Hernandez, J. v. Independence Constr. Corp.

J-A14023-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JESSE HERNANDEZ : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

INDEPENDENCE CONSTRUCTION :

CORPORATION, SOUTHEASTERN :

PENNSYLVANIA TRANSPORTATION : No. 1911 EDA 2023

AUTHORITY, NATIONAL RAILROAD :

PASSENGER CORPORATION D/B/A :

AMTRAK :

Appeal from the Judgment Entered July 14, 2023

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 181202689

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.

CONCURRING/DISSENTING MEMORANDUM BY STABILE, J.:

FILED AUGUST 18, 2025

Respectfully, I would grant Independence Construction Corporation

(ICC) a new trial due to the highly prejudicial nature of the irrelevant evidence

admitted. I believe the Majority’s finding of ICC’s waiver as to Issues Six,

Seven, and Eight is in error because the record reflects that ICC thoroughly

preserved those claims as a matter of fact and of law. More concerning,

however, is that the Majority’s finding of waiver represents a disturbing and

possibly growing trend within this Court of avoiding merits consideration of

issues based on hyper technical waiver grounds. This trend does not honor

J-A14023-24

our duty to liberally construe our rules and does violence to every citizen’s

constitutional right to appeal.1

The present case is a negligence action wherein Jesse Hernandez alleged

safety violations by ICC that caused him harm. Over ICC’s objections,

Hernandez was permitted to attack the character of ICC’s owner, Steven Hare,

by asking him about ICC’s supposed breaches of the Business Integrity and

Disadvantaged Business Enterprise (DBE) requirements of its SEPTA contract.

This questioning related to completely irrelevant and prejudicial matters that

had nothing to do with establishing negligence, but rather, prevented ICC from

receiving a fair trial. It is clear from a record review that the only purpose

served by the introduction of this irrelevant testimony was to besmirch ICC’s

character in the eyes of the jury.

Accordingly, I dissent in part for three main reasons. First, contrary to

the Majority’s waiver argument, which it raises sua sponte, the record clearly

shows that ICC fully litigated the evidentiary issues asserted in Issues Six,

Seven, and Eight of its brief. See Appellant’s Brief, at 2-4 (statement of

questions involved). It was clear from context that ICC preserved the issues

at trial by objecting to the content of the disputed evidence, as well as its

form, which would directly implicate the rules cited by ICC on appeal – Pa.R.E.

____________________________________________

1 Pennsylvania Rule of Appellate Procedure 105(a) provides that “[t]hese rules

shall be liberally applied to secure the just, speedy, and inexpensive

determination of every matter to which they are applicable.” Pa.R.A.P.

105(a). The right to an appeal is guaranteed by Article 5, section 9 of the

Pennsylvania Constitution. See Pa. Const. art. 5, § 9.

-2-

J-A14023-24

401, Pa.R.E. 403, and Pa.R.E. 608(b)(1) – as implicitly recognized by the trial

court and Hernandez. Second, even assuming that ICC’s arguments below

were strictly limited to relevance, this would have been sufficient to preserve

a claim under Rule 608(b)(1),2 which merely codified a long line of cases

holding that specific instances of collateral misconduct are not probative of a

witness’s character for truthfulness. Third, ICC’s preservation of these

evidentiary claims requires this Court to consider their merits, and in light of

the evidence’s obvious prejudicial effect, ICC should receive a new trial.

I. The Claims Were Preserved

Generally, in order to preserve an issue for purposes of appellate review,

a party must make a timely, contemporaneous objection at a point when the

trial court may correct the asserted error. See Pa.R.E. 103. The party must

also state the “specific ground” of the objection, “unless it was apparent from

the context[.]” Id. “Once the court rules definitively on the record — either

before or at trial — a party need not renew an objection or offer of proof to

preserve a claim of error for appeal.” Pa.R.E. 103(b).

“Even a general objection is adequate to preserve a challenge to an

evidentiary ruling where the evidence is inadmissible for any purpose[.]”

