to the of the in- juries sustained. Such is in the nature of ex- pert opinion testimony accordingly properly ex- See, generally, cluded. McCormick, Handbook of Evidence, (2d Law 1972). ed.
Judgment of sentence affirmed. ROBERTS POMEROY, JJ., concurring opin- filed ions.
MANDERINO, J., concurs in the result. (concurring). ROBERTS, Justice agree majority’s Because I cannot the with assertion diagnoses hospital that in contained records are never exception admissible under the the business records to hearsay join opinion rule, I in cannot the of the Court.
Appellant charged Raymond was the with murder trial, appellant Anderson. At fatal admitted he the fired shot justifiable but asserted the homicide because protect done to being the life of a friend who beaten by the deceased. In order to demonstrate truly appellant sought friend’s life was endangered, introduce into evidence records. These showed that, following fracas, to a friend was admitted hospital. They treating physician’s di- also contained agnosis injuries. Although rec- appellant the friend’s ognized hearsay, he these records were maintained they excep- were admissible under the business records statutorily May 4, 1939, tion created the Act of P.L. 42, §2,28 (1958).1 P.S. 91b§ provides: 91b Section act, shall, “A rel- record of an or event far as condition so evant, competent qualified evidence if the custodian other far as only in so records
The trial court admitted the hospitalization proved fact of the friend’s hospital. to ad- refused stay It of his the duration diagnosis part of the record that contained mit that physician the friend. who treated court’s majority today the trial breezily affirms ruling, admissible concluding records are pre- only treatment hospitalization, to show the fact of moreover, asserts, be- symptoms given. It scribed and evidence, it is opinion diagnosis physician’s is cause the physician not available is not admissible where testify.2 is of this issue my view, majority’s resolution underlying the business the rationale
inconsistent with
hearsay rule.
exception
professional
to the
exception:
gives
following
reasons
McCormick
analogous to
grounds
exception
justified on
“The
is
exceptions
hearsay rule.
underlying
other
those
by the
reliability
regarded
furnished
as
Unusual
is
compara-
regular
practice
fact that
entries
tively
accuracy
compared to other
high degree
(as
cus-
memoranda)
records are
such books
because
by systematic bal-
tomarily
correctness
checked as to
very regularity and continu-
ance-striking, because
record-keep-
ity
to train the
the records
calculated
*8
in actual
precision,
ex-
and because
er
habits of
preparation,
identity
of its
the mode
witness testifies to its
regular
or
of
at
near
business
and if it was made in the
course
event,
if,
act,
opinion of
in the
the time of
condition or
the
information,
prep-
court,
of
time
the
the sources of
method
justify its admission.”
aration were
as to
such
sure,
majority’s
the
support in the cases for
2. To be
there is some
431,
See,
Mobley,
Pa.
301
holding.
g.,
v.
450
Commonwealth
e.
Co., 361
(1973);
Mut.
Ins.
A.2d 622
Platt v. John Hancock
Life
(1949);
generally 66
266
see
Pa.
A.2d
McCloud,
autopsy
(1973) (admission of
457
perience many the entire business of the nation and constantly upon other activities function in reliance entries of this kind.”
McCormick’s Handbook the of Law of at Evidence § (2d 1972). Wigmore ed. E. Cleary, the finds that fact that upon are “made and relied of affairs life and death” especially them relia- renders Wigmore, ble. (3d 1940). VI Evidence at 36 ed. § physician’s diagnosis impor- probably is the most tant element in the determining record in what treatment necessary preserve is patient’s the life and seem, reliability It health. would that the therefore, of diagnosis sufficiently safeguarded to allow its ad- opportunity mission even there is where no for the non- offering party recording physician. to cross-examine the Harris, Cf. Commonwealth 351 Pa. A.2d question efficacy I Furthermore, of cross-examina- tion discrepancies physician’s diagno- to uncover in the Wigmore is. As recognized, Professor has day-to-day hospi- of “[a]'midst details sources of cases, physicians tal ordinarily and nurses re- can from memory call specific actual of few or none rely upon entered; data themselves record action; their own hence to call them to the stand ordinarily nothing add little to the informa- tion the record er- furnished The occasional alone. omissions, occurring rors and of a routine work large staff, general are no more obstacle to the trustworthiness such records than are the errors of witnesses on the stand.”
