Commonwealth v. Raab

*880DISSENTING OPINION BY

JOYCE, J.:

¶ 1 While the Majority has provided a careful analysis and perceptive rationale of position, I must respectfully dissent. In my view, the trial court did not err in admitting Officer Hanusey’s affidavit of probable cause under Pa.R.E. 803(6).

¶ 2 The suppression court admitted the affidavit of probable cause drafted by Officer Hanusey pursuant to the Uniform Business Records as Evidence Act. As the Majority correctly notes, the proper basis under which to consider the report’s admissibility is Rule 803(6) of the Pennsylvania Rules of Evidence. That Rule 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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, 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.

The Majority has concluded that the contents of the affidavit of probable cause constituted officer Hanusey’s opinion and was therefore inadmissible under Pa.R.E. 803(6) and Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974). It is from this conclusion that I depart.

¶ 3 The dissention between my view and that of the Majority’s on whether Officer Hanusey’s affidavit of probable cause contained opinions or were recordations of an event, act or condition is a prevalent conundrum. As aptly set forth by Judge, now President Judge, Del Sole:

In the past, this court has had numerous occasions to address the issue of what constitutes opinion as opposed to fact for purpose of admission of a hospital record under the Uniform Business Records as Evidence Act. “Under this exception, hospital records have been admitted to show the fact of hospitalization, treatment prescribed and symptoms found.” Commonwealth v. Hemingway, 369 Pa.Super. 112, 118, 534 A.2d 1104, 1107 (1987) citing Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (additional citations omitted). Opinion evidence contained in hospital records, however, is not admissible. Id. “The rationale for excluding medical opinion in hospital records lies in the fact that such'evidence is expert testimony and is ‘not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability and veracity of his opinion.’ ” Commonwealth v. Seville, 266 Pa.Super. 587, 591, 405 A.2d 1262, 1264 (1979) citing Commonwealth v. McNaughton, 252 Pa.Super. 302, 307, 381 A.2d 929, 931 (1977).
Drawing the line between what is fact and what is opinion is often difficult and has led to varying results. See Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987) (hospital record that contained impressions of social worker that plaintiffs pain may have a psychosomatic source was found to be inadmis*881sible); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (medical records custodian’s testimony regarding diagnosis, as it was contained in hospital record, of injuries sustained by murder victim was inadmissible); Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974) (autopsy report offered to prove essential element of crime or to connect Appellant to crime where Appellant was denied opportunity to cross-examine physician who prepared report, was inadmissible); Commonwealth v. Hemingway, 369 Pa.Super. 112, 534 A.2d 1104 (1987) (results of “rape Mt”, excluding the finding of spermatozoa, were held to be wrongly admitted into evidence without testimony of criminalist who conducted tests); [cf.] Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976) (hospital record' stating that spermatozoa was found in victim’s vagina was treated as fact and therefore was admissible); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979), (medical report containing results of blood alcohol test was properly admitted into evidence even though technician who administered the test did not testify at trial); Commonwealth v. McNaughton, 252 Pa.Super. 302, 381 A.2d 929 (1977); [sic] (hospital record was inadmissible where it was the sole evidence offered by the Commonwealth to prove an essential element of the offense charged); Commonwealth v. Green, 251 Pa.Super. 318, 380 A.2d 798 (1977) (medical report stating that rape victim exhibited “excoriations” to elbow and forehead did not involve a medical diagnosis or opinion and therefore was admissible under Uniform Business Records as Evidence Act).

Commonwealth v. Xiong, 428 Pa.Super. 136, 630 A.2d 446, 451-452 (1993). In Xiong, the issue was whether counsel was ineffective for failing to object to the admission of the victim’s hospital records which had a doctor’s notation indicating the victim had no hymen. In deciding whether this statement was an opinion or a fact, the Xiong court relied on Commonwealth v. Green, 251 Pa.Super. 318, 380 A.2d 798 (1977). Green “defined the terms ‘medical diagnosis’ and ‘opinion’ as entailing ‘... a conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms.” Xiong, 630 A.2d at 452 (citation omitted). Accordingly, the Xiong court held that the notation that there was no hymen was a “factual statement recounting the physicians discovery” and concluded that the records were properly admitted under § 6108 and that counsel was not ineffective for failing to object to its admission.