Commonwealth v. Vucich, 194 A.3d 1103, 1107 (Pa. Super. 2018) (quoting

____________________________________________

2 The rule provides that “the character of a witness for truthfulness may not

be attacked or supported by cross-examination or extrinsic evidence

concerning specific instances of the witness' conduct[.]” Pa.R.E. 608(b)(1).

-3-

J-A14023-24

Cominsky v. Donovan, 846 A.2d 1256, 1258 n.2 (Pa. Super. 2004)). The

Rules of Appellate Procedure, including those governing the preservation of

issues for appeal, must be liberally construed. See Pa.R.A.P. 105(a).

Consistent with that liberal approach, “[e]ach error identified in [a Rule

1925(b)] Statement will be deemed to include every subsidiary issue that was

raised in the trial court[.]” Pa.R.A.P. 1925(b)(4)(v).

“This Court may raise the issue of waiver sua sponte.” In re Estate of

Anderson, 317 A.3d 997, 1003 (Pa. Super. 2024). Crucially, though, when

this Court raises an issue sua sponte to affirm a trial court’s evidentiary ruling

for a reason other than those given by the trial court, the basis of that holding

should be “apparent from the record.” Commonwealth v. Edwards, 903

A.2d 1139, 1157 n.19 (Pa. 2006); see also Lynn v. Nationwide Ins. Co.,

70 A.3d 814 (Pa. Super. 2013) (same).

The Majority’s stated reason for finding waiver is that ICC only objected

on relevance grounds (relating to Pa.R.E. 401), without specifically referencing

any of the other rules relied upon in its appellate brief, namely Pa.R.E. 403

and Pa.R.E. 608(b)(1). See Maj. Mem., at 26-27. However, the record shows

that the substance of all those rules was fleshed out below in ICC’s arguments,

fully apprising the trial court of the same issues now being raised on appeal.

As discussed above, so long as the basis for an objection is understood, issue

preservation does not require the numerical nomenclature of an evidentiary

rule to be stated. See Pa.R.E. 103(a)(1)(B).

-4-

J-A14023-24

Prior to trial, ICC moved to preclude Hernandez’s expert, Gustavo Da

Silva, from discussing ICC’s performance of its SEPTA contract. As is evident

from the pretrial disclosure of Da Silva’s expert reports, Hernandez had

planned to have him opine on whether ICC breached contractually required

safety protocols. ICC argued in its motion limine that the subject was not

relevant to any of Hernandez’s negligence claims, or to any of the issues to

be resolved by the jury. See ICC’s Motion In Limine Seeking Preclusion of

Testimony by Gustavo Da Silva on Issues of Contract and/or Breach of

Contract Between Defendants, 1/19/2023, at paras. 31-37. ICC contended in

its motion that any testimony regarding the contractual relationship of the

defendants would be inadmissible due to its complete irrelevance, as well as

the potential for such evidence to confuse the jury about the nature of the

proceedings. See id. (citing Pa.R.E. 401, 403).

The trial court agreed, and granted ICC’s motion. The parties conducted

no other discovery pertaining to the contractual obligations between ICC and

SEPTA, and Hernandez gave no indication that he would seek to elicit such

evidence at trial through the testimony of another witness. 3

____________________________________________

3 It is specious to suggest that ICC’s motion in limine to preclude testimony

about its contract with SEPTA was limited to Da Silva. See Maj. Mem., at 26-

27. ICC’s arguments chiefly had to do with the content of the prospective

testimony, not the identity of the witness who was testifying. ICC was

compelled to refer specifically to Da Silva’s testimony in its motion because

he was the only witness who Hernandez planned to question about ICC’s

contract with SEPTA.

-5-

J-A14023-24

Later, during Hare’s cross-examination, Hernandez broached the

subject of ICC’s compliance with the DBE requirements of its SEPTA contract.

These contractual terms prohibited ICC from subcontracting its work to an

entity owned by ICC (Hare); the contract also required ICC to subcontract at

least 14% of the total value of the contract to a DBE. It was insinuated by

Hernandez that Hare had purchased the company, MSI (Minority Services,

Inc.), and not changed its name, as a ploy to qualify the company as a DBE.

