J. A33002/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANN COUGHLIN, ADMINISTRATRIX OF :            IN THE SUPERIOR COURT OF
THE ESTATE OF THOMAS COUGHLIN, :                   PENNSYLVANIA
DECEASED,                       :
                                :
                   Appellant    :
                                :
                v.              :                No. 3367 EDA 2014
                                :
UMMU MASSAQUOI                  :


            Appeal from the Judgment Entered January 26, 2015,
            in the Court of Common Pleas of Philadelphia County
                Civil Division at No. July Term, 2013 No. 0355


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 23, 2016

     Ann Coughlin, administratrix of the Estate of Thomas Coughlin,

deceased, appeals from the judgment entered January 26, 2015, in favor of

defendant/appellee, Ummu Massaquoi.       The decedent, Mr. Coughlin, was

struck and killed by appellee while crossing the street.      Evidence was

presented that the decedent was heavily intoxicated at the time of the

accident.   The trial court denied appellant’s pre-trial motion in limine to

exclude evidence of the decedent’s intoxication, including the toxicology

report and the expert testimony of Richard Saferstein, Ph.D.       The jury

determined that appellee’s negligence was not a factual cause of decedent’s




* Retired Senior Judge assigned to the Superior Court.
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death.1   Post-trial motions were denied, and this timely appeal followed.

After careful review, we affirm.

      The trial court has summarized the history of this matter as follows:

                  This matter was tried before a jury over a
            period of three (3) days. After deliberations, the
            jury returned a verdict finding the defendant
            negligent, but that her negligence was not the
            factual cause of the decedent’s death. As a result,
            the jury did not reach the question of damages.
            Based upon the jury’s finding as to the lack of
            causation on the defendant’s part, the errors alleged
            to have been committed by this Court are without
            merit and a new trial is not warranted.

                  This case arises from an accident that occurred
            on January 13, 2012, when Plaintiff’s adult son,
            Thomas Coughlin, was killed while walking across
            Castor Avenue in the Northeast section of the City of
            Philadelphia. He was struck by a car operated by the
            Defendant, Ummu Massaquoi. Defendant admitted
            at trial to never seeing Mr. Coughlin at any time
            before the impact had occurred. There were no
            eyewitnesses to this unfortunate event.

                    Police investigation of this incident revealed
            that:

            [22] A The [defendant’s] vehicle was traveling south
                 on the
            [23] left lane of Castor Avenue approaching Howell
            [24] Street. Vehicle 1’s left fender contacted the
            [25] pedestrian. The pedestrian partially mounted

            [1] vehicle 1, riding the fender, which would be the
            [2] front left side of the vehicle where the tire is --
            [3] above the tire, rather. He then went onto the

1
  To the extent the jury’s verdict could be characterized as inconsistent or
against the weight of the evidence adduced at trial, that issue is not before
this court. The only issue on appeal is the admission of evidence of the
decedent’s intoxication. (Trial court opinion, 6/30/15 at 2.)


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          [4] A-pillar. The A-pillar is the framing of the car
          [5] which holds -- in between the your [sic]
               windshield and
          [6] your door frame, so it rides up. Then the
          [7] pedestrian struck part of the windshield and the
          [8] left side-view mirror partially dislodging the
          [9] mirror.

          N.T., 08-04-2014, Pg. 56, L. 22 to Pg. 57, L.9.

                Further, there were no witnesses who had
          previously observed Mr. Coughlin displaying any
          signs of intoxication or to his overall condition before
          he was killed. Prior to being struck, his whereabouts
          were unknown.

                Despite finding the defendant had operated her
          vehicle in a negligent manner prior to the time of
          impact, the jury did not conclude that the
          defendant’s negligence was the factual cause of the
          decedent’s death. Given the factual circumstances,
          this may have been an inconsistent verdict since
          there were no other factors that the jury could
          consider in determining factual cause once the issue
          of negligence was resolved, however, that issue had
          not been preserved by Plaintiff, nor has it been
          raised as an issue on appeal, and, it is therefore
          deemed waived under Pa. R.A.P. 1925.

