Chicchi v. Southeastern Pa. Transp. Auth.

• Decision Date: 08 March 1999
• Parties: Robert CHICCHI, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Kurt Forsey.
• Court: Pennsylvania Commonwealth Court

727 A.2d 604

Robert CHICCHI, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Kurt Forsey.

Commonwealth Court of Pennsylvania.

Argued October 5, 1998.

Decided March 8, 1999.

Gerald T. Gervasi, Merion, for appellant.

Lionel Sharpless, Philadelphia, for appellees.

Before DOYLE, J., FLAHERTY, J., and MIRARCHI, Jr., Senior Judge. MIRARCHI, Jr., Senior Judge.

Robert Chicchi (Chicchi) appeals from an order of the Court of Common Pleas of Philadelphia County denying his motion for post-trial relief in his action against the Southeastern Pennsylvania Transportation Authority and its locomotive engineer, Kurt Forsey (collectively, SEPTA). We affirm.

Chicchi commenced the instant action, alleging that he sustained serious injuries on April 20, 1994 at approximately 9:00 a.m., when he was struck by a commuter train operated by SEPTA, and that his injuries were caused by SEPTA's negligent, reckless, willful and wanton conduct.

At a jury trial held before the trial court, witnesses testified that they heard unusual blasts of continuous whistle of the approaching train before the accident, and that Chicchi, who was walking on the track at that time, did not respond to the whistle. Forsey testified that when he first saw Chicchi on the track, the train was travelling forty to forty-five miles an hour and was five to six car lengths away from Chicchi, and that pursuant to the procedures established by SEPTA for an emergency situation, he first blew the horn at least twelve times and then applied the emergency brake when Chicchi did not respond. Chicchi testified that he never heard the whistle of the approaching train before the impact.

Officer Carl Higgins of the Philadelphia Police Department testified that upon arrival at the accident scene, he found a playing walkman, earphones and vials used to package crack cocaine next to Chicchi lying on the ground. Officer Donald C. Lindenmuth testified regarding his investigation of the accident, including his telephone interview of Chicchi. The jury also heard the conflicting testimony of the parties' expert witnesses as to whether Forsey could have brought the train to a stop before striking Chicchi and the testimony of Chicchi's medical witnesses, Dr. Richard Adler, D.O. and Dr. George Feuer, a psychologist.

After the trial, the jury returned a verdict in favor of SEPTA. The jury found that SEPTA did not engage in any reckless and wanton conduct nor breached its duty of reasonable care at the time of the accident. Chicchi then filed a motion for post-trial relief seeking a new trial. After the trial court denied his motion, Chicchi appealed to this Court.¹ Chicchi first contends that a new trial is warranted due to the trial court's erroneous evidentiary rulings on the admissibility of the following evidence: (1) the hospital records, including the drug screen test, consultation report, toxicology report and discharge summary, which indicated that the drug tests performed on April 20, 1994, the date of the accident, and April 29, 1994 showed that Chicchi was "suspected" of using cocaine;² and (2) the testimony of Officers Higgins and Lindenmuth that they found the crack cocaine vials next to Chicchi at the accident scene. Chicchi argues that the mere evidence of the consumption of cocaine is inadmissible to establish his physical impairment at the time of the accident and that such evidence should have been excluded because it is highly inflammatory and prejudicial.

Evidence is admissible when it is relevant to a fact sought to be proved. Fernandez v. City of Pittsburgh, 164 Pa.Cmwlth. 662, 643 A.2d 1176 (1994), appeal denied, 544 Pa. 637, 675 A.2d 1253 (1996). Relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice or confusion. Id. "Prejudice" in this context means an undue tendency to suggest a decision on an improper basis. Id. A decision to admit or deny evidence, including expert testimony, is a matter within the trial court's sound discretion. Pikur Enterprises, Inc. v. Department of Transportation, 163 Pa.Cmwlth. 251, 641 A.2d 11 (1994), appeal denied, 539 Pa. 657, 651 A.2d 543 (1994). The trial court's evidentiary ruling will not be disturbed on appeal absent a manifest abuse of discretion. Id.

