Com. v. Hitchner, W. ( 2020 )

J-S35036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HITCHNER :
:
Appellant : No. 3448 EDA 2019
Appeal from the Judgment of Sentence Entered November 6, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002486-2011
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: Filed: October 22, 2020
Appellant, William Hitchner, appeals from the judgment of sentence of
time served to six months of confinement followed by 30 months of probation
imposed by the Court of Common Pleas of Delaware County after the
revocation of his prior probationary sentence for driving under the combined
influence of alcohol and a drug (third offense) and for driving while operating
privilege is suspended or revoked.1 We vacate the judgment of sentence and
remand the case for proceedings consistent with this decision.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(d)(3) and 1543(b)(1) (“for a violation of section 3802
(relating to driving under influence of alcohol or controlled substance) . . . ,
because of a violation of section 1547(b)(1) (relating to suspension for
refusal)”), respectively.
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On July 9, 2013, Appellant pleaded guilty to the aforementioned charges
and was immediately sentenced to one to two years of confinement followed
by three years of probation. Following his release from confinement, Appellant
relocated to the State of Delaware in order to care for his mother, who had a
stroke, and his supervision was transferred to the State of Delaware pursuant
to the Interstate Compact for the Supervision of Adult Offenders Act.2
On February 1, 2018, the trial court issued a bench warrant for
Appellant’s arrest. On November 6, 2019, the trial court held a revocation of
probation hearing, at which --
[Appellant] objected to the introduction of hearsay evidence from
the State of Delaware regarding his probation. N.T., 11/06/2019,
[at] 20. Counsel for Commonwealth introduced a business record
to reflect the information that the [Delaware County] probation
officer[, Jeff Roney,] offered in his verbal testimony. [Id. at] 21.
Trial Court Opinion, dated February 24, 2020, at 2. The report from the
Delaware State Probation Office documented events between December 15,
2017, and January 10, 2018,3 including conversations between Appellant and
the authoring officer, between Appellant’s sister and the author, and between
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2 61 Pa. C.S. §§ 7111–7115. The Interstate Compact is an agreement entered
into by the states to govern the movement, supervision and rehabilitation of
parolees and probationers. Id. § 7112.
3 The date of the report itself is unclear. The copy in the certified record is
blurred. The second digit in the date next to the authoring officer’s name is
indecipherable, making the date somewhere between January 20 and 29,
2018. The date next to the compact administrator’s name is January 18,
2018. Accordingly, at the earliest, the report was written eight days after the
last of the events that it chronicles.
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Appellant and an unnamed male officer. Exhibit C-1, 11/6/2019, at 3 (not
paginated). No supporting documentation was attached to the report.
In response to Appellant’s objection, the Commonwealth elicited the
following testimony from Officer Roney:
MR. RONEY: I am the supervisor of the interstate compact.
[THE COMMONWEALTH]: And are there certain reports and
documents that are prepared in order for an individual to be
supervised under that compact?
MR. RONEY: Yes. We are prohibited from having direct
communication with the supervising agent. The only
communication we can have is a compact action request which is
the document that I just sent up to you detailing the violations of
[Appellant]’s supervision while under the jurisdiction of Delaware
authorities.
[THE COMMONWEALTH]: And this is a document that’s kept
in the ordinary course of business as it relates to the compact?
MR. RONEY: That’s correct.
N.T., 11/6/2019, at 21. The author of the report from the Delaware State
Probation Office did not testify, the Commonwealth did not offer a certification
authenticating the report, and Officer Roney did not explicitly testified to being
the custodian of the report. See Exhibit C-1, 11/6/2019; N.T., 11/6/2019 at
19-21.
Based upon Officer Roney’s testimony, the trial court concluded that
“[t]he business record met the hearsay exception under Pa.R.E. 803(6),
Records of a Regularly Conducted Activity, and, thus, was admissible.” Trial
Court Opinion, dated February 24, 2020, at 2.
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At the conclusion of the hearing, the trial court found that Appellant had
violated the terms of his probation and resentenced him to time served to six
months of confinement followed by 30 months of probation. On December 2,
2019, Appellant filed this timely direct appeal.4
Appellant now presents the following issue for our review:
The trial court erred in sentencing [Appellant] to a term of
incarceration for violating his probation based entirely on
inadmissible hearsay evidence.
