§ Rule 803. Hearsay exceptions; availability of declarant immaterial
Rule 803. Hearsay exceptions; availability of declarant immaterial
The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Comment: Pa.R.E. 803(1) is identical to F.R.E. 803(1). It is consistent with Pennsylvania law. See Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986).
For this exception to apply, declarant need not be excited or otherwise emotionally affected by the event or condition perceived. The trustworthiness of the statement arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory.
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Comment: Pa.R.E. 803(2) is identical to F.R.E. 803(2). It is consistent with Pennsylvania law. See Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942); Commonwealth v. Barnes, 310 Pa. Super. 480, 456 A.2d 1037 (1983).
This exception has a more narrow base than the exception for a present sense impression, because it requires an event or condition that is startling. However, it is broader in scope because an excited utterance (1) need not describe or explain the startling event or condition; it need only relate to it, and (2) need not be made contemporaneously with, or immediately after, the startling event. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial factor in provoking the utterance.
There is no set time interval following a startling event or condition after which an utterance relating to it will be ineligible for exception to the hearsay rule as an excited utterance. In Commonwealth v. Gore, 262 Pa. Super. 540, 547B48, 396 A.2d 1302, 1305 (1978), the court explained:
The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit.... Rather, each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an “excited utterance.” ...The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of declarant's will.
Comment: Pa.R.E. 803(3) is similar to F.R.E. 803(3). The wording has been changed to improve readability and to eliminate a confusing double negative. The meaning remains the same.
This exception combines what might otherwise be considered several different exceptions to the hearsay rule. The common factor is that they are all sometimes referred to by the non specific phrase, “state of mind.”
This exception is consistent with Pennsylvania law. See Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978)(statements of present physical condition and emotional feelings); Commonwealth v. Marshall, 287 Pa. 512, 135 A. 301 (1926)(statement of intent or plan); Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912)(statement of motive or design).
The exception for a declarant's statement of memory or belief concerning declarant's will is consistent with Pennsylvania law. See Glockner v. Glockner, 263 Pa. 393, 106 A. 731 (1919); In re Kirkander, 326 Pa. Super. 380, 474 A.2d 290 (1984).
(4) Statements for purposes of medical diagnosis or treatment. A statement made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or 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) is similar to F.R.E. 803(4) in that both admit statements made for purposes of medical treatment. Pa.R.E. 803(4) differs from F.R.E. 803(4) because 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 Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996).
An expert medical witness may base an opinion on the declarant's statements of the kind discussed in this Rule, even though the statements were not made for purposes of treatment, if the statements comply with Pa.R.E. 703. Such statements may be disclosed as provided in Pa.R.E. 705, but are not substantive evidence.
This exception 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.
(5) Recorded recollection [not adopted].
Comment: Recorded recollection is dealt with in Pa.R.E. 803.1(3). It is an exception to the hearsay rule in which the current testimony of the declarant is necessary.
(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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, 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.
Comment: Pa.R.E. 803(6) is similar to F.R.E. 803(6), but with two differences. One difference is that Pa.R.E. 803(6) 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). The second 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 the “sources of information or other circumstances indicate lack of trustworthiness.” The Federal rule allows the court to do so only if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”
Rule 803(6) was amended in 2001 consistent with the December 1, 2000 amendments to F.R.E. 803(6) that permit records of regularly conducted activity to be authenticated by certification. This amendment is designed to save the expense and time consumption caused by calling needless foundation witnesses. The notice requirements provided in Pa.R.E. 902(11) and (12) will give other parties a full opportunity to test the adequacy of the foundation.
If offered against a defendant in a criminal case, an entry in a business record may be excluded if its admission would violate the defendant's constitutional right to confront the witnesses against him or her. See Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974).
Pa.R.E. 803(6) differs only slightly from 42 Pa.C.S. § 6108, which provides:
(a) Short title of section. This section shall be known and may be cited as the “Uniform Business Records as Evidence Act.”
(b) General Rule. A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
(c) Definition. As used in this section “business” includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.
Pa.R.E. 803(6) refers to “data compilation” and includes a record “in any form.” This language encompasses computerized data storage.
Pa.R.E. 803(6) expressly includes an association in the definition of a business.
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) permits records of regularly conducted activity to be authenticated by certification.
