Commonwealth v. Carter

DISSENTING OPINION BY

JOYCE, J.:

¶ 1 I most respectfully dissent from the majority’s conclusion that the crime lab report was inadmissible as substantive evidence. 7 In my view, the trial court prop *971 erly admitted the report as a record of regularly conducted activity under Pa.R.E. 803(6) (the “business record exception” to the hearsay rule). I would therefore reject Appellant’s claim that original appellate counsel was ineffective for failing to appeal this issue and affirm the order of the PCRA court denying relief.

¶ 2 The trial court determined that the Commonwealth had satisfied the requirements of Rule 803(6). I agree. First, the rule expressly allows for the admission of a business record “even though the declar-ant is available as a witness.” Id. Thus, the availability of the chemist who actually prepared the lab report is immaterial. In any event, Mr. Reigle, the manager of the crime lab and supervisor of the chemists, testified at length regarding his knowledge of the testing procedures employed by the lab. N.T. Nonjury Trial & Sentencing, January 11-12, 1999, at 69-71. Mr. Reigle verified that the lab report in this case was generated by the chemist at or near the time that the chemist conducted the scientific analysis of the substance recovered from Appellant’s person. Id. at 70:14-23, 74:16-75:2. Mi*. Reigle indicated that it is the regular business practice of the crime laboratory to generate such reports. Id. at 71:19-22. I also agree with the trial court’s observation that “there’s little or no motive here for inaccurate information or inappropriate information. These are routine records.” Id. at 76:13-15. Indeed, Appellant has pointed to nothing in the record to suggest a “lack of trustworthiness” in the sources of information or other circumstances behind the creation of the report. 8 In light of the foregoing, the trial court committed no abuse of discretion when it determined that Mr. Reigle was a custodian or other qualified witness and admitted the lab report as a business record through his testimony.

¶ 3 As indicated above, no confrontation problems are raised in this case since the lab report was admitted under a well-recognized exception to the hearsay rule and supported by sufficient indicia of reliability. Romero, supra. That notwithstanding, the majority proceeds with a constitutional analysis and concludes that the trial court, by admitting the lab report, violated Appellant’s right to confront and cross-examine the chemist. In reaching that conclusion the majority cites to Commonwealth v. McCloud, 457 Pa. 310 , 322 A.2d 653 (1974). In McCloud , our Supreme Court held that opinions, diagnoses and conclusions contained in hospital or medical records are not admissible under the business records exception. See also Pa. R.E. 803(6), Comment (noting that, consistent with prior Pennsylvania case law, Rule 803(6) does not include opinions and diagnoses). The rationale for excluding such evidence is that it is the equivalent of expert testimony and, therefore, not admissible unless the individual who prepared the report is available for cross-examination regarding the accuracy, relia *972 bility and veracity of his or her opinion. Id. at 655. It is significant that McCloud was a homicide case since, as the Court observed, “the legal cause of death is at best a conclusion based on interpretation of often conflicting medical opinion.” Id.

¶ 4 In my view, McCloud’s proscription on opinion evidence is really the exception to the rule that “[h]ospital records are generally admitted at trial as an exception to the hearsay rule under the [business records exception].” Commonwealth v. Seville, 266 Pa.Super. 587 , 405 A.2d 1262, 1264 (1979). In Seville , this Court held that a hospital report containing results of a blood alcohol test was admissible as a business record even though the hospital technician who administered the test was not present at trial. In distinguishing McCloud , we stated that “[n]o such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts, such as the event of hospitalization, treatment prescribed, symptoms given, or the existence of some readily ascertained substance or chemical within the body.” Id. (emphasis added). This Court went on to conclude that

[tjhere is nothing in this record or in the pertinent authorities which would suggest the result of a blood alcohol test is a matter “seriously in issue and the subject of conflicting opinion by qualified physicians.” Rather, we are persuaded the test is in the realm of medical fact. Courts and legislatures have now accepted the blood test as “undeniably accurate” and we will not burden the Commonwealth with producing witnesses to establish a fact which experience has proven to be trustworthy.

