Commonwealth v. Raab

ally any problem abused the father. The mother us to assume that medical argued dependency adjudi- that the court’s might developed T.G. have would have cation in error since there was no similarly ignored. been The trial court evidence that the father had abused or lacking determined that T.G. was proper children; would abuse the five other there- parental par- care and control her because fore, only placed child unsu- risk knowledge ents lacked awareness of and/or pervised contact with the father was the her sister’s obvious and serious medical one he previously had abused and whose needs. find no We abuse discretion. dependency challenged. ¶ Next, Mother contends that found, however, 11 We that the recent . court in removing erred T.G. from her amendments to the Juvenile Act evidenced clearly separation home when the was not sensitivity safety a renewed necessary. emphasizes Mother that she who, well-being emotional of children al- fully cooperated police has with both the themselves, though not abused have a sib- Indeed, and CYF. both CYF caseworkers ling who physically sexually has been family who have been involved family abused at the hand of a member. they reports any testified that had no explained, We problems during Mother’s visitations with view, In properly our the Juvenile Act However, the children. CYF recom- takes into consideration the sense of vul- T.G., only years mended that who was fear, nerability, helplessness hearing, old at the time of the remain with siblings may feel when in an living envi- grandmother pending psy- the maternal ronment where their brother or sister chological parents. evaluations sexually parent, has been abused one severe, Considering debilitating injury (1&, parent and the other other par- T.G.’s sister sustained and which her parent duty protect who has a ents, reason, whatever failed ad- children) emotional welfare of the dress, we find no reason to disturb inadequate steps taken it. placement. trial court’s words, other the focus is not on whether ¶ 14 Order affirmed. siblings actually the other are at risk for ¶ Appellee’s Application Suppress Rather, sexual abuse themselves. hereby Brief of DENIED. key question siblings whether the fit of lacking “proper the broader definition ...

parental necessary care control

for his mental or physical, emotional

health, or morals.” Pa.C.S.A. 6302. view, In our it is within the trial court’s Pennsylvania, COMMONWEALTH of siblings discretion to determine that Appellee, sexually abused children fit that defini- tion, even if there is no evidence that the

siblings sexually themselves will be RAAB, Appellant. Brian abused. Superior Pennsylvania. Court Id. at 8. Argued Nov.

¶ 12 We find the same to be true here. Filed March It is of no moment that the “abuse” present parental neglect T.G.’s ease

sister. The Juvenile Act and M.W. allow driving of appellant was convicted alcohol, and the influence of

while under re- suspended a license—DUI driving with are constrained to reverse lated. We of judgment convictions vacate sentence.

¶2 to this gave The events that rise February on prosecution began was Officer Jo- appellant stopped when Hanusey, Township seph Plumstead on of drunk Department, suspicion Police perform asked to driving. was tests, he sobriety during which field balance, swayed, exhibited and emit- poor of Based on this ted an odor alcohol. information, Hanusey ap- Officer arrested him pellant, charging driving under driving suspended the influence and with a transported appellant license. He Hospital Doylestown where blood revealed drawn and tested. The blood test a content of appellant had blood-alcohol .19. arrest, Following the pursuant Hanusey pre- procedures,

routine pared investigative report regarding an arrest, of and filled the circumstances proba- a of longhand out in draft affidavit This draft was ble cause. handwritten presented to a District Jus- subsequently typed in a formal tice affidavit cause, signed presence and was Eriksen, Jr., Langhorne, Neils C. recited: the District Justice. The affidavit appellant. February approximately at On hours, affiant, in a your while Harris, Atty., B. Stephen Dist. Asst. uni- in full patrol marked vehicle and Com., Doylestown, for appellee. authority a wearing badge form HUDOCK, JOYCE, JJ., BEFORE: Township by the employed Plumstead McEWEN, P.J.E. Department, Police did come behind Pt. Pleas- Ford van on brown westbound McEWEN, BY