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6) [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(7), which reads as follows:
Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
Principles of logic and internal consistency have led Pennsylvania to reject this rule. The absence of an entry in a record is not hearsay, as defined in Pa.R.E. 801(c). Hence, it appears irrational to except it to the hearsay rule.
On analysis, absence of an entry in a business record is circumstantial evidence,--it tends to prove something by implication, not assertion. Its admissibility is governed by principles of relevance, not hearsay. SeePa.R.E. 401, et seq.
Pennsylvania law is in accord with the object of F.R.E. 803(7), i.e., to allow evidence of the absence of a record of an act, event, or condition to be introduced to prove the nonoccurrence or nonexistence thereof, if the matter was one which would ordinarily be recorded. See Klein v. F.W. Woolworth Co., 309 Pa. 320, 163 A. 532 (1932)(absence of person's name in personnel records admissible to prove that he was not an employee).See also Stack v. Wapner, 244 Pa. Super. 278, 368 A.2d 292 (1976).
(8) Public records and reports [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(8). An exception to the hearsay rule for public records is provided by 42 Pa.C.S.A. § 6104:
(a) General rule.--A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.
(b) Existence of facts.--A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.
Subsection (b) of the statute is limited to “facts.” It does not include opinions or diagnoses. This is consistent with Pa.R.E. 803(6), as well as Pennsylvania decisional law interpreting 42 Pa.C.S.A. § 6108 (Uniform Business Records As Evidence Act).See Comment to Pa.R.E. 803(6).
(9) Records of vital statistics [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(9). Records of vital statistics are also business records and may be excepted to the hearsay rule by Pa.R.E. 803(6). Records of vital statistics are public records and they may be excepted to the hearsay rule by 42 Pa.C.S.A. § 6104 (text quoted in Comment to Pa.R.E. 803(8)).
The Vital Statistics Law of 1953 (35 P.S. § 450.101 et seq.) provides for registration of births, deaths, fetal deaths, and marriages, with the State Department of Health. The records of the Department, and duly certified copies thereof, are excepted to the hearsay rule by 35 P.S. § 450.810 which provides:
Any record or duly certified copy of a record or part thereof which is (1) filed with the department in accordance with the provisions of this act and the regulations of the Advisory Health Board and which (2) is not a “delayed” record filed under section seven hundred two of this act or a record “corrected” under section seven hundred three of this act shall constitute prima facie evidence of its contents, except that in any proceeding in which paternity is controverted and which affects the interests of an alleged father or his successors in interest no record or part thereof shall constitute prima facie evidence of paternity unless the alleged father is the husband of the mother of the child.
(10) Absence of public record or entry [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(10) for the same reasons that it did not adopt F.R.E. 803(7). See Comment to Pa.R.E. 803(7).
42 Pa.C.S.A. § 6104(b), provides for admissibility of evidence of the absence of an entry in a public record to prove the nonexistence of a fact:
(b) Existence of facts.--A copy of a record authenticated as provided in section 6103 disclosing the ... nonexistence of facts which ... would have been ... recorded had the facts existed shall be admissible as evidence of the ... nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.
Pennsylvania also has a complementary statute, 42 Pa.C.S.A. § 5328, entitled “Proof of Official Records,” which provides, in pertinent part:
(d) Lack of records.--A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in this section in the case of a domestic record, or complying with the requirements of this section for a summary in the case of a record in a foreign country, is admissible as evidence that the records contain no such record or entry.
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
Comment: Pa.R.E. 803(11) is identical to F.R.E. 803(11). It is an expansion of a more limited exception that was statutorily adopted in Pennsylvania.
42 Pa.C.S.A. § 6110 provides:
(a) General rule.--The registry kept by any religious society in their respective meeting book or books of any marriage, birth or burial, within this Commonwealth, shall be held good and authentic, and shall be allowed of upon all occasions whatsoever.
(b) Foreign burials.--The registry of burials of any religious society or corporate town, in places out of the United States, shall be prima facie evidence of the death of any person whose burial is therein registered, and of the time of his interment, if the time be stated in the registry, and extracts from such registries, certified by the proper officers, in the mode of authentication usual in the place in which they are made and authenticated as provided in section 5328 (relating to proof of official records), shall be received as copies of such registries, and be evidence accordingly.