Id. at 1265-1266 (quoting McCloud) (footnoted omitted).

¶ 5 Subsequent cases involving the admission of blood alcohol test results have focused on the distinction between fact and opinion identified in Seville . For example, in Commonwealth v. Karch, 349 Pa.Super. 227 , 502 A.2d 1359 (1986), appellant, following his conviction for driving under the influence of alcohol, argued that the results of his blood alcohol test were inadmissible unless the technician who performed the test was called to testify. Id. at 1360. This Court rejected Kareh’s argument based upon the following analysis:

In the case at bar, as in Commonwealth v. Seville, supra, the physician who set the protocol for such laboratory procedures explained the blood test results of appellant, even though he was not present when the test was performed. The physician explained that he received and retained the records relative to the test performed, identified the lab and equipment used, and described the technician who performed the test as qualified with more than thirty years of experience. Based upon the logic espoused in the Seville case, nothing more is required for the admissibility of the blood-alcohol test results.

Karch, 502 A.2d at 1361 .

¶ 6 Similarly, in Commonwealth v. Kravontka, 384 Pa.Super. 346 , 558 A.2d 865, 866 (1989), we were confronted with an issue directly analogous to that articulated by the majority: whether admission of blood alcohol test results, pursuant to the business records exception to the hearsay rule and without the presence of the lab technician who performed the blood analysis, violate a defendant’s Sixth Amendment right of confrontation. In answering that question in the negative, Judge Popovich, writing for the majority, first noted that

[w]hen we review a constitutional objection to admission of evidence pursuant to an exception of the hearsay rule, we must remember that, although the right of confrontation is a fundamental right, it “must occasionally give way to considerations of public policy and the necessities of the case.”

*973 Id. at 868 (quoting Mattox v. United States, 156 U.S. 237, 243 , 15 S.Ct. 337, 340 , 39 L.Ed. 409 (1895)). Judge Popovich framed the analysis further by stating

“[t]he Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay.” Ohio v. Roberts, 448 U.S. [56,] 65, 100 S.Ct. [2531,] 2538, [ 65 L.Ed.2d 597 (1980) ]. First, “[i]n the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Citations omitted).” Id., 448 U.S. at 65 , 100 S.Ct. at 2538 .”

However, a demonstration of unavailability is not always required. In Dutton v. Evans, [ 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970) ], for example, the Supreme Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. Ohio v. Roberts, 448 U.S. at 66 n. 7, 100 S.Ct. at 2538 n. 7.

Kravontka, 558 A.2d at 868 . The Kravontka court reasoned that the type of exception to the hearsay rule at issue was precisely the type that would not require the production of the declarant. Citing Seville and Karch , the Court concluded that

[b]ecause of the overwhelming “indicia of reliability” inherent in blood-alcohol tests and the records of those test[s], the cross-examination of the technician who performed the test would be of insignificant utility to a defendant. Moreover, we see little need to parade before a jury every technician who was associated with a defendant’s blood-alcohol test simply to explain a procedure which, on a daily basis, is proven most reliable.

Id. at 870. Cf. Commonwealth v. Campbell, 244 Pa.Super. 505 , 368 A.2d 1299 (1976) (hospital records, showing existence of spermatozoa in rape victim, held properly admitted as fact via medical records librarian); Commonwealth v. Xiong, 428 Pa.Super. 136 , 630 A.2d 446 (1993) (notation on physician’s report that victim had “no hymen” was factual assertion, rather than diagnosis or opinion, admissible under business record exception); Commonwealth v. Nieves, 399 Pa.Super. 277 , 582 A.2d 341 (1990) (finding standard gonorrhea tests sufficiently similar to spermatozoa and blood alcohol tests to warrant admission of test results under business record exception).

