Chase, C. v. Adult Day Services

J-A08012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CATHERINE CHASE, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF THELMA JENKINS, : PENNSYLVANIA
DECEASED, :
:
Appellant :
:
:
v. :
: No. 2254 EDA 2019
:
ADULT DAY SERVICES AND MED :
TRANSIT LLC :
:
:
v. :
:
:
DRENA SCOTT AND HANDS FROM :
THE HEART MANAGEMENT INC. :
D/B/A HANDS FROM THE HEART :
HOME HEALTHCARE SERVICES :
Appeal from the Judgment Entered October 9, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): January Term, 2017 No. 04592
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 03, 2020
Catherine Chase, in her capacity as Executrix of the Will of Thelma
Jenkins, Deceased (“Chase”), appeals from the judgment, entered in the Court
of Common Pleas of Philadelphia County, after the trial court granted a non-
suit in favor of appellees, Adult Day Services, Med Transit, LLC (“Med
Transit”), Drena Scott (“Scott”), and Hands from the Heart Management, Inc.,
J-A08012-20
d/b/a Hands from the Heart Home Healthcare Services (“Hands from the
Heart”). Upon careful review, we affirm.
The Honorable Ann M. Butchart set forth the facts of this matter as
follows:
Thelma Jenkins [(“Jenkins”)], [Chase’s] great aunt, age ninety[-
]three, suffered from multiple health conditions[,] including
dementia. [Jenkins] lived with [Chase] and received home health
care from additional defendants Hands from the Heart. She also
attended day care at defendant Adult Day Services’ [D]ay [C]are
[C]enter. Defendant Med Transit transported [Jenkins] to and
from [] Adult Day Services’ care center.
On or around April 19, 201[6], [Jenkins] sustained a head
contusion and leg fractures. Her dementia affected her ability to
speak, and she could not state what happened to her, where, or
when.
On the morning of April 19, 2016, a Hands from the Heart worker
named Ann was [Jenkins’] assigned morning caretaker. When
[Chase] left for work that morning, [Chase] testified that [Jenkins]
appeared “fine.”
[Chase] presented no factual evidence for [what happened during]
the period between [Chase’s] departure for work[] and [Jenkins’]
return home.
Additional defendant [Scott] testified she was on duty on the
evening of April 19, 2016, when the Med Transit van drove
[Jenkins] home. She testified she helped the Med Transit driver
escort [Jenkins] into the house. Thereafter, [Scott] discovered
the head injury and called [Chase], who was on her way home
from work. [Chase] recalled [Scott’s] description as “lumps [on]
[Jenkins’] head[.]” [Scott] recalled noticing blood inside
[Jenkins’] wig. [Chase] testified that[,] after arriving home, she
called Mohammed Keita ([“Keita”]), the owner of defendant Med
Transit. She testified that [Keita] came to the house, and advised
[Chase] that the Med Transit driver had told him “nothing
happened.” [Keita] left and returned with a van to transport
[Jenkins] to the hospital. In addition to the head injury, [x]-rays
taken at the hospital revealed that [Jenkins’] leg sustained a tibia
-2-
J-A08012-20
and fibula fracture. [Jenkins] was hospitalized for several days
for observation.
[Jenkins] died of unrelated natural causes on May 11, 2018.
Trial Court Opinion, 11/8/19, at 3-4 (citations to record and unnecessary
capitalization omitted).
On February 2, 2017, Jenkins commenced an action alleging negligence
against Adult Day Services and Med Transit. On June 19, 2018, Chase was
substituted as plaintiff upon the death of Jenkins. Scott and Hands from the
Heart were subsequently joined as additional defendants upon motion of Med
Transit. On August 2, 2018, Chase filed a second amended complaint—the
operative complaint in this case—asserting wrongful death and survival causes
of action. Following the denial of summary judgment motions filed by Med
Transit and Adult Day Services, the matter proceeded to trial on April 1, 2019.
At the close of Chase’s case, Med Transit, joined by Adult Day Services and
Hands from the Heart, moved for a compulsory non-suit, which the trial court
granted. On April 12, 2019, Chase filed a motion to remove the non-suit,
which the court denied on June 21, 2019, after oral argument. Chase filed a
timely notice of appeal, and both she and the trial court have complied with
Pa.R.A.P. 1925.