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
Comment: Pa.R.E. 803(12) is identical to F.R.E. 803(12). It is consistent with Pennsylvania law. See Estate of Loik, 493 Pa. 512, 426 A.2d 1134 (1981); District of Columbia's Appeal, 343 Pa. 65, 21 A.2d 883 (1941).
(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
Comment: Pa.R.E. 803(13) is identical to F.R.E. 803(13). It is consistent with Pennsylvania law. See Carskadden v. Poorman, 10 Watts 82 (1840).
(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
Comment: Pa.R.E. 803(14) is identical to F.R.E. 803(14). It is consistent with Pennsylvania law. See David v. Titusville & Oil City Ry. Co., 114 Pa. 308, 6 A. 736 (1886).
(15) Statements in documents affecting an interest in property. A statement contained in a document, other than a will, purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
Comment: Pa.R.E. 803(15) is similar to F.R.E. 803(15). It differs in that Pennsylvania does not include a statement made in a will.
Pa.R.E. 803(15) is consistent with 21 P.S. § 451, which provides that an affidavit swearing to matters delineated in the statute that may affect the title to real estate in Pennsylvania, filed in the county in which the real estate is located, shall be admissible evidence of the facts stated in it.
Pa.R.E. 803(15) appears inconsistent with dictum in Brock v. Atlantic Refining Co., 273 Pa. 76, 80, 116 A. 552, 553 (1922), which states that “recitals in deeds are mere hearsay, and inadmissible as against third persons who claim by a paramount title.” However, the holding in the Brock case approved admission of such a recital on the ground that there was an exception “in the case of ancient deeds accompanied by possession.”
Whatever the significance of the above cited dictum, Pa.R.E. 803(15) brings Pennsylvania law close to that which now prevails in the great majority of jurisdictions in this country.
Pennsylvania's variation from the federal rule with respect to wills is consistent with its more recent decisional law. See In Re Estate of Kostik, 514 Pa. 591, 526 A.2d 746 (1987).
(16) Statements in ancient documents. Statements in a document in existence thirty years or more the authenticity of which is established.
Comment: Pa.R.E. 803(16) is similar to F.R.E. 803(16), except that Pennsylvania adheres to the common law view that a document must be at least 30 years old to qualify as an ancient document. The federal rule reduces the age to 20 years.
Pa.R.E. 803(16) is consistent with Pennsylvania law. See Louden v. Apollo Gas Co., 273 Pa. Super. 549, 417 A.2d 1185 (1980); Commonwealth ex rel. Ferguson v. Ball, 227 Pa. 301, 121 A.191 (1923).
(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
Comment: Pa.R.E. 803(17) is identical to F.R.E. 803(17). It is consistent with Pennsylvania law. See Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959).
When the price or value of goods that are regularly bought and sold in a commodity market is at issue, 13 Pa.C.S.A. § 2724 provides:
Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or newspapers or periodicals of general circulation published as the reports of such markets shall be admissible in evidence. The circumstances of the preparation of such a report may be shown to affect its weight but not its admissibility.
(18) Learned treatises [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(18). Pennsylvania does not recognize an exception to the hearsay rule for learned treatises. See Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 537 A.2d 334 (1988).
Regarding the permissible uses of learned treatises under Pennsylvania law, see Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000).
(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
Comment: Pa.R.E. 803(19) is identical to F.R.E. 803(19). It changes prior Pennsylvania decisional law by expanding the sources from which the reputation may be drawn to include (1) a person's associates and (2) the community. Prior Pennsylvania decisional law, none of which is recent, limited the source to the person's family. See Picken's Estate, 163 Pa. 14, 29 A. 875 (1894); American Life Ins. and Trust Co. v. Rosenagle, 77 Pa. 507 (1875).
(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
Comment: Pa.R.E. 803(20) is identical to F.R.E. 803(20). It is consistent with prior Pennsylvania law, at least with respect to boundaries of land. See Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719 (1951).
(21) Reputation as to character. Reputation of a person's character among associates or in the community.
Comment: Pa.R.E. 803(21) is identical to F.R.E. 803(21). It is consistent with prior Pennsylvania law. It is also consistent with Pa.R.E. 404(a), 405(a), and 608(a).See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967); Comment to Pa.R.E. 405.
(22) Judgment of previous conviction [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(22).
