J-A32024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

BRIAN LEWIS DITTMAN

                            Appellant                       No. 196 WDA 2015


            Appeal from the Judgment of Sentence January 8, 2015
                In the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0001572-2012


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                 FILED FEBRUARY 24, 2016

       Brian Lewis Dittman appeals from the judgment of sentence imposed

on January 8, 2015, in the Court of Common Pleas of Butler County.              On

November 19, 2014, at the conclusion of a bench trial, the court convicted

Dittman       of    driving      under         the   influence   (“DUI”)   (general

impairment/incapable of safe driving) (second offense), DUI (highest rate of

alcohol) (second offense), driving while operating privilege is suspended or

revoked, disregarding traffic lane, and exceeding maximum speed limit.1

The court sentenced Dittman to an aggregate term of six months of

intermediate punishment. On appeal, Dittman challenges the court’s denial

____________________________________________


1
   75 Pa.C.S. §§ 3802(a)(1), 3802(c), 1543(b)(1.1)(i), 3309(1), and
3362(a)(1), respectively.
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in admitting certain transcripts of expert testimony. After a thorough review

of the submissions by the parties, the certified record, and relevant law, we

affirm.

       The facts underlying Dittman’s arrest are gleaned from the probable

cause affidavit attached to his criminal complaint. See Criminal Complaint,

9/4/2012, Affidavit of Probable Cause, at 1. On June 10, 2012, Pennsylvania

State Trooper Mark Hoehn observed a silver Cadillac weaving within its lane.

He then saw the vehicle cross slightly over the double yellow line and the

white line.   The trooper followed the car for approximately one mile and

noticed Dittman was traveling at a steady speed of 68-70 miles per hour.

Trooper Hoehn then initiated the traffic stop.

       Trooper Hoehn and another trooper approached the vehicle.         The

trooper asked for Dittman’s license, registration, and proof of insurance.

Dittman admitted that he only had an identification card in his possession

because his license had been suspended for a prior DUI. As Dittman spoke,

Trooper Hoehn observed a strong odor of alcohol on Dittman’s breath, his

eyes were bloodshot and glassy, and his speech was slow and slurred. The

trooper conducted field sobriety tests and placed Dittman under arrest for

DUI.

       Dittman was then transported to Butler police barracks for a breath

test. Another trooper administered a breathalyzer test on Dittman, and the

result showed he had a blood alcohol content (“BAC”) of .194%.


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      Dittman was charged with several DUI violations.              He filed a

suppression motion, challenging the traffic stop.      A hearing was held on

January 15, 2013.        However, at that time, he withdrew the motion and

entered a guilty plea.

      During this time, on December 31, 2012, the Dauphin County Court of

Common Pleas rendered a decision in an unrelated matter by another judge,

Commonwealth v. Schildt, Docket No. CP-22-CR-0002191-2010 (Judge

Lawrence F. Clark, Jr.), rev’d, 87 A.3d 374 [196 MDA 2013] (Pa. Super.

2013) (unpublished memorandum), appeal denied, 86 A.3d 233 (Pa. 2014),

which stated that “after hearing testimony from several extremely qualified

expert witnesses offered by the [d]efendant,” “the array of breath testing

devices presently utilized by the Commonwealth … are not capable of

providing a legally acceptable Blood Alcohol Content (BAC) reading … outside

the limited linear dynamic range of 0.05 to 0.15%.”         Dittman’s Omnibus

Pretrial Motion, 4/23/2013, Exhibit A, Opinion at 1-2.

      Based on the Schildt decision, Dittman filed a motion to withdraw his

guilty plea on April 1, 2013. A hearing was held on April 23, 2013, and the

trial court granted the motion on May 1, 2013. Dittman also filed a motion

for a leave of court to file a suppression motion, challenging the reliability of

the breath test result in his case.       A hearing was held regarding the




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suppression issue on December 17, 2013.2         The court then denied the

motion on July 23, 2014.

