Com. v. Belknap, J.

J-S57020-14
2014 PA Super 259COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA ANTHONY BELKNAP
Appellant No. 3242 EDA 2013
Appeal from the Judgment of Sentence October 25, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001927-2013
BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.
OPINION BY MUNDY, J.: FILED NOVEMBER 20, 2014
Appellant, Joshua Anthony Belknap, appeals from the October 25,
2013 judgment of sentence imposing no punishment, after he was found
guilty in a bench trial of one count of possession of drug paraphernalia.1
After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows.
On the evening of November 22, 2012, at
approximately 9:51 P.M., the Brookhaven Police
Department was dispatched to Brookhaven Swim
Club. Officer Robert Barth was the first to arrive on
the scene. Upon arrival, Officer Barth observed a
large crowd of people across the street in a gravel
parking lot. As he got closer he saw that the group-
was surrounding an individual, later identified as
[Appellant], who was lying face down on the ground.
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35 P.S. § 780-113(a)(32).
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Officer Barth asked everyone to clear the area
and asked for information about [] [Appellant]. He
checked [Appellant’s] vitals and discovered that
while he was unresponsive, he had a rapid pulse and
was breathing. Officer Barth was told by two
individuals on the scene that they believed
[Appellant] had overdosed on heroin.
Officer Barth administered sternum rub to the
[Appellant’s] chest, which he explained as a hard rub
on the sternum of the chest and an unconscious
subject, if they’re not totally out, will come to when
you administer the rub. Immediately after
administering the rub, [Appellant] opened his eyes
for a few seconds and then went back out. Officer
Barth then searched [Appellant’s] pockets for
identification purposes. A needle with an orange cap
was recovered from his right pocket. Officer Barth
testified that he did not smell any alcohol emanating
from [Appellant’s] person and did not locate alcohol
within the general area where [Appellant] was found.
Similarly, Officer Barth did not locate any controlled
substances in the general area where [Appellant]
was found.
Trial Court Opinion, 3/14/14, at 1-2 (citations to notes of testimony and
internal quotation marks omitted).
Appellant was subsequently arrested, and on April 17, 2013, was
charged with one count of possession of drug paraphernalia. Appellant
waived his right to a jury and proceeded to a bench trial on October 16,
2013. At trial, the Commonwealth presented evidence from Officer Barth,
who testified that, upon arriving at the scene and attempting to revive an
unconscious Appellant, two of his friends indicated that Appellant had
overdosed on heroin. N.T., 10/16/13, at 20-21, 25. Appellant’s counsel
objected to said testimony on the grounds it constituted hearsay, but the
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trial court overruled this objection. Id. at 21, 26. In reaching this
conclusion, the trial court concluded that Officer Barth’s testimony was
admissible under the medical treatment exception to the hearsay rule,
pursuant to Pa.R.E. 803(4). See id. at 23-24.
At the conclusion of the Commonwealth’s case-in-chief, Appellant
made a motion for a directed verdict, and the trial court took the matter
under advisement. Id. at 51-52, 61-64. Following argument on the matter,
the trial court denied Appellant’s motion on October 21, 2013. Thereafter,
on October 25, 2013, the trial court found Appellant guilty of one count of
possession of drug paraphernalia, but declined to impose a sentence of
confinement. See Trial Court Verdict Slip, 10/25/13; N.T., 10/25/13, at 6,
9. At the time of sentencing, Appellant was on parole in another matter,
and was directed by the trial court to comply with the general rules
governing probation and parole. N.T., 10/25/13, at 7; Trial Court Order,
10/25/13. Appellant did not file any post-sentence motions. On November
21, 2013, Appellant filed a timely notice of appeal.2
On appeal, Appellant raises the following issue for our review.
I[.] Whether the trial court erred in allowing the
hearsay testimony of Officer Robert Barth
regarding out-of-court statements made by
unidentified individuals who stated to him that
[Appellant] may have overdosed in their car
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Appellant and the trial court have complied with Pa.R.A.P. 1925.
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and that [Appellant] had an addiction to
heroin[?]
Appellant’s Brief at 7.
In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. Questions concerning the
admissibility of evidence are “within the sound discretion of the trial court …
[and] we will not reverse a trial court’s decision concerning admissibility of
evidence absent an abuse of the trial court’s discretion.” Commonwealth
v. Brown, 52 A.3d 1139, 1197 (Pa. 2012) (citation omitted). “An abuse of
discretion is not merely an error of judgment, but is rather the overriding or
misapplication of the 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 of record.” Commonwealth v. Mendez, 74 A.3d 256, 260
(Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2013).
“[I]f in reaching a conclusion the trial court over-rides [sic] or misapplies the
law, discretion is then abused and it is the duty of the appellate court to
correct the error.” Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.
Super. 2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).