Chase raises the following claims for our review:
1. Whether [Chase] offered evidence, in the form of ample
testimony, the believability of which was for the jury, from
[Chase’s] witnesses, exhibits, medical records, photographs, and
testimony of additional defendant [] Scott, sufficient to proceed to
a jury in [her] claims against defendant[s] Med Transit[ and Adult
Day Services].
-3-
J-A08012-20
2. Whether the trial court erred in granting non-suit because
[Chase] did not have the burden of proof in this case [pursuant to
the theory of alternative liability established in Summers v. Tice,
199 P.2d 1 (Ca. 1948), and adopted in Pennsylvania in
Snoparsky v. Baer, 266 A.2d 707 (Pa. 1970)].
3. Whether the trial court erred when it sustained the trial
objection of defendants that [Chase’s] expert Nurse Ingrid Sidorov
had not been qualified as an expert in “safety transportation,”
thereby precluding [her] further expert testimony on the topic[s]
of duty, breach, and causation as [they] relate[] to her proper
field of expertise.
4. Whether the trial court erred when it applied the “four corners”
doctrine to the scope of permissible opinion testimony pertaining
to the transportation logs.
Brief of Appellant, at 5-8 (some issues combined and/or restated for brevity
and ease of disposition; unnecessary capitalization omitted).
Chase’s first two claims allege that the trial court erred in granting a
non-suit as to Med Transit and Adult Day Services, as Chase presented ample
evidence to allow the case to go to the jury. In reviewing the entry of a non-
suit, our standard of review is abuse of discretion or error of law. Kovalev v.
Sowell, 839 A.2d 359, 368 (Pa. Super. 2003).
A motion for compulsory non-suit allows a defendant to test the
sufficiency of a plaintiff[’s] evidence and may be entered only in
cases where it is clear that the plaintiff has not established a cause
of action; in making this determination, the plaintiff must be given
the benefit of all reasonable inferences arising from the evidence.
When so viewed, a non-suit is properly entered if the plaintiff has
not introduced sufficient evidence to establish the necessary
elements to maintain a cause of action; it is the duty of the trial
court to make this determination prior to the submission of the
case to the jury. When this Court reviews the grant of a non-suit,
we must resolve all conflicts in the evidence in favor of the party
against whom the non-suit was entered.
-4-
J-A08012-20
A compulsory non-suit is proper only where the facts and
circumstances compel the conclusion that the defendants are not
liable upon the cause of action pleaded by the plaintiff.
Int’l Diamond Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261,
1274 (Pa. Super. 2012), quoting Poleri v. Salkind, 683 A.2d 649, 653 (Pa.
Super. 1996).
Here, Chase asserted negligence on the part of Med Transit and/or Adult
Day Services. “Generally, to establish a cause of action of negligence, the
plaintiff must demonstrate that the defendant owed a duty of care to the
plaintiff, the defendant breached that duty, the breach resulted in injury to
the plaintiff and the plaintiff suffered an actual loss or damage.” Brezenski
v. World Truck Transfer Inc., 755 A.2d 36, 40 (Pa. Super. 2000). Dismissal
is proper if the plaintiff does not aver sufficient facts to establish all the
elements of a claim. Lerner v. Lerner, 954 A.2d 1229, 1234–35 (Pa. Super.
2008).
Here, the trial court did not abuse its discretion or commit an error of
law in finding that Chase presented insufficient evidence as to what occurred
to Jenkins, when it occurred, or where it occurred and, as such, could establish
neither breach nor causation. See Trial Court Opinion, 11/8/19, at 7. At trial,
Chase testified that she had no idea how her aunt sustained the injuries to
her head and leg. See N.T. Trial, 4/1/19, at 55. She presented no evidence
as to what happened during the period when she left for work and when Med
Transit picked up Jenkins. Chase further indicated her belief that Adult Day
Services was not responsible for her aunt’s injuries and, in fact, testified that
-5-
J-A08012-20
she continued to send her aunt to Adult Day Services even after the incident.
See id. at 40-41. Drena Scott—who was present when Med Transit dropped
Jenkins off at home on the day of the incident and assisted the driver in lifting
her wheelchair up the front steps—testified that she did not know whether
anything had happened in the Med Transit van and that nothing happened
when she and the Med Transit driver lifted Jenkins up the stairs. Id. at 136-
37, 146. The blood she observed on Jenkins was not fresh, but rather dried.
