J-A04032-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALEC J. TALLEY IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

JIBREEL M. BETHEA

No. 1085 MDA 2017

Appeal from the Judgment Entered August 2, 2017

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): 2014-CV-8032-CV

BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.: FILED MARCH 29, 2018

Appellant, Alec J. Talley, appeals from the judgment entered August 2, 

2017, following the entry of nonsuit in the instant negligence action. We 

affirm.

We adopt the following statement of facts from the trial court opinion, 

which in turn is supported by the record. See Trial Court Opinion (TCO), 

6/9/17, at 1-4. On September 7, 2012, Appellant was a passenger in a car 

with Eileen Kramer and Scott Rynearson. The car was driven by Appellee

Jibreel M. Bethea. After Appellee pulled into a parking lot at the Penn State 

Harrisburg campus in Harrisburg, Pennsylvania, Appellant and Mr. Rynearson 

exited the car. Appellee began to drive forward across the parking lot to 

another part of campus. 
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Shortly after driving away, Ms. Kramer1 heard banging on the back of 

the car and noticed for the first time that Appellant was on the back of the 

vehicle. Ms. Kramer immediately told Appellee to stop, and although he 

obeyed, Appellant had already fallen from the car. Appellee and Ms. Kramer 

parked and exited the car. They found Appellant bleeding on the ground and 

called 911. Prior to hearing the knock, Ms. Kramer did not know Appellant 

was on the car and did not see him get onto the car. 

No one testified regarding the events immediately preceding the 

accident.2 As a result of Appellant’s traumatic brain injury, he has no 

recollection of the incident, and could not testify as to how he got onto the 

car, where on the exterior of the car he was sitting, why he had gotten onto 

the car, and how long he was on the car prior to falling. Appellant suffers 

from permanent memory issues, a loss of his sense of smell, some hearing 

damage, and was unable to enlist in the United States Marine Corps, as was 

his intention prior to the accident. Dr. Richard Sleber conducted a vocational 

examination of Appellant and testified that he would lose approximately 

fourteen years of work-life as a result of his injuries.

At the conclusion of Appellant’s case before the jury, Appellee made a 

motion for nonsuit, arguing that Appellant had not met his burden of proof 

____________________________________________

1 Ms. Kramer was unavailable for trial; instead, counsel for Appellant and 

Appellee read portions of her deposition testimony into the record.

2 Further, Mr. Rynearson did not testify at trial. Appellee was deposed but did 

not testify. For reasons unknown, his deposition testimony was not read into 

the record at trial.
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that Appellee had breached a duty owed to Appellant. Following argument, 

the trial court granted the nonsuit and directed a verdict in favor of Appellee. 

Appellant filed a motion for post-trial relief, which was denied following oral 

argument. 

The judgment of nonsuit was entered on the docket, and Appellant 

timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 

1925.

On appeal, Appellant raises the following questions for our review:

1. Did the trial court err in denying [Appellant’s] motion for a new 

trial where [Appellant] established that the court’s grant of a nonsuit against [Appellant] was in error?

2. Did the trial court err in denying [Appellant’s] motion for a new 

trial where the trial court rejected [Appellant’s] requests to 

produce demonstrative evidence (visual demonstration of an 

automobile and/or in the alternative photographs of an actor on 

the back of a similar year make and model motor vehicle as the 

one in the accident) to the jury which would have established 

[Appellant’s] negligence in the operation of the vehicle?

Appellant’s Brief at 3 (suggested answers omitted).

First, Appellant contends that he is entitled to a new trial because the 

trial court erred in granting Appellee’s motion for nonsuit. See Appellant’s 

Brief at 15. Appellant claims that he established that Appellee was negligent 

in the operation of a vehicle and, as a result of Appellee’s negligence, Appellant 

suffered severe injuries. Id. Accordingly, the entry of nonsuit was not proper 

where the evidence established a right to relief. Id. Additionally, Appellant 

argues that because the trial court “considered” Appellee’s “defense” during 
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cross examination, nonsuit was improper, where the issue of whether Appellee 

knew Appellant was on top of the vehicle is one for the jury to consider. Id.

at 22-23.

