Cominsky v. Donovan

JOYCE, J.,

Dissenting.

¶ 1 I disagree with the Majority’s conclusion that Appellant’s objections to the testimony offered by Cynthia Woll and Robert Cominsky properly preserved the issue of whether these lay witnesses should have been permitted to provide testimony regarding their mother’s pain and suffering.

¶ 2 On this issue, Appellant argues that the trial court erroneously permitted Ap-*1261pellee to present the opinion of lay witnesses (Mrs. Cominsky’s children: Cynthia Woll and Mr. Robert Cominsky) regarding Mrs. Cominsky’s conscious pain and suffering. Appellant further argues on appeal that “whether Mrs. Cominsky was capable of feeling pain and or suffering was a medical question beyond the general knowledge of the average person that had to be addressed by a medical expert, not Mrs. Cominsky’s children who are not medical experts. Appellant maintains that Appellee was required to establish, as a threshold medical matter, that Mrs. Co-minsky was capable of experiencing conscious pain and suffering even though she was in a vegetative state, before Appellee can be permitted to offer testimony regarding observations about Mrs. Comin-sky’s appearance and the possibility that she was experiencing pain and suffering. See Brief for Appellant, at 15.

¶ 3 As the above argument deals with the trial court’s evidentiary rulings, this Court’s review must be guided by the following standard: “[o]ur standard of review for evidentiary rulings by the trial court is very narrow. In general, we may reverse only for an abuse of discretion or an error of law.” Cruz v. NoHheastem Hosp., 801 A.2d 602, 610 (Pa.Super.2002) (citations omitted). Accord, Soda v. Baird, 411 Pa.Super. 80, 600 A.2d 1274, 1277 (1991) (“As a general rule, questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, and may be reversed on appeal only when a clear abuse of discretion is apparent.”).

¶4 Herein, although Appellant claims that the testimony of Mrs. Cominsky’s children on the issue of conscious pain and suffering constituted inadmissible lay opinion,3 my review of the record shows that Appellant did not file a pre-trial motion in limine to exclude such testimony. More importantly, at trial, Appellant did not make timely and specific objections to the subject testimony.

¶ 5 At trial, the following testimony was elicited from Cynthia Woll:

Q[by Plaintiffs counsel, Daniel Jeck]: Was your mom in any pain?
A: She looked to me like she was. [Defense counsel, Stephen] RYAN: Objection.
THE COURT: Overruled. You may answer.
THE WITNESS: Thank you. She looked to me like she was in anguish; that, certainly, there had to be some sort of pain.
MR STARR[sic]: Move to strike.4
THE COURT: Overruled.

N.T. 8/28/2000, at 57.

¶ 6 A careful review of the above excerpt shows that while Appellant objected to the testimony, Appellant did not state the basis for the objection. Appellant did not object on the basis that the testimony constituted inadmissible lay opinion testimony.5

¶ 7 Under Pa.R.E. 103(a),

*1262Error may not be predicated upon a ruling that admits or excludes evidence unless
(1) Objection. In case the ruling is one admitting evidence, a timely objection, motion to strike or motion in limine appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or by motion in limine or was apparent from the context within which the evidence was offered.

Pa.R.E. 103(a).

¶ 8 Similarly, our courts have often noted that in order to preserve an evidentiary objection, a party must make a timely and specific objection to the admission or exclusion of the evidence. The requirement for a specific objection was eloquently stated in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116—117 (1974):

Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

Id. (footnotes omitted). A party’s failure to make a specific objection deprives the trial court and the opposing party of the opportunity to either respond to the objection or to alter the course of the questioning accordingly. Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682, 690 (1988), alloc, denied, 522 Pa. 583, 559 A.2d 527 (1989).

¶ 9 In Willis, a child sexual abuse victim was alleged to have made inconsistent statements regarding the abuse. To counteract these allegations, an assistant district attorney who had previously interviewed the victim was called by Commonwealth to testify regarding the child’s pri- or consistent statements. On appeal, the appellant contended that because the child victim admittedly made prior inconsistent statements, the assistant district attorney’s testimony regarding the victim’s pri- or consistent statements was not admissible. Our Court rejected this contention, *1263citing the appellant’s failure to make specific objections. This Court opined as follows:

It is axiomatic that only issues raised by specific objection in the trial court may be addressed on appeal. The record in this case reveals three objections during Assistant District Attorney Delaney’s testimony. Two involved the mere utterance of the word “objection” without any grounds stated for the objection. The remaining objection was stated as follows:
Q. Did she testify to the court consistently with what she had told you earlier that day? MR. GOLDMAN: Objection. Are you trying to put in inconsistent statements or consistent? This is really getting beyond what I feel the prosecution is allowed to do, Your Honor.
THE COURT: No. He can ask him if what she said was substantially consistent with what she said outside the courtroom. I see no problem with that. I will permit that.
(N.T. 11/1/85 at 104). Counsel in no way indicated that his objection was based upon the ground that the victim’s admission that she had made the prior inconsistent statements at the first preliminary hearing rendered the evidence of the prior consistent statements inadmissible. Because counsel failed to assert that specific ground for the objection at trial, the issue is waived. We note that had an objection been clearly stated on that ground, the Commonwealth and the trial court would not have been denied (as they were here) the opportunity to either respond to the objection or to alter the course of the questioning accordingly.