See N.T. Trial, 2/14/2023 (p.m. session), at 79 (“Sir, is the reason you kept

the name Minority Services, Inc. because you wanted to imply to SEPTA that

you actually operated a DBE when it was, in fact, a company owned by

you?”).4

Echoing its motion in limine, ICC objected that such matters were

irrelevant and collateral to the negligence claims asserted in Hernandez’s

complaint. Hernandez countered that if Hare, as ICC’s owner, breached those

parts of the SEPTA contract, it would be relevant to his truthfulness and

credibility. See N.T. Trial, 2/14/2023 (p.m. session), at 32-34.

____________________________________________

4 In his testimony, Hare admitted that since he is a Caucasian man, MSI did

not fit the definition of a DBE, which requires the entity to be owned by a

woman or a member of a racial minority. Hare explained that he had

purchased MSI from a Black woman, and he feared that changing the name

would complicate the entity’s existing contracts with other parties. As to the

DBE requirements, Hare claimed that he satisfied those terms by retaining

administrative support from the DBE entity, Rhoads Business Services. He

claimed further that SEPTA knew of his ownership of MSI, as well as his race

and gender. Hare’s explanations were neither corroborated nor refuted, as

there had been no pretrial discovery about these collateral issues.

-6-

J-A14023-24

In a sidebar, the trial court responded that since ICC’s potential non-

compliance with the SEPTA contract could bear on Hare’s credibility, such

matters were necessarily relevant and admissible at trial. Id., at 34-35. ICC

disputed that notion, arguing that ICC’s performance of terms in its SEPTA

contract had no relevance to its alleged liability for the injuries sustained by

Hernandez.

The trial court and ICC’s counsel then went beyond the discrete issue of

relevance to discuss the proper means by which the credibility or character of

a witness could be attacked. ICC’s counsel began developing the point that a

witness could not be questioned about a collateral instance of misconduct and

then confronted with evidence inconsistent with the witness’s answers. Id.,

at 35-36. Before ICC’s counsel could complete the argument, the trial court

cut short the discussion and definitively overruled ICC’s objection:

ICC Counsel: Again, Your Honor, so, you know, we could go

through all sorts of provisions of the contract that maybe he didn't

have, you know, abide by or things of that nature, but what does

that have to do with the accident in question? And, again, this is

a negligence –

Trial Court: Credibility is always an issue when a witness is

testifying. If you could show that a witness was not being truthful

or was not credible when he did certain things in relation to the

overall case, that's relevant as to his whether or not the jury is

going to believe other things that he said.

ICC Counsel: Yeah, but it has to be relevant to what we are talking

about. This is not a breach of contract case.

Trial Court: No, no, credibility is always an issue in a case when a

witness is testifying. Right?

-7-

J-A14023-24

ICC Counsel: I mean --

Trial Court: I mean, just, for example, if -- and this is not the case

and I'm not trying to say it is the case. But if this individual had

committed a crime that would involve crimen falsi, and he was

sentenced to more than a year or pled guilty or whatever like that,

even though it's not relevant to the case, it goes to his credibility,

that's why it's allowed.

ICC Counsel: And there is a specific rule on that.

Trial Court: The reason it is, because when a witness testifies the

jury has to believe what he's saying. And if they could show that

he was not credible at a certain point, then that will go to his

credibility. And I'm going to allow the question.

ICC Counsel: Here's another scenario, Your Honor. Ask the

question, did you ever get a speeding ticket, sorry, did you

ever get a speeding ticket and the answer --

Trial Court: That doesn't involve honesty, it's got to be a crimen

falsi.

ICC Counsel: Then he answers no --

Trial Court: If it did, I would be the most dishonest person --

ICC Counsel: But then he answers no and they pull up a

speeding ticket that he got. So that's where we're going.

We're going way afar with this credibility issue, which is --

Trial Court: No, it's not way afar, it's in the contract. I'm

going to allow it. The objection is overruled.

Id., at 34-36 (emphasis added).

Later in Hare’s cross-examination, when Hernandez’s counsel

questioned him as to whether ICC had subcontracted to a DBE, and paid it the

“set aside portion” of the contract’s total value, as required by the SEPTA

contract, ICC’s counsel again objected:

-8-

J-A14023-24

ICC Counsel: And that's my problem when we had the last

[sidebar] session in here. We are now getting into a contract

dispute that has nothing to do with this case. Nothing at all, Your

Honor. And to try to interject the price of this contract into

this case is so prejudicial, has no probative value

whatsoever.

