Commonwealth v. Raab

845 A.2d 874, 2004 Pa. Super. 63, 2004 Pa. Super. LEXIS 255

• Court: Superior Court of Pennsylvania
• Decided: March 15, 2004
• Status: Published

Opinions

OPINION BY

McEWEN, P.J.E.:

1f 1 Appellant, Brian Raab, brings this appeal from the judgment of sentence to serve an aggregate term of imprisonment of from six months to twenty-three months, imposed following a non-jury trial in which appellant was convicted of driving while under the influence of alcohol, and driving with a suspended license — DUI related. We are constrained to reverse the convictions and vacate the judgment of sentence.

¶2 The events that gave rise to this prosecution began on February 12, 2002, when appellant was stopped by Officer Joseph Hanusey, of the Plumstead Township Police Department, on suspicion of drunk driving. Appellant was asked to perform field sobriety tests, during which he swayed, exhibited poor balance, and emitted an odor of alcohol. Based on this information, Officer Hanusey arrested appellant, charging him with driving under the influence and driving with a suspended license. He transported appellant to Doylestown Hospital where blood was drawn and tested. The blood test revealed appellant had a blood-alcohol content of .19.

¶ 3 Following the arrest, pursuant to routine procedures, Officer Hanusey prepared an investigative report regarding the circumstances of the arrest, and filled out in longhand a draft affidavit of probable cause. This handwritten draft was subsequently presented to a District Justice in a formal typed affidavit of probable cause, and was signed in the presence of the District Justice. The affidavit recited:

On February 12, 2002, at approximately 0055 hours, your affiant, while in a marked patrol vehicle and in full uniform wearing a badge of authority and employed by the Plumstead Township Police Department, did come behind a brown Ford van westbound on Pt. Pleasant Pk. in the area of Moyer Rd. Your affiant followed this vehicle for .6 miles at a speed of 62 mph. This area has a speed limit of 45 mph. Also while following behind this vehicle, I noted that several times the vehicle drifted its left side tires over the center line [and] was straddling this line. I conducted a traffic stop on PA reg. DTK 9213. I approached [and] requested] driver and vehicle information from the operator [and] sole occupant. I was given an expired OLN of Brian Raab. While conversing with him, I could detect the strong aroma an alcoholic beverage. I also noted slightly slurred speech [and] slowed, lethargic hand/eye coordination.

Tragically, on May 18, 2002, Officer Hanu-sey was killed in the line of duty. Consequently, he was unavailable to testify at the pre-trial suppression hearing at which appellant challenged the Officer’s probable cause to make the initial stop of his vehicle.

¶ 4 At the suppression hearing the Commonwealth introduced both the handwritten form of affidavit and also the typewritten affidavit of probable cause.¹ Appellant objected to the admission of these materials on the grounds that the handwritten affidavit was hearsay,² and the typewritten affidavit was in turn based upon the handwritten one. The trial court, after considering the legal briefs submitted by the parties, chose to admit the challenged affidavits, and, based primarily on that evidence, concluded that the Officer Hanusey had probable cause to stop appellant’s vehicle. When the court denied the motion to suppress, appellant proceeded to a non-jury trial, and was found guilty of the above stated offenses. Sentence was imposed and this appeal followed.

¶ 5 Appellant, in the brief filed with this Court, now presents the following questions for our review:³

Whether police reports are admissible in a suppression hearing to establish probable cause to stop a vehicle, where the author of the report is deceased and unavailable to testify?

Whether the trial court erred in denying appellant’s motion to suppress?

Since the resolution of appellant’s first question controls the second, we need only address that single issue.

¶ 6 The standard of review governing a challenge to an evidentiary ruling dictates that an appellate court may only reverse the ruling of a trial court upon a showing that the trial court abused its discretion. See: Commonwealth v. Begley, 566 Pa. 239, 265, 780 A.2d 605, 620 (2001); Commonwealth v. Claypool, 508 Pa. 198, 203-204, 495 A.2d 176, 178 (1985). An abuse of discretion has been defined as “the overriding or misapplication of 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 or the record.” Commonwealth v. Viera, 442 Pa.Super. 348, 659 A.2d 1024, 1028 (1995), appeal denied, 543 Pa. 713, 672 A.2d 307 (1996), citing Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219, 223 (1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (1989).

