J-A05007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CHRISTINE CANNON                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM J. MACNEAL, JR., AND               :   No. 2305 EDA 2017
    ROSEMARY MACNEAL                           :

              Appeal from the Judgment Entered August 17, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): September Term, 2015 No. 03249


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                   FILED JUNE 06, 2018

        Appellant, Christine Cannon, appeals from the Judgment entered in the

Philadelphia County Court of Common Pleas after a jury rendered verdict in

favor of Appellees, William J. MacNeal, Jr., and Rosemary MacNeal.1 After

careful review, we affirm.

        The relevant facts, as gleaned from the certified record and the trial

court’s Pa.R.A.P. 1925(a) Opinion, are as follows:        On February 14, 2014,
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1  We note Appellant filed an appeal from the Order denying Post-Trial
Motions. An appeal does not properly lie from an order denying post-trial
motions. See Johnston the Florist, Inc., v. TEDCO Const. Corp., 657
A.2d 511, 514 (Pa. Super. 1995). This Court directed Appellant to praecipe
the trial court Prothonotary to enter judgment and file a certified copy of the
trial court docket reflecting the entry of judgment with this Court. The
Notice of Appeal previously filed is treated as filed after the entry of
judgment. See Pa.R.A.P. 905(a).



____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant parked her car in front of Appellees’ house and slipped and fell on

snow and ice that was on their sidewalk. While she was lying on the ground,

she called her mother, Kimberly Xibos, who lived across the street. Xibos

brought Appellant to her home and Appellant subsequently went to the

hospital. As a result of the fall, Appellant sustained a fracture to her right

shoulder, which required surgery.

      On September 30, 2015, Appellant filed a Complaint against Appellees

seeking damages based on a claim that her slip and fall, and the resulting

injuries, occurred because Appellees negligently failed to maintain their

sidewalk.   On November 4, 2015, Appellant filed an Amended Complaint,

specifying the location of her fall.

      Prior to trial, Appellant filed a Motion in Limine, seeking to preclude

evidence of her prior knee injury from a 2010 skiing accident, her pain

medication prescriptions, and her cigarette smoking. The court granted the

Motion in limine in part and precluded evidence of Appellant’s prior knee

injury as a contributing factor to her fall.    However, the court permitted

evidence of her prior knee injury to establish that Appellant was not on pain

medication solely as a result of the fall, to establish her prior pain level, and

for impeachment purposes if Appellant were to testify that she had

limitations on her knee as a result of the fall. See N.T., 2/27/17 at 3-7, 10-

12.

      Trial commenced on February 27, 2017.             Prior to the start of

testimony, Appellees informed the court they had subpoenaed Appellant’s

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mother, Ms. Xibos, but were unable to confirm that she would appear in

court.     See N.T., 2/27/17, at 22.           Appellant testified, inter alia, that her

mother helped her get from the street after her fall to her mother’s house.

Appellant did not call her mother to testify.           Appellees called Ms. Xibos to

testify, but she had failed to appear at the courthouse.2

         In addition to Appellant’s testimony, the jury heard testimony from

Appellees and two of Appellant’s treating doctors regarding her injury and

her prescription pain medication use both before and after the accident at

issue.

         At a charging conference after the close of testimony, Appellees

requested, among other things, that the court instruct the jury that they

may make an adverse inference regarding Appellant’s failure to call her

mother to testify on her behalf.         The court denied the request, but stated

that Appellees’ counsel could make an argument to the jury about the fact

that Appellant did not call her mother to testify. Appellees’ counsel stated

the following during his closing argument to the jury:

         . . . [Appellant’s] mother was out there. She would know exactly
         where the plaintiff was laying. She would know exactly what the
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2 Appellees’ counsel told the court that he had attempted to subpoena Ms.
Xibos prior to the start of trial to attend the trial but found out that she had
moved. His requests to Appellant’s counsel via “a chain of emails” for her
current address went unanswered.           N.T., 2/28/17, at 95.       Appellees’
attorney stated that he learned Ms. Xibos’ current address during Appellant’s
direct testimony at trial on February 27th, and served her with a subpoena
the evening of February 27, 2017. Id. at 96.



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      sidewalk looked like.     She would know exactly what the
      conditions and the weather were in the neighborhood during that
      part of the day and earlier. We didn’t hear anything from her.
      Literally nothing.

      Wouldn’t you expect using your common sense that one would
      say, Hey, I got to prove this case to the jury. Would get their
      mother to come in and support them? You didn’t hear the
      [Appellant] say, Hey, look, this is why my mother can’t come in.
      We have no idea why her mother is not here. Maybe it’s
      because she wouldn’t support her. And by supporting, I don’t
      mean that she’s a bad mother. Maybe it’s because what the
      mother knows is different and hurts the case.

N.T., 3/1/17, at 39-40.

