Commonwealth v. Belknap

J-S57020-14

2014 PA Super 259

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA ANTHONY BELKNAP

Appellant No. 3242 EDA 2013

Appeal from the Judgment of Sentence October 25, 2013

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001927-2013

BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

OPINION BY MUNDY, J.: FILED NOVEMBER 20, 2014

Appellant, Joshua Anthony Belknap, appeals from the October 25,

2013 judgment of sentence imposing no punishment, after he was found

guilty in a bench trial of one count of possession of drug paraphernalia.1

After careful review, we affirm.

The trial court summarized the relevant facts of this case as follows.

On the evening of November 22, 2012, at

approximately 9:51 P.M., the Brookhaven Police

Department was dispatched to Brookhaven Swim

Club. Officer Robert Barth was the first to arrive on

the scene. Upon arrival, Officer Barth observed a

large crowd of people across the street in a gravel

parking lot. As he got closer he saw that the group-

was surrounding an individual, later identified as

[Appellant], who was lying face down on the ground.

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35 P.S. § 780-113(a)(32).

J-S57020-14

Officer Barth asked everyone to clear the area

and asked for information about [] [Appellant]. He

checked [Appellant’s] vitals and discovered that

while he was unresponsive, he had a rapid pulse and

was breathing. Officer Barth was told by two

individuals on the scene that they believed

[Appellant] had overdosed on heroin.

Officer Barth administered sternum rub to the

[Appellant’s] chest, which he explained as a hard rub

on the sternum of the chest and an unconscious

subject, if they’re not totally out, will come to when

you administer the rub. Immediately after

administering the rub, [Appellant] opened his eyes

for a few seconds and then went back out. Officer

Barth then searched [Appellant’s] pockets for

identification purposes. A needle with an orange cap

was recovered from his right pocket. Officer Barth

testified that he did not smell any alcohol emanating

from [Appellant’s] person and did not locate alcohol

within the general area where [Appellant] was found.

Similarly, Officer Barth did not locate any controlled

substances in the general area where [Appellant]

was found.

Trial Court Opinion, 3/14/14, at 1-2 (citations to notes of testimony and

internal quotation marks omitted).

Appellant was subsequently arrested, and on April 17, 2013, was

charged with one count of possession of drug paraphernalia. Appellant

waived his right to a jury and proceeded to a bench trial on October 16,

2013. At trial, the Commonwealth presented evidence from Officer Barth,

who testified that, upon arriving at the scene and attempting to revive an

unconscious Appellant, two of his friends indicated that Appellant had

overdosed on heroin. N.T., 10/16/13, at 20-21, 25. Appellant’s counsel

objected to said testimony on the grounds it constituted hearsay, but the

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trial court overruled this objection. Id. at 21, 26. In reaching this

conclusion, the trial court concluded that Officer Barth’s testimony was

admissible under the medical treatment exception to the hearsay rule,

pursuant to Pa.R.E. 803(4). See id. at 23-24.

At the conclusion of the Commonwealth’s case-in-chief, Appellant

made a motion for a directed verdict, and the trial court took the matter

under advisement. Id. at 51-52, 61-64. Following argument on the matter,

the trial court denied Appellant’s motion on October 21, 2013. Thereafter,

on October 25, 2013, the trial court found Appellant guilty of one count of

possession of drug paraphernalia, but declined to impose a sentence of

confinement. See Trial Court Verdict Slip, 10/25/13; N.T., 10/25/13, at 6,

9. At the time of sentencing, Appellant was on parole in another matter,

and was directed by the trial court to comply with the general rules

governing probation and parole. N.T., 10/25/13, at 7; Trial Court Order,

10/25/13. Appellant did not file any post-sentence motions. On November

21, 2013, Appellant filed a timely notice of appeal.2

On appeal, Appellant raises the following issue for our review.

I[.] Whether the trial court erred in allowing the

hearsay testimony of Officer Robert Barth

regarding out-of-court statements made by

unidentified individuals who stated to him that

[Appellant] may have overdosed in their car

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2

Appellant and the trial court have complied with Pa.R.A.P. 1925.

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and that [Appellant] had an addiction to

heroin[?]

Appellant’s Brief at 7.

In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference. Questions concerning the

admissibility of evidence are “within the sound discretion of the trial court …

[and] we will not reverse a trial court’s decision concerning admissibility of

evidence absent an abuse of the trial court’s discretion.” Commonwealth

v. Brown, 52 A.3d 1139, 1197 (Pa. 2012) (citation omitted). “An abuse of

discretion is not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record.” Commonwealth v. Mendez, 74 A.3d 256, 260

(Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2013).

“[I]f in reaching a conclusion the trial court over-rides [sic] or misapplies the

law, discretion is then abused and it is the duty of the appellate court to

correct the error.” Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.

Super. 2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).

“Hearsay means a statement that … the declarant does not make while

testifying at the current trial or hearing; and … a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).

“Hearsay is not admissible except as provided by [the Pennsylvania Rules of

Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or

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by statute.” Pa.R.E. 802. However, an out-of-court statement is not

hearsay when it is introduced for the purpose of establishing the fact that

the statement itself was made, rather than for the truth of that statement.