“Hearsay means a statement that … the declarant does not make while
testifying at the current trial or hearing; and … a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
“Hearsay is not admissible except as provided by [the Pennsylvania Rules of
Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or
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by statute.” Pa.R.E. 802. However, an out-of-court statement is not
hearsay when it is introduced for the purpose of establishing the fact that
the statement itself was made, rather than for the truth of that statement.
Cf. Pa.R.E. 801(c). This is true whether or not the declarant is available.
Id.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. 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.
Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (internal
quotation marks and citations omitted).
In the instant matter, the trial court permitted Officer Barth to testify
as to hearsay statements that were made to him by Appellant’s friends as he
attempted to resuscitate Appellant. Officer Barth testified, over Appellant’s
objections, as follows.
Q. [Commonwealth:] Okay. And you said that you
had asked what happened. At some point in trying
to determine what course of action to take with
[Appellant] did you receive any information as to
what had happened?
A. [Officer Barth:] Yes. There was (sic) two
subjects there that identified themselves as
[Appellant’s] friends. They notified me that he went
unconscious in their vehicle and they believed he
overdosed.
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[Appellant’s Counsel]: Objection, Your Honor. That
is the hearsay statement.
…
Q. [Commonwealth:] Did you get an indication of
what he overdosed on?
A. [Officer Barth:] They also said that [Appellant]
was – had an addiction to heroin that he was fighting
on and off for years.
[Appellant’s Counsel]: Objection, Your
Honor, that is also speculative. We don’t know how
they know unless he’s carrying the drugs or
presently …
N.T., 10/16/13, at 20-21, 25.
Appellant contends that the trial court abused its discretion in
concluding that Officer Barth’s testimony was admissible under the medical
treatment exception to the hearsay rule. Appellant’s Brief 11, 15-18.
Appellant maintains that the trial court’s reliance on Rule 803(4) is
misplaced, as the medical treatment exception is limited to out-of-court
statements made to physicians and nurses, and the statements in question
“had little impact on the course of action he took when he arrived on
location.” Id. at 16. Appellant further argues that this testimony “was
inherently unreliable[,]” and the trial court abused its discretion in allowing it
to be admitted into evidence. Id. at 10, 18-19. For the following reasons,
we disagree.
As noted, Pennsylvania Rule of Evidence 803 enumerates various
exceptions to the general inadmissibility of hearsay testimony, including the
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one at issue here. Rule 803(4) excludes from the hearsay rule statements
made for the purposes of medical diagnosis and treatment (the “medical
treatment exception”), and provides as follows.
Rule 803. Exceptions to the Rule Against
Hearsay--Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
available as a witness:
…
(4) Statement Made for Medical Diagnosis or
Treatment. A statement that:
(A) is made for-- and is reasonably pertinent to --
medical treatment or diagnosis in contemplation of
treatment; and
(B) describes medical history, past or present
symptoms, pain, or sensations, or the inception or
general character of the cause or external source
thereof, insofar as reasonably pertinent to
treatment, or diagnosis in contemplation of
treatment.
Comment: Pa.R.E. 803(4) differs from F.R.E. 803(4)
in that it permits admission of statements made for
purposes of medical diagnosis only if they are made
in contemplation of treatment. Statements made to
persons retained solely for the purpose of litigation
are not admissible under this rule. The rationale
for admitting statements for purposes of
treatment is that the declarant has a very
strong motivation to speak truthfully. This
rationale is not applicable to statements made for
purposes of litigation. Pa.R.E. 803(4) is consistent
with Pennsylvania law. See [Smith, supra at 1288].
…
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This rule is not limited to statements made to
physicians. Statements to a nurse have been held to
be admissible. See Smith, supra. Statements as
to causation may be admissible, but statements as
to fault or identification of the person inflicting harm
have been held to be inadmissible. See Smith,
supra.
Pa.R.E. 803(4) (citation formatting corrected; emphasis added).
“The medical treatment exception provides that testimony repeating
out-of-court statements made for the purposes of receiving medical
treatment are admissible as substantive evidence.” Commonwealth v.
Fink, 791 A.2d 1235, 1246 (Pa. Super. 2002) (citation omitted). This is
true “regardless whether the declarant is available as a witness.”
Commonwealth v. D.J.A., 800 A.2d 965, 975 (Pa. Super. 2002), appeal
denied, 857 A.2d 677 (Pa. 2004), appeal denied, 959 A.2d 928 (Pa. 2004).
The following two requirements must be satisfied in order for a statement to
qualify as a medical treatment exception: (1) the statement must be made
for the purpose of receiving medical treatment; and (2) the statement must
be necessary and proper for diagnosis and treatment. Id. at 976 (citation
omitted).
