J. A10009/17
2017 PA Super 187
LENORA PARTLOW, ADMINISTRATIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF CALVIN WILSON, JR., : PENNSYLVANIA
:
Appellee :
:
v. :
:
KAHLILE GRAY, :
:
Appellant : No. 2560 EDA 2016
Appeal from the Judgment Entered July 12, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: June Term, 2013, No. 0678
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED JUNE 15, 2017
Kahlile Gray (“Appellant”) appeals from the July 12, 2016 Judgment
entered by the Philadelphia County Court of Common Pleas following a jury
trial. We affirm.
The relevant facts, as gleaned from the trial court’s September 15,
2016 Opinion and the certified record, are as follows. On April 4, 2013,
Decedent, Calvin Wilson, Jr., and his friend had been riding their
motorcycles throughout Philadelphia. Decedent had recorded their ride with
a Go Pro video camera, which Decedent mounted on his motorcycle, and the
recording showed, inter alia, that in the half-mile before the accident,
Decedent had performed three wheelies. Appellant was driving in the
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opposite direction in a Dodge Durango, and both lanes of travel had green
lights. Decedent was not speeding.
Appellant attempted to make a left-hand turn through Decedent’s lane
of travel. Appellant hit Decedent’s motorcycle and killed Decedent. A police
officer observed Appellant’s bloodshot and watery eyes after the accident, as
well as Appellant’s lethargic behavior. Appellant denied consuming alcohol
at any point that day. Two hours after the accident, Appellant’s blood
alcohol content (“BAC”) was 0.073. Appellee’s expert opined that
Appellant’s BAC two hours after the accident indicated his BAC was .104% at
the time of the accident.
Lenora Partlow, the Administratrix of the Estate of Calvin Wilson, Jr.
(“Appellee”), filed a Writ of Summons on June 15, 2013, and a Complaint on
January 7, 2014, asserting a survival action and a wrongful death action.
The trial court heard several Motions in Limine prior to trial regarding,
inter alia, the admissibility of the Go Pro video recording, the evidence of
Appellant’s alcohol consumption and intoxication, and expert testimony
based on the evidence of Appellant’s alcohol consumption and intoxication.
The trial court admitted evidence of Appellant’s alcohol consumption and
intoxication, as well as limited portions of the Go Pro video recording.
Following a jury trial from February 5, 2016 to February 11, 2016, at
which Appellant conceded liability but claimed that Decedent had been
comparatively negligent, the jury returned a verdict in favor of Appellee for
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$3.1 million.1 The jury awarded $1,850,000 for net loss earning capacity for
the survival action and $1,250,000 for the wrongful death action.
Appellant filed Post-Trial Motions, which the trial court denied on July
12, 2016. The same day, the trial court entered Judgment in favor of
Appellee for $3.1 million.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents the following four issues for our review:
[1.] Whether the [t]rial [court] abused its discretion in allowing
the admission of alleged intoxication when it was clearly not
relevant and, to the extent it was relevant on the negligence
issues, its probative value was far outweighed by the prejudice
to [Appellant], especially when the [c]ourt initially denied
[Appellant’s] Motion for Partial Summary Judgment on the
punitive damages claim but later granted [Appellant’s] Motion for
Compulsory Nonsuit on the issue of punitive damages?
[2.] Whether the [t]rial [c]ourt abused its discretion in allowing
evidence of alleged intoxication and/or alcohol use by
[Appellant], including but not limited to testimony from
[Appellee’s] toxicology expert witness, when there was
insufficient and inadequate corroborating evidence?
3. Whether [t]he [t]rial [c]ourt abused its discretion in excluding
extremely relevant portions of the Go Pro video preceding the
subject crash, which demonstrated that decedent Calvin Wilson,
Jr. was driving negligently and carelessly?
4. Whether the [t]rial [c]ourt abused its discretion in redacting
portions of [Appellant’s] accident reconstructionist expert report
and as a result precluded the testimony on the redacted
matters?
1
The jury concluded Decedent was not comparatively negligent. See
Verdict Sheet, dated 2/11/16, R.R. at 1504a-1505a.
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Appellant’s Brief at 4-5 (reordered).
Each of Appellant’s four issues challenges the trial court’s evidentiary
rulings at trial. We review a trial court’s evidentiary rulings for abuse of
discretion. Lykes v. Yates, 77 A.3d 27, 30-31 (Pa. Super. 2013).