Cf. Pa.R.E. 801(c). This is true whether or not the declarant is available.

Id.

This Court has long recognized that to insure a party

the guarantees of trustworthiness resulting from a

declarant’s presence in court, a proponent of hearsay

evidence must point to a reliable hearsay exception

before such testimony will be admitted. Thus, the

burden of production is on the proponent of the

hearsay statement to convince the court of its

admissibility under one of the exceptions.

Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (internal

quotation marks and citations omitted).

In the instant matter, the trial court permitted Officer Barth to testify

as to hearsay statements that were made to him by Appellant’s friends as he

attempted to resuscitate Appellant. Officer Barth testified, over Appellant’s

objections, as follows.

Q. [Commonwealth:] Okay. And you said that you

had asked what happened. At some point in trying

to determine what course of action to take with

[Appellant] did you receive any information as to

what had happened?

A. [Officer Barth:] Yes. There was (sic) two

subjects there that identified themselves as

[Appellant’s] friends. They notified me that he went

unconscious in their vehicle and they believed he

overdosed.

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[Appellant’s Counsel]: Objection, Your Honor. That

is the hearsay statement.

…

Q. [Commonwealth:] Did you get an indication of

what he overdosed on?

A. [Officer Barth:] They also said that [Appellant]

was – had an addiction to heroin that he was fighting

on and off for years.

[Appellant’s Counsel]: Objection, Your

Honor, that is also speculative. We don’t know how

they know unless he’s carrying the drugs or

presently …

N.T., 10/16/13, at 20-21, 25.

Appellant contends that the trial court abused its discretion in

concluding that Officer Barth’s testimony was admissible under the medical

treatment exception to the hearsay rule. Appellant’s Brief 11, 15-18.

Appellant maintains that the trial court’s reliance on Rule 803(4) is

misplaced, as the medical treatment exception is limited to out-of-court

statements made to physicians and nurses, and the statements in question

“had little impact on the course of action he took when he arrived on

location.” Id. at 16. Appellant further argues that this testimony “was

inherently unreliable[,]” and the trial court abused its discretion in allowing it

to be admitted into evidence. Id. at 10, 18-19. For the following reasons,

we disagree.

As noted, Pennsylvania Rule of Evidence 803 enumerates various

exceptions to the general inadmissibility of hearsay testimony, including the

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one at issue here. Rule 803(4) excludes from the hearsay rule statements

made for the purposes of medical diagnosis and treatment (the “medical

treatment exception”), and provides as follows.

Rule 803. Exceptions to the Rule Against

Hearsay--Regardless of Whether the Declarant

Is Available as a Witness

The following are not excluded by the rule against

hearsay, regardless of whether the declarant is

available as a witness:

…

(4) Statement Made for Medical Diagnosis or

Treatment. A statement that:

(A) is made for-- and is reasonably pertinent to --

medical treatment or diagnosis in contemplation of

treatment; and

(B) describes medical history, past or present

symptoms, pain, or sensations, or the inception or

general character of the cause or external source

thereof, insofar as reasonably pertinent to

treatment, or diagnosis in contemplation of

treatment.

Comment: Pa.R.E. 803(4) differs from F.R.E. 803(4)

in that it permits admission of statements made for

purposes of medical diagnosis only if they are made

in contemplation of treatment. Statements made to

persons retained solely for the purpose of litigation

are not admissible under this rule. The rationale

for admitting statements for purposes of

treatment is that the declarant has a very

strong motivation to speak truthfully. This

rationale is not applicable to statements made for

purposes of litigation. Pa.R.E. 803(4) is consistent

with Pennsylvania law. See [Smith, supra at 1288].

…

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This rule is not limited to statements made to

physicians. Statements to a nurse have been held to

be admissible. See Smith, supra. Statements as

to causation may be admissible, but statements as

to fault or identification of the person inflicting harm

have been held to be inadmissible. See Smith,

supra.

Pa.R.E. 803(4) (citation formatting corrected; emphasis added).

“The medical treatment exception provides that testimony repeating

out-of-court statements made for the purposes of receiving medical

treatment are admissible as substantive evidence.” Commonwealth v.

Fink, 791 A.2d 1235, 1246 (Pa. Super. 2002) (citation omitted). This is

true “regardless whether the declarant is available as a witness.”

Commonwealth v. D.J.A., 800 A.2d 965, 975 (Pa. Super. 2002), appeal

denied, 857 A.2d 677 (Pa. 2004), appeal denied, 959 A.2d 928 (Pa. 2004).

The following two requirements must be satisfied in order for a statement to

qualify as a medical treatment exception: (1) the statement must be made

for the purpose of receiving medical treatment; and (2) the statement must

be necessary and proper for diagnosis and treatment. Id. at 976 (citation

omitted).