                 As to the issues raised on appeal in regard to
          intoxication, the decedent was pronounced dead
          shortly after the accident and his body was
          transported to the Office of the Medical Examiner
          where a complete autopsy, including drug and
          alcohol screens, was performed. Defendant retained
          an expert toxicologist, Richard Saferstein, Ph.D., who
          testified at trial that Mr. Coughlin’s blood alcohol
          levels (BAC) of .313 would have rendered him unfit
          to safely walk or cross the street on the night in
          question.

                There is no indication that the jury relied upon
          the testimony of the defendant’s expert witness in
          regard to the decedent’s unfitness to cross the


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           street, as such reliance would lead this Court to
           believe that had such testimony been considered,
           the jury would have considered the decedent’s
           actions in apportioning defendant’s liability and the
           decedent’s comparative fault.

                 Initially, in her Motion in limine, Plaintiff noted
           that the investigating police officer did not indicate
           anywhere in his report that the decedent had
           exhibited signs of intoxication. The first indication of
           intoxication was through post-mortem blood and
           urine testing which revealed that Mr. Coughlin’s
           blood alcohol level was elevated and that he also had
           trace amounts of other illegal substances in his
           blood.[2]

                  Plaintiff argued that since neither the
           Defendant nor Fire rescue personnel who treated the
           decedent at the scene before he was transferred to
           the hospital, testified that Mr. Coughlin exhibited any
           traits of intoxication such evidence of BAC levels was
           inadmissible.        The    Defendant    argued     that
           Mr. Coughlin’s extremely elevated BAC level of .313
           rendered him unfit to be crossing a four-lane avenue
           between intersections at night. It was the extremely
           high BAC level that Dr. Saferstein relied upon [to]
           render the conclusion that Mr. Coughlin was a
           danger to himself and others on the roadway.

                 In considering these arguments, this Court
           denied Plaintiff’s Motion in limine and permitted the
           admission of both the BAC test results and
           Dr. Saferstein’s testimony into evidence at trial.
           Dr. Saferstein was precluded, however from opining
           as to the ultimate question of causation, as that was
           within the jury’s domain in weighing and considering


2
   According to Dr. Saferstein, the toxicology report revealed the presence of
cocaine metabolite in the decedent’s blood, less than 100 micrograms per
liter.  (Notes of testimony, 8/5/14 at 22.)         The presence of cocaine
metabolite indicates cocaine use within the previous 24 hours; however, it
would have had no effect on the decedent’s behavior. (Id. at 25.) The
decedent did not have cocaine in his system. (Id.)


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            all of the evidence. As previously stated, the jury
            rendered a verdict of no factual causation.

Trial court opinion, 6/30/15 at 1-4.

      The jury rendered its verdict on August 5, 2014. A timely post-trial

motion was filed on August 15, 2014, and denied on August 25, 2014. A

motion for reconsideration was filed on September 22, 2014, as well as a

protective appeal notice on September 24, 2014.3         Appellant’s motion for

reconsideration was denied on September 25, 2014. On October 9, 2014,

appellant was ordered to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) within 21 days; appellant timely

complied on October 29, 2014. The trial court filed a Rule 1925(a) opinion

on June 30, 2015.4

      Appellant has raised the following issues for this court’s review:

            1.    Did the trial court err as a matter of law and/or
                  abuse its discretion by denying plaintiff’s
                  motion in limine and admitting evidence of

3
  The mere filing of a motion for reconsideration is insufficient to toll the
30-day appeal period.       Although a party may petition the court for
reconsideration, the simultaneous filing of a notice of appeal is necessary to
preserve appellate rights in the event that either the trial court fails to grant
the petition expressly within 30 days, or it denies the petition.
Pa.R.A.P. 1701; Valley Forge Center Assoc. v. Rib-It/K.P., Inc., 693
A.2d 242, 245 (Pa.Super. 1997) (citations omitted).
4
   We note that appellant filed her notice of appeal from the August 25, 2014
order denying post-trial motions, an order which is generally interlocutory
and not appealable unless reduced to judgment. However, judgment was
subsequently entered on January 26, 2015; thus, we will consider the appeal
filed after the entry of judgment. Jones v. Rivera, 866 A.2d 1148,
1149 n.1 (Pa.Super. 2005), citing Dominick v. Hanson, 753 A.2d 824,
825 n.1 (Pa.Super. 2000); Pa.R.A.P. 905(a).