¶ 4 Due to the nature of the profession, a doctor’s opinion or diagnosis is more recognizable than what might constitute an opinion by a police officer. There is no case law to distinguish or define an officer’s opinion from his observation of an act, event, or condition. Nonetheless, Xiong, which relied on the definition in Green, is illustrative of what is considered an opinion and excludes Officer Hanusey’s observations as such. Also, the common definition of opinion as set forth in Black’s Law Dictionary leads me to conclude that the content of the affidavit of probable cause necessary to determine whether Officer Hanusey had probable cause to stop Appellant was a statement of his observations, not his opinion.

¶ 5 An officer has probable cause to stop a vehicle if he reasonably believes that the motorist has committed a violation of the Motor Vehicle Code. 75 Pa.C.S.A. § 3608(b). In the present case, Officer Hanusey’s basis for stopping Appellant was a violation of 75 Pa.C.S.A. § 3362, *882which prohibits speeding. Since Officer Hanusey was deceased the Commonwealth established probable cause through the admission of his sworn affidavit of probable cause which indicated that:

The relevant portion of the affidavit of probable cause is as follows:12
[o]n February 12, 2002 at approximately 0055 hours, your affiant'[...] did come behind a brown Ford van westbound on Point Pleasant Pike in the area of Moyer Road. Your affiant followed this vehicle for approximately .6 miles at a speed of 62 MPH. This area has a speed limit of 45 MPH....

In my estimation, this portion of the affidavit of probable cause states Officer Ha-nusey’s observations of an act, event or condition, as opposed to his opinion. Unlike the definition of an opinion in Green, that Appellant was traveling 62 MPH in a 45 MPH zone for a distance of .6 miles is not “a conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms.” The officer’s observations were based on an event or act readily visible. They were not the product of deductive reasoning based on circumstantial evidence.

¶ 6 The common sense definition of an opinion defines it as “what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished, from his personal knowledge of the facts themselves.” Black’s Law Dictionary, 6th Edition (1990) (emphasis added). Under this definition, Officer Hanusey’s affidavit of probable cause evidences his personal knowledge of the distance over which he followed Appellant traveling at 62 MPH. This observation is no different than observing that the speed limit in the area in which Appellant was traveling was posted at 45 MPH. These facts are not Officer Hanusey’s thoughts, beliefs or inferences and, therefore, are not an opinion. Rather, they are a recordation of the acts which he undertook to determine whether Appellant was speeding and his personal knowledge.

¶ 7 Since I conclude that the portions of the affidavit of probable cause necessary to establish probable cause to stop Appellant’s vehicle were not opinions, it bears discussion that Rule 803(6) also requires that the source of the information be trustworthy. Indeed, this is the main purpose of the Rule, since the inherent reliability and trustworthiness of the document negates the need for cross-examination. See Commonwealth v. Xiong, supra. Clearly, the contents of Officer Hanusey’s report were trustworthy. As aptly stated by the trial court:

[ajfter Officer Hanusey wrote out his observations of events and conditions near the time he observed them, he caused these very statements to be typed, swore to them under oath and submitted them to a judicial authority as the basis for the commencement of criminal proceedings against the Appellant. We can think of few other “business records” buttresses in the same way by corroborating evidence and by the assurance that the person who prepared the documents did so with the knowledge that he had a legal and professional obligation that the documents be truthful and accurate.

*883Trial Court Opinion, 6/03/03, at 11. Moreover, the other requirements that a custodian of the record testifies to its identity, the mode of its preparation and that it was made in the regular course of business at or near the time of the act, condition or event were all satisfied. Thus, the requisite statutory factors were met to authorize the admission of the record under Pa. R.E. 803(6).

