Russell v. Hubicz

• Decision Date: 29 April 1993
• Citation: 624 A.2d 175,425 Pa.Super. 120
• Parties: Roberta RUSSELL, Appellant, v. Raymond E. HUBICZ, Appellee.
• Court: Pennsylvania Superior Court

Page 175

624 A.2d 175

425 Pa.Super. 120

Roberta RUSSELL, Appellant, v. Raymond E. HUBICZ, Appellee.

Superior Court of Pennsylvania.

Argued Oct. 28, 1992.

Filed April 29, 1993.

Ronald P. McCall, Sharon, for appellant.

George H. Rowley, Greenville, for appellee.

Before McEWEN, FORD ELLIOTT and MONTGOMERY, JJ.

FORD ELLIOTT, Judge:

This is an appeal from the judgment entered in appellee's favor according to the jury's verdict on February 19, 1992, in the Court of Common Pleas of Mercer County. We affirm.

On December 19, 1986, two vehicles driven by Roberta Russell, appellant, and Raymond Hubicz, appellee, were involved in a collision. The accident occurred at the intersection of Sharon-New Castle Road and Mercer Avenue, Mercer County, as appellant was attempting to make a left turn. At the time of the accident, Janice Stokes and Thomas Russell were passengers in appellant's vehicle.

Following the accident, Roberta Russell filed suit against Raymond Hubicz, alleging that he was negligent in operating his vehicle and that his negligence caused the accident. At trial, Roberta Russell offered the testimony of both passengers in her vehicle during her case-in-chief. Both Janice Stokes and Thomas Russell testified favorably to Roberta Russell, indicating that at all times she was driving carefully and cautiously. However, on cross-examination, Stokes was confronted with allegations of negligence on the part of Roberta Russell contained in a complaint she had previously sworn out against Russell. Furthermore, on cross-examination of Thomas Russell, there were questions concerning a prior felony conviction which called into question his veracity. Appellant's counsel objected to both lines of questioning but was overruled in each instance.

At the conclusion of the trial, the jury found Hubicz to be only 35% negligent and Russell to be 65% negligent. Appellant filed post-verdict motions challenging the trial court's rulings on her objections to the cross-examinations of Stokes and Russell. The trial court subsequently denied the post-trial motions. This timely appeal followed.

Appellant presently raises three issues for our consideration.

I. Whether the trial court erred in permitting the defendant to cross-examine the plaintiff's witness with regard to her complaint in civil action, filed against the [plaintiff] as to conclusions of law contained therein relating to the ultimate issue of the case (i.e., which party was negligent and caused the accident) and as to portions of the complaint which were neither made nor adopted by the witness?

II. Whether the trial court erred in refusing to allow the introduction into evidence of other portions of the complaint in civil action of the plaintiff's witness dealing with allegations of fact and her allegations of negligence against defendant which were consistent with her testimony on direct examination, for purposes of rehabilitation?

III. Whether the trial court erred in allowing the defendant to cross-examine a witness of plaintiff about his prior criminal record without first ascertaining the specific crime or crimes he might have committed, the date of the crime, whether it was committed as a juvenile or an adult, and without balancing the probative value of the evidence against its prejudicial effect upon the jury and whether the court erred in placing the burden of showing the inadmissibility of that evidence upon the [plaintiff]?

We shall address appellant's issues in the order presented.

Appellant's first issue concerns the cross-examination of one of her witnesses, Janice Stokes. During trial, Janice Stokes testified as a witness on behalf of appellant. At the time of the accident, Mrs. Stokes was a passenger in the front seat of appellant's vehicle. Mrs. Stokes testified, during direct examination, that appellant saw the Hubicz vehicle when it was a considerable distance from the intersection; that when appellant started her turn, the Hubicz vehicle was not close enough to be a threat; and that appellant, at all times, was moving slowly.

Prior to offering such testimony, Mrs. Stokes had, herself, filed suit against both Russell and Hubicz to recover damages for injuries she received as a result of the accident. On cross-examination, counsel for Hubicz confronted Mrs. Stokes with the allegations of the complaint she had filed. Specifically, Mrs. Stokes was questioned regarding the allegations in her complaint against Russell, which directly contradicted her testimony on direct examination. In particular, Mrs. Stokes was asked about the allegations in her complaint that Russell was negligent in failing to keep a sharp lookout; that Russell was negligent in failing to observe the presence and proximity of the Hubicz vehicle; that Russell was negligent in turning when the Hubicz vehicle was so close as to constitute a hazard; that Russell was negligent in turning her vehicle when it could not be done safely; and that Russell drove at an excessive rate of speed.

