J-S57020-14


                                  2014 PA Super 259

COMMONWEALTH 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.

____________________________________________
1
    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


____________________________________________
2
    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


____________________________________________
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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J-S57020-14


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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