Our standard of review regarding the entry of nonsuit is well settled:

A trial court may enter a compulsory nonsuit on any and all 

causes of action if, at the close of the plaintiff’s case against all 

defendants on liability, the court finds that the plaintiff has failed 

to establish a right to relief. Absent such finding, the trial court 

shall deny the application for a nonsuit. On appeal, entry of 

a compulsory nonsuit is affirmed only if no liability exists based 

on the relevant facts and circumstances, with appellant receiving 

the benefit of every reasonable inference and resolving all 

evidentiary conflicts in [appellant’s] favor. 

The compulsory nonsuit is otherwise properly removed and the 

matter remanded for a new trial. The appellate court must review 

the evidence to determine whether the trial court abused its 

discretion or made an error of law.

Baird v. Smiley, 169 A.3d 120, 124 (Pa. Super. 2017) (internal citations and 

quotations omitted).

Negligence is “the absence of ordinary care that a reasonably prudent 

person would exercise in the same or similar circumstances.” See Martin v. 

Evans, 711 A.2d 458, 461 (Pa. 1998). To establish a claim for negligence, a 

plaintiff must show a legally recognized duty or obligation owed to him; a 

breach of that duty; a causal connection between the breach of duty and the 

resulting injury; and actual loss or damage suffered. See Eckroth v. 

Pennsylvania Elec., Inc., 12 A.3d 422, 427 (Pa. Super. 2010). The “mere 

occurrence” of an injury does not prove negligence. See Hamil v. Bashline, 

392 A.2d 1280, 1284 (Pa. 1978). Nor does a negligent act entail liability 
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unless the plaintiff can establish that the defendant breached a duty of care, 

and there was a causal connection between the conduct and the injury. Id.

First, we must determine whether the evidence showed that Appellee 

owed a duty to Appellant. Giving Appellant the greatest latitude, it could be 

stated that by driving Appellant to Harrisburg, Appellee owed Appellant the 

ordinary care a reasonably prudent person would exercise in the same or 

similar circumstances, i.e., operating a motor vehicle. See, e.g., Martin, 711 

A.2d at 461. 

Second, we must determine whether a breach of that duty occurred. In 

arguing that the evidence established a breach of Appellee’s duty of ordinary 

care, Appellant cites to Appellee’s deposition testimony, which was not 

introduced at trial, and accordingly could not be considered by the trial court, 

jury, or on appeal. See Appellant’s Brief at 17-19; see also Pa.R.C.P. 

230.1(2) (the court in deciding the motion shall consider only evidence which 

was introduced by plaintiff). Here, the sole evidence introduced regarding the 

accident was that Ms. Kramer was a passenger in the car and that shortly after 

Appellee began to drive away from the parking lot, she realized Appellant was 

on the back of the car. She immediately asked Appellee to stop, and he did 

so. No testimony was given regarding why Appellant was on the back of the 

car, whether Appellee could have seen him, or how long Appellant was on the 

back of the car.

The evidence did not establish what happened prior to the accident, i.e., 

how Appellant came to be on the back of the car. The evidence did not 
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establish any details regarding the time or manner in which Appellee stopped 

the car after Appellant’s presence was brought to his attention. As the trial 

court correctly noted, the sole evidence Appellant presented was not of “a 

breach of duty, only the results—unfortunate, serious injury to the Plaintiff—

of an alleged breach.” See TCO at 7. 

Appellant attempts to attack this conclusion by implying that nonsuit 

was inappropriate because Appellee’s cross examination somehow constituted

“defense evidence.” See Appellant’s Brief at 22-23. As we noted, supra, 

Pa.R.C.P. 230.1 provides that the court will consider only evidence introduced 

by the plaintiff and any evidence favorable to the plaintiff introduced by the 

defendant prior to the close of the plaintiff’s case. See Baird, 169 A.2d at 

124; see also Pa.R.C.P. 230.1(a)(2). However, cross-examination is not 

evidence. Further, as the court noted,

the hole in [Appellant’s] presentation of evidence . . . would have 

remained even had defense counsel completely foregone crossexamination. In short, [Appellant] did not make out his case. 

