Huertas, D. v. El Bochinche Restaurante ( 2023 )

J-A01003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DULCE HUERTAS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EL BOCHINCHE RESTAURANT AND : No. 248 EDA 2022
RUTHMIRA GIRALDO :
Appeal from the Judgment Entered January 3, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 181002851
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 24, 2023
In this premises liability action, Dulce Huertas (Appellant) appeals from
the judgment entered in the Philadelphia County Court of Common Pleas,
following a jury trial, in favor of defendants El Bochinche Restaurant and
Ruthmira Giraldo (collectively, Appellee). Appellant first contests the trial
court’s evidentiary rulings regarding: (1) the hearsay exceptions for a
statement made during medical treatment and business records;1 and (2) the
rule of completeness, which governs the admission of a part of a writing in
order to correct a misleading impression created by another part of the
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1 See Pa.R.E. 803(4), (6).
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writing.2 Appellant also challenges the timeliness of the trial court’s mid-trial
granting of her motion in limine, which allegedly permitted Appellee’s opening
argument to refer to the subsequently precluded evidence. We affirm.
I. Facts
El Bochinche Restaurant is located on North 5th Street in Philadelphia.
Giraldo is the proprietor. On the evening of October 22, 2016, Appellee hosted
a private party, on its premises, for family and friends. A security guard, Larry
Tucker, checked the identifications of patrons and monitored the festivities.
In this matter, Appellant generally avers: (1) Appellee negligently failed to
protect her from reasonably foreseeable injuries; (2) Appellant was assaulted
by a patron, Jose Mina, whom she did not know; and (3) Appellant suffered
injuries as a result.3 Appellant’s Complaint, 10/19/18, at ¶¶ 8-9.
We first review the pertinent trial testimony. Giraldo, the proprietor,
testified to the following:4 she has been friends with Jose Mina for
approximately 20 years. N.T. Vol. I, 6/22/21, at 183. Mina arrived at the
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2 See Pa.R.E. 106.
3 In her complaint, Appellant also raised a claim of a Dram Shop Act violation,
averring Appellee wrongfully provided alcohol to a visibly intoxicated Mina.
See 47 P.S. § 4-493(1) (it shall be unlawful for liquor licensee to sell or furnish
liquor to any person visibly intoxicated); Juszczyszyn v. Taiwo, 113 A.3d
853, 858 (Pa. Super. 2015) (“A violation of the Dram Shop Act is deemed
negligence per se.”). However, this claim was abandoned by the time of trial.
4 Giraldo, Appellant, and several other witnesses testified with a Spanish
interpreter.
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party around 10:00 or 10:30 p.m. with four people, including Appellant. Id.
at 143-44, 184. Mina introduced his friends, again including Appellant, to
Giraldo. Id. at 144. Later that night, Giraldo observed Appellant and another
woman fighting and pulling each other’s hair. Id. at 148; N.T. Vol. II,
6/23/21, at 31. Mina separated the two women, and Security Guard Tucker
escorted them outside. N.T., 6/22/21, at 148-49. Giraldo stated Mina was
not intoxicated that night and she did not see him hit anyone. N.T., 6/22/21,
at 183-86, 189; N.T., 6/23/21, at 34.
Security Guard Tucker testified that when Appellant arrived at the party,
she appeared “tipsy.” N.T. Vol. III, 6/24/21, at 57-58. Later, he was informed
“something [was] going on” in the back of the restaurant, and he observed
Appellant and another woman “tussling.” Id. at 54, 55, 62, 78. Tucker gave
commands to stop, separated the women, and escorted them out. Id. at 55-
57. Tucker denied there was anyone else separating the women, but agreed
that no man was involved in the fight. Id. at 82, 83.
Meanwhile, Appellant provided a different account of events. She
testified to the following: she arrived at the party alone and met her female
friend there. N.T. Vol. VI, 6/29/21, at 26, 28. Later in the night, Appellant
went to the bathroom and saw a young woman, on the floor, with her face
bleeding and appearing to have “been beat up.” Id. at 31. Appellant helped
the woman clean up. Id. Outside the bathroom, Appellant offered to take
her home. Id. A man, whom Appellant did not know and who appeared to
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be intoxicated, “mov[ed] through the crowd” and hit Appellant three times in
her face. Id. at 31, 33. He had a gun. Id. at 32. Other men intervened to
help Appellant, and one man drove Appellant home in her car. Id. at 32-33.