Id. at 137. Scott had no idea how long the bump on Jenkins’ head had been
there. Id. at 138. Thomas Scheuerman, D.O., who treated Jenkins at the
hospital on the night of the incident, testified that he had no way of
ascertaining the age of Jenkins’ injuries. See Scheuerman Deposition,
3/28/19, at 86-87. Nurse Sidorov was also unable to shed any light on where,
when, or how the injuries occurred, testifying as follows:
Q: Are you able today to pin down . . . whose care [Jenkins] was
under when something happened?
A: No.
...
Q: You are also unable . . . to tell us where the incident or
incidents took place, correct?
A: Correct.
Q: How the incident or incidents took place, correct?
A: Correct.
Q: The time of day that the incident or incidents took place?
A: Correct.
Q: Whether it occurred in transit or whether it occurred at a
facility, correct?
-6-
J-A08012-20
A: Correct.
N.T. Trial, 4/2/19, at 54, 108. Notably, Chase presented no testimony from
any employees of either Med Transit or Adult Day Services.
With regard to Med Transit, Chase argues that Nurse Sidorov’s
“[t]estimony at trial plainly established for the jury’s consideration that the
standard of care in . . . picking up, loading, transporting, unloading, and
dropping off, is such that [] Jenkins requires two persons.” Brief of Appellant,
at 30. However, this claim is not supported by the record. Nurse Sidorov,
opined that, while two people are required to carry a wheelchair-bound person
up steps, only one person is required to load the individual into a van:
Q: How many people does it take to put an elderly person in a
wheelchair strapped into a van?
A: One.
Q: Okay. If one person did that, is that reasonable?
A: Yes.
...
Q: On the day of this incident, two people carried her up the
steps, correct?
A: Yes.
N.T. Trial, 4/2/19, at 123-24. Thus, under the standard as articulated by her
own expert, Chase can establish no breach of the standard of care as to Med
Transit. In fact, Nurse Sidorov did not identify anything that either defendant
did or did not do that constituted a breach of the standard of care. Instead,
she merely presumed that something had to have happened.
-7-
J-A08012-20
As the trial court aptly noted in its opinion,
Permitting the case to go to the jury on such a limited evidentiary
record would require the jury to speculate that something
occurred while [Jenkins] was in the care of either [] Adult Day
Services or [] Med Transit that fell below the standard of care, and
that caused her injuries. . . . [Chase] presented no evidence of
any conduct of either [] Med Transit or [] Adult Day Services
between the morning pickup and evening drop-off [that failed to
meet the requisite standard of care]. Thus, the record was devoid
of evidence of breach or causation for either [defendant]. The
failure to adduce evidence of breach of the standard of care or
causation is grounds for a compulsory non[-]suit.
Trial Court Opinion, 11/8/19, at 7 (emphasis in original).
We agree with the trial court that, based on the dearth of evidence
presented by Chase that either Med Transit or Adult Day Services breached
any standard of care and/or caused Jenkins’ injuries, this case was ripe for
the entry of a non-suit.1
____________________________________________
1 We note that Chase’s counsel conceded that the doctrine of res ipsa loquitur
was inapplicable to this case and, thus, the jury could not be allowed to infer
a breach of the standard of care. See N.T. Trial, 4/2/19, at 170 (“[Plaintiff’s
Counsel]: [T]his is not a res ipsa case. It’s a circumstantial evidence case, a
causation by virtue of circumstantial evidence.”). We agree that Chase would
not have been entitled to an instruction on res ipsa loquitur. Under that
doctrine, the finder of fact may infer that harm suffered by the plaintiff is
caused by negligence of the defendant when: (1) the event is of a kind which
ordinarily does not occur in the absence of negligence; (2) other responsible
causes, including the conduct of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and (3) the indicated negligence is within the
scope of the defendant’s duty to the plaintiff. Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061, 1071 (Pa. 2006). Even conceding
that Chase satisfied elements one and three of the doctrine, the evidence
adduced at trial failed to eliminate “other responsible causes,” i.e., Chase
failed to sufficiently eliminate either Adult Day Services or Med Transit as the
responsible party. In his dissent, Judge McCaffrey analogizes this case to
-8-
J-A08012-20
Chase also argues that she was entitled to present her case to the jury
under the theory of alternative liability. This doctrine is an exception to the
general rule that the plaintiff bears the burden of proof as to all elements of
negligence and was first established in Pennsylvania in Snoparsky v. Baer,
266 A.2d 707 (Pa. 1970). In Snoparsky, our Supreme Court adopted the
theory of alternative liability as set forth in Summers v. Tice, 199 P.2d 1
(Cal. 1948), and section 433B(3) of the Restatement (Second) of Torts. This
doctrine dictates that tortfeasors who act in concert will be held jointly and
severally liable for the plaintiff’s injury unless the tortfeasors are able to prove
that they have not caused the harm.2 Skipworth by Williams v. Lead
____________________________________________
Quinby and Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1137
(Pa. 1981). Both of those cases are inapt. In Quinby, our Supreme Court
held that a res ipsa loquitur instruction was appropriate where a quadriplegic
was injured when he fell from an examination table following a procedure.
