Com. v. Karch

• Decision Date: 17 January 1986
• Docket Number: No. 02565,02565
• Citation: 502 A.2d 1359,349 Pa.Super. 227
• Parties: COMMONWEALTH of Pennsylvania v. Charles J. KARCH, Appellant. Phila. 1984.
• Court: Pennsylvania Superior Court

Page 1359

502 A.2d 1359

349 Pa.Super. 227

COMMONWEALTH of Pennsylvania v. Charles J. KARCH, Appellant.

No. 02565 Phila. 1984.

Superior Court of Pennsylvania.

Argued March 25, 1985.

Filed Jan. 17, 1986.

Bernard V. O'Hare, Jr., Bethlehem, for appellant.

John F. Spirk, Jr., Asst. Dist. Atty., Easton, for Com.

Before SPAETH, President Judge, and CIRILLO and SHOYER, ^* JJ.

CIRILLO, Judge.

After a trial by jury, appellant was convicted of driving under the influence. Post-trial motions were filed and subsequently denied. Appellant was sentenced to pay the costs of prosecution plus a $750.00 fine, and to serve a term of imprisonment of not less than thirty days nor more than one year.

Appellant raises two issues on appeal: 1) May the results of blood testing be admitted into evidence without calling the technician who performed the test as a witness; and 2) May the blood test results be admitted into evidence in a drunk driving case when the test does not establish the percentage of "alcohol by weight"?

Appellant's first contention is that the blood-alcohol test results are inadmissible unless the technician who performed the test is called to the witness stand. We disagree. It is well established that hospital records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms present. Commonwealth v. Di Giacomo, 463 Pa. 449, 345 A.2d 605 (1975); Morris v. Moss, 290 Pa.Super. 587, 435 A.2d 184 (1981); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979); Commonwealth v. Green, 251 Pa.Super. 318, 380 A.2d 798 (1977) (en banc) (Spaeth, P.J. joining the majority Opinion). In Commonwealth v. Seville, supra, a case directly on point with the one sub judice, the Court held that blood-alcohol test results were properly admitted into evidence without the presence of the technician who performed the test. The Court reasoned that the test results were admissible under the hospital records exception to the hearsay rule: since a blood-alcohol test is basic and routine, it is highly reliable and thus rises beyond a mere opinion or conclusion to the level of medical fact. "No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts ... or the existence of some readily ascertained substance or chemical within the body." Id. 266 Pa.Super. at 592, 405 A.2d at 1264. (Emphasis added). Even if the hospital records are hearsay, "... the elements of trustworthiness serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examination, which justifies admission of the writing or record without the necessity of calling all persons who may have had a hand in preparing it." Commonwealth v. Seville, 266 Pa.Super. at 592, 405 A.2d at 1265.

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. Therefore, the blood test results were properly admitted into evidence and the weight afforded such tests was properly left for the jury to decide.

Alternatively, even without the records being introduced into evidence, the physician (Dr. Stein) could have expressed his medical opinion "... based in part on reports of others which are not in evidence but upon which the expert customarily relies in the practice of his profession." Commonwealth v. Gilliard, 300 Pa.Super. 469, 476, 446 A.2d 951, 954 (1982); see also Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). Since Dr. Stein was an acknowledged expert and the procedure was performed pursuant to the protocol which he established, his testimony alone, without the hospital records, would be admissible.

Finally, it is our opinion that the evidence produced against appellant was so overwhelming that the blood-alcohol test results were unnecessary. The arresting officer testified that he saw appellant's car cross the center line at an excessive speed and nearly strike parked cars on both sides of the street. After the officer stopped appellant's car, he observed appellant's "bloodshot watering eyes and ... strong odor of alcohol." Appellant admitted to the officer that he had been drinking and in fact had too much to drink. The officer administered several field sobriety tests which appellant performed very poorly. We fail to see what more is needed to prove appellant was driving under the influence of alcohol on the night in question.

