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CAROL A. MILLER v. MARK KRINER (04/12/85)

filed: April 12, 1985.

CAROL A. MILLER
v.
MARK KRINER, APPELLANT



No. 00349 Pittsburgh, 1984, Appeal from the Order of the Court of Common Pleas, Elk County, Civil Division, at No. 82-71.

COUNSEL

George N. Daghir, Saint Marys, for appellant.

Vernon D. Roof, Ridgway, for appellee.

Brosky, Tamilia and Roberts, JJ.

Author: Brosky

[ 341 Pa. Super. Page 296]

This case is before us on appeal from the order of the lower court imposing upon appellant a duty of support and ordering him to pay costs, subsequent to a jury's determination that appellant was the father of appellee's child. We find no merit to appellant's arguments, and, accordingly, we affirm.

Appellant first argues that he should be granted a new trial because the lower court refused to permit him to impeach the credibility of expert witnesses by using the results of H.L.A.*fn1 blood tests which had been performed on his brother, Michael, and which indicated that Michael had a slightly higher (.02%) likelihood of paternity. Immediately prior to commencement of the trial, by motion in limine, appellee's counsel challenged appellant's right to introduce the results of the blood tests which had been performed on appellant's two brothers. The lower court ruled that the results of the tests might be relevant during cross-examination of expert witnesses concerning effectiveness or lack of certainty of the tests, but that the test results had to be used "in the third-party sense," challenging the test "not by way of name of Brother Scott or Brother Michael." In fact, appellant's counsel cross-examined one of the expert witnesses in detail concerning hypothetical brothers who had similar test results (using the same results as were actually obtained from appellant and his brother Michael), as follows:

Q. Let's talk about blood types. For example, supposing that my brother was accused of being the putative father and I went and -- he went to your laboratory, and he came off with a plausibility of paternity of 99.17

[ 341 Pa. Super. Page 297]

    percent and a paternity index of 120 to 1 like we have in this case, and then I came to you and said, "Mr. Houtz, will you take my blood test and run it through the same system that you have run this thing through," and you came up with the results in my case of not only 120 to 1, but 122 to 1, and you came up with the results of plausibility of paternity of not only 99.17, but 99.19 percent, would you say that the probability of me being the father was greater than my brother?

A. Well, I would have to ask first of all did you both have sexual access to the woman in the case.

Q. I would have to answer in all fairness to you, yes, we both had access.

A. If I remember your question, my answer was going to be that if both men being brothers had sexual access to the mother in the case, I would tell you I couldn't tell you which one is the father of that child.

Q. So that it not only requires of this 2.9 percent differential or 2.7 percent, I'm sorry, that they might have a higher probability of being the father, but it also requires that they must have had sexual access to the mother? Is that what you are saying?

A. Yes.

Q. What if I proved to you that Mark Kriner did not have sexual access to the mother? What would be the result of your -- what would be your opinion on the ...


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