Com. v. Carter

• Citation: 932 A.2d 1261
• Decision Date: 17 October 2007
• Docket Number: No. 66 MAP 2005.,66 MAP 2005.
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Alfonso F. CARTER, Appellee.
• Court: United States State Supreme Court of Pennsylvania

932 A.2d 1261

COMMONWEALTH of Pennsylvania, Appellant v. Alfonso F. CARTER, Appellee.

No. 66 MAP 2005.

Supreme Court of Pennsylvania.

Argued: May 8, 2006.

Decided October 17, 2007.

Edward Michael Marsico, Jr., Harrisburg, James Patrick Barker, Williamsport, for the Com. of PA, appellant.

Arnold H. Gordon, Ronald Eisenberg, Hugh J. Burns, Jr., Philadelphia, Jason E. Fetterman, for Philadelphia Dist. Attys. Office, appellant amicus curiae.

Jeffrey Bryant Engle, Harrisburg, for Alfonso F. Carter, appellee.

BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN AND BAER, JJ.

OPINION

Justice EAKIN.

We granted allowance of appeal to determine whether a state police laboratory report falls under the business record exception to the hearsay rule, see Pa.R.E. 803(6), so as to be admissible when the person who made the report is unavailable for cross-examination at trial.

Appellee was charged with possession of a controlled substance with intent to deliver (PWID). He filed a motion to suppress the evidence, which the trial court denied. At appellee's bench trial, the court admitted into evidence, over appellee's objection, the police crime laboratory report which indicated the presence of 11.6 grams of cocaine in the material seized from appellee. The report was introduced through the lab manager, who testified regarding its contents because the forensic scientist who conducted the testing and prepared the report was not available.

The trial court convicted appellee of PWID and sentenced him. The Superior Court affirmed on direct appeal, Commonwealth v. Carter, 748 A.2d 767 (Pa.Super.1999), and appellee did not seek review by this Court. Appellee filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, claiming the trial court erred in admitting the lab report under Rule 803(6), and appellate counsel was ineffective for failing to raise this issue on direct appeal.

The PCRA court denied the petition without a hearing, holding the lab report met the requirements of the business record exception in Rule 803(6), and thus did not create a confrontation problem. PCRA Court Opinion, 4/10/02, at 6. Therefore, counsel was not ineffective for failing to raise this meritless claim. Id., at 10.

A panel of the Superior Court reversed, Commonwealth v. Carter, 833 A.2d 778 (Pa.Super.2003); however, the opinion was withdrawn following the grant of a reargument petition filed by the Commonwealth. Commonwealth v. Carter, 2003 Pa.Super. Lexis 4471 (Pa.Super.Dec. 5, 2003). Following reargument en banc, the Superior Court reversed the PCRA court's order and remanded for a new trial, holding the lab report did not fall under the business record exception because it was prepared in anticipation of litigation. Commonwealth v. Carter, 861 A.2d 957, 962-63 (Pa.Super.2004). The court further concluded the admission of the report was not harmless error, as appellee's confrontation rights were violated by not being able to cross-examine the forensic scientist who performed the test and prepared the report. Id., at 969.

The court stated its conclusion was based on the following: the lab manager did not have a "close connection" to the actual testing; his testimony was offered in his capacity as custodian of the lab's business records, when the Commonwealth erroneously assumed the business record exception applied; his testimony, even if offered as an expert, was not his own opinion but merely a repetition of the information in the lab report; and the report and this testimony were the only substantive evidence establishing an essential element of the crime, i.e., the presence of a controlled substance. Id.¹

In focusing on the fact the report was prepared in anticipation of litigation, the court stated although there was nothing indicating the forensic scientists in this case conducted themselves unprofessionally, there was the possibility of inherent bias by the lab because it is part of the state police. Id., at 969-70, 970 n. 6.

Judge Joyce dissented, concluding the report was properly admitted under the business record exception. Analogizing Superior Court precedent concerning the admission of blood alcohol content (BAC) test results without the testimony of the lab technician who performed the test, the dissent would have found the lab report did not contain an "opinion or diagnosis" of its author, but rather contained objective facts. Carter, 861 A.2d at 973 (Joyce, J., dissenting) (citing Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979); Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986); Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989)). The dissent further noted the controlled substance test was "an accepted chemical analysis that produces highly reliable results rising beyond mere opinion to the level of scientific fact," id., thus possessing an inherent element of trustworthiness. Id. Accordingly, the dissent would have affirmed the PCRA court's dismissal of appellee's petition.

Upon petition by the Commonwealth, we granted review. Commonwealth v. Carter, 583 Pa. 678, 877 A.2d 459 (2005). "In reviewing an order granting or denying post conviction relief, we examine whether the PCRA court's determination is supported by the evidence and whether it is free of legal error." Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 93 (2004) (citation omitted). Thus, we must determine whether the Superior Court was correct in concluding the PCRA court erred in granting relief. Furthermore, as the PCRA court's determination was based upon its review of the trial court's evidentiary ruling, we keep in mind that "[t]he admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26, 31 (2005) (citation omitted).

I. Admissibility Under Pa.R.E. 803(6)

Pennsylvania Rule of Evidence 802 provides: "Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute." Pa.R.E. 802. "`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." Id., 801(c). A "statement," as pertinent to this instance, is "an oral or written assertion[,]" id., 801(a), and "[a] `declarant' is a person who makes a statement." Id., 801(b).

The Rules of Evidence provide certain statements are not excluded by the hearsay rule, even when the declarant is not present. Rule 803(6), known as the "business record exception," provides:

(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.

Id., 803(6). The Rule "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." Id., Comment.

Here, the lab manager verified the report was made by the forensic chemist at or near the time the chemist conducted the analysis of the substance seized from appellee. See N.T., 1/11/99-1/12/99, at 70-71. It is the regular practice of the crime lab to generate such reports. See id., at 71. Thus, the report is the type of record encompassed by the Rule.

However, even if a record falls within the business record exception, its admission may still violate the Confrontation Clause of the Sixth Amendment of United States Constitution.² See California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (Confrontation Clause not congruent with hearsay rule; confrontation rights may be violated even though evidence is admitted under recognized hearsay exception). "The 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, 65 L.Ed.2d 597 (1980). First, the prosecution is required to demonstrate the unavailability of the declarant whose statement it wishes to introduce against the defendant. Id. Once the witness is shown to be unavailable, the statement must be shown to be inherently trustworthy. Id., at 65-66, 100 S.Ct. 2531. However, a demonstration of unavailability is unnecessary where the utility of confrontation at trial is remote. See id., at 65 n. 7, 100 S.Ct. 2531 (citing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality)). Additionally, firmly rooted exceptions to the hearsay rule do not violate the Confrontation Clause. See Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); Roberts, at 66, 100 S.Ct. 2531³; see also Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014, 1018 (1999) (evidence admitted under well-recognized exception to hearsay rule and supported by sufficient indicia of reliability does not raise confrontation problems).

Appellee relies, as did the Superior Court, on Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), which held reading a medical examiner's report into evidence at a murder trial, without calling him as a witness, was reversible error. Appellee contends McCloud precludes a report which establishes an element of the crime to be...