holding that the admission of a business record under the Uniform Business Records as Evidence Act does not violate constitutional rights to confrontation and cross-examination because “the inherent reliability and trustworthiness of factual entries in a business record negate the need for cross-examination” and “[r]equiring cross- examination regarding facts contained in [a business] record . . . would therefore obviate the purpose and need for the exception”
How later courts described this case
- holding that the admission of a business record under the Uniform Business Records as Evidence Act does not violate constitutional rights to confrontation and cross-examination because “the inherent reliability and trustworthiness of factual entries in a business record negate the need for cross-examination” and “[r]equiring cross- examination regarding facts contained in [a business] record . . . would therefore obviate the purpose and need for the exception”
- notation in physician’s report that victim had "no hymen" was factual assertion rather than diagnosis or opinion for purposes of Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108
- notation on physician’s report that victim had “no hymen” was factual assertion, rather than diagnosis or opinion, admissible under business record exception
Written by the judges who cited it.
The opinion
FORD ELLIOTT, Judge,
concurring and dissenting:
I join in the majority’s determination that appellant’s trial counsel stipulated to the admission of the medical record notation and therefore this issue is waived. However, I respectfully dissent from the majority’s alternate holding on the ineffectiveness issue. Rather, I would hold that the notation “no hymen” was medical opinion based upon a physical examination. I would find such a notation is subject to interpretation and explanation and therefore is inadmissible without the testimony of the examining physician. Commonwealth v. Hemingway, 369 Pa.Super. 112 , 534 A.2d 1104 *155 (1987). Therefore, it is of arguable merit whether counsel may be held ineffective for stipulating to its admission.
In his Concurring Opinion Judge Wieand, citing Justice Robert’s Concurring Opinion in Commonwealth v. DiGiacomo, 463 Pa. 449 , 345 A.2d 605 (1975), has called for an expansion of the Business Records Exception to include medical diagnosis as exemplified herein. While I may well agree with his advocacy for a more common sense approach, I must adhere to the caution of former President Judge Spaeth in his Dissenting Opinion in Commonwealth v. Campbell, 244 Pa.Super. 505 , 368 A.2d 1299 (1976):
It is evident that the distinction between an entry of fact and an entry of opinion will not always be easy to draw. Moreover, there are opinions and opinions. Thus, encouraged by the commentators, a number of courts have adopted a middle ground, holding that even though the entry is of opinion, it will be admitted if the opinion is one upon which competent physicians would not be likely to differ. That is what Mr. Justice Roberts and Mr. Justice Pomeroy would hold, as they say in their respective concurring opinions in Commonwealth v. DiGiacomo, supra; as the opinion by Mr. Justice Roberts collects the authorities, there is no need to cite them here. The fact remains that the view of Mr. Justice Roberts and Mr. Justice Pomeroy is a minority view.
Id. at 513 , 368 A.2d at 1303 (footnotes omitted).
To date, the majority opinion in DiGiacomo continues to set forth the test we must follow. Therefore, I would find the notation “no hymen” to have been inadmissible instantly.