Kirksey, R. v. Children's Hospital of Pittsburgh ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT KIRKSEY, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHILDREN'S HOSPITAL OF : No. 421 WDA 2018
PITTSBURGH OF UPMC, UNIVERSITY :
OF PITTSBURGH PHYSICIANS, AND :
SATYANARAYANA GEDELA, M.D. :
Appeal from the Judgment Entered April 12, 2018
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 14-010939
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 9, 2019
Appellant, Robert Kirksey, Jr. (“Kirksey”), challenges the judgment
entered in the Allegheny County Court of Common Pleas, following a jury trial
on issues of medical malpractice. Kirksey filed suit against his physician,
Appellee Satyanarayana Gedela, M.D. (“Gedela”), and Gedela’s employers,
Children’s Hospital of Pittsburgh of UPMC and University of Pittsburgh
Physicians (collectively, “Appellees”), after Kirksey developed Stevens-
Johnson Syndrome1 as a child. Kirksey theorized that Gedela’s negligent
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1 While the record does not offer a succinct definition of Stevens-Johnson
Syndrome, it suggests that Kirksey suffered a severe immune reaction
requiring extensive hospitalization. The Mayo Clinic describes Stevens-
Johnson as beginning “with flu-like symptoms, followed by a painful … rash
that spreads and blisters.” Mayo Clinic, Stevens-Johnson syndrome,
https://www.mayoclinic.org/diseases-conditions/stevens-johnson-
syndrome/symptoms-causes/syc-20355936 (last visited Sept. 20, 2019).
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administration of prescription drugs caused the condition, which triggered
blistering and scarring over a substantial portion of Kirksey’s body. The jury
found Gedela had not acted negligently, and the court entered judgment in
favor of Appellees. After careful review of Kirksey’s issues on appeal, we
affirm.
The relevant facts and procedural history of this case are as follows.
Kirksey, born in 1995, began suffering from seizures at age two. As part of
his treatment, Kirksey was prescribed Depakote, a seizure medication. Despite
the medication, Kirksey periodically continued to experience seizures. And
after Kirksey’s twelfth birthday, his mother began to notice changes in
Kirksey’s attentiveness. She brought Kirksey to an appointment with Gedela,
who had inherited the case from Kirksey’s previous physician. Gedela decided
to reduce Kirksey’s dosage of Depakote, and to pair the remaining dosage
with another drug, Lamictal.
On May 25, 2007, about one month after Gedela’s changes to his
medicine, Kirksey was admitted to the emergency room after complaints of a
rash on his body and mouth sores. He was diagnosed with Stevens-Johnson
Syndrome. Kirksey spent a month in the hospital. After he was released,
Kirksey continued to suffer from scarring and other effects of the illness.
On June 23, 2014, Kirksey filed a complaint against Appellees, based on
theories of medical professional negligence and respondeat superior.
Appellees filed an answer and new matter. Before trial, Kirksey filed several
motions in limine, seeking, among other things, to redact parts of Kirksey’s
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medical record and to identify the origin of any demonstrative exhibits. The
court issued orders granting Kirksey’s motions.
The case proceeded to a jury trial. After deliberations, the jury
determined Gedela had not acted negligently in his care of Kirksey. Kirksey
filed post-trial motions on a litany of issues. One of these challenges
incorporated an affidavit written by Kirksey’s counsel, who alleged he
discovered after trial that one of the jurors was affiliated with Appellees.
Appellees, in turn, responded by asking the court to strike the affidavit.
Following argument, the court denied all of the post-trial motions.
Kirksey filed a timely notice of appeal, and complied with the court’s
order to file a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b). Appellees also filed a timely notice of cross-appeal, and
complied with Rule 1925(b). However, after doing so, Appellees chose to
discontinue their cross-appeal. 2 This appeal is now properly before us.3
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2 In their brief, Appellees ask this Court to disregard or strike portions of
Kirksey’s reproduced record. See Appellees’ Brief, at 60. According to
Appellees, Kirksey has improperly included documents in his reproduced
record that are not part of the certified record. We remind the parties, “this
Court may only rely on what appears in the certified record. A document does
not become part of the official record simply by including a copy in the
reproduced record.” Krosnowski v. Ward, 836 A.2d 143, 148 (Pa. Super.