Upon review, we discern no abuse of discretion on the part of the trial

court in concluding that Appellant’s aforementioned hearsay claim was

devoid of merit. The record reflects that Officer Barth testified pursuant to

the medical treatment exception that, prior to his attempt to revive an

unconscious Appellant, he inquired as to what had transpired and two of

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Appellant’s friends indicated that he had overdosed on heroin. N.T.,

10/16/13, at 20-21, 25. First, these statements in question were clearly

made for the sole purpose of obtaining “medical treatment or diagnosis” on

behalf of Appellant. See Pa.R.E. 803(4)(A). The record reflects that

Appellant was found lying face down and unconscious in the Brookhaven

Swim Club Parking Lot, surrounded by a group of individuals, and Officer

Barth, the first to respond to the scene, immediately inquired as to the

possible cause of Appellant’s condition in order to determine how to proceed.

N.T., 10/16/13, at 18-20.

Second, although Officer Barth testified on cross-examination that the

information he received from Appellant’s friends “didn’t change the way [he]

dealt with [Appellant,]” said statements described a possible cause of

Appellant’s unconsciousness, which were “reasonably pertinent to [his]

treatment[,]” of Appellant. See Pa.R.E. 803(4)(B); N.T., 10/16/13, at 26.

The record reflects that at the time of this incident, Officer Barth was an 18-

year veteran of the Brookhaven Police Department and was trained in the

practice of resuscitating victims who may have suffered a drug overdose,

like Appellant in the case sub judice, by performing a sternum rub. N.T.,

10/16/13, at 17, 27-28.

Third, the statements of Appellant’s friends at the scene carried a

strong assurance of reliability, in that they were evidently made in order to

assist Officer Barth in the timely resuscitation of Appellant, who was

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unconscious and lying face down in a parking lot at the time of Officer

Barth’s arrival. This Court has long recognized that statements proffered

under Rule 803(4) are subject to a two-part reliability test. “First, the

declarant must have a motive consistent with obtaining medical care.

Second, the content of the statement must be such as is reasonably relied

upon by medical personnel for treatment or diagnosis.” Smith, supra at

1291 (citation omitted).

Fourth, the admission of this aforementioned testimony did not

deprive Appellant of a fair trial. The record reflects that the trial court,

sitting as factfinder, explicitly disregarded the testimony concerning

Appellant’s prior heroin use, and considered this testimony for the sole

purpose of the medical treatment exception. See N.T., 10/16/13, pp. 43-

44.

Lastly, we note that, contrary to Appellant’s contention, the medical

treatment exception to the hearsay rule set forth in Rule 803(4) is not

expressly limited to statements made to licensed medical professionals

such as physicians or nurses. See Appellant’s Brief at 16, referencing

Smith, supra.3 Nor has our own independent research yielded any case law

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3

Smith is distinguishable from the instant matter. In Smith, our Supreme

Court refused to expand the scope of the medical treatment exception

beyond its relatively limited nature to include the identity of a perpetrator.

Smith involved a nurse treating a young child suffering from severe burns

that asked the child what happened to her, and the child responded that,

(Footnote Continued Next Page)

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in this Commonwealth indicating that this is the case. Rather, as noted, the

official comment to Rule 803(4) states that “[t]his rule is not limited to

statements made to physicians[,]” and statements as to causation, e.g. how

the person sustained the injury, may be admissible. Pa.R.E. 803(4)

Comment; see also Fink, supra (stating, “a statement comes within this

exception when … [it] relat[es] to the cause of the injury … and … as to how

the person sustained the injuries…[]”).

Instantly, Officer Barth, the first-responder at the scene in question,

testified that when he arrived on the scene, he noticed a large group of

people across the street in a parking lot. N.T., 10/16/13, at 19. Upon

getting close, Officer Barth saw Appellant lying face down in the gravel. Id.

The first thing Officer Barth did was ask the group to move out of his way

and to tell him what happened. Id. As this was transpiring, Officer Barth

approached Appellant, rolled him over and checked his vital signs, including

his pulse and verified that he was breathing. Id. at 20. It was during these

moments, when Officer Barth was actually trying to assess Appellant’s

condition and provide first-response, emergency medical treatment that the

declarants, two of Appellant’s friends, told Officer Barth that Appellant had

_______________________

(Footnote Continued)

“[d]addy turned on the hot water and daddy put me in the water.” Smith,

supra at 1290. The Smith Court set forth the prevailing view that the

identity of the assailant or perpetrator who may have caused the injury for

which medical treatment is being sought, is not within the medical treatment

exception because the identity of the abuser is not pertinent to medical

treatment. Id. at 1291-1293.

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gone unconscious in their vehicle and they believed he had overdosed. Id.

at 21. Therefore, the certified record reveals the declarants made their

statements to Officer Barth, a trained first responder, specifically in the

context of his trying to assess Appellant’s then-present condition, symptoms,

and the cause thereof. As a result, it logically follows, the statements in this

case were made for the purpose of securing medical treatment, as he was

providing first-response, emergency medical treatment. As a result, we

conclude the statements were admissible under Rule 803(4). See Brown,

supra.

Based on the foregoing, we discern no abuse of discretion on the part

of the trial court in concluding Appellant’s hearsay claim is devoid of merit.

Accordingly, the trial court’s October 25, 2013 judgment of sentence is

affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2014

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