      In response, Appellant’s attorney minimized the importance of

Ms. Xibos’ involvement, and then stated:

      They knew exactly who her mother is and where she lived. If
      they wanted to bring her in, they should have done that. But
      instead they chose, Oh, we’re not going to put up any evidence.
      It’s not fair to come in and say that she might have secret
      information that is bad for your case when they had equal access
      to her and decided not to call her. That’s something that you can
      consider.

Id. at 53.

      After deliberating, the jury found that Appellees had been negligent,

but that their negligence was not a substantial factor causing Appellant’s

injuries.    Appellant filed a Post-Trial Motion seeking a new trial limited to

damages. The court denied the Motion.

      This appeal followed.      Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:



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          I. The trial court abused its discretion or committed an
          error of law by allowing Appellees’ counsel to suggest the
          jury could draw an adverse inference from Appellant’s
          failure to call a witness that was within the reach and
          knowledge of both parties.

          II. The court committed a prejudicial error of law or an
          abuse of discretion by denying [Appellant’s] Motion in
          Limine to preclude evidence regarding [Appellant’s] prior
          knee injury and prescribed use of oxycontin where
          [Appellees] offer medical testimony regarding the
          appropriateness of the prescriptions.[3]

Appellant’s Brief at 8, 15.4

Issue I – Adverse Inference

       Appellant avers that because Ms. Xibos was known to both parties, the

trial court erred in permitting Appellees’ counsel to argue in closing that the


____________________________________________


3 Appellant raised issues in her Rule 1925(b) Statement that she did not
raise or address in her Brief. Those abandoned claims are waived. See
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(“an issue identified on appeal but not developed in the appellant's brief is
abandoned and, therefore, waived.”). Appellant acknowledged withdrawing
certain claims. Appellant’s Brief at 7.
4 We gleaned Appellant’s issues from the argument in her Brief as she failed
to include a separate statement of questions involved. Pa.R.A.P. 2111(a)(4)
and 2116(a) require an appellant to include in her brief a statement of
questions involved. “Issues not presented in the statement of questions
involved are generally deemed waived.” Werner v. Werner, 149 A.3d 338,
341 (Pa. Super. 2016). However, “such a defect may be overlooked where
[an] appellant's brief suggests the specific issue to be reviewed and
appellant's failure does not impede our ability to address the merits of the
issue.” Id. Because we can discern Appellant’s issues from the argument
section of her Brief, her failure to provide a statement of questions involved
does not impede our review. We, thus, decline to find the issues waived.




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jury could draw an adverse inference from Appellant’s failure to call her

Mother to testify. See Appellant’s Brief at 8-9. Appellant also argues that

when a court declines to give an adverse inference charge, it commits error

by allowing counsel to raise the adverse inference in closing argument. Id.

at 13-14. Appellant concludes that she is entitled to a new trial limited to

damages.

      “The decision to issue a missing witness instruction, or alternatively

whether to permit counsel to make an argument on closing equivalent to

such an instruction, ‘is a matter within the trial court's discretion which this

Court will not overturn absent manifest abuse.’” Hawkey v. Peirsel, 869

A.2d 983, 986 (Pa. Super. 2005) (quoting O'Rourke v. Rao, 602 A.2d 362,

364 (Pa. Super. 1992). “Although the bulk of relevant case law [pertains to]

trial court refusals to issue a jury instruction, our Supreme Court [has]

observed that in such a case ‘it is the inference itself that is prohibited,

whether it comes from opposing counsel or the court in its instructions.’

Bennett v. Sakel, 725 A.2d 1195, 1196 (Pa. 1999).” Hawkey, supra at

986 (quoting O’Rourke, supra) (emphasis in original).

      “Generally, when a potential witness is available to only one of the

parties to a trial, and it appears this witness has special information

material to the issue, and this person's testimony would not be merely

cumulative, then if such party does not produce the testimony of this

witness, the jury may draw an inference it would have been unfavorable.”


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Kovach v. Solomon, 732 A.2d 1, 8-9 (Pa. Super. 1999) (citation omitted

and emphases in the original). See also O'Rourke v. Rao, 602 A.2d 362,

364 (Pa. Super. 1992) (observing that “the witness must be within the

control of the party in whose interest it would naturally be to produce him.

Absent a showing of the witness' unavailability to the party seeking the

inference, no inference can be taken.” (citations omitted)). “[T]he burden is

on the party seeking the inference to demonstrate the missing witness's

unavailability.” Hawkey, supra at 987.

      The threshold question then is whether Ms. Xibos was available to both

parties. Appellant did not call her mother as a witness. As noted previously,

Appellees attempted to obtain Appellant’s mother as a witness, however,

they were not certain she would appear. At trial, after learning of Ms. Xibos’

current address, Appellees served a subpoena on her. However, she did not

respond to the subpoena. Thus, she was not available to Appellees at the

time of trial.

