COMMONWEALTH оf Pennsylvania v. Scott McNAUGHTON, Appellant.
Superior Court of Pennsylvania.
Decided Dec. 28, 1977.
381 A.2d 929
Submitted Nov. 8, 1976.
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Despite my disagreement with the majority‘s reasoning, I am satisfied that the majority‘s result is fair, and that a remand for findings is not necessary. I reach this conclusion only by taking as true all of appellant‘s testimony on the subject of appellee‘s mistreatment of her.2 So taken, appellant‘s testimony nevertheless reveals that “[her] conduct was so predominantly destructive to the marital relationship in its many and varied instances of indignities, that in totality the husband‘s indiscretions were minimal as contrasted to the prolonged and extreme conduct displayed by the wife.” Sells v. Sells, 228 Pa.Super. 331, 335, 323 A.2d 20, 22 (1974). Therefore, as in Sells, it was satisfactorily proved that appellee was innocent and injured.
Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Before WATKINS, P. J., and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
HOFFMAN, Judge:
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.1 We agree and, therefore, remand for another hearing.
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.6 Our courts have held that hospital report which satisfy the requirements of the Uniform Business Records as Evidence Act7 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).
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
Finally, even if the reporting dоctor‘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, supra,
Accordingly, we vacate the lower court‘s adjudication of delinquency and order a new hearing.
SPAETH, J., files a concurring opinion.
CERCONE, J., files a dissenting opinion in which PRICE and VAN der VOORT, JJ., join.
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.1 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 wеre admissible as within the business records exception to the rule against hearsay evidence; but I agree with Judge HOFFMAN that the admission of the records was in violation of appellant‘s right to confront the witnesses against him.
1
A business record may contain two sorts of entry. The first sort of entry is where the person making the entry has personal knowledge of the information contained in the entry. A common example is an entry in a hospital record by a nurse, recording when she took the patient‘s tempera-
The present case involves the second of these two sorts of entry: The treating physician had personal knowledge of what appellant said, and he entered what appellant said; but he did not have personal knowledge of whether in fact appellant had been teaching another patient how to inject morphine.
The Uniform Business Records as Evidence Act,
McCormick suggests, supra, that “probably the approach that most courts . . . take” is to recognize that the second sort of entry presents a problem of double hearsay. If this approach is taken, whether the entry is admissible depends upon whether both of the hearsay problems can be
The first question will be whether the entry was made by Declarant No. 1 in the regular course of business, or stated more fully, whether the entry is “of an act, condition or event“, whether “it was made in the regular course of business at or near the time of the act, condition or event“, and whether “the custodian or other qualified witness testifies to its identity and the mode of preparation.”
The second question will then be whether Declarant No. 2‘s statement is admissible. Several answers to this question are possible.
First, Declarant No. 2‘s statement may be admissible because no hearsay problem may be presented. This will be so if the issue is not whether the information contained in the statement is true but only whether the statement was made.
Second, if Declarant No. 2‘s statement is being offered for its truth, it is hearsay, but it may nevertheless be admissible because it falls within an exception to the hearsay rule. One available exception may be the business records exception. This will be so if in making the statement Declarant No. 2 was himself acting as part of the business organization and was under a duty to make the statement. Suppose, for example, that a resident physician (Declarant No. 1) makes an entry recording a statement by a nurse (Declarant No. 2) that the patient had a sleepless night. The nurse was under a duty to make this statement to the physician, and the statement is therefore admissible as a business entry. Even if Declarant No. 2‘s statement is not within the business records exception, it may be within some other exception to
Third, Declarant No. 2‘s statement may be hearsay but not within an exception to the hearsay rule. It will then be inadmissible. With respеct to this possibility, Wigmore would not be so strict; as I understand him, he would only require proof that Declarant No. 2 had personal knowledge of the facts contained in his statement to Declarant No. 1, without further requiring that Declarant No. 2‘s statement be within an exception to the hearsay rule—at least, he would adopt this approach if Declarant No. 2 were unavailable. Wigmore, supra.
