Catina v. Maree

• Citation: 498 Pa. 443,447 A.2d 228
• Parties: Lawrence CATINA, Rocco Catina and Anita Catina, His Wife, Appellants, v. Alfred E. MAREE and Burke Chevrolet Sales, Inc. Lawrence CATINA, Rocco Catina and Anna Catina, His Wife, Appellants, v. ALFRED E. MAREE, SR., INC.
• Decision Date: 28 June 1982
• Court: United States State Supreme Court of Pennsylvania

Page 228

447 A.2d 228

498 Pa. 443

Lawrence CATINA, Rocco Catina and Anita Catina, His Wife, Appellants, v. Alfred E. MAREE and Burke Chevrolet Sales, Inc.

Lawrence CATINA, Rocco Catina and Anna Catina, His Wife, Appellants, v. ALFRED E. MAREE, SR., INC.

Supreme Court of Pennsylvania.

Argued April 20, 1982.

Decided June 28, 1982.

Sandor Yelen, Wilkes Barre, for appellants.

Joseph A. Quinn, Jr., George A. Spohrer, Wilkes Barre, for appellees.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION OF THE COURT

LARSEN, Justice.

On November 19, 1968, appellant Lawrence Catina was struck by a motor vehicle (he was a pedestrian at the time) and suffered, as a result, severe and permanent personal injuries. A suit in trespass was filed in the Court of Common Pleas of Luzerne County against the driver, Alfred E. Maree, Burke Chevrolet Sales, Inc., and Alfred E. Maree, Sr., Inc., appellees, and a jury trial commenced in May, 1976. ¹ The jury returned a verdict in favor of appellees.

Appellants' motion for a new trial was denied by a court en banc on August 1, 1978 which denial was affirmed by the Superior Court on November 27, 1979. Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1979), reargument denied February 19, 1980. This Court granted appellants' petition for allowance of appeal on March 20, 1980. We now reverse the decision of the Superior Court and remand for a new trial.

It has never been disputed that appellee Alfred Maree was the driver of the vehicle that struck appellant Lawrence Catina. The major point of contention at trial was whether Mr. Catina was on or off the surface of the road when impact occurred. Appellants attempted to demonstrate that he was on the berm and about five to six feet from the road; appellees attempted to demonstrate that he was on the road when he was struck by Mr. Maree's vehicle.

As the Superior Court observed, the actual details of the accident "are obscured in the haze of discordant recollections so common to this type of incident." 272 Pa.Super. at 253, 415 A.2d at 417. At issue in this appeal is the recollection of one of the witnesses for the defendants/appellees, Louis Jakubczyk. Both Mr. Catina and Mr. Jakubczyk were U. S. Army reservists on their way to a meeting at the U. S. Army Reserve Center in Plains Township. There were two parking lots located across the highway (Route 315) from the center. Mr. Jakubczyk testified he had parked his car and was waiting to cross the highway when he noticed a fellow reservist (not recognized at that time as Mr. Catina) standing about twenty feet to his left (north of him) about five to six feet from the road. He (the witness) turned to his right (south) to observe traffic and, as he turned back to the left, he heard a loud banging noise, observed a car (not identified as Mr. Maree's) pass in front of him on the roadway, and then saw Mr. Catina lying 100 feet south of him on the road. ²

On re-cross examination, counsel for plaintiffs/appellants attempted to impeach the credibility of the witness with respect to the location of the reservist vis-a-vis the witness through the use of a prior statement that Mr. Jakubczyk had rendered on the night of the accident. In that statement, the witness had placed the fellow reservist observed just prior to the accident as being to his right, or south, of him. This was the only area of the witness's recollections that counsel sought to impeach by use of the prior inconsistent statement.

On re-direct following re-cross, counsel for defendants/appellees then requested, and was granted, permission to have the witness read the entire statement. The following exchange took place:

RE-DIRECT EXAMINATION BY [DEFENSE COUNSEL]:

Q. Mr. Jakubczyk, would you read for us the entire statement that you gave on November 19, 1968....

A. At about 1840 hours I was standing in front of west edge of Route 315 waiting to cross the highway to United States Army Reserve Center, the victim prior to being struck by the vehicle was standing at the same edge of the highway approximately fifteen to twenty feet south of me, waiting to cross. I saw the victim struck by the vehicle which was traveling south on--

[PLAINTIFF'S COUNSEL]: Now, if the Court please, so the record is protected, I want to object to his reading the entire statement because of the fact it hasn't been brought out by me on re-cross or cross.

BY THE COURT: Well, he's read three-quarters of it without objection so he can go ahead now.