Appellant maintains that the trial court erred in permitting appellee's attorney to reference the allegations from Mrs. Stokes' complaint, when cross-examining her. According to appellant, the line of questioning was improper since the allegations referenced from the witness's complaint related to her opinion on the ultimate issues of the case; who was negligent; and what caused the accident. In support of her argument, appellant cites to case law holding that, as a general rule, a witness is not permitted to express an opinion as to the ultimate issue of a case. See Taylor v. Fardink, 231 Pa.Super. 259, 331 A.2d 797 (1974). Appellant also expresses concern that the allegations from Mrs. Stokes' complaint, which were read into testimony, amount to legal conclusions, which should not have been presented to the jury.

We agree with appellant's statement of the law that generally, a witness is not permitted to express an opinion as to the ultimate issue of the case. However, the allegations introduced during cross-examination were not introduced as evidence on the ultimate issue of liability. Rather, the allegations were introduced for the limited purpose of impeaching Mrs. Stokes to the extent that she had testified on direct examination that appellant had operated her vehicle in a careful, cautious, and prudent manner. In fact, immediately following cross-examination, the trial judge instructed the jury as to the limited purpose for which the statements in the prior complaint were to be considered. The trial court instructed the jury that counsel for appellee had a right to attack the credibility of a witness by showing prior inconsistent statements. However, as the trial court noted in its instructions, the prior inconsistent statements were not necessarily true regarding the issue of fault and should not be considered in such a manner.

A similar issue was previously addressed by our supreme court in Monaco v. Gula, 407 Pa. 522, 180 A.2d 893 (1962). Monaco involved a two-vehicle accident wherein a passenger in the lead vehicle was injured when the vehicle in which she was riding was rear-ended. Passenger filed suit against the driver of the second vehicle. The driver of the second vehicle, in turn, filed an additional defendant complaint against the driver of the vehicle that plaintiff was occupying. In the additional defendant complaint, the driver of the second vehicle alleged that the driver of the lead vehicle caused the accident by making a sudden stop without warning. Prior to trial, the driver of the second vehicle withdrew his additional defendant complaint.

At trial on the original complaint, the driver of the second vehicle testified, contrary to the allegations in the withdrawn complaint, that the accident was caused solely by the slippery condition of the highway. An attempt was made to introduce the allegations from the withdrawn complaint, but the trial court ruled that the prior statements were inadmissible. On appeal, the supreme court reversed the decision of the trial court, holding:

[T]hat a prior statement made by a party to a suit which contradicts the testimony of that party at trial as to the cause of an accident is admissible in evidence. Not only is the statement substantive evidence of the matter under inquiry, and, therefore, worthy of the jury's consideration, but, in addition, it may be used to impeach the credibility of the party, and, toward this end, opposing counsel may cross-examine the party on the allegations contained therein.

Id. at 524, 180 A.2d at 894.

Presently, we are not confronted with the prior statements of a party to a suit, but rather a witness. Thus, we would not conclude that the prior statement in this instance is substantive evidence of the matter under inquiry. The jury did not reach such a conclusion either. However, according to Monaco such prior statements should be permitted for the purpose of impeachment, which is precisely what occurred in this instance.

Appellant is in no position to complain that the allegations from Mrs. Stokes' complaint should not have been admitted because they offer opinion as to the ultimate legal issue in the case; when, on direct examination, counsel for appellant elicited favorable opinion testimony from this same witness on the ultimate issue of liability. The cross-examination was only permitted to counter assertions as to appellant's care and conduct in operating her vehicle offered by this witness during direct examination.

Professor Wigmore addressed the concerns presently raised by appellant as follows:

The usual answer of some courts is that the declaration should be excluded because it is mere opinion. This is unsound, (1) because the declaration is not offered as testimony, and therefore the opinion rule has no application, and (2) because the declaration in its opinion aspect is not concerned, and is of importance only so far as it contains by implication some contradictory assertion...