For purposes of deciding the present case it may be assumed that the proper approach is the comparatively strict, two step analysis believed by McCormick to represent the approach most courts would take. Perhaps in some other casе we may decide not to be so strict, but we need not decide that now. Adopting this approach, I conclude that the entry of appellant‘s statement to the treating physician was admissible. The treating physician is Declarant No. 1. While the point is not entirely clear, it seems to me that it was within the physician‘s duty to record appellant‘s statement to him. Perhaps not. Suppose, for example, that appellant had told the physician that his sister had used morphine. Here, however, appellant‘s statement was relevant to the physician‘s care of appellant, at least I think so. Granted that the statement was not, “I am using morphine.” However, the fact that appellant said he was teaching another patient how to inject morphine must have suggested to the physician that appellant himself was, or might be, addicted to morphine. Such information was relevant to the decision how to treat appellant and may therefore properly
2
The relationship bеtween the confrontation clause of the Sixth Amendment and the rule against hearsay evidence is not clear. In Commonwealth v. Griffin, 243 Pa.Super. 115, 364 A.2d 477 (1976), I concluded that no clear, or authoritative, definition of the relationship was available but that we must proceed on a case by case basis, weighing, on the one hand, the importance to the defendant of cross-examination, and on the other, the availability of the declarant. 243 Pa.Super. at 119-23, 364 A.2d at 479-81 (concurring opinion).
Griffin was a difficult case (reflected by the 4-3 decision in this court). On the one hand, the importance to the defendant of cross-examination could hardly be overstated; the charge was rape and the declarant was the alleged victim. On the other hand, the declarant was unavailable and her statement was plainly within the reported testimony exception to the hearsay rule. Given these circumstances a majority of the court concluded that the defendant‘s Sixth Amendment right to confront the witnesses against him had not been violated. (PRICE, J. wrote the opinion for the court, JACOBS and VAN der VOORT, JJ., joining him; SPAETH, J., wrote a concurring opinion; WATKINS, P. J., wrote a dissenting opinion, CERCONE, J., joining him; HOFFMAN, J., wrote a dissenting opinion). The crucial facts, it seemed to me, were that the defendant at his first trial had the opportunity to cross-examine the victim, and that at his second trial the Commonwealth could not produce the victim.
2
Professor Kenneth Graham, author of a provocative article on the confrontation clause,2 appears to reach a conclusion similar to the one that Judge HOFFMAN and I have reached in this case. Graham suggests that in order to reach a satisfactory harmonization of the confrontation clause with hearsay doctrine it is necessary to shift the analysis from that of admissibility to that of sufficiency:
[W]hether or not a particular person is a “witness against” the defendant depends upon the use to which his statements are to be put. If his contribution makes him the “principal witness” for the prosecution, as the United States Supreme Court described the witnesses in Pointer [v. Texas, 380 U.S. 400, 402, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)] and Barber [v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)], he must be confronted, absent excuse or waiver. If, on the other hand, his “testimony” is not “crucial,” as the Court said the statement was not in Dutton [v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)], the prosecution need not produce him at trial. Vague as they may be, these respective categories require an analysis of the evidence in the context оf the case rather than in the abstract.
Though the Court has not done so, the concepts are capable of a more concrete delineation. Surely the fact that without the evidence supplied by the person at issue the prosecution could not have survived a motion for acquittal based on the constitutional insufficiency of the proof will be a significant factor in making him a “witness
Since juveniles are entitled to proof of guilt beyond a reasonable doubt, In re Johnson, 445 Pa. 270, 284 A.2d 780 (1971), by Graham‘s suggested test the evidence in this case would be found insufficient: without the disрuted report in evidence, the Commonwealth “could not have survived a motion for acquittal based on the constitutional insufficiency of the proof.”
The correctness of the foregoing analysis is at least suggested by the decision of our Supreme Court in Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971). There, evidence of various out-of-court statements had been admitted as declarations of the deceased indicating an existing state of mind. The defendant argued that the admission violated his Sixth Amendment right of confrontation. The Supreme Court held to the contrary, noting, first, that the declarations were within an exception to the hearsay rule, second, that the declarant was unavailable because dead, and finally, that the evidence was in no sense crucial to the defendant and in fact showed little more than that a relationship between him and the declarant existed—a fact established by other evidence. The important point for purposes of the present case is the Court‘s clear indication that its ruling might have been different had the evidence been “crucial.” See especially 443 Pa. at 242, 279 A.2d at 24.3
The instant appeal arises from the adjudication of the Juvenile Court of Allegheny County that appellant, Scott McNaughton, was a delinquent child as defined by The Juvenile Act,
On Friday, February 20, 1976, Scott‘s mother found an unloaded .22 calibre pistol in the pocket of Scott‘s coat. Because Scott, who was thirteen years old, had previously been adjudicated delinquent for armed robbery, Mrs. McNaughton turned the pistol over to Scott‘s probation officer. The following Monday, February 23rd, Scott‘s probation officer took him to the Shuman Detention Center in Pittsburgh where Scott was given a hearing on February 25th. Subsequently, from March 1 to March 8, 1976, Scott was hospitalized at WPIC for psychological testing and evaluation, then returned to the Shuman Center. During his stay at WPIC Scott stole from the infirmary hypodermic needles which were discovered in his possession along with a quantity of morphine. At the time of this discovery Scott was attempting to teach another patient how to inject the drug. According to the treating physician, Scott admitted all these facts when he was caught with the contraband.