Appellant then drove herself to the police station.5 An officer took her to El
Bochinche Restaurant, but the man who hit her was no longer there.6 Id. at
34. Around 5:30 a.m., Appellant sought treatment for her left eye area at the
emergency department at Nazareth Hospital, and she was transported to
Temple University Hospital for surgery. See id. at 35-37; Trial Ct. Op.,
6/23/22, at 4. Appellant gave a statement to police a few days later.
Philadelphia Police Detective James Sloan testified that he interviewed
Appellant on October 26, 2016, three days after the alleged incident. N.T.,
6/23/21, at 102. At trial, he read aloud her written interview, which was
consistent with her testimony — that in the restaurant she saw a young
woman who appeared to have been beaten up; Appellant helped her; and a
man hit her three times in the face. Id. at 103. Appellant gave a description
of the man, but did not know him. Id. at 104, 106. Detective Sloan
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5Appellant initially went to the 25th Police District, but was informed it was
not “the right corresponding district,” and an officer took her to the
appropriate district. N.T., 6/29/21, at 34.
6 Giraldo similarly testified that approximately an hour and a half after her
removal, Appellant returned to the restaurant with a police officer, stated they
were looking for someone, but left when they did not see him. N.T., 6/22/21,
at 145.
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attempted to retrieve surveillance video from El Bochinche Restaurant, but
the videos from that night “had been taped over.” Id. at 111. Fifteen days
later, Appellant informed Detective Sloan she learned the man was named
Jose Mina. Id. at 107-08. Appellant provided his address and a description
of his car and license plate. Id. at 108. Mina did not testify at trial.7
II. Procedural History
Appellant filed the underlying complaint on October 19, 2018, raising
one count of negligence against Appellee. On June 19, 2021, the Saturday
before trial was to begin, Appellant filed a motion in limine to preclude
evidence of her prior, unrelated automobile accidents and assaults.
Appellant’s Motion in Limine to Preclude Evidence of Other Incidents, 6/19/21,
at 3-5. The court heard argument on the morning of trial, but deferred a
ruling. In opening arguments, however, Appellant referred to these prior
incidents, and then Appellee did the same. N.T., 6/22/21, at 87-88, 90. Later,
mid-trial, the court granted Appellant’s motion to preclude the evidence.
N.T., 6/29/21, at 100.
The witnesses testified as summarized above. Pertinent to Appellant’s
claims on appeal, we note the following evidentiary rulings. First, the trial
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7Detective Sloan testified Mina was charged for this alleged assault against
Appellant, was arrested in Florida, and had a preliminary hearing, but the
detective did not know the current status of the criminal charges. N.T.,
6/23/21, at 117-19.
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court admitted, over Appellant’s objection, a statement in Appellant’s
Nazareth Hospital record: “Pt [Appellant] reports she was punched in [one]
eye last night while walking down the street.” See N.T., 6/29/21, 7-11;
Nazareth Hospital EDM *Live*, 10/23/16 (Nazareth Statement). However,
the trial court denied Appellant’s request to admit a statement from her
Temple University Hospital, Ophthalmology Department record:
[Appellant] was at a restaurant/bar Saturday night – at about
[1:00 a.m. 10/23. S]he was assisting a young woman on her way
from the bathroom. An unknown male punched her about the left
side of her face around the eye three times with a closed fist. . . .
Temple Health Report, 10/24/16, at 1 (Temple Statement); see also N.T.,
6/29/21, at 95-97
On July 6, 2021, the jury found in favor of Appellee. On the verdict slip,
the jury indicated its finding, in response to the first question, that Appellee
was not negligent. The jury thus did not reach the remaining questions
regarding: the causation of Appellant’s injuries; Appellant’s own negligence;
and the amount of damages.
Appellant filed a timely post-sentence motion, which the trial court did
not rule on. Upon praecipe by Appellant, judgment was entered on January
3, 2022, in favor of Appellee. Appellant filed a timely notice of appeal and a
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court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.8
III. Statement of Questions Involved
Appellant presents four issues for our review:
1. Whether the trial court erred and abused its discretion by
denying Appellant’s post- trial motion request for the trial court to
vacate the verdict and [o]rder a new trial.