       Dittman’s case proceeded to a one-day non-jury trial on November 19,

2014. At that time, Dittman moved to admit the certified transcripts of the

Schildt proceedings for the purpose of establishing a defense to the DUI

charge based upon Pennsylvania Rules of Evidence 803 and 804. The court

denied the motion and convicted Dittman of the above-provided charges.

On January 8, 2015, the court sentenced Dittman to six months of

intermediate punishment, with the first 105 days to be served on house

arrest with electronic monitoring, for the DUI (highest rate of alcohol)

offense, and a concurrent term of 90 days of electronic monitoring for the

driving while operating privilege is suspended conviction.3      This appeal

followed.4

       In his first argument, Dittman complains the court erred in “denying

the admission of certified transcripts containing expert testimony developed”

during the Schildt proceedings, thereby “denying [Dittman] an affirmative
____________________________________________


2
  Dittman and his counsel did not appear at the hearing, later alleging they
never received notice.
3
   The two DUIs merged for sentencing purposes and the court imposed no
further penalty with respect to the remaining offenses.
4
   On February 2, 2015, the trial court ordered Dittman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Dittman filed a concise statement on February 12, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 23, 2015.



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defense that which otherwise would not be available to him[.]”           Dittman’s

Brief at 11.   Specifically, Dittman asserts the court erred in finding the

transcripts were not admissible under Pennsylvania Rules of Evidence 803(6)

and 804. With respect to Rule 803(6), the business record exception to the

hearsay rule, Dittman states the Schildt transcripts fall under the rule’s

definition of “records of regularly conducted activity” based on the following:

(1) the transcripts were made contemporaneously with the testimony of the

expert witnesses in Schildt; (2) the producing and keeping transcripts of

court proceedings is a regularly conducted activity of the official court

reporter; (3) the making of a transcript of court proceedings is a regular

practice of the official court reporter; (4) the transcripts were certified copies

of the original transcribed by the official court reporter; and (5) the

testimony was taken in open court and under oath.           Id. at 12.    Dittman

contends Schildt and his case are related because both matters contain the

exact same legal issue and the Commonwealth was a party in both

proceedings, represented by the District Attorney’s Office of their respective

counties.   Id. at 13.    Moreover, he states that contrary to the court’s

finding, he did provide supporting testimony to prove the truth of the

expert’s assertions in Schildt, because the expert’s testimony was taken in

open court and under oath, and was subject to cross-examination.            Id. at

14. With regard to Rule 804, Dittman argues the experts called in Schildt

were “unavailable” to him in his case due to his lack of the financial


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resources to hire the services of expert witnesses that could provide him a

similar defense to the one raised in Schildt. Id. at 16.

      We begin with our well-settled standard of review:

      “Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial
      court clearly abused its discretion.”      Commonwealth v.
      Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 (2002), cert.
      denied, 539 U.S. 919, 123 S. Ct. 2284, 156 L. Ed. 2d 137 (2003)
      (quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781
      A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d
      1245, 1251 (Pa. Super. 2013). “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. Harris, 2005 PA Super 335, 884 A.2d 920,
      924 (Pa. Super. 2005), appeal denied, 593 Pa. 726, 928 A.2d
      1289 (2007).

Commonwealth v. Tyson, 119 A.3d 353, 357-358 (Pa. Super. 2015),

appeal denied, _ A.3d __ [537 MAL 2015] (Pa. Dec. 1, 2015).

      Pennsylvania   Rule   of   Evidence   802   provides:   “Hearsay   is   not

admissible except as provided by these rules, by other rules prescribed by

the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802. “‘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 Pennsylvania Rules of Evidence provide that

certain statements are not excluded under the hearsay rule, even when the

declarant is not present. Pertinent to this appeal, Rule 803(6), known as the

“business record exception,” provides:


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     (6) Records of a Regularly Conducted Activity. A record (which
     includes a memorandum, report, or data compilation in any
     form) of an act, event or condition if,

     (A) the record was made at or near the time by--or from
     information transmitted by--someone with knowledge;

     (B) the record was kept in the course of a regularly conducted
     activity of a “business”, which term includes business,
     institution, association, profession, occupation, and calling of
     every kind, whether or not conducted for profit;

     (C) making the record was a regular practice of that activity;

     (D) all these conditions are shown by the testimony of the
     custodian or another qualified witness, or by a certification that
     complies with Rule 902(11) or (12) or with a statute permitting
     certification; and

     (E) neither the source of information nor other circumstances
     indicate a lack of trustworthiness.