There, however, there was no question that the defendants’ actions were the
cause of the plaintiff’s fall. In Jones, multiple doctors performed three
consecutive procedures on the plaintiff. When the plaintiff awoke, she was
found to be suffering from nerve palsy. The trial court gave a res ipsa loquitur
instruction. This Court reversed and granted a new trial. On allowance of
appeal, the appellee physician argued that plaintiff had not satisfied the
second element of res ipsa loquitur because the evidence did not, as a matter
of law, eliminate a second doctor as an “other responsible cause.” However,
appellee conceded that he had participated in the laproscopy performed by
the second doctor and admitted that he had been responsible for the plaintiff
“neurologically” throughout the entire operation. Accordingly, the Court found
that “[a]t best, [appellee and the non-party doctor] shared joint
responsibility[.]” Thus, Jones is also distinguishable on its facts and does not
mandate reversal in this case, in which a verdict against either defendant
would have been based on sheer speculation.
2In Snoparsky, plaintiff brought suit on behalf of a child who had been struck
by stones thrown by other children at a construction site. The original
-9-
J-A08012-20
Indus. Ass'n, Inc., 690 A.2d 169, 174 (Pa. 1997). The rationale
underpinning this theory that, where multiple wrongdoers bring about a
situation where the negligence of one of them injures a third party, the
wrongdoers are in a better position to know which of them caused the injury,
where the nature of their conduct makes it difficult or impossible for the
injured party to determine who was liable. Pennfield Corp. v. Meadow
Valley Elec., Inc., 604 A.2d 1082, 1086 (Pa. Super. 1992). The predicate
for applying the doctrine of alternative liability is that “the conduct of two or
more actors is tortious.” Id. at 1085, quoting Restatement (Second) of Torts,
§ 433B(3). Thus, the burden remains on the plaintiff to prove that each actor’s
conduct was tortious; only then will the burden shift to the wrongdoers to
disprove causation. Id. Where there is no proof that the conduct of more
than one actor has been tortious at all, the plaintiff retains the burden of proof
as to the tortious conduct and as to the causal relationship. Restatement
(Second) of Torts, § 433B(3), comment (emphasis added).
____________________________________________
defendants were the landowners where the incident occurred, and the
construction company involved in the construction project. The original
defendants joined all of the children who had engaged in the stone throwing,
on the ground that one or more of them had to be liable for the minor plaintiff’s
injuries, even though the responsible child could not be identified. The
Supreme Court held that inability to identify the individual tortfeasor did not
defeat the cause of action. Rather, citing both section 433B of the
Restatement (Second) of Torts and Summers, the Court concluded that each
child engaged in the stone throwing would bear the burden of demonstrating
that his or her conduct had not brought about the plaintiff’s injuries.
- 10 -
J-A08012-20
Here, Chase cannot avail herself of relief under the theory of alternative
liability as she has failed to establish negligence on the part of either Med
Transit or Adult Day Services. Pennfield Corp., supra.
Chase next asserts that the trial court abused its discretion in granting
Med Transit’s motion to disqualify Nurse Sidorov as an expert in medical
transportation. Decisions regarding admission of expert testimony, like other
evidentiary decisions, are within the sound discretion of the trial court.
Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa. Super.
1999). We may reverse only if we find an abuse of discretion or error of law.
Id.
Nurse Sidorov was offered by Chase as an expert in geriatric care.