¶ 7 I find the cases discussed above to be directly analogous to the case sub judi-ce. The lab report admitted against Appellant, unlike the coroner’s report in McCloud , did not offer the “opinion or diagnosis” of its author. Like the blood-alcohol test results admitted in Seville, Karch, and Kravontka , the report at issue here contained objective facts related to the nature and weight of a readily ascertained substance (cocaine) in a controlled sample. The test performed by the chemist, and described by Mr. Reigle, is an accepted chemical analysis that produces highly reliable results rising beyond mere opinion to the level of scientific fact. The elements of trustworthiness inherent in this type of scientific analysis “serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examination[.]” Seville, 405 A.2d at 1265 .

¶ 8 Moreover, even the fundamental constitutional right of confrontation must bow to considerations of public policy and the necessities of a case where the utility of confrontation is, as it is here, remote. Kravontka, supra. The chemists who conduct analyses of controlled substances do so routinely and generally do not have an interest in the outcome of a trial. As *974 scientists, they are under a duty to make accurate reports and it is difficult to perceive any motive or opportunity for the chemist to falsify such reports. It also seems to me highly unlikely that the chemist in this case would have remembered any pertinent details regarding a chemical analysis he performed nearly one year before Appellant’s trial. His testimony inevitably would have been based on the lab report now at issue. Furthermore, any relevant testimony bearing on the likelihood of error in the testing procedure necessarily would have involved broad statements as to general practices and probabilities within the laboratory, all matters about which Mr. Reigle was certainly qualified to testify.

¶ 9 In conclusion, and to paraphrase this Court’s astute observation in Kravontka, supra, I see little need to parade before a jury every technician who was associated with a chemical test to explain a procedure which, on a daily basis, is proven most reliable. Since the trial court properly admitted the crime lab report, Appellant’s present ineffective assistance claim is premised upon a meritless issue. I would affirm the order dismissing Appellant’s PCRA petition without a hearing. 9

. The Commonwealth offered, and the trial court admitted, two exhibits pertaining to the nature and weight of the substance seized from Appellant. Neither of the exhibits has been transmitted to this Court, however the contents of each exhibit are clearly described in the record. Commonwealth’s Exhibit No. 4 was a copy of the lab report, number H9801978-C, prepared and signed by the chemist. N.T. Nonjuiy Trial & Sentencing, *971 January 11-12, 1999, at 72:13-15. Commonwealth’s Exhibit No. 5 contained copies of the documents in the original case file which the chemist prepared and relied upon in generating the actual lab report. Id. at 74-75. Appellant challenges only the admission of Commonwealth’s Exhibit No. 4, the actual lab report.

. In contrasting Pa.R.E. 803(6) with its precursor, the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108(b), the drafters of the rule state that “Pa.R.E. 803(6) places the burden on an opposing party to show that the sources of information or other circumstances indicate that a business record is untrustworthy, and thus does not qualify for exception to the hearsay rule. The statute places the burden on the proponent of the evidence to show circumstantial trustworthiness.” Pa.R.E. 803(6), Comment. Thus, under Rule 803(6), the burden was clearly on Appellant to demonstrate how the lab report was untrustworthy.

. Appellant raises two additional issues on appeal. He first contends that appellate counsel was ineffective for failing to appeal the trial court's denial of his motion for a continuance of his trial, which Appellant made for the purpose of retaining new counsel. I would find no merit to Appellant's underlying argument since he failed to comply with the 48-hour deadline imposed by Pa.R.Crim.P. 106 (Continuances in Summary and Court Cases). Moreover, under the facts of this case, the need for swift and efficient administration of criminal justice outweighed Appellant’s right to assert a purely dilatory motion for a continuance. Appellant also argues that appellate counsel was ineffective for failing to challenge trial counsel’s performance with respect to the admission of certain testimonial evidence regarding prior drug convictions. In light of the overwhelming evidence offered against Appellant, including the crime lab report I deem admissible for the reasons set forth in text, I would find that Appellant could have suffered no prejudice as a result of trial counsel’s allegedly ineffective assistance. Based upon the foregoing, I would find that appellate counsel was not ineffective for failing to pursue the claims asserted by Appellant and would affirm the PCRA court's denial of relief.