¶ 8 Case law provides that a police officer’s report can be admissible if it is deemed trustworthy and is within the purpose of the statutory exception to the hearsay rule. Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667 (1975); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974); Commonwealth v. Kelly, 245 Pa.Super. 351, 369 A.2d 438 (1976); Ariondo v. Munsey, 122 Pa.Cmwlth. 475, 553 A.2d 94 (1989).13 As I indicated supra, I believe these requirements have been met. However, the Pennsylvania Constitution guarantees an accused the right to confront and cross-examine a witness against him; therefore, the purpose of proffered evidence and the prejudice associated with its admission must be evaluated to determine whether there is infringement on this constitutional right. Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653, 655 (1974). “If [the evidence is] offered to prove an essential element of the crime or connect the defendant directly to the commission of the crime” the use of hearsay evidence violates the confrontation clause. McCloud, 322 A.2d at 656 quoting State v. Matousek, 287 Minn. 344, 350, 178 N.W.2d 604, 608 (1970). Having determined that the submitted evidence was within the parameters of Pa.R.E. 803(6), an analysis as to its prejudice in relation to the confrontation clause must be undertaken next.

¶ 9 In McCloud, the defendant was on trial for murder. The medical examiner who performed the autopsy on the victim was unavailable to testify because he was out of town at a medical conference. The trial court allowed the admission of the medical examiner’s report and its conclusion to establish the victim’s cause of death under the Uniform Business Records as Evidence Act exception to the hearsay rule. Our Supreme Court found that the trial court erred in admitting the medical examiner’s conclusion as to cause of death because it established an element of the crime, thereby violating the confrontation clause. Thus, the Supreme Court held “in a homicide prosecution, evidentiary use, as a business records exception to the hearsay rule, of an autopsy report in proving legal causation is impermissible unless the accused if afforded the opportunity to confront and cross-examine the medical examiner who performed the autopsy, absent a compelling necessity.” Id. The Court noted that the medical examiner’s absence because of his attendance of a medical conference did not constitute “compelling necessity to override the constitutional mandate.” Id. at 656, n. 5.

¶ 10 The McCloud decision admonished against the use of hearsay evidence when used to establish the elements of a criminal prosecution. Presently, Officer Hanu-sey’s recorded action of following Appellant for .6 of a mile while he traveled at a speed of 62 MPH in a 45 MPH zone were not being used to establish Appellant’s guilt on either the summary speeding offense or the driving under the influence offense. Rather, the hearsay evidence was admitted to determine whether the officer’s observations and actions were sufficient for the suppression court to make a *884legal determination that the officer possessed probable cause to initiate a traffic stop.14 Moreover, the holding in McCloud prohibited the admission of the medical examiner’s report because the Commonwealth used it to establish the legal causation of the decedent’s death. This holding was qualified in that the constitutional implication may be overridden if there is “sufficiently compelling necessity.” McCloud, 322 at 657. The Court noted that “the medical examiner’s temporary absence from his official duties to attend a convention [does not constitute] a sufficiently compelling necessity.”

¶ 11 Presently, Officer Hanusey was killed during the line of duty one month after he stopped Appellant’s vehicle. Admitting into evidence his affidavit of probable cause was the only method by which the Commonwealth could establish probable cause. Again, the information regarding the distance over which he followed Appellant and the speed at which he clocked Appellant was not used to establish the elements of the crimes of which Appellant is accused.. Thus, it is difficult to imagine a more compelling reason to admit the hearsay records in contravention of Appellant’s right to confront the witness.

¶ 12 As to the admissibility of the remainder of the affidavit of probable cause, I pass no judgment as it is unnecessary for purposes of determining whether the trial court erred in finding that Officer Hanu-sey had probable cause to stop Appellant’s vehicle. Accordingly, I would find that he trial court did not err in admitting the evidence and in denying Appellant’s motion to suppress and I would affirm that order. Therefore, I respectfully dissent.

. In my opinion, this is the only relevant portion of the affidavit of probable cause since it establishes the officer's grounds for stopping Appellant for speeding. Although there has been discussion regarding the officer’s observations of Appellant’s vehicle traveling over the center line, Appellant was not charged with 75 Pa.C.S.A. § 3309, driving on roadways laned for travel; thus, consideration of that segment of the affidavit is unnecessary.

. None of these cases define what constitutes an opinion versus a recordation of an act, event or condition.

. Having noted this distinction, I do not believe that the report could have been used to establish the elements of speeding in order to secure a conviction had this case proceeded to trial pursuant to McCloud.