OPINION P.J.E.: Your Moyer Pk. in the area Rd. ant miles Raab, brings Brian this followed this vehicle for .6 Appellant, 1f1 affiant mph. area has judgment speed This appeal from the of sentence fol- while mph. limit of Also aggregate imprisonment speed term of serve vehicle, this I noted twenty-three behind lowing from six months its left drifted months, non-jury trial times vehicle imposed following a several ¶ 5 in the brief filed with Appellant, side tires over the center line [and] Court, presents following now straddling this line. I conducted a traf- this questions for our review:3 reg. ap- fic on PA DTK 9213. I proached requested] [and] driver police reports are admissible Whether operator vehicle information from the suppression hearing prob- a to establish occupant. given sole I was [and] vehicle, stop cause to where the able expired OLN of Brian Raab. While con- author of is deceased and the him, with I the versing could detect testify? unavailable to I strong beverage. aroma an alcoholic in denying the trial court erred Whether slightly also noted slurred speech [and] appellant’s suppress? motion slowed, lethargic hand/eye coordination. appellant’s the first Since resolution second, only question controls the we need 18, 2002, May Hanu- Tragically, on single address that issue. sey duty. line of was killed the Conse- quently, testify he was unavailable to at govern 6 The standard of review at pre-trial suppression hearing evidentiary ruling ing challenge to an appellant challenged probable the Officer’s appellate may only that an court dictates cause to make the initial of his vehi- ruling upon reverse the of a trial court cle. showing that the trial court abused its Beg v. discretion. See: Commonwealth ¶ 4 At the suppression hearing the Com- 605, ley, 566 Pa. 780 A.2d monwealth introduced both the handwrit- (2001); Claypool, typewrit- ten form of affidavit and also the (1985). 198, 203-204, Pa. Appellant of probable ten affidavit cause.1 An as abuse of discretion has been defined objected to the admission of these materi- law, overriding misapplication “the grounds als on the that the handwritten judgment manifestly the exercise of hearsay,2 typewritten affidavit and the unreasonable, bias, preju or the result of upon affidavit was turn based the hand- dice, by partiality, ill-will or as shown court, written one. The trial after consid- evidence or the record.” Commonwealth by the ering legal briefs submitted Viera, 442 Pa.Super. 659 A.2d parties, challenged chose to admit the affi- (1995), denied, Pa. appeal and, davits, primarily based on that evi- (1996), citing Commonwealth dence, Hanusey that the Officer concluded Kubiac, stop appellant’s had cause to ve- (1988), denied, appeal hicle. the court denied the motion When suppress, proceeded to a non- appellant trial, the trial jury guilty found contends and was he chose to judge misapplied was im- the law when above stated offenses. Sentence by ar- prepared the affidavits posed and this followed. admit appeal statement, “Hearsay” than one a vid- 2. is "a other 1.The Commonwealth also introduced testifying declarant while at the made appellant eotape showing the movement hearing, prove offered in evidence to trial or following stop, pre- the initial scene asserted.” Pa.R.E. the truth of the matter Township of Police sented Plumstead Chief 801(c). Hasenauer, po- Duane who testified as to the preparing department’s routine in a case lice questions for It mention that these bears crime, reportable file for each inclu- comply review have been restated to investigative report. sion within that file of an Pa.R.A.P. 2116. deficiency is it cannot be telling most resting officer under business Pennsylvania in the Accord- exception set forth tested cross-examination. provides: Rules of That Rule cross-examina- ing Wigmore, Evidence.4 to Dean greatest “beyond any tion is doubt statements, as following hereinafter engine invented for dis- defined, legal ever are not excluded rule, covery Wigmore, supra, of truth.” 5 though the declarant avail- even under able a witness: is the declarant Nor out of court statement