“[W]here the evidentiary ruling turns on a question of law our review is
plenary.” Id. at 31.
Evidence of Appellant’s Unfitness to Drive
In his first two issues, Appellant challenges the admission of evidence
of Appellant’s intoxication and unfitness to drive. We will address these
issues together.
Our standard and scope of review are as follows:
Questions regarding the admissibility or exclusion of evidence
are also subject to the abuse of discretion standard of review.
Pennsylvania trial judges enjoy broad discretion regarding the
admissibility of potentially misleading and confusing evidence.
Relevance is a threshold consideration in determining the
admissibility of evidence. A trial court may, however, properly
exclude evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. Generally, for the
purposes of this evidentiary rule, “prejudice” means an undue
tendency to suggest a decision on an improper basis. The
erroneous admission of harmful or prejudicial evidence
constitutes reversible error.
Rohe v. Vinson, ___ A.3d ___, 2016 PA Super 305, *5 (Pa. Super. filed
December 28, 2016) (citation omitted). See also Pa.R.E. 401-403; Daniel
J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 401.06 et seq.,
§ 403.06 et seq. (2017 ed. LexisNexis Matthew Bender).
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When a driver’s reckless or careless driving is at issue, evidence of
that driver’s intoxication and unfitness to drive is relevant, and a trial court
does not err in permitting such evidence provided it is adequately
corroborated. Rohe, supra at *6. However, a trial court may not admit
evidence of a driver’s consumption of alcohol to prove intoxication, without
more, because it is unfairly prejudicial. Id. Similarly, a driver’s BAC test
results “alone may not be admitted for the purpose of proving intoxication
[and unfitness to drive].” Id.
In order to admit intoxication evidence to prove unfitness to drive, our
case law requires sufficient corroboration demonstrating more than the
“mere hint” of intoxication. Id. If the evidence is tenuous and only proves
a “mere hint” of intoxication, that evidence is too prejudicial and
inadmissible.
Relevant corroborating evidence of intoxication and unfitness to drive
can include the consumption of alcohol prior to the accident, a driver’s BAC
test results, expert testimony interpreting those results, and testimony
about the driver’s physical condition shortly after the accident. Common
observations of the driver’s physical condition corroborating other evidence
of intoxication have included “staggering, stumbling, aimless wandering,
glassy eyes or incoherent mumbling[,]” but this list is not exhaustive. Id.
In the instant case, Appellee offered, and the trial court admitted, the
following evidence to prove Appellant’s unfitness to drive: (1) evidence of
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Appellant’s physical condition shortly after the accident; (2) evidence of
Appellant’s BAC; and (3) expert testimony regarding Appellant’s BAC result
with respect to his unfitness to drive. Based on our review of the certified
record, we conclude that the trial court properly admitted this evidence
together to prove Appellant’s unfitness to drive.
First, Appellee presented evidence of Appellant’s physical condition
right after the accident. Philadelphia Police Officer Gary Harrison, who had
had 26 years of experience as a police officer and had worked in the
Accident Investigation Division since 2002, testified that he spoke with
Appellant at the scene of the accident and observed that Appellant “had
bloodshot, watery eyes. He appeared lethargic.” N.T. Trial, 2/4/16, at 26.
Officer Harrison testified further that, based on his training, experience, and
observations, Appellant appeared to be intoxicated. Id. at 28. Officer
Harrison documented his observations in his report. Id. at 25-26.
Next, Appellee presented relevant evidence pertaining to Appellant’s
BAC at the time of and two hours after the accident. Laboratory results
showed that Appellant’s BAC two hours after the accident was below the
legal limit in Pennsylvania,2 but Appellee provided expert testimony from Dr.
Gary Lage that Appellant’s BAC at the time of the accident was .104%. Dr.
Lage further testified regarding Appellant’s unfitness to drive by providing
2
See 75 Pa.C.S. § 3802(a)(2). On September 30, 2013, the legislature
lowered the legal limit from 0.10% to 0.08%. Rohe, supra at *6 n.5.
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the following testimony pertaining to the general effects of different degrees
of intoxication:
So at lower blood alcohol level, .05 or below, you begin to
see a loss of inhibition, loss of judgment. Those are the
first things that occur. As you go up to the .05 to .10
level, you begin to see sedation, more impaired judgment,
lack of attention, beginning to lose coordination. All of
those things occur. You also see effects on vision. Your
night vision is impaired. Your peripheral vision is impaired,
and your depth perception is impaired, and your reaction
times are impaired, which is why the state set a legal limit
for alcohol because the loss of coordination, the loss of
impaired reaction times are all more likely to lead to
accidents than a normal individual.