2. Whether the trial court improperly permitted [Appellee] to
enter into evidence and publish to the jury a narrative statement
from Appellant’s Nazareth Hospital medical records, despite the
same being unreliable hearsay, over Appellant’s strenuous
objections.
3. Whether the trial court improperly prohibited Appellant from
bringing out a narrative statement from Appellant’s Temple
Hospital medical records that would have completely contradicted
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8 Appellant’s Rule 1925(b) statement set forth the following two claims:
1. The trial court committed an error of law and abuse of
discretion by not granting [Appellant’s] post-trial motion request
for the trial court to vacate the verdict and Order a new trial.
2. The trial court committed an error of law and abuse of
discretion by committing the several serious erroneous
evidentiary rulings at the trial of this matter, as described in
[Appellant’s] post-trial motion.
Appellant’s Statement of Errors Complained of Upon Appeal Pursuant to
Pa.R.A.P. 1925(b), 2/15/22, at 1-2. The first claim baldly challenges the
denial of her post-trial motion, without stating any particular claim. The
second issue similarly, vaguely refers to “several serious evidentiary rulings.”
See id. We remind Appellant’s counsel that “[a]n overly vague or broad Rule
1925 statement may result in waiver[,]” and a “Rule 1925(b) statement must
be detailed enough so that the judge can write a Rule 1925(a) opinion[.]” See
Majorsky v. Douglas, 58 A.3d 1250, 1258 (Pa. Super. 2012) (citations
omitted).
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a narrative of “fraud” that was promulgated by Appellee[ ] based
upon an incomplete set of records[.]
4. Whether the trial court failed to timely rule upon a motion in
limine filed by Appellant, with the effect that [Appellee was]
permitted to repeatedly call Appellant a liar during their opening
statement with reference to “other incidents” that the trial court
later acknowledged were not relevant to this case and which were
not allowed to be brought into evidence.
Appellant’s Brief at 3-4.
IV. Standard of Review, General Hearsay Rule, & Negligence Law
We note the relevant standard of review:
We review a trial court’s decision concerning the admissibility of
evidence for an abuse of discretion. “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.” In addition, before
a ruling on evidence constitutes reversible error, it must have
been harmful or prejudicial to the complaining party.
Adams v. Rising Sun Med. Ctr., 257 A.3d 26, 33 (Pa. Super. 2020)
(citations omitted).
We consider the general rule against hearsay:
“‘[H]earsay’ is defined as an out-of-court statement, which is
offered in evidence to prove the truth of the matter asserted.”
[See Pa.R.E. 801.] Generally, hearsay is inadmissible because it
is deemed untrustworthy since it was not given under oath and
subject to cross-examination. However, the law recognizes that
there are some circumstances attendant to the making of out-of-
court statements that provide sufficient guarantees of their
trustworthiness to depart from the requirement that the declarant
be subject to cross-examination. That is the rationale
underpinning exceptions to the hearsay rule. Thus, it is burden of
the proponent of hearsay evidence to convince the court of the
admissibility of the evidence under an exception before such
testimony will be admitted.
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Adams, 257 A.3d at 35-36 (some citations omitted).
Finally, we note that to prove negligence, a plaintiff must establish there
was:
“(1) a legally recognized duty that the defendant conform to a
standard of care; (2) the defendant breached that duty; (3)
causation between the conduct and the resulting injury; and (4)
actual damage to the plaintiff.”
The duty element of negligence is akin to the duty element in
a claim of premises liability, as both are defined by a
reasonableness standard: “The duty owed to a business invitee is
the highest duty owed to any entrant upon land. The landowner
is under an affirmative duty to protect a business visitor not only
against known dangers but also against those which might be
discovered with reasonable care.”
Massaro v. McDonald’s Corp., 280 A.3d 1028, 1035-36 (Pa. Super. 2022)
(citations omitted).
V. Admission of Nazareth Hospital Statement
In her first issue, Appellant avers the trial court erred in admitting, as
unreliable hearsay, the statement in Nazareth Hospital record. Appellant’s
Brief at 10. As stated above, this statement was, “[Appellant] reports she
was punched in [one] eye last night while walking down the street[.]”
Nazareth Statement.
