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
J. A10009/17


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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