Defense counsel’s comments did not make that legal reality more 

or less so.

See TCO at 7-8.

Accordingly, the trial court’s findings are supported by the record, and 

we discern no abuse of the trial court’s discretion or error of law in entering 

nonsuit in Appellee’s favor. See Hamil, 392 A.2d at 1284; see also Baird, 

169 A.3d at 124.

Next, Appellant claims that he is entitled to a new trial because the court 

erred in rejecting his request to produce demonstrative evidence. See 
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Appellant’s Brief at 23. Specifically, Appellant requested that the jury view an 

actor climbing onto a car similar to the one Appellee was driving “to 

demonstrate the falsity of [Appellee] and [Ms. Kramer’s] testimonies that they 

did not have knowledge [Appellee] was on the vehicle before it took off.” Id.

at 24. Additionally, Appellant sought to produce photographs of an actor on 

the back of a vehicle to the jury. Id. at 24-25. Appellant was allowed to show 

the jury photographs of an exemplar vehicle.

With regard to the admission of evidence, our standard of review is wellsettled.

The admission or exclusion of evidence is within 

the sound discretion of the trial court, and in reviewing a 

challenge to the admissibility of evidence, we will only reverse a 

ruling by the trial court upon a showing that it abused 

its discretion or committed an error of law. Thus our standard of 

review is very narrow . . . To constitute reversible error, an 

evidentiary ruling must not only be erroneous, but also harmful or 

prejudicial to the complaining party.

McManamon v. Washko, 906 A.2d 1259, 1268–69 (Pa. Super. 2006)

(internal citations and quotations omitted).

With regard to demonstrative evidence,

[a]s a general rule, demonstrative evidence is admissible if its 

probative value outweighs the likelihood of improperly influencing 

the jury. “[P]rejudice” does not mean “detrimental to a party's 

case” but rather “an undue tendency to suggest a decision on an 

improper basis.” The problem presented by the use of 

experiments, however, is the danger of misleading the members 

of the jury who may attach exaggerated significance to the test 

results. As a result the courts have required that the conditions 

be sufficiently close to those involved in the accident at issue to 

make the probative value of the demonstration outweigh its 

prejudicial effect. This is especially important where the 
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demonstration is a physical representation of the event. Thus, the 

general rule regarding corroboration by experiments is that unless 

some other exclusionary rule is violated, the demonstration may 

be admitted into evidence when the circumstances under which 

the experiment was performed were sufficiently similar to the 

event in question to throw light on a material point in controversy 

and to assist the jury in arriving at the truth rather than to confuse 

the jury or prejudice the other party.

Leonard by Meyers v. Nichols Homeshield, Inc., 557 A.2d 743, 745 (Pa. 

Super. 1989) (internal citations and quotations omitted). Further, 

demonstrative evidence “may be authenticated by testimony from a witness 

who has knowledge that a matter is what it is claimed to be.” See Kopytin 

v. Aschinger, 947 A.2d 739, 747 (Pa. Super. 2008).

Here, no evidence was introduced to establish where Appellant was on 

the vehicle, when he had gotten onto the vehicle, or how he fell off of the 

vehicle. Appellant stated he could remember nothing. Ms. Kramer did not 

see Appellant until he knocked on the back of the window. Accordingly, any 

reenactment could be nothing except speculation and would accordingly 

possess a “danger of misleading the members of the jury.” See Leonard by 

Meyers, 557 A.2d at 745. There would be, in short, no way to ensure that 

the conditions could be close to those in the accident. Id. 

Accordingly, the trial court did not err or abuse its discretion in 

precluding the admission of a reenactment or photographs involving an actor. 

McManamon, 906 A.2d at 1268–69.

Judgment affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2018