Willis, 552 A.2d at 690 (internal citations omitted).

¶ 10 In Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291, 1296 (1985), among other things, our Supreme Court was faced with the argument that the Superior Court erred in remanding the case back to the trial judge for a resolution of issues raised for the first time in the ap-pellee’s post-trial motions and brief before the Superior Court. Finding merit to this argument, the Supreme Court reversed the order of the Superior Court, stating unequivocally that to preserve an issue for appellate review, an appellant must make a timely objection at the appropriate stage of the proceedings before the trial court, and must specifically raise the issue in post-trial motions. See id. (emphasis added).

¶ 11 In the instant case, the trial transcript shows that while Appellant’s counsel uttered the word “objection” when Cynthia Woll was being questioned about her mother’s pain, counsel did not specify the grounds for the objection.6 Further, although counsel moved to strike the testimony, counsel did not provide a basis for this request. Thus, consistent with Pa. R.E. 103(a)(1) and the case law cited above, I would hold that Appellant did not properly preserve the objection that Cynthia was permitted to give inadmissible lay opinion testimony.

¶ 12 With respect to Robert Cominsky, the following testimony was elicited at trial:

*1264Q: Did she [your mother] appear to be in pain?
MR. RYAN: Objection; leading the witness.
THE COURT: Overruled.
THE WITNESS: She appeared to be in a very anguished, painful or fearful state. When I would look into her eyes, I just saw — I mean, I just saw a pitiful, fearful, painful person.

N.T. 8/28/2000, at 81.

¶ 13 The above excerpt shows that the basis of counsel’s objection was that the question was a leading question. Appellant’s counsel did not object on the basis that the question sought to elicit improper lay opinion testimony. In its post-trial motion and on appeal Appellant attempts to recast the basis of the objection by arguing that the trial court erred in permitting Robert Cominsky to give improper lay opinion testimony regarding his mother’s pain. I reject Appellant’s newly discovered but unstated basis for the objection to Robert’s testimony. The objection that Robert was being permitted to give improper lay opinion testimony was not raised at trial and is therefore not preserved.7 See Pa.R.E. 103(a). Even though Appellant raised this issue in a post-trial motion, this effort was insufficient to preserve an objection that was not raised before or during trial. See Pa. R.C.P. 227.1(b).

¶ 14 In my view, Appellant did not make timely and specific objections and therefore did not properly preserve the issue of whether lay witnesses, Cynthia Woll and Robert Cominsky, should have been permitted to provide testimony regarding their mother’s pain and suffering. Accordingly, I respectfully dissent.

.As a general rule, a lay person may testify as to distinct facts observed by him concerning the apparent physical condition or appearance of another. See Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (lay witnesses may testify about the apparent physical condition of a person). We express no opinion as to whether a lay witness may be permitted to testify regarding the pain and suffering of another person. It is noteworthy that Mrs. Cominsky's children did not opine that their mother was medically capable of experiencing pain or that she was actually experiencing pain. Such an opinion requires medical expertise. Rather, they stated that their mother appeared to be in pain.

. This statement was actually made by Mr. Ryan.

. In its post-trial motions, as a basis for seeking a new trial, Appellant argued that Cynthia *1262Woll and Robert Cominsky were permitted to give inadmissible lay opinion testimony. However, this was not the stated basis for objecting to the testimony at trial. Appellant cannot raise on post-trial motions grounds for objections which were not asserted at trial. See Pa.R.C.P. 227.1(b) ("Post-trial relief may not be granted unless the grounds therefor, (1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and (2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds").

. It is worthwhile to note that the basis for the objection was not apparent from the context (See Pa.R.E. 103(a)(1)). It was not apparent that Appellant was objecting to Cynthia's testimony as inadmissible lay opinion. For instance when Robert Cominsky was questioned on the same subject, his mother’s pain, Appellant objected to this question as being a leading question not as a question seeking to elicit improper lay opinion. See N.T. S/28/2000, at 81.

. Although Appellant objected to the allegedly leading nature of the question to Robert regarding his mother’s pain, Appellant did not raise this issue in post-trial motions or on appeal. Thus, in my view, this issue is waived.