At the delinquency hearing the Commonwealth sought to prove facts related to the drug incident, not by the testimony of the treating physician who found Scott in possession оf the contraband and heard his admission, but by offering the physician‘s report thereof as a hearsay excep-
At the outset it should be noted that, if the report did not fall within the scope of the business records exception to the hearsay rule, the instant adjudication of delinquency would be reversed. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) guaranteed juveniles charged with crimes in delinquency proceedings numerous of the constitutional rights which would attach in an ordinary criminal prosecution, including the right to cross-examine witnesses for the prosecution. Furthermore, The Juvenile Act,
“An extrajudicial statement, if obtained in the course of a violation of this act or which could be constitutionally inadmissible in a criminal proceeding, shall not be used against [a child charged with a delinquent act].”
Hence, an adjudication of delinquency may not rest on hearsay evidence which would be inadmissible in a criminal prоsecution.
In the instant case, however, the reports of the staff physicians would be admissible in a criminal proceeding because they fall within the hearsay exception incorporated in the Uniform Business Records as Evidence Act,
“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
To аuthenticate the report of the drug incident, the Commonwealth called Dr. Director who established the identity and mode of the report‘s preparation, and that it was made in the regular course of the hospital‘s business, at or near the time of the event by a staff physician who had observed the event. Within the discretion vested in the hearing court by the business records act the court accepted the report into evidence. Looking to the criteria of Paxos v. Jarka Corp., 314 Pa. 148, 171 A. 468 (1934) the court in the instant case found: (1) that the report was made contemporaneously with the conduct it purports to relate; (2) that, at the time of making, it was impossible to anticipate reasons which might subsequеntly arise for making a false entry in the original; (3) that the person responsible for making the entry was knowledgeable. See also Rockwell v. Stone, 404 Pa. 561, 572-73, 173 A.2d 48 (1961). Since these findings were based upon the testimony of the physician in charge, Dr. Director, the hearing court properly admitted the report into evidence.
Nevertheless, the plurality opinion argues that the report should not have been admitted unless the treating physician were present to testify as to its veracity. Relying on cases such as Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974) and Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), the plurality weaves to the conclusion that Scott McNaughton was denied his constitutional right to confront his accusers. This conclusion rests upon a misconstruction of the contents of the treating physician‘s report and a misapprehension of the law of evidence.
First, the report as read into the record by Doctor Director contained no medical opinion—the report in material
Second, relying on McCormick, Evidence 726 (2d ed. 1972), the plurality suggests that to the extent the report relates Scott‘s conclusion that he possessed morphine, the report was inadmissible because Scott was not an expert competent to draw that conclusion or offer that opinion. This is incorrect, of course, because Scott was a party to the delinquency proceedings, so his extrajudicial statements were admissions. The commentators, including Dean McCormick, agree that admissions in the form of opinions are not susceptible to objection under the “Opinion Rule.” See, e. g., McCormick, Evidence 631-33 (2d ed. 1972); Conrad, Modern Trial Evidence § 463 (1956); Henry, Pennsylvania Evidence §§ 71, 77 (1953). As Professor Wigmore has stated in his brilliant treatise on evidence:
“A primary use and effect of an admission is to discredit a party‘s claim by exhibiting his inconsistent other utterаnces. . . . It is therefore immaterial whether these other utterances would have been independently receivable as the testimony of a qualified witness. It is their
Thus it is that the “Opinion Rule” does not apply to admissions: “To extend the arbitrary trivialities of the Opinion Rule to parties’ admissions would be the extreme of futility.” Id. at p. 15. Accordingly, Pennsylvania has expressly rejected the notion that an admission is objectionable if it contains an opinion the speaking party was not demonstrably competent to make. Beardsley v. Weaver, 402 Pa. 130, 166 A.2d 529 (1961); Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942).2
For the foregoing reasons, I would affirm the order of the court bеlow.
PRICE and VAN der VOORT, JJ., join in this dissenting opinion.