By way of background, we first summarize the following: at trial,
Appellee sought to admit the statement under two hearsay exceptions — as a
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Pa.R.E. 803(4) statement made in the course of medical treatment 9 and a
Pa.R.E. 803(25) admission by a party-opponent.10 N.T., 6/29/21, at 7. The
trial court agreed the statement was admissible under both exceptions and,
furthermore, under the business-record exception.11 N.T., 6/29/21, at 10-12.
In its opinion, the court addresses the admission of the evidence under all
three exceptions. Trial Ct. Op. at 5-8.
On appeal, Appellant first avers:
Contrary to the trial court’s ruling, the Nazareth Statement was
not admissible as a prior inconsistent statement[,] because
[Appellee] failed to establish that it reliably recorded [Appellant’s]
own words — it was neither established that the person who
recorded the statement wrote down [Appellant’s] verbatim words
nor that a translator was present to translate [Appellant’s] words
since she did not fluently speak English. . . .
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9 See Pa.R.E. 803(4) (the following is not excluded by general rule against
hearsay: a statement that “(A) is made for — and is reasonably pertinent to
— medical treatment or diagnosis in contemplation of treatment; and (B)
describes medical history, past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external source thereof”).
10 See Pa.R.E. 803(25)(A) (a party may offer against an opposing party a
statement made by that opposing party).
11 See Pa.R.E. 803(6) (a record is not excluded by rule against hearsay if: (A)
the record was made at or near the time of the event by someone with
knowledge; (B) the record was kept in the course of a regularly conducted
activity of a “business,” (C) making the record was a regular practice of that
activity; (D) all these conditions are shown by the testimony of the custodian
or other qualified witness, or by certification; and (E) neither the source of
information nor other circumstances indicate a lack of trustworthiness).
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Appellant’s Brief at 10 (emphasis added). We disagree with both components
of this argument.
Foremost, it does not appear, as Appellant asserts, that the trial court
found the Nazareth Statement was admissible as a prior inconsistent
statement. Appellant has not cited the place in the record where the court
made such a ruling. See Pa.R.A.P. 2119(c) (if reference is made to the
evidence, appellant’s argument must set forth a reference to the place in the
record where the matter referred to appears). Furthermore, even if the court
had found a prior inconsistent statement, Appellant’s supporting reasoning —
whether the statement accurately memorialized what she in fact said — goes
to the weight of the evidence, and not to its admissibility under any particular
hearsay exception. Accordingly, no relief is due on this line of reasoning.
Next, Appellant asserts the trial court erred in admitting the Nazareth
Statement under the business record exception. Appellant contends that if a
medical record is admitted under the business record exception, it is
“competent to show only the fact of hospitalization, the treatment prescribed,
and the complaints and symptoms stated by the plaintiff.” Appellant’s Brief
at 11, citing Williams v. McClain, 520 A.2d 1374, 1376 (Pa. 1987).
We emphasize, however, that the trial court also found two additional
bases for admitting the Nazareth Statement: it was a statement made in the
course of medical treatment and it was an admission by a party-opponent.
See Trial Ct. Op. at 5-7 (“The out-of-court statement was made by . . .
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Appellant to her treating physician within hours of sustaining her injuries and
was clearly contemplated and communicated for the purposes of a medical
diagnosis or treatment[,]” and, “Appellant communicated to her treating
physician relevant facts relating to show how she sustained her injuries, and
the defense offered the statement in support of its theory that she sustained
her injuries outside of El Bochinche Resturante.”). See also N.T., 6/26/21,
at 10-11 (trial court finding, “[I]t was important for the health care providers
at Nazareth Hospital to know why [Appellant] went there in the first place.”).
On appeal, Appellant does not present any challenge to these bases for
admitting the Nazareth Statement. Thus, even if we were to agree with her
business records argument, in the absence of any dispute to the other two
bases for admission, we would affirm this ruling.12 Accordingly, no relief is
due.
VI. Preclusion of Temple Hospital Statement
In her second issue, Appellant avers the trial court erred in precluding
a statement in her Temple University Health, Department of Ophthalmology
record. Appellant’s Brief at 13-14. That record stated that Appellant told the
medical staff:
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12 See Bank of Am., N.A. v. Scott, 271 A.3d 897, 908 (Pa. Super. 2022)
(this Court may affirm on any legal basis). We emphasize we offer no opinion
on the admission of the Nazareth Statement under the business records
hearsay-exception.
