COM. v. CARTER | No. 912 MDA 2002. | Pa. Super. Ct. | Judgment | Law

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Docket Number

No. 912 MDA 2002.

Attorney(S)

Francis M. Socha, Harrisburg, for appellant. Kelly L. Crawford, Asst. Dist. Atty., Harrisburg, for Com., appelee.

Judges

DISSENTING OPINION BY GRACI, J.

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COMMONWEALTH OF PENNSYLVANIA, Appellee v. ALFONSO F. CARTER, Appellant.

OPINION BY McEWEN, P.J.E.

¶ 1 Appellant, Alfonso F. Carter, has taken this appeal from the Order of the trial court that dismissed his petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-9546 ("PCRA"). We are constrained to reverse.

¶ 2 The charges against appellant arose out of a traffic stop that occurred on the evening of March 18, 1998, in Harrisburg, Pennsylvania. Officer Brenda Holmes of the Harrisburg City Police Department was patrolling the area of Hall Manor in Harrisburg that evening, when she observed an unattended vehicle in the parking area with its keys in the ignition, its lights and windshield wipers on, and its engine running. As Officer Holmes was conferring over the police radio about the vehicle registration plate in order to determine the owner of the vehicle, appellant approached her and claimed that he was the owner of the vehicle. When Officer Holmes asked appellant for identification, he told her that his name was "Kevin Watson" and gave a date of birth. As this occurred, Officer Holmes learned over the police radio that the car was actually registered to a female, and that the birth date for "Kevin Watson" did not correspond to the one given by appellant. A black female then approached and identified appellant as "Vernon Matthews." As a result of these discrepancies Officer Holmes became suspicious and called for backup. Finally, appellant identified himself as Alfonso Carter. When Officer Holmes conducted a records check on "Alfonso Carter" and discovered that there existed an outstanding warrant for his arrest, she placed appellant under arrest. In a search at the scene incident to the arrest, Officer Holmes found thirty-five (35) empty blue zip-lock baggies in his jacket pocket, and thereafter, during a search at the police station, discovered a plastic bag that contained over sixty (60) rocks of suspected crack cocaine. A field test was conducted on the rocks, which tested positive for cocaine.

¶ 3 Appellant was convicted, following a nonjury trial, of possession with the intent to manufacture or deliver a controlled substance, 35 Pa.C.S.A. § 780-113(a)(30), on January 12, 1999, and thereafter sentenced to serve a term of imprisonment of from five years to ten years. After appellant filed a timely notice of appeal on February 11, 1999, this Court affirmed the judgment of sentence on October 22, 1999. Appellant was represented at his trial and sentencing by privately retained counsel, and on direct appeal by the Office of the Dauphin County Public Defender.

In his direct appeal, appellant challenged only the trial court's denial of his motion to suppress the physical evidence in his case. A panel of this Court held that the searches of appellant's person were lawfully conducted.

¶ 4 Appellant filed a pro se PCRA petition on September 11, 2000. After present counsel was appointed, an amended petition was filed on Carter's behalf on October 11, 2000. The PCRA court concluded that there were no genuine issues concerning any material fact and, pursuant to Pa.R.Crim.P. 907, notified appellant of its intention to dismiss his PCRA petition without a hearing. No objections were made and the court dismissed the petition on May 29, 2002. This timely appeal followed.

¶ 5 Appellant, in his brief submitted in support of this appeal, raises the following questions for review:

1. Was appellate counsel ineffective for failing to raise on direct appeal the allegations of trial error and trial counsel's ineffectiveness?

2. Did the trial court err in admitting into evidence a copy of the Pennsylvania State Police lab report over trial counsel's objection?

3. Did the trial court err in denying the appellant's motion for a continuance of his trial?

4. Was trial counsel ineffective for eliciting through direct examination of the appellant his prior drug delivery conviction and for failing to object on cross examination of appellant's criminal activity involving drug deliveries in 1992?

We have re-phrased and set out appellant's questions in the order we have chosen to address them.

¶ 6 Our standard of review in an appeal from an order which has dismissed a petition for relief under the PCRA is well settled:

This Court's standard of review of an order denying post-conviction relief is limited to examining whether the evidence of record supports the determination of the PCRA court and whether the ruling is free from legal error.

Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997). Equally well settled is the burden that the law imposes upon a petitioner seeking post-conviction relief:

To be entitled to relief under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in 42 Pa.C.S.A. § 9543(a)(2), and that the issues raised in the petition have not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An allegation of error is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b).

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.Super. 2002), appeal denied, 570 Pa. 685, 808 A.2d 571 (2002) (citations omitted).

¶ 7 Appellant initially asserts that his original appellate counsel was ineffective for failing to pursue certain claims of trial counsel's ineffectiveness and trial court error. This claim of "layered ineffectiveness" requires us to analyze appellant's issues within the framework of our ineffective assistance standard as it relates to appellate counsel's performance.

"A petitioner can avoid a finding of waiver under the PCRA by making an adequate and properly layered claim of ineffective assistance of counsel at his first available opportunity to do so." Commonwealth v. Rivera, 816 A.2d 282, 287 (Pa.Super. 2003), quoting Commonwealth v. Abdul-Salaam, 570 Pa. 79, 84, n. 2, 808 A.2d 558, 560 n. 3 (2001)).

Although a PCRA petitioner may overcome waiver of allegations of trial error through proper layering of his ineffectiveness claims, he must still satisfy the entire three-part test required to be applied to all claims of ineffective assistance of counsel. Thus, a finding of merit on the underlying substantive claim merely allows us to proceed to a review of the second and third parts of the test. See e.g.: Commonwealth v. Miller, 560 Pa. 500, 512-513, 746 A.2d 592, 598 (2000).

¶ 8 Our Supreme Court has recognized that claims of ineffective assistance of appellate counsel are cognizable under 42 Pa.C.S.A. § 9543(a)(2)(ii).

In order to obtain relief under the PCRA premised upon a claim that counsel was ineffective, a petitioner must establish beyond a preponderance of the evidence that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). This requires the petitioner [to] demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission.

Commonwealth v. Payne, supra, 794 A.2d 902, 905-906 (Pa.Super. 2002) (citation omitted). With these standards in mind we now proceed to appellant's underlying claims.

¶ 9 The first of these claims is that original appellate counsel was ineffective for failing to preserve and raise on appeal the trial court's admission into evidence of a copy of a Pennsylvania State Police lab report. The report indicated that 11.6 grams of cocaine were seized from appellant following his arrest. The chemist who prepared the report could not appear at trial, and in his place the Commonwealth called Mr. Larry Reigle, the manager of the crime lab, to testify about the contents of the report. Over trial counsel's objection, the trial court admitted the report as substantive evidence.

¶ 10 Appellant now maintains that the trial court erred in overruling his objections to this evidence, because the lab report was clearly hearsay evidence, which was inadmissible under the Pennsylvania Rules of Evidence. See: Pa.R.E. 802. Although the trial judge agreed that the evidence in question was hearsay, he ruled that it fell within an exception to the rule which provided:

"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. Pa.R.E. 801(c).

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). We are constrained to disagree with the trial judge that this exception was applicable.

¶ 11 We 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 declarants' 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, 1291 (1996).

We are mindful, as well, that the Pennsylvania Supreme Court in Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014 (1999), cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 293 (1999), has observed that "where the evidence at issue does not satisfy an exception to the hearsay rule, confrontation rights [under the United States and Pennsylvania Constitutions] are implicated." Id. at 13, 722 A.2d at 1018.

¶ 12 The drafters of Pa.R.E. 803(6) included within the Official Comments to the Rule the admonition that "Pa.R.E. 803(6) does not include opinions and diagnoses" (emphasis added). This omission was obviously intended to conform the Pennsylvania Rule to the pre-existing decisional law of this Commonwealth.

This omission distinguishes the Pennsylvania Rule from the Federal Rule. See: F.R.E. 803(6).

¶ 13 In Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), the Supreme Court held it was error to introduce a report that contained an opinion without having the author of that report subject to cross-examination. The report in question was the written report of the medical examiner who performed an autopsy on the deceased. The Court quite insightfully reasoned:

The Supreme Court in Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), was addressing the admissibility of evidence under the precursor to Rule 803(6) of the Pennsylvania Rules of Evidence, i.e. the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108(b).

