Kirksey, R. v. Children's Hospital of Pittsburgh

• Court: Superior Court of Pennsylvania
• Decided: October 9, 2019
• Docket: 421 WDA 2018
• Status: Unpublished

Opinion

J-A08009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 ____________________________________________

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). J-A08009-19

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 ____________________________________________

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 ____________________________________________

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.

____________________________________________

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 ____________________________________________

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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