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[Appellant] was at a restaurant/bar Saturday night — at about 1
am 10/23[. S]he was assisting a young woman on her way from
the bathroom. An unknown male punched her about the left side
of her face around the eye three times with a closed fist. . . .
Temple Statement.
We first set forth the context of the trial court’s ruling. The parties
argued about the admissibility of the Temple Statement at the same time the
trial court considered the Nazareth Statement. See N.T., 6/29/21, at 9-10.
Citing the rule of completeness, or Pa.R.E. 106, Appellant claimed the Temple
Statement and the Nazareth Statement should be considered together as one
complete medical record. See N.T., 6/29/21, at 9, 12-13, 94. The trial court
disagreed, reasoning the Temple Statement would not clarify the Nazareth
Statement, and in fact would contradict it. Id. at 96-97. Furthermore, the
court reasoned, Appellant could not present the Temple Statement because it
would not be against a party opponent — that is, Appellant could not present
a statement that she herself previously made. Id. at 13, 97.
On appeal, Appellant first contends the Temple Statement should have
been admitted under Pa.R.E. 613(c) as a prior consistent statement, to
rehabilitate her following the presentation of the Nazareth Statement.
Appellant’s Brief at 14-15. We deem this claim waived for appeal, as it was
not raised before the trial court. See Commonwealth v. Rosser, 135 A.3d
1077, 1086 (Pa. Super. 2016) (en banc) (“Where the trial court denies relief
on one theory, a defendant may not attain appellate relief on a new theory for
that same relief.”); Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super.
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2006) (“A theory of error different from that presented to the trial jurist is
waived on appeal, even if both theories support the same basic allegation of
error which gives rise to the claim for relief.”) (citation omitted). We add that
Appellant’s citations to the trial transcripts, for her objections, all relate to her
rule of completeness argument. See Appellant’s Brief at 14. Appellant does
not cite any place in the record where she raised a “prior inconsistent
statement” argument. See Pa.R.A.P. 2119(c).
Next on appeal, Appellant reiterates her rule of completeness argument.
In support, she contends the Temple and Nazareth Statements “are closely
related.” Appellant’s Brief at 17. She further reasons “[t]he Nazareth
Statement is only one sentence long,” and she was “only briefly evaluated
[there] before being rushed by ambulance to Temple Hospital[.]” Id.Appellant thus asserts her “full statement of the event was recorded only at
Temple.” Id. at 18. Finally, Appellant alleges she was prejudiced, by the
preclusion of the Temple Statement, because Appellee was “able to create the
false impression that [she] said one thing to the police and jury [but]
something else entirely to her medical treaters[.]” Id. at 16, 18. We conclude
no relief is due.
Rule 106, “commonly referred to as the ‘rule of completeness,’”
provides:
Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement,
an adverse party may require the introduction, at that time, of
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any other part — or any other writing or recorded statement —
that in fairness ought to be considered at the same time.
Pa.R.E. 106; Commonwealth v. Raboin, 258 A.3d 412, 422 (Pa. 2021). The
rule’s comment states:
The purpose of Pa.R.E. 106 is to give the adverse party an
opportunity to correct a misleading impression that may be
created by the use of a part of a writing . . . that may be taken
out of context. This rule gives the adverse party the opportunity
to correct the misleading impression at the time that the evidence
is introduced. The trial court has discretion to decide whether
other parts, or other writings . . . ought in fairness to be
considered contemporaneously with the proffered part.
Pa.R.E. 106, cmt. Our Supreme Court has explained Rule 106 is invoked as
follows: (1) a writing is introduced; (2) the writing creates “a misleading
impression[;]” and thus (3) “the adverse party [may] seek admission of all or
part of that or another writing . . . in order to provide context.” Raboin, 258
A.3d at 422-23. We conclude no relief is due.
