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KIMBERLY J. BENDER v. STEVEN A. BILLET (05/19/86)

SUPERIOR COURT OF PENNSYLVANIA


May 19, 1986

KIMBERLY J. BENDER
v.
STEVEN A. BILLET, APPELLANT

Appeal from the Order entered March 26, 1985 in the Court of Common Pleas of York County, Civil Division, No. 311 SA 1983

Before: McEWEN, Montemuro and Cercone, JJ.

Per Curiam

Reversed and remanded for a new trial. Jurisdiction is relinquished.

Montemuro, J. files a Dissenting Memorandum.

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of York County is reversed and remanded for a new trial. Jurisdiction is relinquished.

Disposition

Reversed and remanded for a new trial. Jurisdiction is relinquished.

MONTEMURO, J.

I must dissent. The majority finds that it was an abuse of discretion for the trial court to refuse to admit into evidence appellant's time card from his place of employment for the date of March 15, 1982, and in refusing to allow Millie Cross, the business records keeper of appellant's employer, to testify at trial as to the time card and the hours listed herein. I cannot agree. I find this exclusion to be harmless, and would affirm the order of the trial court. For the exclusion of evidence to constitute reversible error, the moving party must show that the exclusion was detrimental to his case. Warren v. Mosites Construction Co., 253 Pa. Super. 395, 385 A.2d 397 (1978). Appellant here has made no such showing. Although appellant claims the exclusion of this evidence denied him a defense, i.e., that he was working at the time appellee's alleged conception occurred, we find from our review that the notes of testimony belie appellant's contention. It is clear from the record that the testimony presented at trial fully disclosed appellant's "alibi" defense to the jury.

Appellant and appellant's wife stated several times during direct and cross examination that appellant was at work from 8:00 A.M. until 8:30 P.M. on March 15, 1982. N.T. June 18, 1984, at 50, 54, 71, 72, 73. They both testified that appellant, while at work, was called to the telephone by his foreman to receive a call from appellant's wife, at approximately 8:00 P.M., Id at 53, 72. Appellant's wife testified that appellant called her at 8:30 P.M. stating he had just "punched out" and was on his way home. id. at 72, 73. Appellant's wife further testified that she kept track of the hours her husband worked, and that his pay stub reflected that he worked until 8:30 P.M. on March 15, 1982. Id. at 74. Appellant's defense was further supported by appellant's mother, who testified that she witnessed appellant's wife place a phone call to appellant at his place of employment at 8:00 P.M. on March 15, 1982, and that appellant's wife spoke to appellant. Appellant's mother further testified that appellant spent the entire evening of March 15, 1982, together with her, her husband, and appellant's wife. Id. at 80-82.

Appellant's testimony made it clear to the jury that he used a time card on March 15, 1982, and that he punched in at 8:00 A.M. and out at 8:30 P.M. Appellant's wife testified that his pay check reflected that he worked those hours on the day in question. The time card exhibit and the testimony of Millie Cross would have been cumulative at best. Our court has held that, "Excluding evidence that would have only repeated evidence otherwise admitted is harmless error." Robinson v. City of Philadelphia, 329 Pa. Super. 139, 146, 478 A.2d 1, 4 (1984). I find this to be the case here.

Given that appellant has failed to demonstrate that he was prejudiced by the exclusion of testimony, and the subject of the excluded testimony was fully aired before the jury, I find that the exclusion of this evidence was harmless.

Furthermore, the majority asserts that the trial court "may have worked a manifest injustice on appellant' by excluding this evidence because appellee admitted she had had sexual intercourse with another man, Keith Mummert, during the possible gestation period. The majority has failed to consider the results of Keith Mummert's blood test. This blood test, which was admitted into evidence at trial and is before us as part of the trial record, shows determinatively that Mr. Mummert can not be the father of appellee's child. N.T. 40-41. To remand this case for a new trial on this basis would be inefficacious, and would unnecessarily tax our judicial resources. Additionally, remanding this case would work to the detriment of the child in question as the majority has left this child without an order of support against the man whom the jury found to be the child's father.

Accordingly, I would affirm the trial court's order denying appellant's post trial motions and I would reach appellant's second issue.

19860519

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