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COLLEEN MCKEE v. MICHAEL P. EVANS (11/30/88)

filed: November 30, 1988.

COLLEEN MCKEE, A MINOR BY RUTH MCKEE, HER PARENT AND NATURAL GUARDIAN, AND RUTH MCKEE IN HER OWN RIGHT, APPELLANTS,
v.
MICHAEL P. EVANS, RAYMOND P. LINDEN AND MARK H. TRECKI. MARGARET CARROLL, A MINOR, BY OLIVE CARROLL, HER PARENT AND NATURAL GUARDIAN; AND JACQUELINE CARROLL, A MINOR, BY OLIVE CARROLL, HER PARENT AND NATURAL GUARDIAN; AND OLIVE CARROLL, IN HER OWN RIGHT, V. MICHAEL P. EVANS, RAYMOND P. LINDEN AND MARK H. TRECKI. APPEAL OF MARGARET CARROLL. RICKY JOSEPH WAITE, APPELLANT, V. MICHAEL P. EVANS, RAYMOND P. LINDEN AND MARK H. TRECKI



Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 82-9245. Appeal from the Judgment and Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 82-05374. Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD83-938.

COUNSEL

J. Kerrington Lewis, Pittsburgh, for appellant at No. 00644PGH86.

John A. Caputo, Pittsburgh, for appellant at No. 00691PGH86.

John W. Jordan IV, Pittsburgh, for appellee Michael P. Evans.

Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Beck, J., files a concurring opinion. Wieand, J., files a concurring statement in which Olszewski, J., joins. Tamilia, J., concurs in the result.

Author: Brosky

[ 380 Pa. Super. Page 125]

These are consolidated appeals from judgments entered on verdicts after appellants' post-trial motions were denied, as well as from an order granting a new trial limited to damages.

Appellants, Colleen McKee (hereafter "Colleen"), Margaret Carroll (hereafter "Margaret") and Ricky Joseph Waite (hereafter "Ricky") contend that the trial court erred in not granting them a new trial on both liability and damages.

[ 380 Pa. Super. Page 126]

Their specific representations before the court en banc concern the alleged erroneous admission of a police officer's testimony relative to the point of impact of a head-on collision between two of the three involved motor vehicles and the trial court's purportedly faulty instructions to the jury that the police officer's testimony on point of impact was based solely upon location of debris at the accident scene.

Appellants secondly challenge the trial court's charge to the jury on the applicability of the sudden emergency doctrine with respect to appellee, Raymond Linden (hereinafter "Linden"), whose negligence the jury found not to be a substantial factor in causing the subject collision.

We also address the issue of propriety of admitting testimony of Mark Trecki concerning his alcohol consumption prior to the accident in question.

Because we conclude that the trial court erred in instructing the jury on the applicability of the sudden emergency doctrine to this case, we vacate the judgments entered on the verdicts as well as the order granting a new trial on damages and remand for a new trial on both liability and damages as to all parties.*fn1

The operative facts giving rise to the accident which is the subject of the instant appeal are as follows:

[ 380 Pa. Super. Page 127]

On November 28, 1981, after returning from a trip to the Meadows racetrack with his girlfriend, Arlene Herman (hereafter "Arlene") and another male friend, Linden drove that friend home and then took Arlene to his (Linden's) parents' home. Linden then drove Arlene to her parents' residence, where she also lived. He parked in front of Arlene's home at approximately 2 a.m. At that time, Arlene's parents were at home. After a minute or two, and while Linden and Arlene were still in the vehicle which Linden had been operating and had then parked in front of Arlene's house, Michael Evans (hereafter "Evans"), Arlene's estranged boyfriend, came up the street in his Jeep towards the parked car in which Linden and Arlene were seated. When Arlene saw Evans, she identified the latter as her former boyfriend and told Linden "to get out of there." N.T. 786. Linden had not known that the occupant of the Jeep was Evans prior to Arlene informing him of that fact.