2003) (citations omitted). While we decline to strike, we will not consider
items in the reproduced record that are not part of the certified record.
3 After the parties filed their respective notices of appeal, this Court issued a
rule to show cause directing the parties to request that judgment be entered
in the case, as required by Pa.R.A.P. 301. Thereafter, the trial court
prothonotary entered judgment. Accordingly, we will consider the appeals as
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In his first issue, Kirksey contends Appellees violated the court’s pretrial
order, which required Appellees’ counsel to identify the origin of his
demonstrative exhibits. Kirksey alleges that Appellees’ counsel “falsely and
repeatedly misquote[ed] the report of [Kirksey’s expert witness] and then
publish[ed] the false information to the jury through the use of a
demonstrative exhibit.” Appellant’s Brief, at 27. He believes the court erred
by denying his motion for a new trial on this basis. We disagree.
When reviewing the denial of a motion for a new trial, we determine
whether the trial court committed an error of law that controlled the outcome
of the case, or abused its discretion. See Corvin v. Tihansky, 184 A.3d 986,
992 (Pa. Super. 2018).
“The purpose of pretrial motions in limine is to give the trial judge the
opportunity to weigh potentially prejudicial and harmful evidence before the
trial occurs, thus preventing the evidence from ever reaching the jury.”
Buttaccio v. American Premier Underwriters, Inc., 175 A.3d 311, 320
(Pa. Super. 2017) (citation and internal quotation marks omitted).
“The grant of a motion in limine is a court order that must be observed.”
Poust v. Hylton, 940 A.2d 380, 385 (Pa. Super. 2007) (italics added). “When
a party intentionally violates a pre-trial order, the only remedy is a new trial,
in order to promote fundamental fairness, to ensure professional respect for
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having been filed after the entry of judgment. See McEwing v. Lititz Mut.
Ins. Co., 77 A.3d 639, 645 (Pa. Super. 2013) (considering appeal from verdict
as having been taken from judgment, despite judgment’s entry after filing of
appeal, in accordance with Pa.R.A.P. 905(a)).
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the rulings of the trial court, to guarantee the orderly administration of justice,
and to preserve the sanctity of the rule of law.” Mirabel v. Morales, 57 A.3d
144, 151 (Pa. Super. 2012) (citation and internal quotation marks omitted).
Here, Kirksey filed a pretrial motion to “cause defense counsel to
correctly identify the origin of exhibits.” Kirksey’s Motion in Limine, filed
11/14/17, at 2. Counsel for Kirksey alleged this motion was based on
Appellees’ counsel’s failure to disclose where a demonstrative exhibit
originated in a previous case. See N.T. Hearing, 11/22/17, at 10. The court
stated that it would not consider the previous case to which Kirksey’s counsel
referred, yet it granted the motion. See id.
At trial, Appellees’ counsel showed several witnesses a demonstrative
exhibit called “Panel One.” See N.T. Trial, 11/28/17, at 364-365; N.T. Trial,
11/30/17, at 741-742. The exhibit contained a statement culled from the
report made by Kirksey’s expert witness, Dr. William DeBassio.
We find it unnecessary to recapitulate or analyze the statement
contained in Panel One, as it is irrelevant to Kirksey’s issue on appeal. Kirksey
claims Appellees violated the pretrial order requiring them to disclose the
origin of Panel One. But Kirksey himself identifies precisely where the report,
used by Appellees as a demonstrative exhibit, originated – from Kirksey’s own
expert. See id. Kirksey provides no evidence to support a conclusion that the
information contained in Panel One was from a source other than DeBassio’s
report. As such, he has failed to show that Appellees violated the pretrial
order.
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Instead, Kirksey attempts to shoehorn his objection regarding the
content of Panel One into a claim about the exhibit’s source. As the two
matters are unrelated, Kirksey’s motion in limine regarding the origin of
demonstrative exhibits cannot be said to have preserved a specific objection
to the content of Panel One. To the extent Kirksey wishes to challenge the
exhibit as misleading, he failed to object to the introduction of the exhibit at
trial. See N.T. Trial, 11/28/17, at 364-365; N.T. Trial, 11/30/17, at 741-742.