     Comment: Pa.R.E. 803(6) differs from F.R.E. 803(6). One
     difference is that Pa.R.E. 803(6) defines the term “record.” In
     the Federal Rules this definition appears at F.R.E. 101(b).
     Another difference is that Pa.R.E. 803(6) applies to records of an
     act, event or condition, but does not include opinions and
     diagnoses. This is consistent with prior Pennsylvania case law.
     See Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987);
     Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605
     (1975). A third difference is that Pa.R.E. 803(6) allows the court
     to exclude business records that would otherwise qualify for
     exception to the hearsay rule if neither the “source of
     information nor other circumstances indicate lack of
     trustworthiness.” The Federal Rule allows the court to do so only
     if neither “the source of information nor the method or
     circumstances of preparation indicate a lack of trustworthiness.”

     If offered against a defendant in a criminal case, an entry in a
     record may be excluded if its admission would violate the
     defendant’s constitutional right to confront the witnesses against
     him or her. See Melendez-Diaz v. Massachusetts, 557 U.S.
     305 (2009).


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Pa.R.E. 803(6).

     Moreover, Rule 804 contains numerous exceptions to hearsay when

the declarant is unavailable as a witness.    The relevant part of the Rule

provides:

     Rule 804. Exceptions to the Rule Against Hearsay--When the
     Declarant is Unavailable as a Witness

     (a) Criteria for Being Unavailable. A declarant is considered to be
     unavailable as a witness if the declarant:

     (1) is exempted from testifying about the subject matter of the
     declarant’s statement because the court rules that a privilege
     applies;

     (2) refuses to testify about the subject matter despite a court
     order to do so;

     (3) testifies to not remembering the subject matter;

     (4) cannot be present or testify at the trial or hearing because of
     death or a then-existing infirmity, physical illness, or mental
     illness; or

     (5) is absent from the trial or hearing and the statement’s
     proponent has not been able, by process or other reasonable
     means, to procure:

     (A) the declarant’s attendance, in the case of a hearsay
     exception under Rule 804(b)(1) or (6); or

     (B) the declarant’s attendance or testimony, in the case of a
     hearsay exception under Rule 804(b)(2), (3), or (4).

     But this subdivision (a) does not apply if the statement’s
     proponent procured or wrongfully caused the declarant’s
     unavailability as a witness in order to prevent the declarant from
     attending or testifying.

Pa.R.E. 804.


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      Here, the trial court found the following:

            As for Pa.R.E. 803, expert testimony given in a pre-trial
      hearing in an unrelated criminal case, which is proposed to be
      admitted by [Dittman] without supporting testimony of any sort
      to prove the truth of the experts’ assertions, is not the sort of
      evidence contemplated to be admitted under the exception for
      records of a regularly conducted activity, or any other exception
      contained in the rule. With respect to Pa.R.E. 804, the Court did
      not believe that the experts were unavailable under the criteria
      set forth in Rule 804(a).

                                       …

      There was no evidence presented to demonstrate that the
      experts were absent from trial following reasonable efforts of
      [Dittman] to secure their presence by process or other
      reasonable means.        [Dittman] argued that securing the
      testimony of the experts was prohibitively expensive. In Consol.
      Rail Corp. v. Delaware River Port Auth.[,] 880 A.2d 628 (Pa.
      Super. Ct. 2005)[, appeal denied, 898 A.2d 1071 (Pa. 2006)],
      the Superior Court of Pennsylvania noted that under Rule 804, “a
      declarant will not be deemed to be unavailable upon mere
      assertion of such by the proponent; rather, the proponent must
      exhibit the efforts taken to procure the declarant’s attendance.”
      880 A.2d at 630. The Court does not believe a mere assertion
      by the proponent of hearsay evidence that the declarant is
      unavailable because securing his or her attendance is
      prohibitively expensive, without more, satisfies the burden of
      demonstrating that the declarants were absent from the trial
      following reasonable effort to secure their presence.