Had the medical examiner been called to testify, the opinions, conclusions, and interpretation contained in the autopsy report would have been subject to cross-examination. 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.] at 154, 171 A.2d at 471. 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 (footnote omitted) (emphasis supplied). Cf: Commonwealth v. Karch, 502 A.2d 1359 (Pa.Super. 1986) (blood alcohol test results were admissible under the hospital records exception).

The hearsay exception at issue in Commonwealth v. Karch, 502 A.2d 1359 (Pa.Super. 1986), was the "hospital records exception", which permitted the admission of "the fact of hospitalization, treatment prescribed, and symptoms given", but not the "opinion contained in the records and proffered as expert testimony" unless the declarant was available for cross-examination. Commonwealth v. DiGiacomo, 463 Pa. 449, 455-456, 345 A.2d 605, 608 (1975). See: Pa.R.E. 803(4) Statements for Purposes of Medical Diagnosis or Treatment, the Official Comment to which provides that "[s]tatements made to persons retained solely for the purpose of litigation are not admissible under this rule." See also: Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996).

¶ 14 In the present case appellant sought an opportunity to cross-examine the person who performed the lab test and prepared the report that stated that the 11.6 grams of substance seized from appellant were actually cocaine. Contrary to the conclusion of the trial judge, this was not a "routine" report, but a report specifically prepared to prove the most significant elements of the Commonwealth's case, namely the character, and the amount of the alleged contraband at issue. Consequently, just as in Commonwealth v. McCloud, supra, the credibility and competence of the expert who actually performed the tests and prepared the evidentiary report was critical to the case of the Commonwealth, as well as to the presentation of the defense. Thus, this evidence should not have been admitted unless appellant's trial counsel had been afforded the opportunity to cross-examine the chemist who performed the tests and made the conclusions.

It is the most fundamental tenet of American criminal jurisprudence that the burden to establish each element of a crime "beyond a reasonable doubt," rests unalterably with the prosecution. See: In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). One need only look to recent experiences with faulty and defective reports issuing from crime laboratories across the country, particularly the scientific reports and testimony proffered by the federal police over the past years, to realize that laboratory reports are not so inherently infallible or trustworthy that they should be permitted to be automatically accepted by the parties or the courts. See e.g. "The FBI Laboratory: An Investigation into FBI Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases" (April 1997), Office of the Inspector General, Department of Justice; State of West Virgina v. Zain, 207 W. Va. 54. 528 S.E.2d 748 (1999), cert. denied, 529 U.S. 1042, 120 S.Ct. 1541, 146 L.Ed.2d 354 (2000). See also: " Pa. Crime-lab Scientist's Errors Prompt Alert to 27 Counties " The Philadelphia Inquirer , June 19, 2003; " Police Chief Shakes up Crime Lab — 2 Officials Quit, Others Disciplined " The Houston Chronicle , June 13, 2003; " Crime-lab Worker Puts Cases in Doubt " Orlando Sentinel , July 19, 2002; " Report Criticizes Scientific Testing at FBI Lab " The New York Times , April 16, 1997. Finally, it merits mention that if, as the trial judge ruled in this case, the Commonwealth is entitled to introduce toxicology reports under Pa.R.E.803(6), defense counsel would similarly be allowed to proceed by report instead of expert testimony.

¶ 15 Since we have found merit to appellant's claim we must next examine the question of prejudice. As we have noted, the report presented by the Commonwealth as part of its case-in-chief was the essence of the proof of guilt of appellant. The report composed evidence of ultimate prejudice since it (1) verified that appellant was in possession of an illegal substance, (2) in an amount that supported the inference that he was a dealer, and (3) subjected him to a mandatory sentence of imprisonment.

See: 18 Pa.C.S.A. § 7508(a)(2)(ii).

¶ 16 Finally, since the evidence had such disastrous effects, and since it was proscribed hearsay evidence not subject to the Pa.R.E. 803(6) exception, there was no reasonable basis for appellant's original appellate counsel not to raise this issue on appeal. Therefore, appellant should have been granted PCRA relief in the form of a new trial.

¶ 17 We are compelled, therefore, by reason of the foregoing analysis, to conclude that the PCRA court erred in its conclusion that appellant was not entitled to post-conviction relief. Consequently, the order of the PCRA court dismissing appellants' claim for PCRA relief must be reversed, and a new trial held.