Appellant’s Brief at 5.
“We review a sentence imposed following a revocation of probation for
an error of law or an abuse of discretion.” Commonwealth v. Flowers, 149
A.3d 867, 873 (Pa. Super. 2016).
Appellant contends that “[t]he trial court erred in imposing a sentence
of incarceration . . . almost entirely as a result of its analysis of inadmissible
hearsay evidence.” Appellant’s Brief at 13.
“‘Hearsay’ means a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Pa.R.E.
801(c).5 “The rule against admitting hearsay evidence stems from its
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4 Appellant filed his statement of errors complained of on appeal on
December 23, 2019. The trial court entered its opinion on February 24, 2020.
5The Rules of Evidence apply to hearings on the revocation of probation and
parole. Pa.R.E. 101(a) (“These rules of evidence govern proceedings in all
courts of the Commonwealth of Pennsylvania’s unified judicial system, except
as otherwise provided by law.” (emphasis added)). Albeit that the comment
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presumed unreliability, because the declarant cannot be challenged regarding
the accuracy of the statement.” Commonwealth v. Chmiel, 889 A.2d 501,
532 (Pa. 2005) (citation omitted); see also Commonwealth v. Smith, 681
A.2d 1288, 1290 (Pa. 1996) (“a hearsay statement lacks guarantees of
trustworthiness”). “In order to guarantee trustworthiness, the proponent of
a hearsay statement must establish an exception to the rule of exclusion
before it shall be admitted.” Commonwealth v. Manivannan, 186 A.3d
472, 480 (Pa. Super. 2018), reargument denied (July 7, 2018).
As noted above, in the current action, the trial court “relied upon the
business record introduced by the Commonwealth to make its decision which
[the court found] met the Pa.R.E. 803(6) hearsay exception.” Trial Court
Opinion, dated February 24, 2020, at 2. Accordingly, at issue in this appeal
is whether the report from the Delaware State Probation Office meets the
requirements of the hearsay exception for business records. Pennsylvania
Rule of Evidence 803 provides, in relevant part:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: . . .
(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:
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to Pa.R.E. 101 concedes, “[t]raditionally, our courts have not applied the law
of evidence in its full rigor in proceedings such as . . . sentencing hearings
[and] parole and probation hearings,” this comment does not endorse a
wholesale abrogation of the hearsay rule in the context of hearings on the
revocation of probation or parole.
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(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) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6) (emphasis added).
In the current case, the Commonwealth did not authenticate the report
from the Delaware State Probation Office by certification. Appellant argues
that Officer “Roney’s description of the document and its handling does not
meet [any other] test of authentication.” Appellant’s Brief at 16. The
Commonwealth answers: “In the case at bar, the Commonwealth’s witness[,
i.e., Officer Roney,] was a valid custodian of the document as a supervisor of
the Interstate Compact and provided sufficient testimony qualifying the
document as produced in the regular course of business under the compact.”
Commonwealth’s Brief at 9.
In In re A.J.R.-H., 188 A.3d 1157 (Pa. 2018), the Supreme Court of
Pennsylvania considered whether certain exhibits admitted into evidence
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“satisf[ied] the requirements of the business records exception[,]” where, as
in the current matter, “none of the documents were certified copies”:
There were emails and reports that documented conversations
that occurred between individuals who did not testify and/or who
did not author the document in question. . . . [No] witness testified
to being the custodian of any of the records admitted from the
various sources and authors. No witness stated that she was able
to speak to the mode of each of the documents’ preparation,
testify that the documents were created at or near the time of the
documented event or conversation, or made in the regular
practice of the activity involved.
Id. at 1167-69 (footnotes omitted). After reflecting on these facts, the
Supreme Court found that “the manner in which these exhibits were admitted
into evidence . . . failed to satisfy the requirements of the business records
exception.” Id. at 1167.
