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LINDA D. ARNOLD v. JAMES G. ZANGRILLI (10/10/89)

filed: October 10, 1989.

LINDA D. ARNOLD, ADMINISTRATRIX OF THE ESTATE OF ALTON P. ARNOLD, JR., DECEASED, APPELLANT,
v.
JAMES G. ZANGRILLI, M.D., AND SOUTH PITTSBURGH UROLOGIC ASSOCIATES



Appeal from the Judgment of the Court of Common Pleas, of Allegheny County, Civil No. GD 84-11218.

COUNSEL

Byrd R. Brown, Pittsburgh, for appellant.

William Clifford, Pittsburgh, for appellee (submitted).

Rowley, Tamilia and Kelly, JJ. Kelly, J., files a dissenting opinion.

Author: Per Curiam

[ 389 Pa. Super. Page 104]

This is an appeal by the widow/administratrix of the estate of Alton P. Arnold, Jr., from a judgment in favor of appellee, Dr. Zangrilli in a medical malpractice action following the death of Mr. Arnold from complications from diabetes. Appellant argues that appellee's counsel made inappropriate and prejudicial comments during the closing argument which warrant a new trial. In addition, appellant argues that the trial court made three erroneous evidentiary rulings: a) he should not have excluded testimony by

[ 389 Pa. Super. Page 105]

    appellant as to what Dr. Zangrilli told the decedent after decedent had seen Dr. Zangrilli; b) he should not have precluded appellant's recitation of the decedent's statements indicating his belief, after seeing Dr. Zangrilli, that he did not have diabetes; and c) he denied appellant the opportunity to cross-examine a defense physician/witness about the length of time necessary for obtaining an appointment with a medical specialist. After thoroughly reviewing the record and the arguments of the parties, we affirm.

Appellant first argues that a new trial is necessary because appellee's counsel stated in closing argument, "I'm asking you to believe [defendant]. I do and I think there is no reason not to." Although it is true that counsel should not comment on the credibility of witnesses by stating for the jury his or her personal belief about a witness' credibility, such an error does not always require a new trial. Commonwealth v. Gay, 369 Pa. Super. 340, 535 A.2d 189 (1988); Commonwealth v. Sparks, 351 Pa. Super. 320, 505 A.2d 1002 (1986). In the present case, the objectionable opinion statements by defense counsel occurred near the end of his argument to the jury in which he tried to impress upon the jury all the reasons why they should find the defendant to be credible. In light of the considerable proper argument of defense counsel about why the defendant should be believed, the single, brief statement that counsel himself finds the defendant credible was little more than the logical conclusion to the argument being made. Moreover, considering the nature of the defense argument, it would not have been a surprise to the jury to hear that defense counsel believes his client. Reviewing the inappropriate comment by defense counsel as to the veracity of the defendant in the context in which the statement was made, we conclude that the error was not so egregious or prejudicial as to warrant a new trial.

Appellant's argument that the court should have permitted her to testify to what the decedent told her Dr. Zangrilli told the decedent was expressly waived at trial when counsel stated: "I recognize that the first conversation constitutes

[ 389 Pa. Super. Page 106]

    double hearsay, so I withdraw my offer of proof with respect to that, my colleague having objected." (N.T. 9/22/87, p. 29-30.) Therefore, we will not review that issue on appeal.

Appellant's argument that the trial court erred in precluding her from testifying that the decedent told her that "he did not have sugar," and that the decedent told her the only health problem he had was prostritis is also belied by the record. The trial court ruled that appellant could not testify as to what her husband told her. However, the trial court permitted appellant to testify to her own conclusions drawn from discussions with decedent. In fact, appellant testified that the decedent thought he had prostritis, and that appellant was very, very relieved that he did not have what he thought he had. (N.T. 9/22/87, p. 50.) Thus, in fact, appellant was permitted to testify to the substance of the statements which her husband made to her. We therefore find no error.

Finally, appellant argues that she was improperly denied the opportunity to cross-examine Dr. Zangrilli's expert witness as to how long it takes to obtain an appointment with an internist. A review of the record leaves no doubt that the trial court expressly granted appellant the opportunity to ask the expert how long it takes to get an ...


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