In light of our grant of relief on appellant's evidentiary issues, we need not address his remaining questions, concerning the denial of a continuance and the further ineffectiveness of counsel. The issue of the denial of request for a continuance is moot, and the decision whether to use appellant's prior conviction in a future trial remains a strategic decision that appellant in consultation with his counsel can elect to pursue or forego.

¶ 18 Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 19 GRACI, J., FILES A DISSENTING OPINION.

DISSENTING OPINION BY GRACI, J.

¶ 1 Loath as I am to disagree with my learned colleagues, I, most respectfully, dissent from the majority's conclusion that the crime lab report was inadmissible as substantive evidence. In my view, the trial court properly admitted the report as a record of regularly conducted activity under Pa.R.E. 803(6) (the "business record exception" to the hearsay rule). I would therefore reject Appellant's claim that original appellate counsel was ineffective for failing to appeal this issue and affirm the order of the PCRA court denying relief.

The Commonwealth offered, and the trial court admitted, two exhibits pertaining to the nature and weight of the substance seized from Appellant. Neither of the exhibits has been transmitted to this Court, however the contents of each exhibit are clearly described in the record. Commonwealth's Exhibit No. 4 was a copy of the lab report, number H9801978-C, prepared and signed by the chemist. N.T. Nonjury Trial Sentencing, January 11-12, 1999, at 72:13-15. Commonwealth's Exhibit No. 5 contained copies of the documents in the original case file which the chemist prepared and relied upon in generating the actual lab report. Id. at 74-75. Appellant challenges only the admission of Commonwealth's Exhibit No. 4, the actual lab report.

I recognize that in doing so, as the majority notes, "if . . . the Commonwealth is entitled to introduce toxicology reports under Pa.R.E. 803(6), defense counsel would similarly be allowed to proceed by report instead of expert testimony." Opinion, at 10 n. 10. It has never been my understanding that the rules of evidence are one-sided. If the defense has evidence that satisfies the requirements of Rule 803(6) (or any other rule) it, like the Commonwealth's evidence here, would be admissible. That the defense would be able to follow an established rule of evidence is certainly no reason to deny the evidence to the Commonwealth.

¶ 2 "When faced with an issue raising both constitutional and nonconstitutional questions, we must make a determination on non-constitutional grounds if possible and avoid the constitutional question." Commonwealth v. Kennedy, 604 A.2d 1036, 1038-39 (Pa.Super. 1992) (citations omitted). Also, "[e]vidence admitted under a well-recognized exception to the hearsay rule and supported by sufficient indicia of reliability does not raise confrontation problems." Commonwealth v. Romero, 722 A.2d 1014, 1018 (Pa. 1999) (citation omitted). Therefore, unlike the majority, I would first assess the merits of Appellant's evidentiary issue on nonconstitutional grounds.

¶ 3 The trial court determined that the Commonwealth had satisfied the requirements of Rule 803(6). I agree. First, the rule expressly allows for the admission of a business record "even though the declarant is available as a witness." Id. Thus, the availability of the chemist who actually prepared the lab report is immaterial. In any event, Mr. Reigle, the manager of the crime lab and supervisor of the chemists, testified at length regarding his knowledge of the testing procedures employed by the lab. N.T. Nonjury Trial Sentencing, January 11-12, 1999, at 69-71. Mr. Reigle verified that the lab report in this case was generated by the chemist at or near the time that the chemist conducted the scientific analysis of the substance recovered from Appellant's person. Id. at 70:14-23, 74:16-75:2. Mr. Reigle indicated that it is the regular business practice of the crime laboratory to generate such reports. Id. at 71:19-22. I also agree with the trial court's observation that "there's little or no motive here for inaccurate information or inappropriate information. These are routine records." Id. at 76:13-15. Indeed, Appellant has pointed to nothing in the record to suggest a "lack of trustworthiness" in the sources of information or other circumstances behind the creation of the report. In light of the foregoing, the trial court committed no abuse of discretion when it determined that Mr. Reigle was a custodian or other qualified witness and admitted the lab report as a business record through his testimony.

In contrasting Pa.R.E. 803(6) with its precursor, the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108(b), the drafters of the rule state that "Pa.R.E. 803(6) 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. The statute places the burden on the proponent of the evidence to show circumstantial trustworthiness." Pa.R.E. 803(6), Comment. Thus, under Rule 803(6), the burden was clearly on Appellant to demonstrate how the lab report was untrustworthy. The majority has, without explanation, shifted that burden to the Commonwealth.

