Com. v. Raab

• Decision Date: 15 March 2004
• Citation: 845 A.2d 874
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brian RAAB, Appellant.
• Court: Pennsylvania Superior Court

845 A.2d 874

COMMONWEALTH of Pennsylvania, Appellee, v.Brian RAAB, Appellant.

Superior Court of Pennsylvania.

Argued November 19, 2003.

Filed March 15, 2004.

Neils C. Eriksen, Jr., Langhorne, for appellant.

Stephen B. Harris, Asst. Dist. Atty., Doylestown, for Com., appellee.

BEFORE: HUDOCK, JOYCE, JJ., and McEWEN, P.J.E.

OPINION BY McEWEN, P.J.E.:

¶ 1Appellant, 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] request[ed] 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 Hanusey 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.¹Appellant 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 nonjury trial, and was found guilty of the above stated offenses.Sentence was imposed and this appeal followed.

¶ 5Appellant, 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), citingCommonwealth v. Kubiac,379 Pa.Super. 402, 550 A.2d 219, 223(1988), appeal denied,522 Pa. 611, 563 A.2d 496(1989).

¶ 7Appellant 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.⁴That 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).

¶ 8We 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)("[W]here 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 crossexamination.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, supra,457 Pa. at 313-314, 322 A.2d at 655-656(emphasis supplied)(footnote omitted).⁷Cf: 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...