Thus, this claim is waived. See Pa.R.A.P. 302(a) (dictating that issues not
raised in the lower court are waived for purposes of appeal).
In Kirksey’s second issue, he contests the trial court’s admission of
evidence. He believes that arguments about the applicability of Table 11, an
exhibit showing the Lamictal manufacturer’s recommended dosage escalation
plan for patients older than 12 years, should have been excluded from
evidence, because Kirksey was only 12 years old at the time Gedela
administered the Lamictal. Kirksey asserts the jury was confused by Appellees’
arguments that Kirksey was over 12 years old at the time of his reaction to
the Lamictal, and the trial court erred in admitting these.
The admission of evidence is within the sound discretion of the trial
court; we will only reverse an evidentiary determination if the court committed
an abuse of discretion. See Czimmer v. Janssen Pharmaceuticals, Inc.,
122 A.3d 1043, 1058 (Pa. Super. 2015). “To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.” Id. (citation omitted).
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Evidence that tends to prove or disprove a material fact is relevant. See
American Future Systems, Inc. v. BBB, 872 A.2d 1202, 1212 (Pa. Super.
2005) (citation omitted). “Relevant evidence is admissible if its probative
value outweighs its prejudicial impact.” Id. “‘Unfair prejudice’ supporting
exclusion of relevant evidence means a tendency to suggest decision on an
improper basis or divert the jury’s attention away from its duty of weighing
the evidence impartially.” Klein v. Aronchick, 85 A.3d 487, 498 (Pa. Super.
2014) (citation omitted).
Here, Kirksey introduced tables sourced from the Lamictal
manufacturer’s recommended dosage levels. N.T. Trial, 11/29/17, at 533;
12/1/17, at 913. The first, referred to as Table 9, dictated appropriate levels
of Lamictal for epileptic patients ages 2-12 who were also taking Depakote or
similar medications.4 See Plaintiff’s Exhibit 7. The second, Table 10,
introduced a weight-based dosing guide for epileptic patients ages 2-12 taking
Lamictal in conjunction with Depakote. See id. The third, Table 11,
recommended an escalation regimen of Lamictal for epileptic patients over 12
years of age also taking Depakote. See id.
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4 Specifically, the tables refer to patients taking valproate. Valproate is a
prescription drug used to treat seizures; Depakote, one of the medications
taken by Kirksey at the time he developed Stevens-Johnson syndrome, is a
trade name for valproate.
See Food and Drug Administration, Valproate Information,
https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-
and-providers/valproate-information (last visited Sept. 17, 2019).
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Kirksey contends on appeal that Appellees should not have been
permitted to argue that Table 11 applied to Kirksey. This view fails to account
for the fact that Kirksey himself introduced Table 11 into evidence. After
putting the offending document into evidence, Kirksey cannot now fairly assert
that Table 11 was inapplicable or that the court should have prevented
Appellees from asserting its relevance. Indeed, as the case centered on
whether Dr. Gedela was negligent for prescribing Kirksey a higher dose of
Lamictal than that recommended for average 12 year olds, preventing
Appellees from explaining why Gedela may have deviated from the dosing
chart would have directed the verdict in favor of Kirksey.
Further, Kirksey’s contention on appeal misinterprets Appellees’ trial
arguments. He maintains Appellees attempted to confuse the jury about
Kirksey’s age at the time he took Lamictal. However, Appellees actually argued
at trial that Table 11 was applicable because of Kirksey’s weight. Kirksey’s
own expert witness, Dr. L. Douglas Wilkerson, testified that “all medications
in pediatrics are pretty much dosed on the basis of weight.” N.T. Trial,
11/28/17, at 338. Appellees went on to argue that Table 11, dictating a
Lamictal escalation regimen for epilepsy patients over 12 years old, applied
because Kirksey exceeded the top weight limit associated with patients
between 2 and 12 shown in Tables 9 and 10. See id., at 372-373; N.T. Trial,
11/30/17, at 639. Thus, we are unconvinced by Kirksey’s assertion that
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Appellees “fabricated age theory evidence,” and that the trial court erred by
permitting Appellees to argue about the relevance of Table 11.5
Kirksey’s third issue consists of two separate arguments. He contends
the court erred by permitting Appellees to introduce evidence that Dr. Gedela
informed Kirksey of the potential side effects of Lamictal, and that it again
erred by failing to instruct the jury on assumption of the risk.