Trial Court Opinion, 4/23/2015, at unnumbered 2-3. We agree with the trial

court’s rationale.

      With respect to Dittman’s Rule 803(6) argument, we emphasize the

court’s opinion that these transcripts of expert testimony from the Schildt

case were not the sort of evidence contemplated to be admitted under the




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exception for records of a regularly conducted activity.5 As such, we find his

contention fails for several reasons.          First, as the Commonwealth points

out,6 the Comment to Rule 803(6) states:              “Pa.R.E. 803(6) applies to

records of an act, event or condition, but does not include opinions and

diagnoses.”     Accordingly, the experts’ opinions in the Schildt transcripts,

which is the substantive testimony that Dittman is attempting to introduce

as admissible evidence, are not included under the Rule.

       Second, as this Court previously stated:

             Although this court has found on occasion that hospital
       records are admissible to show hospitalization, treatment and
       symptoms, Commonwealth v. Seville, 266 Pa.Superior Ct.
       587, 405 A.2d 1262 (1979); Commonwealth v. Campbell, 244
       Pa.Superior Ct. 505, 368 A.2d 1299 (1976) (finding of
       spermatozoa in prosecutrix vagina must be treated as fact and
       not as medical conclusion), it has more consistently held that
       opinions, diagnoses and conclusions are not admissible
       under the Act. Commonwealth v. DiGiacomo, 463 Pa. 449,
       345 A.2d 605 (1975); Commonwealth v. McCloud, 457 Pa.
       310, 322 A.2d 653 (1974).         This evidence is excluded
       because it 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.
       McNaughton, 252 Pa.Superior Ct. 302, 381 A.2d 929 (1977).
       Cross-examination makes possible the exposure of errors and
       omissions in the preparation of the report and the accuracy of
       the opinions based thereon.       The only possible means of
____________________________________________


5
   For example, while these transcripts were produced contemporaneously
with the trial proceedings, one cannot state the actual expert reports and
opinions were made contemporaneously with the underlying DUI event. See
Pa.R.E. 803(6)(a).
6
    Commonwealth’s Brief at 4.



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       assuring this is to permit in-court cross-examination of the party
       who prepared the report. Commonwealth v. Seville, supra.

Commonwealth v. Hemingway, 534 A.2d 1104, 1108 (Pa. Super. 1987)

(emphasis     added).       As   such,    contrary   to   Dittman’s   argument,    the

Commonwealth did not have an opportunity to cross-examine these experts

about their respective testimony.          While the Commonwealth may be titled

the same party in both matters, these cases came from different counties

(Butler County in this case and Dauphin County in Schildt) and therefore,

different   District   Attorney’s    Offices   prosecuted    the   criminal   actions.7

Accordingly, the Butler County prosecutor was not afforded the chance to

cross-examine these experts regarding the accuracy, reliability and veracity

of their opinions. See Hemingway, supra.

       Lastly, other than bald assertions, Dittman has not demonstrated that

the Schildt opinion testimony is relevant or applicable to the test results in

his case. Dittman does not reference any of the expert testimony or explain

how these experts came to their conclusions.                Further, there is a lack




____________________________________________


7
  See 16 P.S. § 1402 (“The district attorney shall sign all bills of indictment
and conduct in court all criminal and other prosecutions, in the name of the
Commonwealth, or, when the Commonwealth is a party, which arise in the
county for which he is elected[.]”).




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evidential proof regarding the trustworthiness of these reports. See Pa.R.E.