N.T. Trial, 2/9/16, at 130.
Dr. Lage opined that Appellant “was impaired at the time of the crash,
including as I said delayed reaction times, vision, sedation, all of those
things, and that he was intoxicated by alcohol at the time of the crash.” Id.
at 133.
The above evidence taken together provides substantial corroborating
evidence of Appellant's intoxication and unfitness to drive. Even though our
case law provides that some of this evidence could be considered
inadmissible if it had been admitted in isolation, that is not what happened
here. The totality of the corroborating evidence showed more than the mere
hint of Appellant’s intoxication. Thus, the trial court properly admitted this
evidence.
Appellant’s reliance on this Court’s recent decision in Rohe, supra, is
misplaced. In Rohe, this Court reversed a trial court’s decision to admit
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BAC results under the legal limit offered to prove plaintiff’s intoxication and
unfitness to drive in a civil negligence action following a motor vehicle
accident. Id. Although the defendants supported this BAC evidence with an
expert’s relation-back testimony and plaintiff’s admission that he had been
drinking, this Court concluded it was prejudicial error to admit this evidence
at trial since there were no observations of plaintiff exhibiting classic signs of
intoxication. Id. Moreover, the Rohe Court assailed the expert’s opinion
evidence because it misstated facts of record. For these reasons, the
Superior Court found that the evidence was inadmissible. Id.
Here, Appellee presented not only the BAC evidence supported by
expert testimony, but also Officer Harrison’s observations of Appellant’s
physical condition shortly after the accident. Pursuant to this Court’s
holdings, this ample evidence of Appellant’s unfitness to drive sets this case
apart from the evidence admitted in Rohe.3
Insofar as Appellant contends the trial court erred in admitting the
intoxication evidence despite dismissing the punitive damages claim
pursuant to Appellant’s Motion for Compulsory Nonsuit, we discern no abuse
of the trial court’s discretion regarding this evidentiary issue. This
intoxication evidence remained relevant and admissible regarding the
3
Moreover, unlike in Rohe, Appellant has not directed our attention to any
deficiencies in the expert’s report or his opinion at trial that would disqualify
the expert’s opinion from consideration as admissible evidence.
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comparative negligence issues and Appellant’s unfitness to drive. The trial
court properly evaluated the probative value of this evidence in light of the
potential for unfair prejudice.
In light of the foregoing, the trial court properly admitted the evidence
of Appellant’s intoxication and unfitness to drive at trial. We discern no
abuse of discretion or error of law.
Go Pro Video Recording
In his final two issues, Appellant challenges the trial court’s evidentiary
rulings regarding a lengthy Go Pro video recording of Decedent purportedly
driving aggressively and carelessly throughout Philadelphia prior to the
accident, and the preclusion of portions of an expert’s report relying on
those portions of the video recording. We will address these issues together
as they are related.
The admission of authenticated videotape evidence “is within the
sound discretion of the trial court[.]” Commonwealth v. McKellick, 24
A.3d 982, 986 (Pa. Super. 2011). “[T]his Court will find the trial court
abused its discretion only where it is revealed in the record that the court did
not apply the law in reaching its judgment or exercised manifestly
unreasonable judgment or judgment that is the result of partiality, prejudice,
bias, or ill will.” Id. See also Daniel J. Anders, Ohlbaum on the
Pennsylvania Rules of Evidence § 403.06 et seq., § 901.08[5][e] (2017 ed.
LexisNexis Matthew Bender).
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The Go Pro video recording totaled 40 minutes of footage, and the trial
court permitted the jury to see 17 minutes of the video. These 17 minutes
sufficiently demonstrated Decedent’s purportedly aggressive and careless
driving shortly before the accident. The portion of the video that the trial
court did not show occurred long before the accident and was not relevant to
whether Decedent was comparatively negligent at the moment he collided
with Appellant.
Additionally, the earlier portions of the video were cumulative. There
was adequate evidence from which the jury could infer that Decedent was
driving aggressively and erratically at the time of the accident, including
three wheelies in the half-mile before the accident. The record supports the
trial court’s conclusions and we discern no abuse of discretion or error of
law.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2017
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