¶ 7 Appellant contends that the trial judge misapplied the law when he chose to admit the affidavits prepared by the arresting officer under the business records exception set forth in the Pennsylvania Rules of Evidence.⁴ That Rule provides:

The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of Regularly Conducted Activity

A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness... unless the sources of information or other circumstances indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Pa.R.E. 803(6).

¶ 8 We begin our analysis by echoing the astute observations penned by the eminent Justice, now Chief Justice, Ralph J. Cappy:

[T]he rule against hearsay is a rule of exclusion, i.e., hearsay is generally not admissible. This is so because a

hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement’s most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, supra, § 1367. Nor is the declarant under oath when the out of court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability, [citations omitted].

Heddings v. Steele, 514 Pa. 569, 573, 526 A.2d 349, 351 (1987). 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.” Heddings, 514 Pa. at 574, 526 A.2d at 352. 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. Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968).

Commonwealth v. Smith, 545 Pa. 487, 491-492, 681 A.2d 1288, 1290 (1996). See also: Commonwealth v. Romero, 555 Pa. 4, 13, 722 A.2d 1014, 1018 (1999) (footnote omitted), cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 293 (1999) (“[WJhere the evidence at issue does not satisfy an exception to the hearsay rule, confrontation rights [under the United States and Pennsylvania Constitutions] are implicated.”).

¶ 9 The drafters of Pa.R.E. 803(6) included within the Official Comment to the Rule the admonition that “Pa.R.E. 803(6) does not include opinions and diagnoses” (emphasis added),⁵ a choice that was intended .to conform the Rule to the preexisting decisional law of this Commonwealth. See: Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974).

¶ 10 In McCloud, the Pennsylvania Supreme Court held that it was error to admit the written report of a medical examiner that contained an opinion without subjecting the preparer of that report to cross-examination,⁶ reasoning:

Had the medical examiner been called to testify, the opinions, conclusions, and interpretation contained in the autopsy report would have been subject to cross-examination. The defense would have been able to submit the reliability of the examiners’ opinion to the jury’s scrutiny. Any weakness could have been unearthed. However, “[a]n opinion expressed in hospital records [were they to be admitted without the presence of the physician] is subject to no such searching inquiry as to accuracy, soundness, and veracity. Hence the danger in admitting them is very great. However admirable, whatever the character and reputation of the institution from which records come, to deny a defendant the opportunity to test the correctness of the diagnosis and ascertain the qualifications of the assertor ... is to deny [him] a substantial right.” Paxos v. Jarka Corp., [314 Pa. 148] at 154, 171 A. [468] at 471 [1934]. The “substantial right” here denied was the right to cross-examine; the medical examiner’s opinion was thus insulated from effective challenge.

Commonwealth v. McCloud, swpra, 457 Pa. at 313-314, 322 A.2d at 655-656 (emphasis supplied)(footnote omitted).⁷ Cf: Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986) (blood alcohol test results were admissible under hospital records exception).⁸

¶ 11 In the present case the introduction of the deceased police officer’s affidavits did not afford appellant an opportunity to cross-examine the officer regarding the critical matters at issue in the suppression hearing, namely, the officer’s opportunity to observe the van driven by appellant, calculate its speed, the extent of any incursion into the other lane, the presence of other vehicles on the roadway, the existence of bias, and the officer’s ability to draw conclusions from the observable facts. Moreover, the officer’s affidavit was not a “routine” report, but a statement of events and opinions specifically prepared for this prosecution and to justify the stop of appellant’s vehicle. Consequently, just as in Commonwealth v. McCloud, supra, the credibility and competence of the author of the report were critical to the Commonwealth’s case.⁹ In fact, in this instance the affidavit was the foundation stone upon which the Commonwealth sought to sustain its burden of establishing that the stop of appellant’s vehicle was justified.¹⁰ Thus, we are compelled to reverse the decision of the trial court.