803(6). Therefore, Dittman’s Rule 803(6) argument is unavailing.8

       With respect to Dittman’s Rule 804 claim, we note that “[i]n

determining the unavailability of a witness, the appropriate question is

whether the prosecution [or the defendant] has made a good faith effort to

produce the live testimony of the witness and, through no fault of its own, is

prevented from doing so.” Commonwealth v. Nelson, 652 A.2d 396, 398

(Pa. Super. 1995).        Dittman’s argument that the expert was unavailable

because of his lack of financial ability to pay for an expert does not

overcome that burden. See Consol. Rail Corp. v. Delaware River Port

Auth., 880 A.2d at 630.9 Moreover, as discussed above, the Commonwealth

was never given the opportunity to cross-examine the experts at a prior

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8
  We also note that a panel of this Court reversed the Schildt decision,
concluding the trial court abused its discretion when it granted de facto
habeas corpus relief, as the Commonwealth met its burden of establishing,
at least prima facie, that Appellee committed the act proscribed under 75
Pa.C.S. § 3802(c). See Commonwealth v. Schildt, 87 A.3d 374 [196 MDA
2013] (Pa. Super. 2013) (unpublished memorandum at 7), appeal denied,
86 A.3d 233 (Pa. 2014).
9
  Compare Commonwealth v. Douglas, 737 A.2d 1188 (Pa. 1999), cert.
denied, 530 U.S. 1216 (2000) (good faith effort of unavailability shown
where efforts included search of witness’s apartment, his mother’s
apartment, his girlfriend’s residence, the bars he frequented as well as
contacting neighbors and friends) with Consol. Rail Corp. v. Delaware
River Port Auth., supra, (good faith effort of unavailability not shown
where no efforts were made to contact a declarant even where he was in a
witness protection program).




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proceeding.       See Pa.R.E. 804(b)(1).           Lastly, as the Commonwealth

indicated,10 Dittman did not request an evidentiary hearing to address the

issue of his financial hardship or present the court with the cost of these

experts through documentation. Accordingly, Dittman’s Rule 804 argument

fails.

         In Dittman’s second argument, he complains his due process rights

were violated because the court refused to admit the transcripts of expert

testimony, which resulted in the denial of his right to raise an affirmative

defense to the charges filed against him.           Dittman’s Brief at 21-23.   He

states this expert testimony was “the one and only way to establish a

defense to the charges,” and that without such testimony, he “had no means

whatsoever of establishing the inaccuracy of the breath testing devices then

in use in the Commonwealth.”             Id. at 23.   Dittman request this Court

remand the case back to the trial court to make a finding of fact regarding

the unavailability of the Schildt expert witnesses and provide him with a full

and fair opportunity to establish a defense. Id.

               Our Supreme Court has explained our standard of review
         for procedural due process claims as follows.

                 A due process inquiry, in its most general form,
           entails an assessment as to whether the challenged
           proceeding or conduct offends some principle of justice so
           rooted in the traditions and conscience of our people as to
           be ranked as fundamental and that define[s] the
____________________________________________


10
     See Commonwealth’s Brief at 7.



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          community’s sense of fair play and decency. While not
          capable of an exact definition, basic elements of procedural
          due process are adequate notice, the opportunity to be
          heard, and the chance to defend oneself before a fair and
          impartial tribunal having jurisdiction over the case.

       Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 132
       (Pa. 2008) (brackets in original; internal citations and quotation
       marks omitted).

Commonwealth v. Batts, 125 A.3d 33, 44 (Pa. Super. 2015).

       We conclude that Dittman’s argument lacks merit.11                Because

Dittman’s contention is based on his earlier issues regarding Rules 803(6)

and 804, and we determined the trial court did not abuse its discretion by

refusing to admit the Schildt transcripts, we cannot discern that his due

process rights were violated and the court did not deny him the opportunity

to present his defense.         Indeed, Dittman still could have presented this

defense if he had properly procured the Schildt expert witnesses.

Accordingly, we affirm Dittman’s judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


11
    We note the trial court did not address this issue in its Rule 1925(a)
opinion. Nevertheless, we “may affirm the lower court on any basis, even
one not considered or presented in the court below.” Commonwealth v.
Burns, 988 A.2d 684, 690 n. 6 (Pa. Super. 2009), appeal denied, 8 A.3d
341 (Pa. 2010). See also Commonwealth v. Williams, 73 A.3d 609, 617
(Pa. Super. 2013), appeal denied, 87 A.3d 320 (Pa. 2014).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2016




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