¶ 4 As indicated above, no confrontation problems are raised in this case since the lab report was admitted under a well-recognized exception to the hearsay rule and supported by sufficient indicia of reliability. Romero, supra. That notwithstanding, the majority proceeds with a constitutional analysis and concludes that the trial court, by admitting the lab report, violated Appellant's right to confront and cross-examine the chemist. In reaching that conclusion the majority relies heavily on Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974). In McCloud, our Supreme Court held that opinions, diagnoses and conclusions contained in hospital or medical records are not admissible under the business records exception. See also Pa.R.E. 803(6), Comment (noting that, consistent with prior Pennsylvania case law, Rule 803(6) does not include opinions and diagnoses). The rationale for excluding such evidence is that it is the equivalent of expert testimony and, therefore, not admissible unless the individual who prepared the report is available for cross-examination regarding the accuracy, reliability and veracity of his or her opinion. Id. at 655. It is significant that McCloud was a homicide case since, as the Court observed, "the legal cause of death is at best a conclusion based on interpretation of often conflicting medical opinion." Id.

¶ 5 In my view, McCloud's proscription on opinion evidence is really the exception to the rule that "[h]ospital records are generally admitted at trial as an exception to the hearsay rule under the [business records exception]." Commonwealth v. Seville, 405 A.2d 1262, 1264 (Pa.Super. 1979). In Seville, this Court held that a hospital report containing results of a blood alcohol test was admissible as a business record even though the hospital technician who administered the test was not present at trial. In distinguishing McCloud, we stated that "[n]o such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts, such as the event of hospitalization, treatment prescribed, symptoms given, or the existence of some readily ascertained substance or chemical within the body. " Id. (emphasis added). This Court went on to conclude that

[t]here is nothing in this record or in the pertinent authorities which would suggest the result of a blood alcohol test is a matter "seriously in issue and the subject of conflicting opinion by qualified physicians." Rather, we are persuaded the test is in the realm of medical fact. Courts and legislatures have now accepted the blood test as "undeniably accurate" and we will not burden the Commonwealth with producing witnesses to establish a fact which experience has proven to be trustworthy.

Id. at 1265-1266 (quoting McCloud) (footnoted omitted).

¶ 6 Subsequent cases involving the admission of blood alcohol test results have focused on the distinction between fact and opinion identified in Seville. For example, in Commonwealth v. Karch, 502 A.2d 1359 ( Pa. Super. 1986), appellant, following his conviction for driving under the influence of alcohol, argued that the results of his blood alcohol test were inadmissible unless the technician who performed the test was called to testify. Id. at 1360. This Court rejected Karch's argument based upon the following analysis:

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.

Karch, 502 A.2d at 1361.

¶ 7 Similarly, in Commonwealth v. Kravontka, 558 A.2d 865, 866 (Pa.Super. 1989), we were confronted with an issue directly analogous to that articulated by the majority: whether admission of blood alcohol test results, pursuant to the business records exception to the hearsay rule and without the presence of the lab technician who performed the blood analysis, violate a defendant's Sixth Amendment right of confrontation. In answering that question in the negative, Judge Popovich, writing for the majority, first noted that

[w]hen we review a constitutional objection to admission of evidence pursuant to an exception of the hearsay rule, we must remember that, although the right of confrontation is a fundamental right, it "must occasionally give way to considerations of public policy and the necessities of the case."

Id. at 868 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)). Judge Popovich framed the analysis further by stating

"[t]he 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,] 2538, [ 65 L.Ed.2d 597 (1980)]. First, "[i]n the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Citations omitted)." Id., 448 U.S. at 65, 100 S.Ct. at 2538."

However, a demonstration of unavailability is not always required. In Dutton v. Evans, [ 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)], for example, the Supreme Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. Ohio v. Roberts, 448 U.S. at 66 n. 7, 100 S.Ct. at 2538 n. 7.