To succeed on a claim of medical negligence, a plaintiff must prove that
the doctor’s treatment deviated from acceptable medical standards. See
Fetherolf v. Torosian, 759 A.2d 391, 393 (Pa. Super. 2000). While our
Supreme Court has found that defendant physicians may not insulate
themselves from negligence actions by claiming the patient assumed the risks
of treatment, evidence of such risks may still be admissible where it reflects
the doctor’s awareness of possible complications. See Brady v. Urbas, 111
A.3d 1155, 1161-1162 (Pa. 2015). Evidence about the risks of treatment may
be relevant in establishing the standard of care. See id., at 1161.
We note, “[a] trial judge has wide latitude in his or her choice of
language when charging a jury, provided always that the court fully and
adequately conveys the applicable law.” Sears, Roebuck & Co. v. 69th
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5 We find Kirksey has waived his contention that Appellees’ counsel misstated
the language of Table 11 in his closing argument. While Kirksey timely
objected to counsel’s assertion, he failed to include this specific contention in
his Rule 1925(b) statement, and this issue is not fairly discernable from the
statement of issues provided on appeal. See HSBC Bank, NA v. Donaghy,
101 A.3d 129, 133 n. 7 (Pa. Super. 2014) (failure to include argument in
statement pursuant to Pa.R.A.P. 1925(b) necessitates waiver). As a result, we
will not address it.
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Street Retail Mall, L.P., 126 A.3d 959, 978 (Pa. Super. 2015) (citation
omitted). We review the court’s jury instructions for an abuse of discretion or
error of law. See id. We review the charge as a whole to determine if it
confused or misled the jury. See id.
Here, Kirksey filed a pretrial motion to exclude evidence regarding the
potential that rash could occur as a side effect of taking Lamictal. The court
denied Kirksey’s motion, and permitted testimony about Gedela’s warning of
the risk of rash. See N.T. Hearing, 11/22/17, at 55. At trial, Gedela testified
that taking Lamictal incurred a potential, but rare, risk of rash. See N.T. Trial,
11/30/17, at 626. Appellees also presented testimony from another doctor,
who testified the standard of care required that Gedela balance the risk of
rash against the risk of the seizures that Gedela prescribed Lamictal to cure.
See id., at 736, 741.
At the charging conference, the court rejected Kirksey’s request to give
a jury instruction that assumption of the risk was not an applicable defense.
See N.T. Trial, 11/30/17, at 794. The court stated assumption of the risk had
not been introduced as a defense during trial, and that it did not find a jury
instruction to be appropriate. See id.
We cannot find the court abused its discretion in permitting Appellees
to introduce evidence of the risk of rash as part of establishing the standard
of care. The only evidence pertaining to the risk of rash was introduced to
show Gedela’s own awareness of the potential side effects of combining
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Lamictal with Depakote. Neither party introduced evidence regarding Robert’s
consent to treatment.
As such, the court’s rejection of Kirksey’s proposed jury instruction was
not an abuse of its discretion. While Kirksey’s proposed instruction was a valid
statement of the law, the court appropriately deemed it irrelevant to the case,
as no party had introduced evidence regarding consent. This issue is without
merit.
In Kirksey’s fourth issue, he challenges the court’s refusal to release
requested exhibits to the jury.
Pennsylvania Rule of Civil Procedure 223.1 provides that the court “may
make exhibits available to the jury during its deliberations[.]” Pa.R.C.P.
223.1(d)(3). “[T]he trial court has the discretion to determine which exhibits
should be permitted to go out with the jury.” Wagner by Wagner v. York
Hosp., 608 A.2d 496, 503 (Pa. Super. 1992) (citation omitted).
While Kirksey concedes the court has discretion in deciding whether to
release exhibits to the jury during deliberations, he contrarily argues that the
court erred by failing to provide the exhibits to the jury, as these would have
“clear[ed] up any confusion” by “demonstrat[ing] inconsistencies in the
defense.” Appellant’s Brief, at 50.
The jury requested eleven exhibits during its deliberations, including
expert reports and medical records. See N.T. Trial, 12/1/17, at 912-914. After
argument from the parties, the court denied the request. See id., at 921. The
court stated it was concerned the jury would improperly focus on portions of
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the exhibits unaddressed by the parties at trial, such as the lengthy, unrelated
notes in Kirksey’s medical records. See id.