First, we disagree with the trial court’s rationale, at trial, that the rule
of completeness was inapplicable because the Temple Statement would not
serve to clarify the Nazareth Statement, but in fact to contradict it. See N.T.,
6/29/21, at 97. See also Trial Ct. Op. at 9 (“Appellant’s reliance on Rule 106
is misplaced [because the Temple Statement] in no way makes clearer the
accuracy of [the Nazareth Statement].”). Indeed, the purpose of admitting a
writing under Rule 106 is “to correct a misleading impression” created by
another writing introduced by the adverse party. See Pa.R.E. 106, cmt.
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However, we agree with the additional reasoning set forth in the trial
court’s opinion — that the Temple Statement and Nazareth Statement are not,
in fact, a part of the same writing. See Trial Ct. Op. at 9. The court reasoned:
Appellant was first taken to Nazareth Hospital where she gave a
recorded statement during a distinct medical examination to a
distinct medical provider. She was later transported to Temple
Hospital — another distinct medical provider — wherein she gave
yet another recorded stating during a separate, distinct, medical
examination. . . .
Id. We are not persuaded by Appellant’s arguments to the contrary — that
the brevity of both her Nazareth Hospital visit and the Nazareth Statement
make it somehow reliant or dependent on the longer Temple Statement and
Temple Hospital treatment. See Appellant’s Brief at 17-18 (“In this context
[Appellant’s] full statement of the event was recorded only at Temple.”)
(emphasis added). Appellant does not dispute that she visited two unrelated
hospital systems. Accordingly, the trial court properly found that that Rule
106 does not apply. See Pa.R.E. 106; Adams, 257 A.3d at 33.
Additionally, we agree with the trial court’s rationale that Appellant was
not prejudiced by the preclusion of the Temple Statement. See Trial Ct. Op.
at 10. See also Adams, 257 A.3d at 33. The salient evidence from the
Temple Statement that Appellant sought to present was that she incurred the
injury at the restaurant. This evidence was merely cumulative of Appellant’s
trial testimony, as well her recorded interview with Detective Sloan. See N.T.,
6/23/21, at 103; N.T., 6/29/21, at 31. See also Commonwealth v.
Yocolano, 169 A.3d 47, 53 (Pa. Super. 2017) (harmless error can be found
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where erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
admitted evidence).
Finally, the relevance of the Temple Statement — specifically, the place
where Appellant incurred her injury — would ostensibly go to the cause of her
injuries. This is but one of the four factors a plaintiff must establish for a
negligence claim. See Massaro, 280 A.3d at 1035-36. Appellant overlooks
that the jury specifically found Appellee was not negligent, under the first
factor. Indeed, in so finding, the jury did not reach the second question on
the verdict sheet — whether Appellee’s negligence was a factual cause of
Appellant’s injuries. Jury Verdict Sheet, 7/1/21, at 1. Accordingly, no relief
is due.
VII. Timeliness of Trial Court’s Ruling on Motion in Limine
In her final issue, Appellant asserts the trial court failed to timely rule
on her motion in limine to preclude evidence of prior incidents. Appellant’s
Brief at 19. Although the court ultimately granted her motion, Appellant
asserts the court’s belated decision allowed Appellee to refer to the prior
incidents in its opening argument. Id. at 19, 22. Appellant thus maintains
she was prejudiced. Id. We conclude no relief is due.
A trial court has broad powers over the conduct of a trial, and we review
a court’s ruling on an objection during counsel’s opening statement for an
abuse of discretion. See Commonwealth v. Parker, 919 A.2d 943, 949 (Pa.
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2007). “An abuse of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Id. at 949-50.
We first note that in complaining of the timing of the trial court’s ruling,
Appellant ignores the timing of her own filing. In its opinion, the trial court
explained the following: on June 16, 2021, one week before trial, it conducted
a hearing on the parties’ pre-trial motions in limine. That Saturday, June 19th,
Appellant filed an additional motion in limine, seeking to preclude evidence of
other incidents — two motor vehicle accidents and two assaults — involving
herself. See Trial Ct. Op. at 10-11.
Monday, June 21, 2021, was a court holiday, and trial was scheduled to
begin the next day, June 22nd. Trial Ct. Op. at 11. While Appellee was able
to file a response to the motion in limine on the 22nd, the trial court was not
aware of the new filing until that day. Id. Appellant explained the new motion
arose from a deposition, which had “just occurred.” N.T., 6/22/21, at 30.