oath when the long recog- This court is uttered. Regularly Records of Conducted as a fur- requirement nized oath Activity reliability, [citations ther assurance of memorandum, record, A report, or data omitted]. form, acts, events, compilation, any conditions, at near made the time Steele, Heddings 514 Pa. v. by, by, or from information transmitted (1987). 349, This Court has A.2d person knowledge, a kept insure a long recognized party that “to regularly course of a conducted business guarantees of trustworthiness re- regular if it activity, prac- and was the presence in sulting from a declarant’s activity tice of that to make the business court, hearsay evidence proponent memorandum, record, report, or data hearsay point excep- must to a reliable compilation, all as shown the testimo- testimony be tion before such will admit- ny of qualified the custodian or other 574, at Heddings, ted.” 514 Pa. witness... unless the sources of infor- Thus, at the burden of pro- mation or other circumstances indicate proponent duction is on the hear- lack of trustworthiness. term the court of say statement to convince paragraph as used in this “business” admissibility excep- under one of the its institution, business, includes associa- Pennsylvania R.R. Carney tions. tion, profession, occupation, calling (1968). Co., 489, 428 Pa. 240 A.2d kind, or not every whether conducted Smith, 487, Pa. 491- profit. (1996). 492, 1288, 1290 See also: 681 A.2d 803(6). Pa.R.E. Romero, Pa. Commonwealth v. ¶ analysis by begin echoing 8 We our omitted), (footnote (1999) astute penned observations the eminent denied, rt. 528 U.S. S.Ct. ce Justice, Justice, Ralph Cap now Chief J. (“[WJhere 145 L.Ed.2d 293 py: satisfy an excep at does not issue hearsay is against rule a rule of [T]he rule, hearsay confrontation tion to the i.e., exclusion, generally States Penn rights [under the United This is so because a admissible. implicated.”). sylvania are Constitutions] guarantees lacks hearsay statement 803(6) Pa.R.E. in- 9 The drafters of fundamental to the trustworthiness to the cluded within the Official Comment system jurispru- Anglo-American 803(6) “Pa.R.E. admonition Perhaps dence. such statement’s 101(a). developed under Uni- The law Although judge also the trial referred Act, Act is Business Records as Evidence as Evidence Uniform form Business Records 6108(b), support relevant, however, 42 sion, of his deci- pre- Pa.C.S. was the that Act since hearing governed was the Penn- 803(6). to Pa.R.E. cursor sylvania of Evidence. See: Pa.R.E. Rules opinions diagnoses” mitting very does not include great. them However admirable, character and added),5 whatever the (emphasis in- choice reputation of the institution from which pre- tended .to conform the Rule to the come, deny a defendant the existing decisional law of this Common- preme Court held that wealth. See: Commonwealth v. admit the aminer that contained an opinion without subjecting cross-examination,6 reasoning: 10 In written preparer Pennsylvania of that it was error of a medical McCloud, Su- ex- tions of the assertor here denied was the ine; thus insulated from effective at 471 a substantial Corp., opportunity to test diagnosis the medical examiner’s [314 [1934]. Pa. and ascertain the right. 148] The “substantial right ... the correctness of ” Paxos v. Jarka is to to cross-exam 171 A. deny challenge. qualifica right” [him] ^[468] Had the medical examiner been called to McCloud, swpra, Commonwealth v. conclusions, testify, opinions, in- (em- 313-314, Pa. at 322 A.2d at 655-656 terpretation autopsy contained in the re- omitted).7 phasis supplied)(footnote Cf: subject port would have been to cross- Karch, examination. The defense would have (blood 227, 502 alcohol A.2d 1359 reliability been able to submit the of the hospital test results were admissible under opinion jury’s scrutiny. examiners’ to the exception).8 records Any weakness could un- have been ¶ 11 present In the case the introduction However, opinion earthed. ex- “[a]n police of the deceased officer’s affidavits pressed hospital in they records to [were appellant opportunity did not afford to presence be admitted without the of the regarding cross-examine the officer the subject physician] is to no such search- suppression critical matters at issue in the soundness, ing inquiry accuracy, as to hearing, namely, the officer’s opportunity veracity. danger and Hence in ad- the observe the van driven appellant, opinions diagnoses operated by appellant 5. The traveling exclusion of and the van in distinguishes Pennsylvania the the from posted speed the excess of limit and crossed 803(6). Federal Rule. See: F.R.E. the center line. Supreme 6. The in Court Commonwealth v. hearsay exception 8.The at issue in Common- McCloud, (1974), 457 Pa. Karch, wealth v. addressing admissibility the of (1986), "hospital excep- was the 803(6) under the to Rule the precursor of tion,” permitted which the admission of "the i.e., Evidence, Pennsylvania Rules of the Uni- hospitalization, prescribed, fact of treatment Act, as form Business Records Evidence symptoms given”, "opinion and but not the 6108(b). Pa.C.S. proffered and contained the records as distinguish 7. The Commonwealth seeks to the expert testimony” unless the declarant was McCloud, instant case Commonwealth v. from available for cross-examination. Common- supra, by contending that the evidence here DiGiacomo, 455-456, wealth v. 463 Pa. ''act,” "event,” speaks only to an or "condi- (1975). See: Pa.R.E. tion,” opposed opinion. argu- as to an This 803(4), Purposes Statements for of Medical disingenuous ment is in that the somewhat Treatment, Diagnosis or and the Comment only "event" which the affidavit establishes "[sjtatements provides that made to vehicle, stopped appellant's that the affiant persons solely purpose the of retained for disputed. fact which is not The reason the litigation are not admissible under this rule.” however, stop, is the basis of the Common- Smith, See also: Commonwealth evidence, proffer wealth's of this and undeniably upon founded the reason was arresting of the officer as to whether arresting of officer visited speed, any calculate the extent of incur- death the its lane, the fact that this presence upon appellant, sion into the other of and may admissible under roadway, other exis- have been vehicles on Evidence, bias, of Rules of which con- ability tence and the officer’s the Federal to the exception draw from the tain a “residual” conclusions observable Moreover, Pennsylva- facts. See: F.R.E. 807.11 the officer’s affidavit was rule. however, Court, in promul- report, Supreme not a but a of nia “routine” statement Rules of Evi- opinions specifically prepared gating Pennsylvania events dence, prosecution justify specifically rejected exception. for this this 804(b)(5). appellant’s Consequently, just may This Court vehicle. See: Pa.R.E. of the supra, dodge the clear mandate Rules that another credibility competence guise opining of the au- under preferable, thor were critical to the rule of evidence is we leave fact, expertise Rules Committee Commonwealth’s case.9 this Pennsylva- instance the affidavit was foundation the decision as to whether upon stone which the nia Rules of should be amended Evidence sought establishing present. its burden of to address like the sustain a situation the stop appellant’s vehicle was ¶ Judgment of sentence vacated. Ju- Thus, justified.10 we are compelled to re- relinquished. risdiction verse the of the trial decision court. mindful, course, JOYCE, J., Dissenting 12 We are Files a apparent premature tragic Opinion. benefit that the ample emphasis