Kravontka, 558 A.2d at 868. The Kravontka court reasoned that the type of exception to the hearsay rule at issue was precisely the type that would not require the production of the declarant. Citing Seville and Karch, the Court concluded that

[b]ecause of the overwhelming "indicia of reliability" inherent in blood-alcohol tests and the records of those test[s], the cross-examination of the technician who performed the test would be of insignificant utility to a defendant. Moreover, we see little need to parade before a jury every technician who was associated with a defendant's blood-alcohol test simply to explain a procedure which, on a daily basis, is proven most reliable.

Id. at 870. Cf. Commonwealth v. Campbell, 368 A.2d 1299 (Pa.Super. 1976) (hospital records, showing existence of spermatozoa in rape victim, held properly admitted as fact via medical records librarian); Commonwealth v. Xiong, 630 A.2d 446 (Pa.Super. 1993) (notation on physician's report that victim had "no hymen" was factual assertion, rather than diagnosis or opinion, admissible under business record exception); Commonwealth v. Nieves, 582 A.2d 341 (Pa.Super. 1990) (finding standard gonorrhea tests sufficiently similar to spermatozoa and blood alcohol tests to warrant admission of test results under business record exception).

¶ 8 I find the cases discussed above to be directly analogous to the case sub judice. The lab report admitted against Appellant, unlike the coroner's report in McCloud, did not offer the "opinion or diagnosis" of its author. Like the blood-alcohol test results admitted in Seville, Karch, and Kravontka, the report at issue here contained objective facts related to the nature and weight of a readily ascertained substance (cocaine) in a controlled sample. The test performed by the chemist, and described by Mr. Reigle, is an accepted chemical analysis that produces highly reliable results rising beyond mere opinion to the level of scientific fact. The elements of trustworthiness inherent in this type of scientific analysis "serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examina-tion[.]" Seville, 405 A.2d at 1265.

¶ 9 Moreover, even the fundamental constitutional right of confrontation must bow to considerations of public policy and the necessities of a case where the utility of confrontation is, as it is here, remote. Kravontka, supra. The chemists who conduct analyses of controlled substances do so routinely and generally do not have an interest in the outcome of a trial. As scientists, they are under a duty to make accurate reports and it is difficult to perceive any motive or opportunity for the chemist to falsify such reports. It also seems to me highly unlikely that the chemist in this case would have remembered any pertinent details regarding a chemical analysis he performed nearly one year before Appellant's trial. His testimony inevitably would have been based on the lab report now at issue. Furthermore, any relevant testimony bearing on the likelihood of error in the testing procedure necessarily would have involved broad statements as to general practices and probabilities within the laboratory, all matters about which Mr. Reigle was certainly qualified to testify.

¶ 10 In conclusion, and to paraphrase this Court's astute observation in Kravontka, supra, I see little need to parade before a jury every technician who was associated with a chemical test to explain a procedure which, on a daily basis, is proven most reliable. Since the trial court properly admitted the crime lab report, Appellant's present ineffective assistance claim is premised upon a meritless issue. I would affirm the order dismissing Appellant's PCRA petition without a hearing.

I recognize, of course, as does the majority, that any report may be "faulty and defective." Opinion, at 10 n. 10. I would not rely, however, on hearsay accounts from newspapers or criticisms of non-routine reports in deciding the applicability and reach of a well-worn exception to the rule against hearsay allowing the admission into evidence of routine business records. Such consideration may be appropriate for the writers of the rules of evidence but it is not appropriate, in my view, for the courts.

Appellant raises two additional issues on appeal. He first contends that appellate counsel was ineffective for failing to appeal the trial court's denial of his motion for a continuance of his trial, which Appellant made for the purpose of retaining new counsel. I would find no merit to Appellant's underlying argument since he failed to comply with the 48-hour deadline imposed by Pa.R.Crim.P. 106 (Continuances in Summary and Court Cases). Moreover, under the facts of this case, the need for swift and efficient administration of criminal justice outweighed Appellant's right to assert a purely dilatory motion for a continuance. Appellant also argues that appellate counsel was ineffective for failing to challenge trial counsel's performance with respect to the admission of certain testimonial evidence regarding prior drug convictions. In light of the overwhelming evidence offered against Appellant, including the crime lab report I deem admissible for the reasons set forth in text, I would find that Appellant could have suffered no prejudice as a result of trial counsel's allegedly ineffective assistance. Based upon the foregoing, I would find that appellate counsel was not ineffective for failing to pursue the claims asserted by Appellant and would affirm the PCRA court's denial of relief.