Nevertheless, the trial court stated its desire to provide both parties with the
opportunity to present their issues, even though it would delay the start of
trial. Id. at 52. See also Appellant’s Brief at 7 (acknowledging “[t]he trial
judge held a very long hearing”).
We next summarize the parties’ competing arguments. First, Appellant
explained that in a deposition, Appellee’s expert neurologist was repeatedly
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asked about Appellant’s prior motor vehicle accidents and assaults. N.T.,
6/22/21, at 30. However, Appellant asserted, there was no basis or expert
report for a medical causation issue, and thus she sought to exclude any
evidence or suggestion that her present injury was the result of a preexisting
condition. Id. at 30-31. Appellee responded with an entirely different purpose
for presenting the evidence: to show Appellant’s incredibility. Appellee stated
that when Appellee’s expert neurologist asked about her medical history and
any prior traumas, Appellant denied she had any. Id. at 31-32.
The trial court explained it was aware of the “expectant jury awaiting
entry to the courtroom,” as well as the need for further argument on the
motion, and thus deferred a formal ruling. Trial Ct. Op. at 11. Nevertheless,
with respect to Appellee’s incredibility claim, the court advised the parties that
if a witness “make[s] an inconsistency on the stand, [the] other party has a
right to cross-examine [and] follow up on that.” N.T., 6/22/21, at 52-53. The
court stated, “I don’t want to elaborate too much on my ruling because I’ll
leave it up to the parties to take the appropriate action if the situation calls
for it[.]” Id. at 54.
Appellant’s counsel sought clarification on whether their opening
arguments could refer to “what the doctors said[.]” N.T., 6/22/21, at 54. The
court responded, “[I]f it’s going to impeachment or something like that, . . .
you’re allowed to bring that in[,]” but instructed the attorneys not to discuss
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anything they believed, in good faith, would not be admissible during the trial.
Id. at 55-56.
Next, in Appellant’s opening argument, counsel referred to the prior
incidents and Appellant’s response to questions about them:
There’s some things that have happened to [Appellant] over the
years, couple car accidents, she’s been assaulted a couple
times[.] She didn’t go to the emergency room and report it, it’s
not something she thought about until afterward. She didn’t feel
any effects afterward[.] And when she’s asked about it later,
she doesn’t really talk about it[,] she talks about the incident
that impacted her, and you’re going to hear from her exactly what
that is.
N.T., 6/22/21, at 87-88 (emphases added).
Appellee’s counsel then stated in opening argument:
This, ladies and gentlemen, is a fraud. [Appellant] is coming
to you telling you something that is completely untrue. It is
completely false. . . .
[Appellant’s] counsel talked of these various details that will
come up, these prior assaults[ and] motor vehicle accidents. . . .
You see, we took [Appellant’s] deposition[, which is] sworn
testimony[,] under oath. . . .
[Appellant] was specifically asked whether or not she was
involved in any motor vehicle accidents. She said, No[.]
She was then shown medical records . . . from [two motor
vehicle accidents.]
She was also asked whether or not she was ever assaulted
before this incident. And she said, I was not, under oath. [That
response] is nothing short of a blatant lie.
N.T., 6/22/21, at 90-92.
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As stated above, Appellant’s complaint on appeal is that in opening
argument, Appellee improperly discussed the prior incidents, which the trial
court subsequently ruled were not admissible. She wholly ignores, however,
that it was her own counsel who raised it first in opening argument. We thus
disagree with Appellant’s contention that she was prejudiced by Appellee’s
opening argument statements. See Parker, 919 A.2d at 949.
Furthermore, Appellant also ignores additional discussion by the trial
court. The court had given the jury both a preliminary instruction and final
instruction that the attorneys’ opening statements were not evidence, and
that the jury was not to consider the opening statements “as established
facts.” Trial Ct. Op. at 13, citing N.T., 6/22/21, at 73; N.T., 7/1/21, at 6.
“The law presumes that the jury will follow the instructions of the court.”
Maya v. Johnson & Johnson, 97 A.3d 1203, 1222 (Pa. Super. 2014)
(citation omitted). Appellant presents no argument to the contrary. For the
foregoing reasons, we conclude no relief is due on this final issue.
VIII. Conclusion
For the above stated reasons, we deny relief on Appellant’s multiple
evidentiary claims. Thus, we affirm the judgment entered in favor of Appellee.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2023
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