Linden had at first decided to drive around the block, hoping that Evans would leave. Instead, this incident began a ten-to-fifteen minute, ten-mile pursuit of Linden by Evans through the West End of the City of Pittsburgh. During this time, Evans kept bumping the rear of Linden's car and flicking his high beams on and off. Evans also attempted to pass Linden on the latter's left. However, Linden would not allow Evans to pass him because he (Linden) was afraid that if Evans succeeded in passing, Linden would rear end Evans.

Linden indicated that Evans would have physically harmed him if he had pulled over, and he was fearful during the entire episode. Linden did not stop at the police station which he passed because this would have required him to cross over to the left side of the road. Linden feared that Evans' Jeep would have struck him had he attempted to cross over the road to get to the police station.

When Linden reached the top of Windgap Road at the sharp curve, he observed vehicle lights coming towards him from the opposite direction. Linden stated that he was in

[ 380 Pa. Super. Page 128]

    the right lane. He then hit the brakes and cut left to attempt to avoid colliding with the vehicle driven by Mark Trecki (hereafter "Trecki") coming from the opposite direction. He could not avoid the accident. Almost simultaneously with the impact from the vehicle driven by Trecki, Evans, according to Linden, rear ended him. Trecki's three passengers are the instant appellants, Colleen, Margaret and Ricky.

I.

We will first treat the two related issues bearing upon Police Officer Katherine Vallone's (hereafter "Officer Vallone") testimony on point of impact.

A.

Appellants initially contend that Officer Vallone's testimony amounted to improper opinion evidence as to the cause of the accident. Appellants argue that admission of this testimony was error because it called for rendition by a qualified expert.

It is true, as appellants posit, that an investigating police officer who did not witness an accident may not render an opinion at trial as to its cause unless he/she has been qualified as an expert. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Reed v. Hutchinson, 331 Pa. Super. 404, 480 A.2d 1096 (1984); Lesher v. Henning, 302 Pa. Super. 508, 449 A.2d 32 (1982); Anderson v. Russell, 33 Pa.D. & C.3d 308 (1983), aff'd, No. 151 Harrisburg 1983, per curiam , filed August 10, 1984. See also Commonwealth v. Speelman, 235 Pa. Super. 109, 341 A.2d 108 (1975).

The trial record fails to demonstrate that Officer Vallone was properly qualified as an expert witness. Thus, if we conclude that her testimony concerning point of impact was tantamount to rendition of an opinion as to causation, then, based upon the foregoing authorities, it was improperly admitted as to this matter. The trial record, however, does not support such a finding. Instead, the

[ 380 Pa. Super. Page 129]

    record amply demonstrates that Officer Vallone never proffered an opinion as to the cause of the accident giving rise to the matter now before us. Hence, it is unnecessary for us to consider whether Officer Vallone's testimony was erroneously admitted without proper qualification. Whether counsel made an adequate offer of proof as to Officer Vallone's qualifications to testify as to the cause of the subject accident is also irrelevant. For as the trial court aptly observed, "[a]nybody could have those qualifications . . . . Any one of us could do that without even having any police work at all." N.T. 724-25. We agree. Based upon our examination of the various exchanges occurring between Officer Vallone and counsel for appellants on cross-examination and our analysis of the prevailing case law in this Commonwealth, we hold that the testimony proffered by Officer Vallone regarding point of impact was properly admissible as lay opinion.

Officer Vallone had prepared a police report of the accident which included a drawing of the scene as she observed it. In this drawing, Officer Vallone had positioned the three motor vehicles (Evans', Linden's and Trecki's) as she found them upon her arrival at the scene and with a projected line of travel towards the collision for each.

The portion of Officer Vallone's testimony which appellants find particularly objectionable is that concerning her placement of an "X" on the drawing signifying what was, in her belief, the point of impact between the Linden and the Trecki vehicles. The placement of the "X" on the police report diagram was in the north bound lane of traffic. She premised this belief upon the respective positions of the subject vehicles on the roadway and the location of debris at the scene. Officer Vallone also testified that she had spoken with Linden and another witness, Mr. Scheuer, to obtain information concerning the impact. Thus, based upon the positions of the respective vehicles as they appeared to Officer Vallone subsequent to the accident, the location of the debris and her conversations with Linden and Mr. Scheuer, she was able to identify the point of

[ 380 Pa. Super. Page 130]

    impact which was represented by the "X" on her police report diagram. N.T. 736.