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                   Mr. Coughlin’s post-mortem blood alcohol
                   content (“BAC”) when there was no additional,
                   independent    corroborative  evidence     of
                   intoxication?

            2.     Did the trial court err as a matter of law and/or
                   abuse its discretion in allowing the testimony
                   of defendant’s toxicology expert, Richard A.
                   Saferstein, Ph.D., where the sole piece of
                   independent “intoxication” evidence upon
                   which Dr. Saferstein’s testimony was based
                   was Mr. Coughlin’s purported post-mortem
                   BAC?

            3.     Did the trial court err as a matter of law and/or
                   misapply the law set forth in Gallagher v.
                   Ing, 532 A.2d 1179 (Pa.Super. 1987) in
                   denying plaintiff’s motion for reconsideration
                   and upholding the court’s decision to admit
                   evidence of Mr. Coughlin’s BAC without
                   additional independent evidence to corroborate
                   intoxication?

Appellant’s brief at 7.

      We will address appellant’s issues together, as they are interrelated.

Basically, appellant argues that the decedent’s BAC of .313 was inadmissible

as a matter of law where there was no independent corroborating evidence

of intoxication, e.g., slurred speech, odor of alcohol, unsteady gait, etc.

There was no evidence as to Mr. Coughlin’s whereabouts prior to the

accident.   Appellant argues that there was no independent eyewitness

testimony to support an inference that Mr. Coughlin had been drinking and

was heavily intoxicated prior to the accident.        According to appellant,

Mr. Coughlin’s BAC, in and of itself, was insufficient for the issue of

intoxication to go to the jury. We disagree.


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             The Superior Court’s standard for reviewing the trial
             court’s denial of a motion for a new trial is whether
             the trial court clearly and palpably abused its
             discretion or committed an error of law which
             affected the outcome of the case. Melso v. Sun
             Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999
             (1990), appeal denied, 527 Pa. 667, 593 A.2d 842
             (1991); Cooper v. Burns, 376 Pa.Super. 276, 545
             A.2d 935 (1988), appeal denied, 522 Pa. 619, 563
             A.2d 888 (1989). We will reverse the trial court’s
             denial of a new trial only where there is a clear
             abuse of discretion or an error of law which
             controlled the outcome of the case.       Vignoli v.
             Standard Motor Freight, Inc., 418 Pa. 214, 210
             A.2d 271 (1965); Cashdollar v. Mercy Hospital of
             Pittsburgh, 406 Pa.Super. 606, 595 A.2d 70
             (1991). The trial court abuses its discretion when it
             misapplies the law or when it reaches a manifestly
             unreasonable, biased or prejudiced result. Girard
             Trust Bank v. Remick, 215 Pa.Super. 375, 258
             A.2d 882 (1969). Abuse of discretion may occur
             through an honest, but erroneous use of discretion.
             Pachesky v. Getz, 353 Pa.Super. 505, 509, 510
             A.2d 776, 778 (1986); Adelman v. John McShain,
             Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942). A
             new trial may not be granted merely because the
             evidence conflicts and the jury could have decided
             for either party. Hilbert v. Katz, 309 Pa.Super.
             466, 471, 455 A.2d 704, 706 (1983) (citations
             omitted). The grant of a new trial is appropriate,
             however, where the jury verdict may have been
             based     on     improperly    admitted      evidence.
             Wilkes-Barre Iron & Wire Works, Inc. v. Pargas
             of Wilkes-Barre, Inc. v. Caladie, 348 Pa.Super.
             285, 294, 502 A.2d 210, 215 (1985) (citations
             omitted).