****

[W]e are going -- we are so far away from a train accident

at this point in time, the jury is going to go: What are we

doing? Are we doing a breach of contract trial or are we

doing a negligence trial?

****

And, again, Your Honor, we are getting far afield of anything --

credibility must be relevant to the case at hand. You just can't

ask him again, you know, questions about, you know, isn't

it true you beat your wife? I mean that's where we're going

on this.

Id., at 45-48 (emphasis added).

By this point of the trial, neither Hernandez, nor the trial court, had cited

Pa.R.E. 608 as authority allowing the proposed cross-examination of Hare.

The trial court referred to Pa.R.E. 608 explicitly for the first time in its 1925(a)

opinion, in a token attempt to clarify its reasons for permitting Hare to be

questioned about ICC’s alleged breaches of the SEPTA contract. See Trial

Court 1925(a) Opinion, 12/19/2023, at 19-21. By doing so, the trial court

itself implicitly recognized that ICC had previously identified issues associated

with that rule when lodging its contemporaneous objections. See id.

Further, at the appellate stage, neither the trial court, nor Hernandez,

have asserted, as the Majority does, sua sponte, that ICC waived the subject

-9-

J-A14023-24

evidentiary claims in its brief.5 This only further establishes that ICC’s

purported waiver is not apparent from the record, and that its preservation of

the subject claims was entirely clear from context. See e.g., Cominsky v.

Donovan, 846 A.2d 1256, 1258 n.2 (Pa. Super. 2004) (“[T]he trial judge

decided the issue on its merits, raising no question in his opinion that it had

not been preserved or that he did not understand the basis for the objection.

In addition, appellee does not argue to this Court that the issue was waived.

Under these circumstances, the general objection was sufficient to preserve

the issue for our review.”); see also Commonwealth v. Wolfel, 233 A.3d

784, 789-90 (Pa. 2020) (holding that Commonwealth had waived its waiver

argument against defendant at trial and on appeal, precluding Superior Court

from raising waiver sua sponte to avoid review of the appeal’s merits).

On appeal, ICC then reiterated its contention that the trial court erred

in allowing Hernandez to question Hare about the Business Integrity and DBE

____________________________________________

5 Again, neither the trial court, nor Hernandez, have asserted that ICC waived

its evidentiary claims on the grounds stated by the Majority here on appeal

for the first time. Hernandez only has argued in his brief that ICC waived the

right to challenge his right to impeach Hare based on purported violations of

the SEPTA contract because ICC did not object when the DBE and business

integrity provisions were admitted into evidence as exhibits. See Appellee’s

Brief, at 57-59. This separate waiver argument is unpersuasive. ICC timely

objected when Hernandez sought to discredit Hare based on whether ICC

violated those provisions. ICC in no way agreed to have Hare questioned

about the contents of the exhibits, and the alleged breaches of the SEPTA

contract, simply by opting not to challenge the exhibits’ admissibility. Hare’s

alleged breaches of the contractual terms were not relevant to any trial issues,

and ICC had no way of knowing that Hernandez had planned to use the

exhibits to impeach Hare or attack his credibility.

- 10 -

J-A14023-24

provisions of the SEPTA contract. ICC summarized the trial court’s error in its

1925(b) statement, noting that “[t]he examination bore no probative value to

any material fact in dispute.” Appellant’s 1925(b) Statement, 8/4/2023, at

para. 10. This identified error must be “deemed to include every subsidiary

issue that was raised in the trial court,” see Pa.R.A.P. 1925(b)(4)(v), namely

that relevance is a threshold requirement for attacking the credibility of a

witness on cross-examination with specific instances of the witness’ conduct.

