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Laboratory reports prepared for civil litigation or criminal prosecutions do not fall into the business records exception of the hearsay rule, the Pennsylvania Superior Court has ruled. The en banc panel, by a 6-3 vote, ruled that the trial court’s admission of a lab report in a drug possession case, without testimony from the forensic scientist who prepared it, violated the constitutional right of defendant Alfonso F. Carter to confront a witness against him. The decision in Commonwealth v. Carter granted Carter’s collateral review petition, reversed his conviction for drug possession and remanded the case for a new trial. Noting that reports prepared for litigation or criminal prosecutions do not fall into the business records exception, Judge John T. Bender wrote: “Obviously, the lab report on the substance seized from appellant was prepared in anticipation of a criminal prosecution, by a laboratory under the aegis of the Pennsylvania State Police, in order to establish a critical element of the drug offense, i.e., the existence of a controlled substance.” Consequently, he said, “the trial court abused its discretion by misapplying the business records exception and admitting the lab report as substantive evidence in this case.” Judges Joseph A. Hudock, John L. Musmanno, Richard B. Klein, Mary Jane Bowes and Jack A. Panella joined Bender in the majority. In a dissenting opinion joined by Judges Susan Peikes Gantman and Seamus P. McCaffery, Judge Michael T. Joyce said the lab report in this case did not constitute an “opinion or diagnosis” but rather laid out objective facts based on an analysis of the substance confiscated from Carter. Joyce found it unnecessary for lab technicians to appear before courts in every drug possession case since these scientists are already under a duty to produce an accurate report, and the chances they would skew the results one way or the other are remote. “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,” Joyce wrote. “His testimony inevitably would have been based on the lab report now at issue.” The constitutional right to confrontation, he wrote, “must bow to considerations of public policy and the necessities of a case where the utility of confrontation is, as it is here, remote.” According to the opinion, Carter was arrested by Harrisburg police in March 1998 on an outstanding summary warrant. During a search of his person at the police station, the arresting officer, Brenda Holmes, discovered more than 60 rocks of suspected crack cocaine. Subsequent lab tests confirmed the substance was, in fact, cocaine. Following a January 1999 non-jury trial in Dauphin County Common Pleas Court, Carter was found guilty of possession with intent to manufacture or deliver a controlled substance, and sentenced to five to 10 years’ incarceration. His sentence was upheld on direct appeal. In a Post Conviction Relief Act petition, Carter argued his appellate counsel was ineffective for failing to pursue a claim that his constitutional right to confrontation was violated by the trial court’s decision to permit the crime lab manager to testify on the drug lab report, rather than the forensic scientist who prepared it. Trial counsel had objected to the admission of the lab report, Bender noted, but appellate counsel did not raise the issue on direct appeal. In the collateral petition, Carter argued that the lab report amounted to hearsay evidence since it fell outside any of the exceptions to that rule laid out in Pennsylvania Rule of Evidence 803(6). Bender said a 2002 decision from the Wisconsin Supreme Court provided a thorough survey of case law from jurisdictions across the country addressing the question of whether lab reports qualify under the business records exception to the hearsay rule. In State of Wisconsin v. Williams, the Wisconsin justices found that a lab report on illegal narcotics did not fall into the exception. In so ruling, the court noted that some jurisdictions have found that lab reports fall within the exception, while others have found that they do not. Assessing cases on both sides of the divide, Bender concluded that those finding lab reports are covered by the business records exception “have failed to consider, as a general matter, the principle that reports prepared for the purpose of litigation or prosecution do not qualify for the exception.” In Pennsylvania, courts have recognized that reports prepared for such a purpose fall outside the exception. Therefore, Bender concluded, the business records exception cannot be extended to crime lab reports. The court then undertook a harmless error analysis to determine if a new trial was warranted in Carter’s case. In his analysis, Bender took guidance from the Pennsylvania Supreme Court’s 1974 decision in Commonwealth v. McCloud, which held that business records offered “to prove an essential element of the crime or connect the defendant directly to the commission of the crime … must be proved through persons having personal knowledge of the element or connection and such persons must be available to testify for cross-examination.” In Carter’s case, Larry L. Reigle, the manager of the Pennsylvania State Police Harrisburg lab, testified in lieu of the forensic scientist who prepared the lab report, Edward J. Kozlusky. At trial, Bender said, Reigle admitted that he had only reviewed Carter’s lab file that morning. He then read out loud portions of the report to the court. “Mr. Reigle did no testing of the substance himself, and there was no evidence that he even observed the testing or the substance to any degree,” Bender wrote. “Instead, he simply paraphrased the report and concluded that the testing was done in compliance with the lab’s ordinary procedures.” Reigle’s testimony, Bender found, lacked a close connection to the testing itself, and given that the lab report amounted to the only substantive evidence connecting Carter to the illegal substance, only Kozlusky, the forensic scientist who prepared the report, “had the personal knowledge of the tests he performed in this case.” Furthermore, Bender said, the commonwealth had not sought to certify Reigle as an expert before he offered his testimony. Even if the commonwealth had done this, the judge wrote, Reigle’s testimony “would have nevertheless been unacceptable as it merely echoed the data and results contained in the lab report, which he did not prepare.” With Reigle as an expert, the lab report would still have to be excluded as inadmissible hearsay, Bender added. Finally, Bender said, there is nothing in the record to show “the accuracy or rate of error of the specific tests performed here … or the subjectivity involved in reading the results of tests.” Such a void in the record prevented the court from concluding that the lab report had “the indicia of reliability inherent in other documents that come within the business records exception.” Finding appellate counsel ineffectiveness, the court reversed Carter’s conviction and ordered a new trial. Joyce’s dissent noted agreement with the trial court’s finding that since lab reports are routine records, “there’s little or no motive here for inaccurate information or inappropriate information.” The lab reports were properly admitted under the business records exception, Joyce concluded, and therefore there are no confrontation issues in this case. The McCloud ruling, Joyce said, is an exception to the general rule that hospital records are admissible under the business records exception. A distinction in Pennsylvania law between records that establish facts and those that outline opinions or diagnoses is evident in a line of cases addressing the admissibility of blood alcohol test results, Joyce wrote. “The lab report admitted against Appellant, unlike the coroner’s report in McCloud, did not offer the ‘opinion or diagnosis’ of its author,” Joyce wrote. Rather, like the blood alcohol cases, “the report at issue here contained objective facts related to the nature and weight of a readily ascertained substance (cocaine) in a controlled sample.” Carter’s lawyer was Francis M. Socha of Harrisburg. The commonwealth was represented by Dauphin County Assistant District Attorney James Patrick Barker.

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