9. It bears that none of cases would be able to demonstrate reason upon by support relied the Commonwealth stop. in for the argument 29, 2002, reports of its August p. that law enforcement N.T. are admissible as business records involved provides: 807 direct 11.Federal Rule of Evidence evidence of the crime that was then being prosecuted. e.g.: See v. Commonwealth specifically covered Rule A statement not Graver, (1975) A.2d 461 Pa. 667 having equivalent 803 or but circum- (evidence pri introduced to show existence of trustworthiness, guarantees stantial is Russell, police reports); or rule, by the if the not excluded (1974) (evidence 459 Pa. 326 A.2d 303 (A) court determines that the statement is relationship introduced to show existence of fact; (B) a material offered as evidence of victim); between and defendant Common probative the statement is more on the Kelly, Pa.Super. wealth point any than it is offered other which (1976) (evidence police property re proponent procure evidence can ceipt police reports and two were not basis of efforts; (C) through reasonable perjury, bribery, convictions for defendant’s general purposes of these rules and the justice); and obstruction of Ariondo v. Mun justice will best be served interests of sey, 122 Pa.Cmwlth. statement into evidence. admission of the (1989)(evidence prove introduced to to notice However, may not be admitted a statement condition). Commonwealth of defective proponent exception unless the under this Following party the close of at the con- the adverse of it makes known to hearing, suppression trial clusion of the trial sufficiently in advance of the or hear- judge ing provide party stated: a fair the adverse it, clear, pro- opportunity prepare to meet crystal don’t Just so that we’re I ponent’s to offer statement intention believe absent the information con- it, including particulars and the veyed Hanusey concerning his by Officer vehicle, the declarant. name and address of operation of observations of the F.R.E. 807. that there would be—the Commonwealth 803(6) JOYCE, BY DISSENTING OPINION and Commonwealth v. It J.: Pa. I depart. from conclusion that this ¶ 1 Majority provided While the analysis perceptive my careful rationale of 3 The dissention between view position, respectfully I must dissent. Majority’s on whether Officer view, my trial court did not err in Hanusey’s affidavit of cause con- Hanusey’s admitting Officer affidavit of opinions tained or were recordations of 803(6). probable cause under Pa.R.E. event, co- prevalent act or condition is aptly by Judge, nundrum. As set forth ¶ 2 The court admitted the suppression Judge, Del now President Sole: affidavit of probable cause drafted Offi- Hanusey pursuant past, cer In the this court has had numer Uniform Business Records as Evidence Act. As the to address the issue of ous occasions notes, Majority correctly proper opposed basis opinion what constitutes report’s under which to consider the ad- purpose hospi fact for of admission of a 803(6) missibility Pennsylva- tal record under the Uniform Business pro- That Rule nia Rules of Evidence. Act. this Records as Evidence “Under vides: have been exception, hospital records