Kirksey fails to show the court abused its discretion in denying the
request for exhibits. His suggestion that this alleged error exacerbated juror
confusion at trial relies on proving the other arguments in his brief –
arguments we have already rejected as meritless. Indeed, the court prudently
reasoned that withholding the requested exhibits from the jury would prevent
juror confusion, by requiring the jurors to rely on their memory of key facts
from trial. We fail to see how this constituted an abuse of discretion, and so
reject Kirksey’s fourth claim.
Next, Kirksey claims the court erred by permitting Appellees’ expert, Dr.
Harry Abram, to testify outside of his expert report.
Pennsylvania Rule of Civil Procedure 4003.5 directs that testimony of an
expert at trial “may not be inconsistent with or go beyond the fair scope of his
or her testimony in the discovery proceedings[.]” Pa.R.C.P. 4003.5(4)(c). Our
Supreme Court has observed that the chief purpose of the rule is to prevent
unfair surprise at trial. See Polett v. Public Communications, Inc., 126
A.3d 895, 921 (Pa. 2015). In evaluating whether unfair surprise has occurred,
“[t]he question is whether the discrepancy between the expert’s pretrial report
and his trial testimony is of a nature which would prevent the adversary from
preparing a meaningful response, or which would mislead the adversary as to
the nature of the appropriate response.” Corrado v. Thomas Jefferson
University Hosp., 790 A.2d 1022, 1029 (Pa. Super. 2001) (citation omitted).
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On direct examination, Appellees’ expert witness Dr. Abram testified
that Stevens-Johnson syndrome, “is an allergic reaction. It can happen on a
little bit of Lamotrigine or a lot of Lamotrigine. An allergic reaction, it just
takes a molecule to trigger the reaction.” N.T. Trial, 11/30/17, at 737.
Kirksey’s counsel objected to the testimony as outside of the witness’s
expert report. See id., at 738. At sidebar, the court determined that Abram’s
report included a discussion of Kirksey’s reaction as idiosyncratic and
unpredictable, and so deemed the report fairly encompassed the allergy
testimony. See id., at 739. The court denied Kirksey’s objection. See id.
Abram’s testimony focused on the unpredictable nature of Lamictal
reactions. See id., at 737-748. Kirksey’s counsel conceded even during
sidebar that Abram’s report discussed the risk of Stevens-Johnson syndrome
as idiosyncratic. See id., at 739. Kirksey’s objection was premised on whether
an allergy could be fairly described as idiosyncratic or unpredictable; the court
determined it could be. See id. As Kirksey presented extensive testimony to
rebut Appellees’ contentions that the reaction was in fact unpredictable, he
cannot be said to have been unfairly surprised by Abram’s testimony.
Moreover, trial testimony from Kirksey’s own expert witness, Dr.
Wilkerson, demonstrates that Kirksey was able to prepare and present a
meaningful response to this potentially unfavorable testimony. Kirksey
questioned his expert physician on direct examination about the medical
definition of the word “allergy,” and asked if it pertained to Kirksey’s case.
See N.T. Trial, 11/28/17, at 336. The physician, Dr. Wilkerson, stated that
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Kirksey’s case could not be fairly considered an allergy case, as it was an
unusually severe drug reaction brought on by too much medication. See id.,
at 337. Thus, the court did not abuse its discretion in rejecting Kirksey’s
request to exclude Abram’s testimony.
In Kirksey’s last issue, he argues he is entitled to a new trial on the
grounds that one of the jurors had a conflict of interest she failed to disclose
before the verdict was rendered. According to Kirksey, he discovered after
trial that Juror Number Seven had admitting privileges at University of
Pittsburgh Medical Center (UPMC) hospitals, and had previously been
employed as a family physician at a UPMC facility. Kirksey avers prejudice
should be presumed in this situation, and he is entitled to a new trial or, at
minimum, an evidentiary hearing. We disagree.
We review de novo the trial court’s determination regarding juror
exclusion on the grounds of prejudice stemming from a relationship to the
parties. See Shinal v. Toms, 162 A.3d 429, 441 (Pa. 2017).
