Com. v. Campbell

• Decision Date: 04 April 1977
• Citation: Com. v. Campbell, 368 A.2d 1299, 244 Pa.Super. 505 (Pa. Super. Ct. 1977)
• Parties: COMMONWEALTH of Pennsylvania v. Charles CAMPBELL, Appellant.
• Court: Pennsylvania Superior Court

Page 1299

368 A.2d 1299

244 Pa.Super. 505

COMMONWEALTH of Pennsylvania v. Charles CAMPBELL, Appellant.

Superior Court of Pennsylvania.

Submitted June 16, 1975.

Decided Dec. 15, 1976.

Application for Allocatur Granted Jan. 26, 1977.

Petition for Allowance of Appeal Denied April 4, 1977.

John W. Packel, Asst. Defender, and Vincent J. Ziccardi, Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., and F. Emmett Fitzpatrick, Dist. Atty. Philadelphia, for appellee.

Before WATKIS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

WATKINS, President Judge.

This is an appeal from the judgment of sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Charles Campbell, after conviction by a jury of terroristic threats and rape; and from the denial of post-trial motions.

During the trial the prosecutrix testified that she met the defendant on the street on March 14, 1974, and proceeded to a party with him in a private residence. After the party the prosecutrix, another woman, the owner of the residence at which the party was held (a male individual known as 'Tiny'), Tiny's male cousin, and the defendant entered an automobile operated by Tiny's cousin. The prosecutrix testified that she entered the vehicle because she thought she was going to be transported to her home. Contrary to her wishes, the male occupants of the vehicle purchased some beer and proceeded to a park where the occupants of the vehicle talked and drank beer. After the prosecutrix made known her wish to return home, the vehicle was driven from the park and the other female taken home. In so doing the driver of the vehicle passed the home of the prosecutrix. Sensing that she might be in danger the prosecutrix attempted to jump from the vehicle but was prevented from doing so by the male occupants of the car. The car then proceeded to a taxi cab lot where the defendant informed the prosecutrix that he desired to have sexual relations with her. The defendant then placed a dog chain around her left hand and dragged her from the vehicle. The other occupants of the vehicle were directed by the defendant to drive away and to return to the place later. After the vehicle departed the defendant produced a knife and threatened to kill the prosecutrix if she failed to co-operate with him. He then pushed her to the ground and forced her to have intercourse with him. Later the vehicle returned and the prosecutrix was taken home.

The defendant's trial began on July 15, 1974. On July 22, 1974, he was convicted by a jury of rape and terroristic threats. He now contests the conviction on two grounds, claiming that the trial judge erred in ruling that the Commonwealth could impeach any testimony given by the defendant, if he took the stand, by introducing a prior conviction for aggravated robbery and in permitting a medical records librarian from Philadelphia General Hospital to testify as to a finding of spermatozoa in the prosecutrix' vagina after the incident. The defendant presented a defense through various acquaintances of defendant who testified to the prosecutrix' had reputation and also presented 'Tiny' who testified that the prosecutrix voluntarily left the vehicle at the scene of the alleged crime. The defendant did not testify himself.

The general rule is that the Commonwealth may introduce into the record evidence of prior convictions to attack the credibility of a defendant who testifies in his own behalf. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), cert. denied, 368 U.S. 945, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961). However, in the case of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), the Supreme Court held that this rule is not absolute and that under the proper circumstances a trial court could refuse to allow the Commonwealth to impeach a defendant's testimony by introducing the record of his prior convictions. In that case the Court states that:

'Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction or prior convictions . . .'

Pursuant to this reasoning the Court held that a trial court had discretion as to whether or not to allow the Commonwealth to impeach a defendant's testimony by use of prior convictions. The salient factors to be considered in exercising this discretion are the criminal record, his age and circumstances, and the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. Commonwealth v. Bighum, supra.