With respect to facts essential to sustain a judgment of criminal conviction, there are four basic approaches that a court can take:
1. The judgment of conviction is conclusive, i.e., estops the party convicted from contesting any fact essential to sustain the conviction.
2. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction, only if offered against the party convicted.
3. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction when offered against any party (this is the federal rule for felonies, except that the Government cannot offer someone else's conviction against the defendant in a criminal case, other than for purposes of impeachment).
4. The judgment of conviction is neither conclusive nor admissible as evidence to prove a fact essential to sustain the conviction (common law rule).
For felonies and other major crimes, Pennsylvania takes approach number one. In subsequent litigation, the convicted party is estopped from denying or contesting any fact essential to sustain the conviction. Once a party is estopped from contesting a fact, no evidence need be introduced by an adverse party to prove it. See Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965); In re Estate of Bartolovich, 420 Pa. Super. 419, 616 A.2d 1043 (1992)(judgment of conviction conclusive under Slayer's Act, 20 Pa.C.S.A. §§ 8801-8815).
For minor offenses, Pennsylvania takes approach number four; it applies the common law rule. Evidence of a conviction is inadmissible to prove a fact necessary to sustain the conviction. See Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966).
A plea of guilty to a crime is excepted to the hearsay rule as an admission of all facts essential to sustain a conviction, but only when offered against the pleader by a party-opponent. SeePa.R.E. 803(25); see alsoPa.R.E. 410. A plea of guilty may also qualify as an exception to the hearsay rule as a statement against interest, if the declarant is unavailable to testify at trial. SeePa.R.E. 804(b)(3).
(23) Judgment as to personal, family, or general history or boundaries [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(23).
(24) Other exceptions [not adopted].
Comment: Pennsylvania has not adopted F.R.E. 803(24)(now F.R.E. 807). The Federal Rule is often called the residual exception to the hearsay rule.
(25) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement may be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
Comment: Pa.R.E. 803(25) differs from F.R.E. 801(d)(2), in that the word “shall” in the second sentence has been replaced with the word “may.”
The federal rules call an admission by a party-opponent an exception to the definition of hearsay, and place it in Rule 801 under the heading of “Definitions.” The Pennsylvania rules, like the common law, call an admission by a party-opponent an exception to the hearsay rule. The Pennsylvania rules, therefore, place admissions by a party-opponent in Pa.R.E. 803 with other exceptions to the hearsay rule in which the availability of the declarant is immaterial. The difference between the federal and Pennsylvania formulations is organizational. It has no substantive effect.
The second sentence of Pa.R.E. 803(25) is consistent with Pennsylvania law. See Commonwealth v. Smith, 568 A.2d 600 (Pa. 1989); Commonwealth v. Dreibelbis, 426 A.2d 1111 (Pa. 1981).
The personal knowledge rule (Pa.R.E. 602) is not applicable to admissions. See Salvitti v. Throppe, 23 A.2d 445 (Pa. 1942).
A. Party's own statement. The admissibility of a party's own statement offered against the party as an exception to the hearsay rule is consistent with Pennsylvania law. See Salvitti v. Throppe, supra.
B. Adoptive admission. Pa.R.E. 803(25)(B) is consistent with Pennsylvania law. See Commonwealth v. Cheeks, 239 A.2d 793 (Pa. 1968) (party expressly adopted statement); Commonwealth v. Coccioletti, 425 A.2d 387 (Pa. 1981) (party impliedly adopted statement by failing to deny the truth of a statement that party would be expected to deny under the circumstances).
C. Statement by authorized agent. Admitting, as an exception to the hearsay rule, the statement of a person authorized to speak for the party against the party is consistent with Pennsylvania law. See McGarity v. New York Life Ins. Co., 59 A.2d 47 (Pa. 1948).
D. Statement by agent concerning matter within scope of agency. This exception to the hearsay rule is new to Pennsylvania law. It is consistent with the overwhelming majority of American jurisdictions.
E. Statement by a co-conspirator. The admissibility of a statement by a co-conspirator as provided by this rule is consistent with Pennsylvania law. See Commonwealth v. Mayhue, 639 A.2d 421 (Pa. 1994); Commonwealth v. Dreibelbis, 426 A.2d 1111 (Pa. 1981).