In its brief, ICC has argued that the admission of evidence that it

breached the Business Integrity and DBE provisions of the contract was

irrelevant, inflammatory, and prejudicial due to the likelihood that the jury

could have been confused or misled about the nature of the issues it was

tasked with resolving. See Appellant’s Brief, at 36-45. Moreover, ICC has

argued that, insofar as the trial court found ICC’s performance of the subject

contract terms to be “character evidence” under Pa.R.E. 608, and therefore

“always” admissible, the trial court misapplied the law. See id., at 41.

That is, the cross-examination on these subjects did not constitute

“reputation” evidence under Pa.R.E. 608(a) as the trial court stated in its

1925(a) opinion, and specific instances of misconduct could not be used to

impeach a witness on cross-examination under Pa.R.E. 608(b)(1). See id.,

at 41-42. ICC cited several cases which held that the admissibility of character

evidence under Pa.R.E. 607 and Pa.R.E. 608 is subject to the threshold

- 11 -

J-A14023-24

relevance requirements of Pa.R.E. 401, as well as the balancing test of Pa.R.E.

403. See id., at 42-43.6

As shown in the above excerpts of the notes of testimony, there is no

question that ICC’s counsel thoroughly argued to the trial court that Hare’s

purported breaches of its SEPTA contract were irrelevant and inadmissible,

and that the admission of such evidence was prejudicial due to its potential to

mislead or confuse the jury (implicating Pa.R.E. 401 and Pa.R.E. 403).

Further, it is readily apparent that ICC’s counsel and the trial court were

debating whether Hare could be confronted with specific instances of prior

conduct that were collateral to the issues involved in the trial (implicating

Pa.R.E. 608(b)(1)). See id., at 35-36; 45-48.7

____________________________________________

6 In its brief, ICC cites several cases which stand for the proposition that when

evidence is not relevant to bias but instead merely truthfulness, it is collateral

and not probable with extrinsic evidence. See Appellant’s Brief, at 42-43

(citing Commonwealth v. Kiger, No. 343 MDA 2019 *8 (Pa. Super. filed

December 2, 2019) (unpublished memorandum)). Further, a party “may not

impeach a witness on collateral matters or matters that have no relationship

to the case at trial.” Id. (quoting Commonwealth v. Guilford, 861 A.2d

365, 369 (Pa. Super. 2004)). This is exactly what ICC argued to the trial

court. See N.T. Trial, 2/14/2023 (p.m. session), at 32-48.

7 The Majority suggests that ICC’s prejudice argument was limited to

Hernandez’s cross-examination of Hare about the value of the ICC-SEPTA

contract, and not about violations of the business integrity and DBE provisions.

See Maj. Mem., at 27 n.16. This is incorrect. Hernandez sought to elicit the

total value of the contract so that he could establish ICC’s breach of the

requirement to pay a subcontracted DBE business at least 14% of that value.

ICC’s prejudice argument as to the contract amount went directly to the entire

line of questioning about alleged breaches of the DBE provisions. Additionally,

it is not even necessary for a party to argue prejudice as a basis for excluding

(Footnote Continued Next Page)

- 12 -

J-A14023-24

The trial court disregarded the points made by ICC’s counsel, presuming

that Hare’s responses to Hernandez’s questions about ICC’s performance of

the SEPTA contract would be proper merely because they could be used to

discredit Hare. ICC’s counsel tried to alert the trial court to an error in that

rationale by giving hypothetical examples of improper character attacks on a

witness with collateral matters. Those examples illustrated exactly what

Pa.R.E. 608(b)(1) prohibits, apprising the trial court of the content of the rule,

even if it was not identified by name. See id. Apart from expressly citing

Pa.R.E. 608(b)(1), which ICC was not required to do in order to preserve its

appellate issues, ICC could not have done anything more to apprise the trial

court of the basis for its objections.

II. ICC’s Relevance Objections Directly Implicated Rule 608(b)(1)

Finally, even if the Majority is correct that ICC’s objections to Hare’s

cross-examination were strictly based on relevance, our decisional law would

still compel merits consideration of the issue under Pa.R.E. 608(b)(1).