Officer Vallone, when asked of what the debris which she found at the scene consisted, explained that debris would consist of glass from headlights and dirt from fenders which would have fallen from the vehicles at the point of impact. She indicated that the debris was located "on the wrong side of the road" and that the "X" "was to show that [she] believe[d] the point of impact was on the wrong side of the road." N.T. 748. Officer Vallone could not tell from what distance from the center line she believed the point of impact to be.

The following exchange took place on cross-examination of Officer Vallone by counsel for Margaret:

Q. How far is your X on the drawing from the center line?

A. Not far.

This diagram wasn't made to scale. That was to show what I believe the point of impact was on the wrong side of the road, period.

I don't know how far from the center line, just that it was on the wrong side of the road.

Q. So you don't know how many feet it was from the center line?

A. No, just that it was on the wrong side of the road.

Q. And you have drawn it so that it is more toward the center line than to the right side of the road; is that correct?

A. My point was that it was on the wrong side of the road. What the relationship is to the double yellow line may have just been where my pen fell on the road.

Q. So where you marked the X here, the X could be here or it could be up here; is that correct?

[ 380 Pa. Super. Page 131]

A. Just as long as the point is understood it was on the wrong side of the road.

N.T. 747-49.

Initially, counsel for Linden, on direct, asked Officer Vallone the basis for her belief where the point of impact had occurred between the Linden and the Trecki vehicles, i.e., the placement of the "X" on her police report diagram.

BY MR. ROSENBERG

Q. Now, Officer, you have in the photograph in the position between the resting place of the Linden and Trecki vehicle an X?

A. Yes, sir.

Q. Would you tell us what that identifies?

A. That identifies what I believe to have been the point of impact.

Q. And on what do you base that belief, Officer?

A. The debris on the roadway.

Q. All right. Did you also talk to a witness?

A. Yes, sir, I did.

Q. What was his name?

A. Nick Scheuer.

Q. Did you talk to him that night?

A. Yes, sir, I did.

Q. Did information received from him help you identify the point of impact?

A. Yes, sir, it did.

Q. Did you also talk to some of the occupants in the car, in the several cars?

A. Yes, sir.

Q. Do you remember who they may have been?

A. According to my reports [sic] I spoke with the operator of the second vehicle which would have been Mr. Linden.

Mr. Lewis: I didn't hear that, your Honor.

A. According to my reports I spoke with Mr. Linden who would have been the operator of the second vehicle, as well as the witness.

[ 380 Pa. Super. Page 132]

BY MR. ROSENBERG:

Q. So that you observed the positions of the vehicles as they existed, you saw the debris on the roadway, you talked to the witness and Mr. Linden and from that you identified, from all of those things you identified the point of impact?

A. Yes, sir.

N.T. 735-36. Emphasis supplied.

It is evident from the foregoing that Officer Vallone based her testimony as to point of impact upon discernible factors: her observation of the location of the debris on the roadway, the positions of the respective vehicles as she found them upon her arrival at the scene of the accident and her conversations with Mr. Scheuer, an eyewitness, and Linden. Additionally, counsel for appellants requested Officer Vallone to recount her observations based upon the diagram which she drew on her police report. She reiterated numerous times on cross-examination that her purpose in placing the controversial "X" on the diagram was to show where the point of impact had been, based upon the foregoing events -- the settlement of the debris, the resting places and positions of the vehicles in the aftermath of the collision and her interviews with Mr. Scheuer and Linden. Thus, Officer Vallone based her testimony on her police report which consisted of the drawing of the accident scene as she observed it and her interview notes.