Upon review, we discern no abuse of discretion on the part of the trial
court in concluding that Appellant’s aforementioned hearsay claim was
devoid of merit. The record reflects that Officer Barth testified pursuant to
the medical treatment exception that, prior to his attempt to revive an
unconscious Appellant, he inquired as to what had transpired and two of
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Appellant’s friends indicated that he had overdosed on heroin. N.T.,
10/16/13, at 20-21, 25. First, these statements in question were clearly
made for the sole purpose of obtaining “medical treatment or diagnosis” on
behalf of Appellant. See Pa.R.E. 803(4)(A). The record reflects that
Appellant was found lying face down and unconscious in the Brookhaven
Swim Club Parking Lot, surrounded by a group of individuals, and Officer
Barth, the first to respond to the scene, immediately inquired as to the
possible cause of Appellant’s condition in order to determine how to proceed.
N.T., 10/16/13, at 18-20.
Second, although Officer Barth testified on cross-examination that the
information he received from Appellant’s friends “didn’t change the way [he]
dealt with [Appellant,]” said statements described a possible cause of
Appellant’s unconsciousness, which were “reasonably pertinent to [his]
treatment[,]” of Appellant. See Pa.R.E. 803(4)(B); N.T., 10/16/13, at 26.
The record reflects that at the time of this incident, Officer Barth was an 18-
year veteran of the Brookhaven Police Department and was trained in the
practice of resuscitating victims who may have suffered a drug overdose,
like Appellant in the case sub judice, by performing a sternum rub. N.T.,
10/16/13, at 17, 27-28.
Third, the statements of Appellant’s friends at the scene carried a
strong assurance of reliability, in that they were evidently made in order to
assist Officer Barth in the timely resuscitation of Appellant, who was
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unconscious and lying face down in a parking lot at the time of Officer
Barth’s arrival. This Court has long recognized that statements proffered
under Rule 803(4) are subject to a two-part reliability test. “First, the
declarant must have a motive consistent with obtaining medical care.
Second, the content of the statement must be such as is reasonably relied
upon by medical personnel for treatment or diagnosis.” Smith, supra at
1291 (citation omitted).
Fourth, the admission of this aforementioned testimony did not
deprive Appellant of a fair trial. The record reflects that the trial court,
sitting as factfinder, explicitly disregarded the testimony concerning
Appellant’s prior heroin use, and considered this testimony for the sole
purpose of the medical treatment exception. See N.T., 10/16/13, pp. 43-
44.
Lastly, we note that, contrary to Appellant’s contention, the medical
treatment exception to the hearsay rule set forth in Rule 803(4) is not
expressly limited to statements made to licensed medical professionals
such as physicians or nurses. See Appellant’s Brief at 16, referencing
Smith, supra.3 Nor has our own independent research yielded any case law
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3
Smith is distinguishable from the instant matter. In Smith, our Supreme
Court refused to expand the scope of the medical treatment exception
beyond its relatively limited nature to include the identity of a perpetrator.
Smith involved a nurse treating a young child suffering from severe burns
that asked the child what happened to her, and the child responded that,
(Footnote Continued Next Page)
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in this Commonwealth indicating that this is the case. Rather, as noted, the
official comment to Rule 803(4) states that “[t]his rule is not limited to
statements made to physicians[,]” and statements as to causation, e.g. how
the person sustained the injury, may be admissible. Pa.R.E. 803(4)
Comment; see also Fink, supra (stating, “a statement comes within this
exception when … [it] relat[es] to the cause of the injury … and … as to how
the person sustained the injuries…[]”).
Instantly, Officer Barth, the first-responder at the scene in question,
testified that when he arrived on the scene, he noticed a large group of
people across the street in a parking lot. N.T., 10/16/13, at 19. Upon
getting close, Officer Barth saw Appellant lying face down in the gravel. Id.The first thing Officer Barth did was ask the group to move out of his way
and to tell him what happened. Id. As this was transpiring, Officer Barth
approached Appellant, rolled him over and checked his vital signs, including
his pulse and verified that he was breathing. Id. at 20. It was during these
moments, when Officer Barth was actually trying to assess Appellant’s
condition and provide first-response, emergency medical treatment that the
declarants, two of Appellant’s friends, told Officer Barth that Appellant had
_______________________
(Footnote Continued)
“[d]addy turned on the hot water and daddy put me in the water.” Smith,
supra at 1290. The Smith Court set forth the prevailing view that the
identity of the assailant or perpetrator who may have caused the injury for
which medical treatment is being sought, is not within the medical treatment
exception because the identity of the abuser is not pertinent to medical
treatment. Id. at 1291-1293.
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gone unconscious in their vehicle and they believed he had overdosed. Id.
at 21. Therefore, the certified record reveals the declarants made their
statements to Officer Barth, a trained first responder, specifically in the
context of his trying to assess Appellant’s then-present condition, symptoms,
and the cause thereof. As a result, it logically follows, the statements in this
case were made for the purpose of securing medical treatment, as he was
providing first-response, emergency medical treatment. As a result, we
conclude the statements were admissible under Rule 803(4). See Brown,
supra.
Based on the foregoing, we discern no abuse of discretion on the part
of the trial court in concluding Appellant’s hearsay claim is devoid of merit.
Accordingly, the trial court’s October 25, 2013 judgment of sentence is
affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2014
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