This Court has recognized that the promulgation of Rule 608(b)

(effective on October 1, 1998) did not implement a new evidentiary test for

admissibility. See Eighth N.-Val, Inc. v. William L. Parkinson, D.D.S.,

P.C., Pension Tr., 773 A.2d 1248, 1252 (Pa. Super. 2001) (commenting that

____________________________________________

evidence when the threshold test of relevance has not been met. See

Commonwealth v. Story, 383 A.2d 155, 160 (Pa. 1978).

- 13 -

J-A14023-24

Rule 608 “codifies what has long been the law regarding the use of specific

instances of misconduct to attack a witness’s character for truthfulness:

specific instances of misconduct are not admissible.”). Subsection 608(b)(1)

of the rule was simply intended to codify decades of Pennsylvania’s decisional

law which prohibited – on relevance grounds – the cross-examination of a

witness with specific instances of collateral conduct. See generally Downey

v. Weston, 301 A.2d 635, 639 (Pa. 1973).

A quarter century before Rule 608 went into effect, in Downey, our

Supreme Court considered the restriction on a plaintiff’s intended line of

questioning for a defendant’s expert causation witness, a physician. See id.

The plaintiff was injured in a car accident, and he alleged that the other drivers

involved, the defendants, had caused his injuries due to their negligence. The

plaintiff sought to cross-examine a defendant’s causation expert about his

purported violations of the Hippocratic Oath and the Principles of Medical

Ethics of the American Medical Association. See id., at 638. On review of the

order precluding those questions, the Court held that evidence of the ethical

breaches was inadmissible because it did not “bear[] directly on the witness’

character for truth” or otherwise have any probative value in the case:

It is true that evidence of Some misconduct or Some past events

throwing light on human character is admissible on cross-

examination, but this is restricted to evidence which bears directly

on the witness' ‘character for truth’. 3A Wigmore, Evidence s 922,

at 726 (Chadbourn rev. 1970). Thus we have held

inadmissible as being irrelevant to establishing a witness'

credibility the fact that he operated an illegal bar and quarreled

with his spouse, Commonwealth v. Gates, 392 Pa. 557, 141

- 14 -

J-A14023-24

A.2d 219 (1958); the fact that he drove an auto recklessly, Gregg

v. Fisher, 377 Pa. 445, 105 A.2d 105 (1954); the fact that he had

been convicted of assault and battery, Commonwealth v.

Kostan, 349 Pa. 560, 37 A.2d 606 (1944); the fact that he had

once been a panderer, McIntosh v. Pittsburgh Railways Co.,

432 Pa. 123, 247 A.2d 467 (1968). Similarly, the connection

between an alleged breach of a canon of medical ethics and

the credibility of the physician on the witness stand is

tenuous at most. Its further pursuit here would have been

to engage in a collateral inquiry of dubious relevance. We

are satisfied that the trial court committed neither abuse of

discretion nor error of law in closing this line of inquiry.

Downey, 301 A.2d at 639 (emphasis added).

By the same token, numerous controlling decisions have limited the

ability of a party to attack a witness’ character for truthfulness by making the

admissibility of specific instances of conduct contingent on whether they

directly related to a trial issue. See e.g., Commonwealth v. Checca, 491

A.2d 1358, 1365 (Pa. 1985) (“A witness' credibility cannot be attacked on the

basis of prior conduct which is unrelated to the issues at the present

trial.”) (Emphasis added); Brinich v. Jencka, 757 A.2d 388, 396 (Pa. Super.

2000) (“Brinich's use of his uncle's credit information and other alleged

unspecified acts of past business misconduct, even if true, are not

relevant to [trial issue of] whether Brinich intended to finish construction on

the Jencka home.”); Walley v. Iraca, 520 A.2d 886, 890 (Pa. Super. 1987)

(citing McGoldrick v. Penn. R. Co., 241 A.2d 90, 92 (Pa. 1968)) (“This, of

course, does not permit the impeachment of a witness on collateral matters;

the grounds for contradicting a witness must be germane to the issues at

trial.”) (Emphasis added); Commonwealth v. McGuire, 448 A.2d 609, 612

- 15 -

J-A14023-24

(Pa. Super. 1982) (quoting Commonwealth v. Morrison, 43 A.2d 400, 401

(Pa. Super. 1945)) (“[T]he credibility of a witness may not be assailed by

questions which develop instances of misconduct unrelated to the issue on

trial.”) (Emphasis added).