Wigmore, supra. generally, Evidence, See 4 Weinstein’s ¶ 803(6) [04] (1975); but see McCormick, supra, § although
Finally, deprives the use record non-offering party opportunity explore phy- qualifications, diagnostician sician’s fact that the is a *9 hospital least mini- at physician staff of a assures on the competence greater qualifications. fact that no mal adequately by communicat- the record can be is indicated jury. to the ed assuming may
However, dan- that be some even there ger admitting diagnoses in cross-examination without recording that all physician,3 this not the does dictate containing diagnoses from evi- must be excluded Judge reports federal dence. Weinstein that “most need for courts reached an accommodation between the relevant information and fear uncross-examined the opinion. They diagnoses in- a drew distinction between volving ‘conjecture upon opinion’ diagnoses and ” ‘competent physicians which would differ.’ Weinstein’s Evidence, ¶ 803(b) [04] at 803-158 diagnoses containing tending former Records toward arguments diagnoses against 3. The in for and admission of cogently by Judge records are Weinstein: summarized containing objected di- “Those of records who admission agnoses argued a that between “fact” ‘difference “opinion” and an differ- is one of the fundamental evidence;’ ences of rules in the law of the traditional that ‘under evidence, qualified before he a witness to be must shown permitted accuracy of give expert opinion;’ an the'.'opinion safeguard of cannot be evaluated without cross-examination; by jury impressed be so would opinion subsequent that even rebuttal not overcome could the initial reaction. contrast, “By proponents admissibility medical rec- of the containing diagnostic opinions ords the need such stressed accuracy evidence and the of such records on which ‘[h]uman depend.’ They proven life will often if contend ‘that it is judicially come justify noticed from the records which reputable high is a institution of standards this purports diagnoses the inference that what to be made by physicians duly qualified give are made such doctors opinions,’ they pointed adversary ‘may himself out that the can, bring-out, call any the declarant and thus if he weaknesses addition, diagnosis.’ may doctor failure to call the permit opponent showing ‘shortcomings’ day a field procedures might explained if readily used which have been prepared report present; doctor who there is self-limiting feature that minimized abuse.” ¶ 4 notes 803(b)[04] (1975) (foot- Weinstein’s Evidence at 803-156-58 omitted).
460 tending
were excluded, those
toward the latter were not.4
development
McCormick finds a
in
similar
several state
McCormick, supra,
sample
courts.
A
of cases in
313.
§
jurisdictions
which
that,
other
in
at
some
have held
least
v.
diagnoses
Thomas
situations,
are
admissible include
Hogan,
1962); Bailey
Tennes
(4th
v.
On thé authorities, agree of these basis I that a cannot prohibition on the admission of all con- diagnoses taining necessary. However, I not need de- diagnoses termine in what circumstances should be ad- 803(6) permits diagnoses Fed.R.Evid. the admission of rule, however, speculative. per- whether are or routine The particular mits the trial court to a record exclude where indica- lacking. permits tions of trustworthiness are The admission rule of: memorandum, report, record, compilation, any “A or data form, acts, events, conditions, opinions, of diagnoses, or made by, at by, or near the time or from information transmitted person knowledge, regularly with kept if in the course of a practice activity, regular conducted if business it was memorandum, activity report, that business to make the rec- ord, compilation, or data by all of the as shown witness, qualified custodian or other of infor- unless the source mation preparation method or indicate cirumstances of lack of trustworthiness. term in this used ‘business’ as business, association, paragraph institution, profession, includes occupation, kind, calling every or not conduct- whether profit.” ed for U.S.Code, (Jan. Pub.L. 1975), Cong. No. 93-595 & Admin. News, pp. 2236-2237. report present case the or whether missible my view, the exclusion question admissible. report error, if it harmless. were sought admit- appellant previously, to have As stated been had ted the that his friend record show Although trial court badly beaten deceased. containing the part record refused admit the permit physician’s diagnosis, the admission it did indicating part had of the record friend struggle that he re- hospitalized as a result of the *11 hospital in From mained for two months. thereafter the the evidence, jury the must realized that de- this appellant’s beating ceased had inflicted an awful on describing nature of the evidence the exact friend. The physician’s injuries in the friend’s which was contained virtually on diagnosis would have no additional effect beating. I jury light am . in of other about beyond a had therefore convinced reasonable doubt admitted, it have had excluded evidence been upon judgment. harm- no effect Thus the error was less.
POMEROY, (concurring). Justice concurring Largely in for the set forth reasons opinion opinion ROBERTS, of I am of Mr. Justice diagnoses may hospital be ad- contained records Act, May mitted of under Business Records Act 2,' join P.L. I in the Court’s 91b. P.S. § § too, I, appellant’s conviction because be- affirmance of in the trial court’s refusal that the error involved lieve purpose question for the records admit the injuries showing diagnoses patient’s harmless. of the that, pointing purpose out I add this statement for Act, is a record under the terms of Business Records court, opinion sources “if, admissible preparation were such information, method and time of judge justify Thus, the trial has as to its admission.” deciding discretion in ad- whether business records are evidence, only mitted into and his decision reviewable judge abuse of The trial in this discretion. case, however, purport discretion, did not to exercise this but rather limited the admission per because he believed them to se for di- inadmissible agnostic purposes. my error, this was albeit view harmless error.