Following Chase’s voir dire questioning of Nurse Sidorov, counsel for Med
Transport requested a sidebar, at which time he argued that Nurse Sidorov
should be precluded from testifying as an expert in “medical transportation.”
See N.T. Trial, 4/2/19, at 34-37. The court denied that motion. Thereafter,
during voir dire cross-examination by counsel for Med Transit, the following
exchange occurred:
Q: So, Ms. Sidorov, you’re not an expert in medical
transportation, correct?
A: Correct.
Id. at 42. Thereafter, at sidebar, counsel for Med Transit renewed his
objection to the qualification of Nurse Sidorov as an expert in “medical
transportation.” Based on Nurse Sidorov’s statement that she was not an
- 11 -
J-A08012-20
expert in that area, the court reversed course, ruling that any testimony by
Nurse Sidorov on that topic would be deemed fact, not expert, testimony.
On appeal, Chase argues that, despite the court’s ruling, Nurse Sidorov
was allowed to “testify as to the standard of care and causation pertaining to
medical transport and transfer of the elderly,” and “agreed with the rule of
[Chase] and Adult Day Services requiring that the wheelchair lap belt be used
when [] Jenkins was in the wheelchair.” Brief of Appellant, at 45. However,
Chase argues that
in another context[,] Nurse Sidorov was precluded by the trial
court from testifying on a line of questioning as to medical
transport as it falls properly under her expertise in geriatric care.
It is this ruling that [Chase] complains of in the instant post-trial
motion [sic]. [Chase] was eliciting testimony within the scope of
expertise of Nurse Sidorov to flesh out her earlier testimony about
the standard of care in geriatric transport, and the trial court
sustained an objection.
Here is the context:
Q (Plaintiff’s counsel): Can everything be anticipated that
might happen in the standard of care or is that overall
standard of care to keep the patient safe?
A (Nurse Sidorov): To keep the patient safe.
Q: Now, are the standards of care for Med Transit or any
transportation drivers different standards than they would
be for somebody who’s not transporting—
[Defense counsel]: Objection. Goes outside the
expertise of Ms. Sidorov, who is not an expert in
safety transportation as she even testified to.”
THE COURT: Sustained.
Brief of Appellant, at 46-47, quoting N.T. Trial, 4/2/19, at 157.
- 12 -
J-A08012-20
Chase claims the trial court was wrong to sustain the objection for three
reasons. First, Chase’s counsel had not finished asking her question and, thus,
the objection was not “ripe.” Second, contrary to defense counsel’s
characterization, Nurse Sidorov never testified that she was not an expert in
“safety transportation.” Third, defense counsel mischaracterized the trial
court’s prior rulings as to the scope of Nurse Sidorov’s expert testimony.
Specifically, Chase asserts that the court “ruled that Nurse Sidorov could
testify as to the standard of care for medical transportation only insofar as it
fell within the ambit of her decades of expertise and training in geriatric care,
and that she could not testify as to the standard of care in transport
simpliciter.” Brief of Appellant, at 47-48. Chase’s arguments are
disingenuous and meritless.
The trial court did not abuse its discretion in ruling that Nurse Sidorov
was not competent to testify as an expert in medical transportation after Nurse
Sidorov herself conceded that she was not an expert in that area. Moreover,
Chase’s assertion that the court’s ruling as to Nurse Sidorov’s qualifications
only applied to transportation in general, rather than medical transportation,
is a pedantic mischaracterization of the court’s intent.3 General transportation
was not an issue in this matter and Chase did not attempt to qualify Nurse
____________________________________________
3 The trial court used the following language in rendering its ruling on Nurse
Sidorov’s ability to testify as an expert in the field of medical transportation:
“Ms. Sidorov’s testimony, if any, [on] the subject of transport will not be
deemed to be expert testimony. It will be fact testimony and nothing more.”
N.T. Trial, 4/2/19, at 44. While the court did not use the word “medical” to
modify “transport,” the court’s meaning is abundantly clear from context.
- 13 -
J-A08012-20
Sidorov as an expert in general transportation. Similarly, the fact that defense
counsel used the term “safety transportation” rather than “medical
transportation” in objecting to Chase’s question on redirect is irrelevant.