(6) hospitaliza the fact of admitted show Regularly Records of Conducted Ac- tion, prescribed symp treatment tivity toms found.” Commonwealth v. Hem memorandum, record, A report, or ingway, 534 A.2d form, acts, any in compilation, data (1987) citing events, conditions, made at or near DiGiacomo, by, time from information (additional omitted). citations by, person with knowl- transmitted Opinion hospital evidence contained edge, kept regu- the course of a records, however, is not admissible. Id. larly activity, and conducted business excluding “The rationale for medical regular practice if it was the of that records lies in the hospital activity business to make the memo- randum, record, expert testi fact that such'evidence is report, compi- or data lation, the by testimony mony and is ‘not admissible unless all as shown avail qualified prepared of the custodian or other wit- doctor who ness, re complies certification that able for in-court cross-examination 902(12), 902(11), accuracy, reliability and ve garding Rule or a ” certification, racity opinion.’ unless of his Commonwealth permitting statute Seville, 587, 591, Pa.Super. 405 of information or other v. 266 the sources (1979) 1262, citing 1264 Common circumstances indicate lack of trust- A.2d McNaughton, Pa.Super. v. 252 worthiness. The term “business” as wealth (1977). 929, A.2d 931 paragraph in this includes busi- 381 used association, ness, institution, profes- what is fact Drawing the line between sion, calling every and of occupation, and opinion and what is is often difficult kind, whether or not conducted for results. See varying led to profit. McClain, v. 520 Williams (1987) that (hospital A.2d record Majority has concluded that the con- 1374 impressions of social worker probable affidavit of cause contained tents of the psycho- plaintiffs pain may that have Hanusey’s opinion officer and constituted inadmis- somatic source was found to be inadmissible under Pa.R.E. was therefore

881 sible); DiGiacomo, to the ad- failing object to v. ineffective Commonwealth (1975) (medical hospital Pa. 345 A.2d 605 mission the victim’s 463 of testimony regarding indicating records custodian’s a doctor’s notation which had as it contained diagnosis, hospital hymen. deciding was the victim had no record, injuries sustained murder or a opinion was an whether this statement inadmissible); was Common- victim fact, court on Xiong relied Common- Pa. wealth v. 457 322 Green, 318, 380 Pa.Super. wealth v. 251 (1974) (autopsy report A.2d 653 offered “defined the terms A.2d Green to prove to essential element crime or ‘opinion’ as entail- diagnosis’ ‘medical crime Appel- connect where concerning ‘... a condi- ing a conclusion opportunity lant was denied cross- tion not reflected circumstan- visible but physician prepared report, examine who tially by existence of other visible inadmissible); v. was Xiong, A.2d at symptoms.” known Hemingway, Pa.Super. (citation omitted). Accordingly, (1987) (results Mt”, “rape that Xiong that notation court held excluding finding spermatozoa, hymen there no was a “factual state- was wrongly held to be admitted into were discovery” recounting physicians ment testimony without of criminal- evidence prop- and concluded that the records were tests); who ist conducted Com [cf.] § 6108 that coun- erly admitted under Campbell, Pa.Super. monwealth object for failing was ineffective sel (hospital rec to its admission. stating spermatozoa ord' was found profession, the nature Due to vagina in victim’s was treated as fact more opinion diagnosis doctor’s admissible); therefore Com an recognizable might constitute than what Seville, Pa.Super. monwealth There is no opinion by police officer. (medical (1979), A.2d 1262 an offi- distinguish law or define case containing results blood alcohol test of an opinion cer’s from his observation properly into admitted evidence Nonetheless, act, event, or condition. though even technician who adminis Xiong, which relied on the definition trial); testify test tered the did not Green, is illustrative of what is considered McNaughton, 252 Hanusey’s and excludes Officer (1977); [sic] Also, common as such. observations (hospital record was inadmissible where in Black’s opinion as set forth definition of the sole offered it was me Dictionary Law leads to conclude an essential el- prove Commonwealth to the affidavit of the content of charged); of the offense Com- ement Of- necessary to determine whether cause Green, Pa.Super. monwealth stop Hanusey probable had cause ficer (1977) (medical report stat- a statement of his observa- was Appellant rape ing that victim exhibited “excoria- tions, opinion. not his to elbow and forehead did not tions” diagnosis opinion a medical involve probable 5 An cause officer admissible under and therefore was Uni- reasonably that the believes a vehicle he as form Business Records Evidence of the motorist has committed violation Act). Pa.C.S.A. Code. Motor Vehicle 3608(b). case, Officer present § In the Xiong, Commonwealth s Appellant Hanusey’ stopping In basis 451-452 of 75 was a violation Pa.C.S.A. the issue whether counsel was Xiong, was prohibits speeding. traveling Since Officer lant at 62 MPH. This observa- Hanusey was deceased the tion is no observing different than that the probable speed established cause limit in through Appellant the ad- the area which mission of probable traveling his sworn affidavit of was posted was at 45 MPH. cause which that: Hanusey’s indicated These facts are not Officer and, thoughts, beliefs or inferences there- portion