Appellant next alleges the blood-alcohol test results are inadmissible because the test does not establish the percentage of "alcohol by weight" as required by statute, ¹ rather it establishes the "alcohol per volume". This issue has not been presented to our courts before, however, courts in other jurisdictions have held that statutes calling for blood-alcohol reading "by weight" are satisfied when the reading is expressed in terms of a percentage as the weight of alcohol per volume of blood.

In Commonwealth v. Brooks, 366 Mass. 423, 319 N.E.2d 901 (1974), the Supreme Judicial Court of Massachusetts reasoned that even though the concentration of fluids is properly expressed as the weight of alcohol per unit of volume, a reference to the concentration as "percentage by weight" (as required by the statute), does not make it inadmissible. "In medical and other scientific usage, the concentration of alcohol in the blood is frequently expressed as milligrams of alcohol per milliliters of fluid." Commonwealth v. Brooks, 366 Mass. at 430, 319 N.E.2d at 906, quoting Alcohol and Highway Safety, A Report to the Congress from the Secretary of Transportation, U.S. Department of Transportation (1968). This measurement is a weight/volume and is functionally equivalent to the percent by weight which is stated in most statutes. Commonwealth v. Brooks, supra.

Measuring body fluids has usually been accomplished through the use of fluids "by volume" and not "by weight"; therefore, the resulting measurements are usually given as "weight-volume" and not "weight-weight". See Harger, Medicolegal Aspects of Chemical Tests of Alcoholic Intoxication, 39 J. of Crim.L. & Criminology 402 (1948).

Additionally in City of Monroe v. Robinson, 316 So.2d 119 (La.1975), the court was presented with a similar question. The Court in that case quoted Watts, Some Observations on Police Administered Tests for Intoxication, 45 N.C. Law Rev. 34, 50 n. 53 (1966):

As the pioneering blood-alcohol laboratory reports and studies used the weight/volume quantification, it inevitably happened that the blood-alcohol 'percentage' figures seized upon by the nonexpert lawyers, legislators, and traffic safety enthusiasts were in fact the weight/volume percentage figures. All the widely used testing instruments that report in terms of 'percentage' or 'percentage by weight' of alcohol in the blood actually utilize the weight/volume percentage quantifications.

The article went on to say that unless stated to the contrary, any blood-alcohol percentage figures are expressed in weight/volume measurements.

Bearing all of the above in mind, it would be difficult to conceive that the statute intended the only admissible blood-alcohol test results had to be measured in terms of alcohol by weight and nothing else. We hold that the language of 75 Pa.C.S. § 1547(d) allows the admission of blood-alcohol test results which establish the "alcohol per volume." Therefore the test results as admitted were in compliance with 75 Pa.C.S. § 1547(d).

Judgment of sentence affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge, dissenting. ^*

The principal issue on this appeal is whether the admission of a hospital record containing the results of a chemical analysis of appellant's blood for its alcohol content violated appellant's right to confrontation. In combination, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), hold that where a hearsay statement is important evidence and cross-examination of the declarant is not "wholly unreal," the Confrontation Clause requires the prosecution to prove the declarant's unavailability. Applying this test to the facts of this case, I conclude that the admission of the hospital report violated appellant's right to confrontation. The hearsay statement in the report was that the amount of alcohol by weight in appellant's blood was .243. This evidence was not merely important but devastating. The prosecution, however, did not prove the unavailability of the technician who had tested appellant's blood. Appellant was thereby denied the opportunity to try to show by cross-examination of the technician that the test had been improperly conducted. I should therefore vacate appellant's sentence and remand for a new trial. ¹ Appellant was charged with driving under the influence of alcohol ² and various summary offenses. ³ At the trial the Commonwealth presented two witnesses, Officer Steven Lindstedt of the Freemansburg Police Department, and Dr. Robert Stein. Their testimony may be summarized as follows.

In the early morning hours of May 26, 1982, Officer Lindstedt saw a car driven by appellant cross the center line, exceed the speed limit, and nearly strike parked cars on both sides of the street. N.T. 14-21. The officer sounded his siren, and when appellant pulled over, the officer noticed appellant's "bloodshot watering eyes and ... a strong odor of alcohol...." N.T. 24. Appellant admitted to the...