Appellants rely on several cases which they urge this court to accept as dispositive of their contention that the substance of Officer Vallone's testimony went to the cause of the accident and, therefore, should have been disallowed. Our perusal of these authorities plus others which we deem more persuasive to the contrary forces us to decline appellants' invitation.

In Smith v. Clark, supra, the Pennsylvania Supreme Court awarded a new trial based upon the erroneous allowance of a police officer's opinion testimony that the cause of the accident there was due to the driver's failure to react in a manner which would have enabled him to execute a curve

[ 380 Pa. Super. Page 133]

    in the road. Since the officer in Smith was not an eyewitness to the event, the Supreme Court held as speculative and an invasion of the jury's province his opinion as to the ultimate issue. Moreover, the Supreme Court considered the Officer's opinion that the accident occurred because of the driver's failure to appropriately respond to a curve in the road as highly prejudicial. In Lesher v. Henning, supra, a non-eyewitness police officer who arrived upon the scene to investigate an automobile accident, was asked at trial directly whether the cause of the accident was appellant-driver's failure to stop at the stop sign upon arriving at the intersection:

Q. [COUNSEL FOR APPELLEE]: Would you tell us, as a result of your investigation, did you make a determination of how this accident occurred?

A. [TROOPER PREBULA]: Yes, I did.

Q. [COUNSEL FOR APPELLEE]: Yes. Was there any indication of your investigation as to whether or not the Lesher automobile had stopped at the stop sign before entering the intersection?

A. No, it did not.

Id. 302 Pa. Super. at 512, 449 A.2d at 33-34; first emphasis added; second emphasis in text. This court held, in granting a new trial based upon the Trooper's improper rendition as to the cause of the accident, that the above testimony was not based upon analysis of the physical evidence at the scene but, rather, was premised solely upon what was related to him by two eyewitnesses. In other words, the Trooper in Lesher arrived on the scene and interviewed witnesses. At trial, he then stated his opinion as to the cause of the accident based simply upon the witnesses' version of how the accident occurred. The Lesher court rejected this conclusion, even though it was corroborated by other witnesses. Again, in Reed v. Hutchinson, supra, a police officer who did not witness the mishap testified on direct that he had observed cut marks on the road at the scene of the accident. On cross-examination, he was asked if the wheel markings were the result of wheel dislodgement. After objection concerning his non-presence at the

[ 380 Pa. Super. Page 134]

    time the accident occurred and his inability to support this conclusion as a result of his lack of expertise, he was then asked, based on his observations at the scene and his interviews of other witnesses, whether he was able to ascertain if the offending wheel had come off before or after the vehicle to which it had been attached had hit the guard rail. This query elicited the following response:

Q. Would you state your opinion, sir.

A. Yes, sir. It was my opinion, after observing the scene and observing the vehicles, that the accident was a result of the front wheel, the front right wheel, of the vehicle becoming dislodged or dislocated for some unknown reason from the vehicle itself causing the operator to loose control and veer to the right and striking the guardrail, and coming to rest at the same.

Id. 331 Pa. Super. at 409, 480 A.2d at 1099; emphasis added.

While it is true that Officer Vallone also based her opinion regarding point of impact from interviews with witnesses and her inspection of the accident scene for physical evidence -- i.e., the fallen debris and the resting positions of the respective vehicles involved, she merely utilized this information in formulating her opinion on the initial point of impact or, in other words, on the location of the actual collision between the Linden and the Trecki motor vehicles. This is distinguishable from the situation in Reed where the officer testified categorically that the driver had lost control as a result of his wheel becoming dislodged, causing him ultimately to hit into the guard rail. The court then quite properly rejected his testimony as tantamount to rendering an opinion as to causation. However, the testimony of Officer Vallone does not reflect that she gave any similar unequivocal, causative responses.

Similarly, in Anderson v. Russell, supra, this court affirmed the trial court's grant of a new trial premised upon the Chief of Police's interjection of his assessment of point of impact at trial between the minor plaintiff's bicycle and a truck. The Chief did not witness the accident. The trial court held, however, that he ...


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