Commonwealth v. McNaughton

381 A.2d 929, 252 Pa. Super. 302, 1977 Pa. Super. LEXIS 2892

• Court: Superior Court of Pennsylvania
• Decided: December 28, 1977
• Docket: 712
• Status: Published

Opinions

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.

On March 30, 1976, appellant, age thirteen, appeared in Juvenile Court in the Court oí Common Pleas of Allegheny County in response to a petition filed by his probation officer. The petition alleged that on March 5, 1976, while appellant was at Western Psychiatric Institute and Clinic for psychiatric evaluation,² Dr. Solmani, appellant’s treating psychiatrist, found appellant in his room showing another patient how to inject morphine. The evidence presented at the hearing consisted of a written report prepared by Dr. Solmani which was read into the record by Dr. Director, a resident at the Institute. In the report, appellant’s psychiatrist stated that he observed appellant instructing another patient in the use of morphine and that appellant admitted possession of the morphine and syringes found in his room.³ Although defense counsel objected to the admission of the hearsay statements contained in the report, the court admitted the report as a hearsay exception within the Uniform Business Records as Evidence Act.⁴ The court adjudicated appellant delinquent, based on his violation of the Controlled Substance, Drug Device and Cosmetic Act,⁵ and placed him in detention. This appeal followed.

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). However, medical opinion contained in such reports and offered as expert testimony is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion. DiGiacomo, supra. Commonwealth v. McCloud, supra, illustrates our courts’ reluctance to permit the introduction of uncross-examined medical opinion evidence in criminal cases. Appellant in McCloud was charged with murder, an offense in which causation is an essential element. The Court reasoned that because the legal cause of death is often a conclusion based on conflicting medical opinion, the person offering the opinion must be present at trial for cross-examination regarding the accuracy and reliability of his opinion.

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 Fourteenth Amendment requires proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Johnson, 445 Pa. 270, 284 A.2d 780 (1971). Thus, the lower court must base its adjudication of delinquency on evidence that proves that the facts supporting the adjudication are true beyond a reasonable doubt. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Consequently, inadmissible hearsay evidence may not provide the basis for an adjudication of delinquency. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Farms Appeal, 216 Pa.Super. 445, 268 A.2d 170 (1970).⁸ In the instant case, because the statements contained in the hospital report are not within an exception to the hearsay rule, they do not provide sufficient support for the delinquency adjudication.

Finally, even if the reporting doctor’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, 457 Pa. at 311, n. 1, 322 A.2d at 654.⁹ In the instant case, the statements contained in the report constitute the sole basis for the drug charge on which the lower court based its adjudication of delinquency. To preclude appellant from cross-examining the only testimony supporting his conviction is to deny to him the right to confront his accusers as guaranteed by the Sixth Amendment of the United States Constitution and Article 1, § 9 of the Pennsylvania Constitution.

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.

1 . Act of December 6, 1972, P.L. 1464, No. 333, § 1 et seq.; 11 P.S. § 50-101 et seq.

2 . Appellant was placed in the Western Psychiatric Institute and Clinic after his mother gave his probation officer a .22 caliber pistol she had found in her son’s possession on February 20, 1976. (Appellant was then on probation as the result of a previous delinquency adjudication.)

3 . The description of the report in question is necessarily incomplete because of the lack of clarity in the record below. The record at no point reveals the specific contents of the report nor does it even identify the report in question. Indeed, Dr. Director, the testifying physician, and the lower court both characterize the report alternatively as the “discharge summary,” in which Dr. Director participated, and “Dr. Solmani’s report,” in which Dr. Director did not participate. Further, it is unclear from the record whether Dr. Director ever testified from the medical report at all. However, it is clear that the challenged report consisted of written statements describing both observations of appellant’s behavior and statements allegedly made by appellant. As the textual discussion will demonstrate, we find that the introduction of the written statements describing appellant’s behavior constituted inadmissible hearsay evidence. Moreover, the text will show that the introduction of these statements violated appellant’s Sixth Amendment right of confrontation. Consequently, we find it unnecessary to decide whether appellant’s alleged statements constituted admissions.

4 . Act of May 4, 1939, P.L. 42, No. 35, § 2; 28 P.S. § 91b. The Act provides as follows:

“A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

5 . Act of April 14, 1972, P.L. 233, No. 64, § 1; 35 P.S. § 780-101. The charges of violating the Uniform Firearms Act and making terroristic threats were not considered at the hearing.

6 . Act of December 6, 1972, P.L. 1464, No. 333, §21,11 P.S. § 50-318 provides:

(a) A party is entitled to the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine witnesses.

(b) A child charged with a delinquent act need not be a witness against or otherwise incriminate himself. An extrajudicial statement, if obtained in the course of violation of this act or which could be constitutionally inadmissible in a criminal proceeding, shall not be used against him. Evidence illegally seized or obtained shall not be received over objection to establish the allegations made against him. A confession validly made by a child out of court at a time when the child is under eighteen years of age shall be insufficient to support an adjudication of delinquency unless it is corroborated by other evidence.

7 . Hospital records are admissible as business records pursuant to the Uniform Business Records Act if the reports meet the following requirements: (1) The report is made contemporaneously with the events it purports to relate, (2) At the time the report was prepared, it was impossible to anticipate reasons which might arise in the future for making a false entry in the original, (3) The person responsible for the statements contained in the report is known. Meyers v. Genis, 235 Pa.Super. 531, 344 A.2d 691 (1975).

8 . Since In re Gault, supra, our courts have significantly expanded the constitutional rights afforded juveniles. Earlier cases had held that juveniles had no privilege against self-incrimination and that hearsay evidence could support juvenile convictions. In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954); cert. denied, 348 U.S. 973, 75 S.Ct. 535, 99 L.Ed. 757 (1955). However, following Gault, supra, our courts have applied many of the constitutional protections afforded adults to juveniles. See, In re Terry, 438 Pa. 339, 265 A.2d 350 (1970) (Juveniles have the right to timely notice of the charges, the right to counsel, the right to confrontation and cross-examination, and the privilege against self-incrimination). In re Johnson, supra (Juveniles are entitled to proof beyond a reasonable doubt); Farms Appeal, supra (Inadmissible hearsay evidence may not provide the basis of an adjudication of delinquency). See also, The Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333 § 1 et seq.; 11 P.S. § 50-101 et seq.

9 . See also State v. Matousek, 287 Minn. 344, 178 N.W.2d 604 (1970); State v. Tims, 9 Ohio St.2d 136, 224 N.W.2d 348 (1967).