The relevant of the affidavit of fore, Rather, opinion. they are not an are probable cause is as follows:12 a recordation of the acts which he under- February 2002 at approxi- [o]n took to Appellant determine whether mately hours, your affiant'[...] speeding personal knowledge. and his did come behind a brown Ford van westbound on Point Pleasant Pike in ¶ 7 Since I that portions conclude of Moyer area Road. Your affiant the affidavit of probable necessary cause followed this vehicle for approximately probable to establish stop Appel- cause to .6 miles at a speed of 62 MPH. This opinions, lant’s vehicle were not it bears speed area has a limit of 45 MPH.... 803(6) discussion that requires also that estimation, the source of my the information be trust- portion this of the affi- Indeed, worthy. davit of this is the main purpose cause states Officer Ha- Rule, nusey’s act, reliability since the inherent of an observations event or condition, and trustworthiness of the as document ne- opposed opinion. to his Un- gates the need for Green, like the cross-examination. See definition of an Commonwealth v. Xiong, supra. Clearly, traveling 62 MPH a Hanusey’s report contents Officer 45 MPH zone for a distance of .6 miles is trustworthy. were aptly As stated concerning not “a conclusion a condition trial court: circumstantially visible but reflected by the existence other visible and known [ajfter Hanusey Officer wrote out his symptoms.” The officer’s observations observations of events and conditions were based on an event or act readily them, near the time he observed he They visible. were not product very caused these statements to be reasoning deductive on based circumstan- typed, swore to them under oath and tial evidence. judicial authority submitted them to a as

¶ 6 The common sense definition of an the basis for the commencement of crim- opinion defines it as “what the witness inal proceedings against Appellant. thinks, believes, or in regard infers to facts canWe think of few other “business in dispute, distinguished, his per- way by records” buttresses in the same from knowledge sonal themselves.” corroborating evidence and the as- facts Black’s Dictionary, Law 6th Edition person prepared surance that the who added). definition, (emphasis Under this documents did so the knowl- Hanusey’s affidavit of probable edge that he had a legal professional cause personal knowledge evidences his obligation the documents be truth- the distance over which he Appel- followed ful and accurate. line, my opinion, only eling In this is the relevant over the center was not portion 3309, of the affidavit of cause charged driving with 75 Pa.C.S.A. on grounds since it establishes the officer's for travel; thus, roadways laned for consider- stopping Appellant speeding. Although for segment of ation of the affidavit is unnec- regarding there has been discussion the offi- essary. Appellant’s cer’s observations of vehicle trav-