“We begin our analysis by recognizing that the right to a trial by an
impartial jury is enshrined in the Pennsylvania Constitution[.]” Bruckshaw v.
Frankford Hosp. of City of Philadelphia, 58 A.3d 102, 108 (Pa. 2012)
(citations omitted). “To this end, we go to great lengths to protect the sanctity
of the jury. Through the voir dire process individuals with bias or a close
relationship to the parties, lawyers or matters involved are examined and
excluded.” Id., at 110 (citations omitted).
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We presume the likelihood of prejudice where the juror’s relationship
with the parties, counsel, victims, or witnesses is “sufficiently close.” Shinal,
162 A.3d at 441. However, we take care to note that “[t]he mere existence of
some familiar, financial, or situational relationship does not require dismissal
in every case.” Id., at 443.
Here, Kirksey’s counsel submitted an affidavit following trial, which
accompanied his post-trial motions. The affidavit begins by chronicling
Gedela’s behaviors during trial, including allegations that Gedela “smiled and
laughed” “nearly immediately any time he was outside the presence of the
jury.” Affidavit, filed 12/11/17, at 2. Counsel then stated that after the “odd
and troubling” verdict, he “began to conduct research” about Juror No. 7. Id.,
at 3. The affidavit emphasizes that Juror No. 7 was originally an alternate
juror, who was chosen after the original Juror No. 7 was excused for a work
hardship, though the original juror “did not claim hardship during the voir dire
process less than one week previous.” Id.
The affidavit avers that, while the juror currently works as a physician
for the competing Forbes/Allegheny Health Network, informal searching
counsel did on websites such as “sharecare.com” led him to a determination
that Juror No. 7 was, in some nebulous way, affiliated with UPMC. Id., at 4.
The affidavit concedes that “substantial voir dire questioning occurred” and
that the replacement Juror No. 7 had disclosed that she was a physician who
had attended the University of Pittsburgh’s medical school (affiliated with
UPMC) for her training. Id., at 3. The affidavit summarily concludes that Juror
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No. 7 inappropriately failed to disclose past contacts with UPMC. See id., at
4.
Kirksey’s post-trial motion incorporated the allegations of the affidavit
in its demand for a new trial. In its opinion, the trial court rejected Kirksey’s
accusations, and counsel’s affidavit, as “reckless and unworthy of additional
consideration on appeal.” Trial Court Opinion, filed 6/19/18, at 15.
While this Court is always troubled by accusations of juror prejudice,
Kirksey has utterly failed to show a) that a close relationship between Juror
No. 7 and UPMC exists, and b) that Juror No. 7 did not disclose its existence.
While Kirksey’s brief claims Juror No. 7 concealed that she previously worked
for UPMC Shadyside (a separate branch of the UPMC network and not one of
the Appellees in this case), the exhibit attached to counsel’s affidavit clearly
shows that information printed as part of the juror’s education with the
University of Pittsburgh. See id., at Exhibit 59. Indeed, counsel’s affidavit
concedes Juror No. 7 did disclose her medical training at the University of
Pittsburgh, and that she now works as a physician at a competing hospital.
See Affidavit, filed 12/11/17, at 3-4. The remainder of the affidavit and the
brief rely on insinuation in the absence of a demonstrable connection between
Juror No. 7 and UPMC.
Finally, we note that even if Kirksey had demonstrated such a
relationship, UPMC itself is not one of the parties in this action. Kirksey only
filed suit against Appellee Children’s Hospital of Pittsburgh of UPMC, which is
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merely part of the UPMC network. Kirksey does not allege that Juror No. 7 has
any affiliation with Appellee Children’s Hospital of Pittsburgh of UPMC.
Though as Kirksey observes, we are “inclined to tip the balance in favor
of insuring a fair trial,” Schwarzbach v. Dunn, 381 A.2d 1295, 1298 (Pa.
Super. 1977), we are unable to conclude that Kirksey was given anything but,
based on the evidence before us. We are entirely unconvinced that Kirksey
has shown a sufficiently close enough relationship exists to warrant a
presumption of prejudice. As such, we decline to grant relief on this argument.
Because Kirksey has failed to demonstrate grounds for relief, we affirm
the judgment entered in this case.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2019
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