Olson v. Dietz

• Court: Pennsylvania Superior Court
• Writing for the Court: JOHNSON
• Citation: Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (Pa. Super. Ct. 1985)
• Decision Date: 18 October 1985
• Parties: Bonita M. OLSON v. Edward J. DIETZ, Appellant. 159 Harrisburg 1985

Page 125

500 A.2d 125

347 Pa.Super. 1

Bonita M. OLSON v. Edward J. DIETZ, Appellant.

159 Harrisburg 1985

Superior Court of Pennsylvania.

Submitted July 17, 1985.

Filed Oct. 18, 1985.

Samuel E. Teeter, Gettysburg, for appellant.

Roy Alan Keefer, Asst. Dist. Atty., Gettysburg, for appellee.

Before TAMILIA, JOHNSON and HOFFMAN, JJ.

JOHNSON, Judge:

This appeal asks us to review the validity of a jury charge on the evidentiary value of red cell and Human Leukocyte Antigen (HLA) test results in determining paternity. Appellant also invites us to reconsider our holding in Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983) which found such test results to be admissible to prove the likelihood of paternity. Finding no error in the charge as submitted to the jury, and being unpersuaded by Appellant's arguments to reconsider Turek v. Hardy, we affirm.

On June 6, 1983 Appellee, Bonita M. Olson, filed a complaint for child support naming Appellant, Edward J. Dietz, as the father of Scott A. Olson who was born on June 30, 1982. At a support conference held on June 16, 1983, however, Appellant denied paternity of the child, and requested a jury trial on that issue. Appellant agreed, at this support conference, to submit to cell and HLA typing tests for the purpose of determining whether he could be excluded as the father of the child.

On July 7, 1983 blood samples of Appellant, Olson and the child, drawn the previous day, were subjected to red blood cell and HLA blood testing at the Baltimore RH Typing Laboratory in Baltimore, Maryland. A letter from the laboratory to the Domestic Relations Office indicated that, based upon those tests, Appellant could not be excluded as the father of the child. The letter also included two other formulations: a "paternity index" of 110 to 1 and a "plausibility of paternity" of 99.10%.

One commentator has described the exclusion and inclusion procedures thus:

...The exclusion procedure comprises the identification of certain genetic markers in the blood of the mother, child, and putative father; followed by the application of "Mendelian rules of inheritance" to determine whether it would be genetically impossible for the accused to be the biological father. An exclusion may occur in two ways. First, the child may possess a genetic characteristic which had to have come from someone other than the defendant. Second, the child may lack a genetic marker that he would have to possess if the accused were the father. In either of these situations, the defendant is conclusively proved innocent without any statistical estimations. In many cases, the possibility of exclusion may approach 99% when several genetic marker systems are used. The credibility of the exclusion method is beyond reproach in the scientific community, and most courts will accept results indicating non-paternity as conclusive proof.

...Basically, the inclusion procedure commences where the exclusion procedure terminates. In other words, when the typing stage (the method described above as the "exclusion method") fails to exclude the accused, a statistical estimation of his "likelihood of paternity" is calculated. This calculation entails the use of a probability formula known as the "Essen-Moller" version of the "Bayes' Theorem." A simplified version of this formula may be summarized as follows: The ratio of the likelihood that the accused contributed certain genetic characteristics identified in the child, to the likelihood that one other "random man" contributed them. The "random man" variable is derived from the estimated frequencies of the particular characteristics in the relevant population. The ratio yielded by the Bayes' formula, called the "paternity index," is converted into a percentage value, "the likelihood of paternity," which is then presented to the trier of facts.

Case Comment, Human Leukocyte Antigen Test Results Are Admissible in Paternity Cases to Show the Likelihood of Paternity. Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), 88 DICK.L.REV. 565, 567-69 (1984) (footnotes omitted).

Before the trial was scheduled to commence, Appellant filed a Motion to Exclude Red Cell and HLA Test Results as Affirmative Evidence of Paternity, which motion the trial court denied; and, at trial, two technologists from the laboratory were permitted to introduce testimony concerning the "paternity index" and "plausibility of paternity." Appellant's motion for non-suit, his subsequent request for a directed verdict, and certain points for charge were refused by the trial court as well.

Appellant timely filed post-trial motions which were dismissed by the trial court, and the Domestic Relations Officer was thereby directed to schedule the case for a hearing. An order for weekly child support was subsequently issued on February 6, 1985. This appeal followed.

Appellant first questions whether the trial court erred when it denied his motion to exclude the red cell and HLA test results as affirmative evidence of paternity. In Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983) this Court held that blood test results which show that a defendant is likely to be the father are admissible as some proof of paternity. We there said that, before the results of such testing are admissible, a proper foundation must be laid. Appellant does not attack the foundation upon which the evidence was presented, but argues that the test results should have been excluded since their probative value was substantially outweighed by the danger of confusion or unfair prejudice to Appellant. Since this Court has already determined that such test results are admissible, and since our review of the record on this appeal does not disclose any support for Appellant's assertion regarding unfair prejudice or confusion, we conclude that this first issue is without merit.

Appellant next challenges the refusal of the trial court to give two of his requested points for charge. In evaluating a claim of erroneous instructions to the jury, we must analyze the court's charge in its entirety. Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983); Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). If a legally valid requested point for charge is sufficiently and adequately covered in the trial court's instructions to the jury, it is appropriate to deny the request. Bohner v. Stine, supra. See also Donaldson v. Sepesy, 415 Pa. 194, 202 A.2d 823 (1964); Morris v. Moss, 290 Pa.Super. 587, 435 A.2d 184 (1981).

Appellant contends that the trial court erred in refusing to instruct the jury, as requested, on the issue of evidentiary value of the red cell and HLA test results. Appellant's requested points for charge Nos. 4 and 6, and the trial court's charge regarding them, were as follows:

REQUEST: 4. In any event, you must understand that the red cell and HLA test results supply no more than statistical or probabilistic proof--indices of estimates of reality, not direct proofs of reality. The red cell and HLA test results are not circumstantial evidence of sexual intercourse between Ms. Olson and Ed Dietz, nor circumstantial evidence of the likelihood of conception by virtue of any such sexual intercourse between Ms. Olson and Ed Dietz. Those statistical results are no substitute for your evaluation and findings as to whether the sexual relations of Ed Dietz with the Plaintiff occurred during the period of time in which Scott Olson could have been conceived, according to the usual laws of nature, and whether that sexual contact was the direct cause of her pregnancy.

REQUEST: 6. [If the Court does not exclude the HLA tests as affirmative evidence of paternity] Evidence of the HLA blood test has been introduced and, based on that evidence an opinion has been expressed concerning the degree of probability that Mr. Dietz is the father of the child. You must bear in mind that the probability of paternity results of such tests are in part based upon certain underlying assumptions, including the assumption that there is a 50% chance that Mr. Dietz is the child's father, and a 50% chance that a random man is the child's father. You must therefore bear in mind that neither the making of such an assumption, nor the probability of paternity results, constitute any evidence that Mr. Dietz had...