Whyte v. Robinson, 617 A.2d 380, 382 (Pa.Super. 1992) (emphasis in

original).

             Questions regarding the admissibility or exclusion of
             evidence are also subject to the abuse of discretion
             standard of review. Rogers v. Johnson & Johnson


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              Products, Inc., 401 Pa.Super. 430, 436, 585 A.2d
              1004, 1007 (1990) (citations omitted). Pennsylvania
              trial judges enjoy broad discretion regarding the
              admissibility of potentially misleading and confusing
              evidence. Daset Mining Corp. v. Industrial Fuels
              Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588
              (1984). Relevance is a threshold consideration in
              determining the admissibility of evidence. Majdic v.
              Cincinnati Machine Co., 370 Pa.Super. 611, 618,
              537 A.2d 334, 338 (1988).          A trial court may,
              however, properly exclude evidence if its probative
              value is substantially outweighed by the danger of
              unfair prejudice. Daset, supra. Generally for the
              purposes of this evidentiary rule, “prejudice” means
              an undue tendency to suggest a decision on an
              improper basis. Id. The erroneous admission of
              harmful or prejudicial evidence constitutes reversible
              error. Whitman v. Riddell, 324 Pa.Super. 177, 471
              A.2d 521 (1984).

Id. at 383.

              Since Critzer v. Donovan, 289 Pa. 381, 137 A. 665
              (1927), the well-settled law of this Commonwealth is
              that where recklessness or carelessness is at issue,
              proof of intoxication is relevant, but the mere fact of
              consuming alcohol is inadmissible as unfairly
              prejudicial,   unless    it   reasonably    establishes
              intoxication. Cusatis v. Reichert, 267 Pa.Super.
              247, 249-50, 406 A.2d 787, 788-89 (1979) and
              cases cited therein. The rule of Morreale v. Prince,
              436 Pa. 51, 53, 258 A.2d 508 (1969), states that
              such evidence of intoxication must reasonably
              establish a degree of intoxication which proves
              unfitness to drive where reckless or careless driving
              is the matter at issue. This Court, in Kriner v.
              McDonald, 223 Pa.Super. 531, 533-35, 302 A.2d
              392, 394 (1973) extended the Critzer/Morreale
              rules of inadmissibility to evidence tending to
              establish intoxication on the part of a pedestrian.
              According to Kriner, such evidence of intoxication is
              inadmissible unless it proves unfitness to be crossing
              the street. Furthermore, no reference should be
              made to a pedestrian’s use of alcohol unless there is


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            evidence of excessive or copious drinking. Cook v.
            Philadelphia Transportation Company, 414 Pa.
            154, 158, 199 A.2d 446, 448 (1964).

Id.

                   The theory behind allowing a blood alcohol
            level to be admitted into evidence in a civil case is
            that it is relevant circumstantial evidence relating to
            intoxication. However, blood alcohol level alone may
            not be admitted for the purpose of proving
            intoxication. There must be other evidence showing
            the actor’s conduct which suggests intoxication.
            Only then, and if other safeguards are present, may
            a blood alcohol level be admitted.

Ackerman v. Delcomico, 486 A.2d 410, 414 (Pa.Super. 1984) (citations

omitted).

      Instantly, Dr. Saferstein testified that an individual with a BAC greater

than .31 would be unfit to cross the street safely:

            Well, let’s talk in terms of the general public,
            because I don’t know Mr. Coughlin and certainly
            didn’t interact with him. But an individual who is at
            .31 would be severely, severely intoxicated. That’s
            four times the legal level of driving in the
            Commonwealth of Pennsylvania, four times higher.
            So he was severely intoxicated due to that high
            concentration of alcohol.

Notes of testimony, 8/5/14 at 22.