¶ 12 We are mindful, of course, of the apparent benefit that the tragic premature death of the arresting officer has visited upon the appellant, and the fact that this report may have been admissible under the Federal Rules of Evidence, which contain a “residual” exception to the hearsay rule. See: F.R.E. 807.¹¹ The Pennsylvania Supreme Court, however, in promulgating the Pennsylvania Rules of Evidence, specifically rejected this exception. See: Pa.R.E. 804(b)(5). This Court may not dodge the clear mandate of the Rules under the guise of opining that another rule of evidence is preferable, and we leave to the expertise of the Rules Committee the decision as to whether the Pennsylvania Rules of Evidence should be amended to address a situation like the present.

¶ 13 Judgment of sentence vacated. Jurisdiction relinquished.

¶ 14 JOYCE, J., Files a Dissenting Opinion.

1 .The Commonwealth also introduced a videotape showing the movement of appellant at the scene following the initial stop, and presented Plumstead Township Chief of Police Duane Hasenauer, who testified as to the police department’s routine in preparing a case file for each reportable crime, and the inclusion within that file of an investigative report.

2 . “Hearsay” is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa.R.E. 801(c).

3 . It bears mention that these questions for review have been restated to comply with Pa.R.A.P. 2116.

4 . Although the trial judge also referred to the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108(b), in support of his decision, the hearing was governed by the Pennsylvania Rules of Evidence. See: Pa.R.E. 101(a). The law as developed under the Uniform Business Records as Evidence Act is relevant, however, since that Act was the precursor to Pa.R.E. 803(6).

5 . The exclusion of opinions and diagnoses distinguishes the Pennsylvania Rule from the Federal Rule. See: F.R.E. 803(6).

6 . The Supreme Court in Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), was addressing the admissibility of evidence under the precursor to Rule 803(6) of the Pennsylvania Rules of Evidence, i.e., the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108(b).

7 . The Commonwealth seeks to distinguish the instant case from Commonwealth v. McCloud, supra, by contending that the evidence here speaks only to an ''act,” "event,” or "condition,” as opposed to an opinion. This argument is somewhat disingenuous in that the only "event" which the affidavit establishes is that the affiant stopped appellant's vehicle, a fact which is not disputed. The reason for the stop, however, is the basis of the Commonwealth's proffer of this evidence, and that reason was undeniably founded upon the opinion of the arresting officer as to whether the van operated by appellant was traveling in excess of the posted speed limit and crossed the center line.

8 .The hearsay exception at issue in Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986), was the "hospital records exception,” which permitted the admission of "the fact of hospitalization, treatment prescribed, and symptoms given”, but not the "opinion contained in the records and proffered as expert testimony” unless the declarant was available for cross-examination. Commonwealth v. DiGiacomo, 463 Pa. 449, 455-456, 345 A.2d 605, 608 (1975). See: Pa.R.E. 803(4), Statements for Purposes of Medical Diagnosis or Treatment, and the Comment which provides that "[sjtatements made to persons retained solely for the purpose of litigation are not admissible under this rule.” See also: Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996).

9 . It bears emphasis that none of the cases relied upon by the Commonwealth in support of its argument that law enforcement reports are admissible as business records involved direct evidence of the crime that was then being prosecuted. See e.g.: Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667 (1975) (evidence introduced to show existence of prior police reports); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974) (evidence introduced to show existence of relationship between defendant and victim); Commonwealth v. Kelly, 245 Pa.Super. 351, 369 A.2d 438 (1976) (evidence of police property receipt and two police reports were not basis of defendant’s convictions for perjury, bribery, and obstruction of justice); Ariondo v. Munsey, 122 Pa.Cmwlth. 475, 553 A.2d 94 (1989)(evidence introduced to prove notice to Commonwealth of defective condition).

10 . Following the close of evidence at the conclusion of the suppression hearing, the trial judge stated:

Just so that we’re crystal clear, I don’t believe that absent the information conveyed by Officer Hanusey concerning his observations of the operation of the vehicle, that there would be — the Commonwealth would be able to demonstrate ample reason for the stop.

N.T. August 29, 2002, p. 21.

11 .Federal Rule of Evidence 807 provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

F.R.E. 807.