In the instant case the prior crime which would have been introduced into the record against the defendant if he had testified was a 1971 conviction for aggravated robbery. Since the defendant's conviction had occurred just 3 years prior to his trial, aggravated robbery is a crime involving serious moral turpitude, and the defendant was able to call other witnesses to all occurrences right up until the time of the rape we hold that the trial court did not abuse its discretion in ruling that the record of the crime could be introduced to impeach the defendant's testimony if he had elected to take the stand. Had the defendant taken the stand and contradicted the prosecutrix' testimony the sole issue would have been one of credibility and the crime of aggravated robbery certainly indicates a propensity for dishonesty on the defendant's part. As such it would be highly relevant in determining the truth of what the defendant had to say. Therefore, we feel that the court below properly exercised its discretion in this matter. See Commonwealth v. Butler, supra.

The defendant's second contention is equally devoid of merit. At trial the Commonwealth called to the stand the librarian of the medical records department of Philadelphia General Hospital where the prosecutrix was taken after the incident. ant's objection, that the medical records indicated that spermatozoa was present in the prosecutrix' vagina at the time of the The librarian testified, over the defend-examination. In Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), it was held that medical records could be admitted to show certain facts under the Uniform Business Records as Evidence Act, Act of May 4, 1939, P.L. 42, No. 35, § 2, 28 P.S. § 91b but that conclusions could not be admitted thereunder. See also, Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975). The question then becomes one of whether the finding of spermatozoa in the prosecutrix' vagina is to be treated as a fact or as a medical conclusion.

Admittedly it is often difficult to distinguish between a fact and a conclusion. Ultimately, every fact can be considered a conclusion. For example it may be a fact that one's name is John Doe. However, an argument could be made that this is a conclusion because one's name is only what it is because of the law relating to names given at birth and because one has never had his name legally changed. Therefore the fact that one's name is John Doe can logically be termed a legal conclusion if one wishes to extend the argument to that degree. Thus the difficulty of distinguishing facts from conclusions becomes apparent. Be that as it may courts have attempted through the years to distinguish facts from conclusions in the interest of expediency. When a circumstance becomes very routine or basic it is designated as a fact. Sometimes these designations appear arbitrary but it is necessary to make them nevertheless or a court case could never be completed.

Turning to the situation at hand we feel that the court below correctly analyzed the finding of spermatozoa in the prosecutrix' vagina as one of fact. Tests to determine the presence of sperm are basic and routine and leave little room for error. Either there was spermatozoa present in her vagina or there was not. The medical records of the hospital indicated the presence of the substance. The defendant's counsel had been in contact with the doctor who had examined the prosecutrix and had not attempted to have him testify otherwise. Under these circumstances we hold that the court below properly admitted the medical records of the hospital. See, Commonwealth v. Mobley, 450 Pa. 431, 301 A.2d 622 (1973).

Judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion.

SPAETH, J., files a dissenting opinion.

HOFFMAN, Judge, dissenting:

While I join in Part I of the Dissenting Opinion by Judge SPAETH, I do not share his view expressed in Part II. I do not believe that we should abandon the well-established rule enunciated in the Majority Opinion in Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), that facts contained within medical records are admissible but opinions are not. Because the lower court erred in admitting the hospital records of the victim, I would reverse the judgment of sentence and award a new trial. See also, Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1973).

SPAETH, Judge, dissenting.

During appellant's trial for rape the medical records librarian of the Philadelphia General Hospital was permitted over appellant's objection to testify that the hospital records showed that an examination of the prosecutrix had disclosed an abrasion on the left hand, no evidence of trauma to the neck, head, or extremities, and spermatozoa in the vagina. Appellant's objection was that the testimony was hearsay. In denying the objection, the lower court and the majority of this court say that the testimony was nevertheless admissible under the business records exception to the hearsay rule.

I

In deciding whether an entry in a hospital record is admissible under the business records exception, a distinction must be drawn between an entry that records a fact and an entry that records an opinion. As the law now stands in Pennsylvania, an entry of fact is...