No. 335 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Family Division, of Allegheny County, No. 1830 of 1979.
Severin A. Russo, Pittsburgh, for appellant.
Sara J. Klein, Pittsburgh, for appellee.
Wieand, Tamilia and Popovich, JJ.
[ 329 Pa. Super. Page 386]
A jury in Allegheny County found that Anthony DeLuca was not the biological father of a son born to Elvira Butler on September 8, 1977. A three judge court en banc, with the trial judge dissenting, awarded a new trial because of trial errors. DeLuca appealed. We affirm.
Ms. Butler testified during trial that she had met DeLuca in the summer of 1976. Commencing in the latter part of July and continuing until the first week of December, but with the exception of several weeks in October,*fn1 she and
[ 329 Pa. Super. Page 387]
DeLuca maintained a relationship which included sexual activity on a regular, almost daily, basis. While the relationship continued, she said, she did not engage in sexual relations with any other person. She testified that her pregnancy was not discovered until after her relationship with DeLuca had been terminated in December, 1976. When the child was born, Butler caused DeLuca to be listed as father on the birth certificate. The child was named Anthony Gino DeLuca, allegedly for his father. Medical testimony, based on the results of HLA bloodtesting, demonstrated a 96.4 percent probability that DeLuca was the biological father of the child.
DeLuca denied paternity. He testified that he had had no more than four sexual encounters with Butler and that the last of these had occurred on October 31, 1976. He contended that he had had no sexual relations with Butler during the period of possible conception. He was the sole witness for the defense. He testified that others had had access to and had been on intimate terms with appellee. His testimony in this respect can be summarized as follows: (1) On September 25, 1976, DeLuca peered through a window adjacent to the door of Butler's dwelling and observed Butler and an unidentified male, both of whom were nude on the couch in the living room; (2) Butler told DeLuca she had a boyfriend, a "motorcycle gangster," whom she intended to marry and with whom she had had a late night date in the latter part of October; (3) Butler was "messing around" with men who congregated on a corner across from the apartment in which she lived, who were described by DeLuca as up to "100 Italians;" and (4) Butler told DeLuca that in late November and early December, she had been "stay[ing] overnight" with her mathematics teacher in order to achieve graduation from a Manpower school in which she was enrolled.
"A grant of a new trial is a matter within the sound discretion of the trial court. The . . . court's grant of a new trial will not be disturbed on appeal 'unless there has been a
[ 329 Pa. Super. Page 388]
clear abuse of discretion or an error of law which controlled the grant of a new trial.'" Sindler v. Goldman, 309 Pa. Super. 7, 11, 454 A.2d 1054, 1056 (1982), quoting Crosbie v. Westinghouse Elevator Co., 297 Pa. Super. 304, 307, 443 A.2d 849, 850 (1982). See: Gilligan v. Shaw, 441 Pa. 305, 307, 272 A.2d 462, 464 (1971); Anzelone v. Jesperson, 436 Pa. 28, 30, 258 A.2d 510, 510 (1969); Fisher Sprinkler Co. v. Ide, 305 Pa. Super. 554, 558, 451 A.2d 1015, 1017 (1982); McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 442, 450 A.2d 991, 993 (1982). Moreover, a reviewing court may affirm the decision of the trial court if the result is correct on any ground without regard to the grounds relied upon by the trial court. E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Gwinn v. Kane, 465 Pa. 269, 279 n. 12, 348 A.2d 900, 905 n. 12 (1975); Mazer v. Williams Bros. Co., ...