883 McCloud, on 6/03/03, the defendant was at 11. More- Opinion, Trial Court over, murder. The medical examiner that a trial for requirements the other custo- autopsy the on the victim performed identity, the to its who dian of record testifies to because he was testify it of that was was unavailable preparation the mode its at a conference. in the at out of town medical regular made of business course the admission of act, trial court allowed the near the time of the condition or and its conclu- Thus, report medical examiner’s requi- were all satisfied. the event cause death to the of sion establish victim’s factors met to author- statutory site were Records as under the Uniform Business the under Pa. ize admission record hearsay the 803(6). Act to exception Evidence R.E. found that the Supreme rule. Court Our provides police 8 Case law that a offi admitting the medical trial court erred it cer’s can be admissible cause death conclusion as to of examiner’s the trustworthy pur and is within deemed the it established an element of because statutory exception of pose the crime, thereby the violating confrontation Graver, hearsay rule. Commonwealth v. Thus, “in the Court held Supreme clause. (1975); 131, 461 Pa. Com use, evidentiary as prosecution, a homicide Russell, monwealth v. 459 Pa. 326 A.2d to hear- exception a the business (1974); Kelly, say rule, proving an autopsy (1976); Arion legal impermissible causation is unless Munsey, do v. Pa.Cmwlth. to con- opportunity if afforded the accused (1989).13 supra, I I As indicated front and cross-examine the medical exam- requirements believe these have been met. a autopsy, iner absent performed who However, Pennsylvania Constitution necessity.” Id. The Court compelling to guarantees right an accused the con- noted the medical examiner’s absence against front cross-examine a witness his of medical because of attendance him; therefore, purpose proffered “compelling did not constitute conference prejudice evidence and the associated with the constitutional necessity override its admission must be evaluated to deter- Id. at n. 5. mandate.” infringement mine whether there is on this ¶ 10 admonished right. constitutional The McCloud decision McCloud, hearsay against the use evidence when (1974). “If offered used a crimi- to establish the elements [the is] Presently, Hanu- prove prosecution. an nal essential element of the crime or sey’s following Appel- directly connect defendant com- recorded action of a mile he mission of the crime” use of lant for .6 of while traveled were speed 62 MPH in a 45 MPH zone evidence violates confrontation clause. Appellant’s being 322 A.2d at v. not used establish quoting State Matousek, summary speeding of- guilt Minn. on 178 N.W.2d either the influence Having driving fense or the under determined that Rather, hearsay evidence was offense. pa- the submitted evidence was within offi- 803(6), analysis to determine whether the rameters of Pa.R.E. admitted and actions were suffi- prejudice to its relation to the confron- cer’s observations suppression court to make be cient tation clause must undertaken next. act, event or condition. 13. None these cases define what consti- tutes an versus a of an recordation legal determination pos- the officer suppress tion to and I affirm that would probable sessed Therefore, cause to respectfully initiate traffic order. I dissent. Moreover, stop.14 holding McCloud

prohibited the admission of the medical

examiner’s because the Common-

wealth used it to legal establish the causa-

tion of the decedent’s death. holding This qualified in that the constitutional im- plication may be overridden if there is N.S., K.G., In the Interest of: P.A. “sufficiently compelling necessity.” McCloud, 322 at 657. The Court noted Appeal of: D. & M.B.1 that “the medical temporary examiner’s from absence his official Superior duties to attend a Pennsylvania. Court of convention [does a suffi- constitute] Argued Oct. 2003. ciently compelling necessity.” Filed March ¶ 11 Presently, Hanusey Officer killed during duty the line of one month

after he stopped Appellant’s vehicle. Ad-

mitting into proba- evidence his affidavit of

ble cause only was the method proba- Commonwealth could establish Again,

ble cause. regard- information

ing the distance over which he followed

Appellant and the speed at which he Appellant

clocked was not used to estab-

lish the elements of the crimes which Thus, it is difficult accused.. imagine a more compelling reason to

admit the records in contravention

of Appellant’s right to confront the wit-

ness.

¶ 12 As to the admissibility of the re- cause, probable

mainder the affidavit of pass

I no judgment unnecessary as it is

purposes of determining whether the trial in finding

court erred Hanu-

sey had stop Appellant’s cause to

vehicle. I Accordingly, would find that he

trial admitting court did not err in in denying Appellant’s

evidence and mo- distinction, D.B., Having filing appeal, noted this I do not 1. Since the of this former children, believe that the could have been used By foster father of the has died. speeding to establish the elements of in order July Order dated he was dismissed proceed- secure conviction had this case appellant. as an pursuant ed to trial to McCloud.

Case Details

Case Name: Commonwealth v. Raab

Court Name: Superior Court of Pennsylvania

Date Published: Mar 15, 2004

Citation: 845 A.2d 874

Court Abbreviation: Pa. Super. Ct.