Counsel’s meaning is obvious when viewed in the context of his objection and
of the case in general. Accordingly, we reject Chase’s attempt to create a
substantive legal distinction based on counsel’s choice of phrasing. Finally,
Chase concedes that, despite the court’s limiting directive, “Nurse Sidorov did
indeed testify as to the standard of care and causation pertaining to medical
transport and transfer of the elderly.” Brief of Appellant, at 45. Accordingly,
Chase can establish no prejudice resulting from the court’s ruling. For all the
foregoing reasons, Chase is entitled to no relief on this claim.
Finally, Chase asserts that the trial court erred in barring Nurse Sidorov
from testifying regarding her opinion of Med Transit’s transportation logs.
Chase asserts that the logs contained “numerous indicia of artificiality or
fabrication, such as different ink and penmanship, and who was present in the
vehicle, and false data as well; this is for the jury.” Brief of Appellant, at 52.
Chase asserts that Nurse Sidorov would have testified that these
inconsistencies in the logs were “evidence for the jury to consider of
negligence and breach, causing damages.” Id. at 51. Because Chase’s claim
is belied by the record, it is meritless.
On direct examination, Chase’s counsel elicited the following testimony
from Nurse Sidorov with respect to Med Transit’s logs:
- 14 -
J-A08012-20
Q: In your review of the transit logs for Adult -- Med Transit, did
you review -- did you see any report of any incident or happening
that occurred during the transit of Thelma Jenkins that day?
A: No.
...
Q: Did you review the transit logs from Med Transit?
A: Yes, for the two days, the 18th and 19th of April 2016.
Q: I’m just going to hand you what has been marked as Plaintiff’s
Exhibit 13 for identification purposes only.
MR. MOORE: May we see a copy?
BY MS. TURNER:
Q: I'm asking you to look at --
MS. TURNER: Can you put it up on the screen, please. It's
for the 19th. We'll start with the 18th.
THE WITNESS: That’s the 18th.
Q: I’m asking you to look at that. Do you see Thelma Jenkins’
name on the left-hand side?
A: Yes.
Q: Do you see on the right of that where she was picked up from
that morning?
A: Yes.
Q: What is that?
A: That’s 2020 South 23rd Street, Philadelphia.
N.T. Trial, 4/2/19, at 57-59.
As the quoted excerpts from the transcripts show, counsel’s questions
regarding Med Transit’s lots were all asked and answered without objection
from defense counsel. Chase’s counsel then posed the following question:
- 15 -
J-A08012-20
Q: Were you able to ascertain the address of Adult Day Services
yesterday when you were listening to testimony?
A: Yes. I believe it’s in Upper Darby.
MR. SILVERMAN: Objection, your Honor. This witness is
here as an expert witness. She is bound by the four corners
of her report; not what she heard in the courtroom
yesterday.
MS. TURNER: I am asking her about her review of the Med
Transit logs.
THE COURT: What was the question?
***
(Whereupon the preceding question was read back by the Official
Court Reporter)
***
THE COURT: I will sustain the objection. The witness is
bound by the four corners of her report.
MS. TURNER: I will address this with another witness.
Id. at 59-60 (emphasis added).
Clearly, Chase was allowed to question Nurse Sidorov regarding the
transit logs, without objection, and the logs were published to the jury. Only
when counsel asked Nurse Sidorov to answer a question based on
observations she had made in the courtroom, rather than based on materials
she reviewed in preparing her report, did defense counsel lodge an objection.
The court sustained that objection not because it involved the transit logs, but
rather on the basis that Nurse Sidorov’s courtroom observations were not
contained within the four corners of her report. Accordingly, counsel would
have been free to proceed with additional questions based on the transit logs,
but counsel opted not to do so. Instead, she indicated that she would address
- 16 -
J-A08012-20
the issue with another witness and moved on to another line of questioning.
Chase cannot now attribute to trial court error her own counsel’s strategic
decision to forego further questioning of Nurse Sidorov regarding the transit
logs.
Additionally, we note that the information Chase’s counsel attempted to
elicit from Nurse Sidorov immediately prior to defense counsel’s objection—
the location of Adult Day Services—had been previously obtained on direct
examination of Chase. See N.T. Trial 4/1/19, at 9 (“Q: Now, where was Adult
Day Services situated? Where was it located? A: State Road in Upper
Darby.”). Accordingly, Chase suffered no prejudice when the court sustained
defense counsel’s objection.
Judgment affirmed.
Judge Kunselman joins this Memorandum.
Judge McCaffery files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/20
- 17 -