      The trial court opined that because the witness was Appellant’s own

mother, and arguably the only witness who could have supported Appellant’s

testimony as to the location of her fall, it did not err in permitting Appellees,

in closing, to argue to the jury that it may draw an adverse inference from

Appellant’s failure to produce Ms. Xibos. Trial Ct. Op., 10/10/17, at 16.    We

agree.   Under the facts of this case, the trial court properly exercised its




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discretion in permitting counsel to argue for an adverse inference.

Accordingly, Appellant’s first issue warrants no relief.

Issue 2 – Partial denial of Motion in Limine

      Appellant contends in her second issue that the trial court erred in

denying that portion of her Motion in Limine seeking to preclude evidence

regarding her prior knee injury and her prescribed use of Oxycontin.

Appellant’s Brief at 15. Appellant argues that the court erred in admitting

the testimony of her prescription drug use in the absence of expert medical

testimony explaining the role of medication in treating her chronic knee pain

and post-surgical pain, citing Callahan v. National R.R. Passenger Corp.,

979 A.2d 866 (Pa. Super. 2009). Id. at 17.

      We review a court's decision to deny a motion in limine for an abuse of

discretion. Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011)

(en banc). “[W]hether evidence is admissible is a determination that rests

within the sound discretion of the trial court and will not be reversed on

appeal absent a showing that the court clearly abused its discretion.” Fisher

v. Central Cab Co., 945 A.2d 215, 218 (Pa. Super. 2008) (citation

omitted).

      Our rules of evidence provide that all relevant evidence is admissible,

unless subject to exception. Pa.R.E. 402. “To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial




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to the complaining party.” Ettinger v. Triangle–Pacific Corp., 799 A.2d

95, 110 (Pa. Super. 2002) (citation omitted).

       Appellant’s reliance on Callahan, supra, is unavailing. In Callahan,

the appellant sought to introduce evidence of the appellee’s twenty-year

history of chronic substance abuse.            On appeal, this Court held that the

claim that the appellee had a dependence on prescription medications

required evidence from a medical expert, “since an opinion that such

constituted      ‘substance       abuse’       necessarily   required   specialized

knowledge beyond that of a lay juror.” Callahan, 979 A.2d at 878-79

(emphasis added).         Because the instant case has nothing to do with

substance abuse, Callahan is factually and legally distinguishable from the

instant case.5

       The trial court found that the evidence of Appellant’s prior knee injury

and of the pain medication she took prior to the instant accident for resulting

chronic knee pain was relevant and “not unfairly prejudicial.” Trial Ct. Op.,

10/10/17, at 10. The court noted:

       [A]t the time of [Appellant’s] falling incident, … [Appellant] had
       been taking prescription pain medications and had some
       limitations in her life due to this [prior] injury. On one hand, if
____________________________________________


5  In fact, Appellees at no time argued that Appellant abused her
prescriptions. Rather, as Appellees’ counsel noted, “[t]he questioning is
about the fact that her treatment, her pain treatment[,] was the same
treatment” both before and after the slip and fall accident. N.T., 2/27/17, at
6-7.




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      the jury were to hear about the knee injury without further
      clarification, the factfinders could have unnecessarily pondered
      over the injury and tried to create an unwarranted causal link
      between [Appellant’s] knee and the fall, as [Appellant]
      anticipated. On the other hand, if the knee injury had been
      precluded completely, the jury would have reached an equally
      unwarranted conclusion that [Appellant] had been free from pain
      and limitations before the fall.

      Taking both sides into account, the court granted [Appellant’s]
      [M]otion in [L]imine in part to preclude [Appellees] from using
      the knee injury evidence to show causation but allowed
      [Appellees] to present the evidence if [Appellant] attempted to
      attribute all of her physical limitations or use of pain medications
      on the [instant] falling accident. Nowhere in the record shows
      that [Appellees] disregarded the court’s ruling and attempted to
      attribute [Appellant’s] fall to her knee. Instead, [Appellees]
      cross-examination of [Appellant] on the prior knee injury was
      entirely focused on damages, i.e., [Appellant’s] pain level, her
      pain medication prescriptions, and limitations due to the prior
      knee injury. The jury was presented with a full picture of
      [Appellant’s] physical limitations, use of pain medication, and
      pain level before and after the accident at issue. A new trial is
      not warranted because no prejudice resulted from the court’s
      admission of [Appellant’s] prior knee injury.

Id. at 8.

      We agree with the trial court that no prejudice resulted from the

court’s limited admission of Appellant’s prior knee injury and prescription

medication history. The evidence showed that her pain medication dosage

was the same both before and after the accident. If evidence of her prior

prescription record had been precluded, the jury could have improperly

concluded that Appellant took the pain medication solely as a result of the

pain experienced from her shoulder injury. “Surely, such testimony would

have been misleading.” Id. at 10.



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      The trial court properly concluded that the probative value of this

evidence outweighed its prejudicial effects.      The record supports the trial

court’s   ruling,   and   we   discern   no   abuse   of   the   court’s   discretion.

Accordingly, we affirm the Judgment.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/18




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