Analogously, in the current matter, the report from the Delaware State
Probation Office documented conversations the occurred between individuals
who did not testify and/or who did not author the report – including Appellant,
Appellant’s sister, an unnamed male officer, and, of course, the non-testifying
author. Compare Exhibit C-1, 11/6/2019, at 3, with A.J.R.-H., 188 A.3d at
1168. Neither Officer Roney nor anyone else testified to being the custodian
of the report. Compare N.T., 11/6/2019, at 19-21, with A.J.R.-H., 188 A.3d
at 1169. Furthermore, the document itself indicates that it was written
anywhere from a minimum of eight days to over a month after the events it
chronicles. Compare Exhibit C-1, 11/6/2019, at 3, with A.J.R.-H., 188 A.3d
at 1169. These facts suggest that the manner in which the report of the
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Delaware State Probation Office was admitted into evidence failed to satisfy
the business records exception. A.J.R.-H., 188 A.3d at 1167.
However, in the Commonwealth’s favor is Officer Roney’s testimony that
the report was made in the regular practice of the activity involved. Compare
N.T., 11/6/2019, at 21, with A.J.R.-H., 188 A.3d at 1169. Additionally, his
explanation that the report was prepared in order for an individual to be
supervised arguably qualifies as the mode of the documents’ preparation.
Compare N.T., 11/6/2019, at 21, with A.J.R.-H., 188 A.3d at 1169.
Nevertheless, these considerations are not enough to compensate for the
above-mentioned defects in the authentication of the report. Compare
A.J.R.-H., 188 A.3d at 1169, with N.T., 11/6/2019, at 21.
Based upon these deficiencies, we cannot accept that the report was
properly authenticated nor can the Commonwealth guarantee the
trustworthiness of its contents. Accordingly, the trial court erred in admitting
this evidence.
Moreover, the court’s error was not harmless. See In re M.T., 607
A.2d 271, 280-81 (Pa. Super. 1992) (per curiam) (even if a court erred by
admitting hearsay, an appellant must still establish that the court’s error was
reversible error).6
“[A]n evidentiary error of the trial court will be deemed harmless
on appeal where the appellate court is convinced, beyond a
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6We may rely on cases predating the enactment of the Pennsylvania Rules of
Evidence to the extent they comport with the Rules. Commonwealth v.
Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).
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reasonable doubt, that the error could not have contributed to the
verdict.” Commonwealth v. DeJesus, 584 Pa. 29, 880 A.2d
608, 614 (2005) (citing Commonwealth v. Story, 476 Pa. 391,
383 A.2d 155, 164–66 (1979)).
Manivannan, 186 A.3d at 480 (2018). While, normally, “a trial court acting
as the fact-finder is presumed to know the law, ignore prejudicial statements,
and disregard inadmissible evidence[,]” Commonwealth v. McFadden, 156
A.3d 299, 309 (Pa. Super. 2017), in the instant action, the trial court opinion
unambiguously stated that it took into account this inadmissible evidence: “In
a complete and comprehensive review of the record when making the final
judgment, this [c]ourt relied upon the business record introduced by the
Commonwealth.” Trial Court Opinion, dated February 24, 2020, at 2.
Consequently, we cannot state, beyond a reasonable doubt, that the
admission of the report of the Delaware State Probation Office did not
contribute to the trial court’s decision to revoke Appellant’s probation; ergo,
the court’s error in admitting the report was not harmless. Manivannan, 186
A.3d at 480.
Hence, we are constrained to conclude that Appellant is entitled to a
new revocation of probation hearing. See Commonwealth v. Mullins, 918
A.2d 82 (Pa. 2007) (it is not proper to reverse revocation of probation where
there was insufficient evidence of a probation violation presented; instead,
proper procedure is to remand for another revocation hearing so that the
evidentiary problem can be remedied); see also Commonwealth v. Foster,
214 A.3d 1240, 1243, 1252, 1254 (Pa. 2019) (citing Commonwealth v.
Maye, 411 A.2d 783, 786 (Pa. Super. 1979) (this Court remanded based on
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a violation of the probationer’s right to confrontation, as the Commonwealth
established the violation through hearsay evidence alone)); Commonwealth
v. Carver, 923 A.2d 495, 499 (Pa. Super. 2007) (after this Court “eliminated
some of [the a]ppellant’s conduct from the trial court’s consideration[,]” the
trial court must be “given the opportunity to analyze whether [the a]ppellant’s
probationary conduct warrants revocation under the applicable legal
mandates”). For the foregoing reasons, we vacate the order of the trial court
and remand the case for proceedings consistent with this decision.
Judgment of sentence vacated. Case remanded for proceedings
consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/20
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