[DEFENSE COUNSEL]:

Q. Continue to read it, Mr. Jakubczyk?

A. I saw the victim struck by the vehicle which was traveling south in the passing lane, the vehicle was not traveling at excessive speed--

[PLAINTIFF'S COUNSEL]: If the Court please, I'd ask that part of the statement be stricken because no foundation has been laid as to speed.

[DEFENSE COUNSEL]: That's what he indicated that night.

[PLAINTIFF'S COUNSEL]: He may have given it but it's still got to be bound by technical evidence and he hasn't laid the foundations.

BY THE COURT: No, you've offered this part of the statement. Are you going to offer this in evidence?

[PLAINTIFF'S COUNSEL]: No, sir.

BY THE COURT: Well then, we'll allow the witness to read it.

[DEFENSE COUNSEL]:

Q. You may continue to read it, Mr. Jakubczyk?

A. In my judgment I saw the victim's body thrown in the air and the vehicle was pulled to the side of the road, the area was very dark.

....

[PLAINTIFF'S COUNSEL]: Just for the record, I would just renew my motion to strike the witness's testimony for the reason previously stated. (Notes of Testimony, 689-92).

Appellants argue, and we agree, that it was error to permit the witness to read his entire prior statement as it exceeded the scope of the testimony elicited at previous stages of examination and, additionally, included an improper opinion as to speed. As a general rule, one who calls a witness is required to elicit on his first (direct) examination all that is wished to be proved by that witness--such rule is manifestly in the interests of fairness and expedition of litigation. McCormick, Evidence § 32, Redirect and Subsequent Examinations (West 2d Ed. 1972). While there is division of authority on the scope of cross-examination between jurisdictions favoring restrictive cross (as in Pennsylvania: see generally Kline v. Kachmar, 360 Pa. 396, 61 A.2d 825 (1948)) and those allowing "wide-open" cross, no such division exists as regards redirect and subsequent examinations; as to these subsequent examinations, the practice is uniform that the party's examination is limited to answering only such matter as was drawn out in the immediately preceding examination of the adversary. Id.

Pennsylvania law regarding use of prior statements is consistent with this aforementioned uniform practice--where portions of a statement made by a witness are used on cross-examination to impeach his testimony, "other portions of the statement which are relevant to the subject matter on which he was cross-examined may be introduced in evidence to meet the force of his impeachment." Commonwealth v. Marino, 213 Pa.Super. 88, 245 A.2d 868, 874 (1968) (emphasis added), aff'd 435 Pa. 245, 255 A.2d 911 (1969), cert. denied 395 U.S 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969). As this Court stated in an analogous situation in Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262, 268 (1972), where prior statements are used for rehabilitation following impeachment by such statements on cross-examination, the portions used to rehabilitate must be related to the prior testimony given in the trial: "the supporting [rehabilitating] fact must not merely be logically relevant to explain or refute the impeaching fact, but it must meet the attack with relative direction. The wall, attacked at one point, may not be fortified at another." (quoting McCormick, Evidence § 49 (1954)).

Appellees do not dispute that the portion of the statement concerning the vehicle's speed was unrelated to any preceding testimony of the witness, but, rather, argue that the reading of the entire statement was necessary to "give the jury the benefit of the entire statement, show the excited nature of the statement, and demonstrate the circumstances surrounding the statement...." Brief for Appellee at 7. We are not persuaded by this make-weight argument. The reading of the irrelevant portion of the statement regarding the vehicle's "not traveling at excessive speed" has no bearing on the "excited nature of the statement" nor the "circumstances surrounding the statement", and the argument that it was offered to "give the jury the benefit of the entire statement" is nothing more than bootstrapping. Since the impeaching portions of the statement pertained only to the relative locations of the witness and the observed reservist, the portions of the statement concerning the speed of the vehicle clearly was not relevant to "meet the force of the impeachment" and exceeded, therefore, the permissible bounds of redirect examination.

Moreover, that portion of the witness's statement concerning the vehicle's speed was also introduced in violation of the opinion evidence rule. In the context presented herein, this Court has held "while lay witnesses are permitted to express opinion estimates of vehicle speed in numerical terms, terms such as 'fast' or 'slow' or 'excessive' and the like have been found to be conclusory in nature as well as lacking in evidentiary value." Starner v. Wirth, 440 Pa. 177, 181, 269 A.2d 674 (1970). Appellants' objection to the witness's statement concerning speed ("not traveling at excessive speed") should have been sustained on that basis as well, especially in light of the fact that the trial court had previously disallowed similar testimony of a witness for appellants. (The witness was one Robert Yurksis.)

The Superior Court agreed that the trial court's ruling permitting the offending portions of Mr. Jakubczyk's testimony to...