            Talking about an average, normal human being at a
            .31, as I indicated, is severely intoxicated. So what
            can we expect from the impact of alcohol at that
            level?     We can expect very poor muscular
            coordination.     We can expect very poor body
            coordination. We can expect slow and unsteady
            hand movements and poor hand-to-eye and
            foot-to-eye coordination. But what’s more, we can
            expect in the average person that that person would


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             be suffering from a significant deterioration in
             judgment and self-control.      That person would
             become -- is a risk taker, taking chances that an
             average human being would not consider to be
             prudent.     That’s probably the most significant
             deterrent that you can associate with a person that’s
             at that level. So that person could find himself or
             herself in situations that you and I would not
             consider to be tenable and would not consider to be
             appropriate. So there is a significant loss of caution
             and self-restraint in an individual of that high of
             blood alcohol level.

Id. at 23-24.

      Dr. Saferstein also testified that even assuming Mr. Coughlin was a

heavy drinker and had built up a tolerance for alcohol, his judgment would

still be significantly impaired:

             Users of alcohol may not show the outward
             manifestations of alcohol; they may not show the
             physical manifestations; they may not show poor
             body gauge; they may not show poor muscular
             coordination or hand-to-eye coordination.         But
             tolerance is not a factor when it comes to judgment.
             Individuals -- we have not ever been able to
             establish that there’s a relationship between alcohol
             tolerance with the so-called outward manifestations
             of alcohol and the ability of alcohol to deteriorate
             your judgment and self-control.

Id. at 26.

      In Dr. Saferstein’s expert opinion, with a BAC of .313, Mr. Coughlin

would have been unable to safely traverse the intersection:

             This individual was severely, severely intoxicated,
             and in my opinion, he could not safely cross the
             street without endangering his life and well-being.
             As I indicated, and I keep coming back to the same
             thing, at this level of intoxication, an average normal


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            human being would be expected to show a
            significant deterioration in judgment and self-control.
            Now, how [to] blend that into the circumstances of
            this particular situation is not possible for me to say.
            You shouldn’t be driving, and you shouldn’t be taking
            chances walking as a pedestrian. So I think the best
            I thing [sic] I can offer is that we’re dealing with a
            severely intoxicated individual who would be
            expected, as an average person, to be showing a
            significant decline in judgment and self-control.

Id. at 27-28.

      Instantly, there is no eyewitness testimony to corroborate the fact of

Mr. Coughlin’s intoxication, e.g., slurred speech, staggered gait, etc.     No

one saw Mr. Coughlin try to cross the street.       No one actually saw him

consume any alcohol. However, we have held that the “other” evidence of

intoxication necessary to render admissible the results of a blood alcohol test

does not have to consist of third-party eyewitness testimony, as appellant

suggests, but may consist of expert testimony describing the effects of a

particular BAC level on the average person.      See Gallagher v. Ing, 532

A.2d 1179, 1183 (Pa.Super. 1987), appeal denied, 548 A.2d 255 (Pa.

1988) (“The ‘other’ evidence necessary to render admissible a blood alcohol

content in excess of .10 percent, it has been held, may consist of expert

testimony interpreting the significance of the results of blood alcohol tests

with respect to unfitness to drive.”) (citation omitted); see also Braun v.

Target Corp., 983 A.2d 752, 760 (Pa.Super. 2009), appeal denied, 987

A.2d 158 (Pa. 2009) (“Corroborative evidence to establish intoxication can

be in the form of expert testimony, indicating that the level of drugs or


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intoxicants in the injured party’s bloodstream would have affected his

judgment, coordination, and/or impaired his motor skills to such a degree

that he was unfit to perform the activity in question.”), citing Gallagher,

supra.

      Here, we determine that Dr. Saferstein’s expert testimony was

sufficient corroborating evidence for admission of the decedent’s BAC result.

Therefore, the trial court did not abuse its discretion in denying appellant’s

motion in limine and post-trial motion for a new trial.5

      Judgment affirmed.



      Stabile, J. joins the Memorandum.

      Strassburger, J. files a Concurring Statement in which Stabile, J. joins

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016




5
  As we find that evidence of Mr. Coughlin’s alcohol consumption was
properly admitted, we need not address the trial court’s assertion that the
jury must not have considered this evidence since it found appellee
negligent.


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