Generally, the mere evidence of a party's consumption of alcohol or controlled substance is inadmissible to prove recklessness or carelessness of the party, unless it is established that the party was intoxicated and physically impaired at the time of the accident. Whyte v. Robinson, 421 Pa.Super. 33, 617 A.2d 380 (1992); Hawthorne v. Dravo Corp., Keystone Division, 352 Pa.Super. 359, 508 A.2d 298 (1986), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987). Thus, any evidence tending to establish intoxication of a pedestrian is inadmissible, unless it is also proven that the pedestrian was unfit to cross the street due to physical impairment resulting from intoxication; the intoxication and physical impairment may be established by circumstantial evidence, such as "evidence that the injured party was staggering or had liquor on his breath." Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392, 394 (1973).

The record in this matter contains sufficient circumstantial evidence, from which it may be inferred that at the time of the accident, Chicchi could not hear the whistle due to his physical impairment resulting from intoxication of cocaine. Several witnesses testified that Chicchi did not move or otherwise respond to the loud and shrieking whistle of the approaching train until the impact. At the trial, Chicchi could not explain why he did not hear the whistle. The vials used to package cocaine were found next to Chicchi at the accident scene, and the drug tests performed in the emergency room revealed the "suspected" use of cocaine by Chicchi. In exercising its broad discretion, the trial court determined that any prejudicial effect of the evidence of Chicchi's use of drug was outweighed by its probative value. Therefore, we reject Chicchi's challenge to the trial court's evidentiary rulings on the drug test results and the officers' testimony.

Chicchi next contends that the trial court erred in permitting SEPTA's counsel to cross-examine Dr. Feuer regarding his review of the medical records. Chicchi asserts that SEPTA exceeded the proper scope of cross-examination because Dr. Feuer was never asked about the drug test results contained in the medical records during his direct examination, and that SEPTA improperly presented its defense under the cover of cross-examination.

The scope of cross-examination includes the right to examine the witness on any facts tending to refute inferences or deductions arising from the testimony of a witness on direct examination, thereby affecting his or her credibility. Havasy v. Resnick, 415 Pa.Super. 480, 609 A.2d 1326 (1992),appeal dismissed,537 Pa. 114, 641 A.2d 580 (1994). The scope and limits of cross-examination are within the trial court's sound discretion, and the exercise of that discretion will not be reversed in the absence of a clear abuse of discretion or an error of law. General Equipment Manufacturers v. Westfield Ins. Co., 430 Pa.Super. 526, 635 A.2d 173 (1993),appeal denied, 537 Pa. 663, 644 A.2d 1200 (1994).

At the trial, Chicchi's counsel initially stated that Dr. Adler would testify that based on his review of the medical records, Chicchi was not under the influence of any drugs or alcohol at the time of the accident. SEPTA's counsel then showed Chicchi's counsel the hospital records containing the result of the urine screen for drugs performed at the hospital on the day of the accident. Thereafter, Chicchi's counsel decided not to ask Dr. Adler about his review of the medical records during his direct examination.

During subsequent direct examination of Dr. Feuer, Chicchi's counsel questioned Dr. Feuer about his opinion rendered in his medical report that Chicchi did not suffer from any psychological disturbances or hallucinations, but had a condition known as a "directed attention phenomenon," which rendered him able to focus on only one thing at a time. On cross-examination, SEPTA's counsel asked Dr. Feuer whether he indicated in his medical report that he reviewed Chicchi's medical records. Dr. Feuer admitted that he had previously testified during the pre-trial videotape deposition regarding his opinion set forth in the medical report that his review of Chicchi's medical records, including the urine and blood tests taken in the emergency room after the accident, indicated that Chicchi was not under the influence of any mind-altering drug, which would have affected his judgment or thinking at the time of the accident.

Because Dr. Feuer testified during his direct examination regarding his opinion rendered in his medical report which was based in part on his review of Chicchi's medical records, the questions related to the medical records were within the proper scope of his cross-examination. Further, following Dr. Feuer's cross-examination Chicchi's counsel recalled Dr. Adler and elicited his testimony regarding his interpretation of the term "suspected" use of cocaine in the toxicology report. Therefore, Chicchi's contention that he was unduly prejudiced by the cross-examination of Dr. Feuer about his review of the medical records is without merit.

Moreover, "[a]t the trial ... [a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness." Pa. R.C.P. No. 4020(a)(1). In addition "a videotape deposition of a medical witness or any witness called as an expert, ... may be used at trial for any purpose whether or not the witness is available to testify." Pa. R.C.P. No. 4017.1(g). Hence, the trial court properly permitted SEPTA to cross-examine Dr. Feuer regarding his prior statements made during the pre-trial videotape deposition for the...