In sum, Rule 608 is merely a formal adoption of court holdings which

prohibit the use of specific instances of misconduct to attack a witness’s

character for truthfulness on cross-examination. See Eighth N.-Val, Inc.,

773 A.2d at 1252. This judicial prohibition always was rooted in the legal

theory of relevance. See e.g., Downey, 301 A.2d at 639; McGoldrick, 241

A.2d at 92. The fact that those holdings were codified in a rule does not, as

the Majority seems to suggest, require a party to specifically cite the rule in

order for those decisions, or the rule, to have controlling effect.

When ICC’s counsel repeatedly stressed to the trial court that any cross-

examination of Hare had to be germane to, or be probative of, a trial issue,

that legal theory was in lockstep with the above line of cases, which are in

turn the reason why Rule 608(b)(1) exists in the first place. The Majority’s

finding of waiver cannot be squared with the record; nor is the Majority’s

understanding of Rule 608(b)(1) consistent with decades of caselaw in which

specific instances of collateral conduct were held to be inadmissible on

relevance grounds. The Majority therefore has split with those controlling

authorities, and further review may be warranted so that this new conflict in

our decisional law can be reconciled.

- 16 -

J-A14023-24

III. The Cross-Examination of Hare was Prejudicial

Turning to the merits of ICC’s claims, I agree with ICC that the trial

court erred in allowing Hernandez to attack Hare’s character for truthfulness

on cross-examination with specific instances of alleged breaches of contract.

Only relevant evidence is admissible at trial. See Pa.R.E. 402. Evidence

is relevant if it has “any tendency to make a fact more or less probable than

it would be without the evidence[.]” See Pa.R.E. 401. But even relevant

evidence must be excluded “if its probative value is outweighed by . . . unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. Where the

evidence in question has no relevance to a trial issue, it is “unnecessary for

the trial court to determine whether the probativeness outweighed the

prejudice.” Commonwealth v. Story, 383 A.2d 155, 160 (Pa. 1978).

The credibility of a witness may be “impeached by any evidence relevant

to that issue, except as otherwise provided by statute or [the Rules of

Evidence,]” such as Rules 403, 608, 609, and 610. Pa.R.E. 607(b). As

discussed above, Rule 608(b)(1) is essentially a rule of relevance, having

codified decisional law which relied upon relevance principles to limit attacks

on “the character of a witness for truthfulness[].” Pa.R.E. 608(b)(1). Under

that rule, as well as the numerous cases it was predicated on, a witness’

character for truthfulness may not be attacked “by cross-examination or

extrinsic evidence concerning specific instances of the witness’ conduct” when

- 17 -

J-A14023-24

such collateral conduct has no probative value. Id.; see also Downey, 301

A.2d at 639.

Here, whether ICC breached the business integrity and DBE provisions

of its contract with SEPTA was not at all probative of any of the claims or

defenses asserted by the parties. It is also highly dubious whether the alleged

contractual breaches were relevant to Hare’s character for truthfulness. See

e.g., Downey, 301 A.2d at 639. If Hare, through ICC, indeed breached

contractual duties owed to SEPTA, such conduct would have no discernable

bearing on whether ICC, SEPTA, or another party was negligent in maintaining

the worksite where Hernandez was injured. The irrelevance of the ICC-SEPTA

contract makes it unnecessary to consider, for admissibility purposes, whether

evidence of ICC’s non-compliance was outweighed by its prejudicial effect

under Rule 403. Thus, the trial court clearly erred in allowing Hernandez to

cross-examine Hare on ICC’s performance of its SEPTA contracts.

“Questions regarding the admission or exclusion of evidence are subject

to an abuse of discretion standard of review.” Braun v. Target Corp., 983

A.2d 752, 760 (Pa. Super. 2009). A new trial is necessary to remedy the

erroneous admission of evidence when it has caused a party prejudice. See

id. Prejudice has been described in this context as having “a tendency to

suggest a [jury] decision on an improper basis.” Id. (quoting Whyte v.

Robinson, 617 A.2d 380, 382 (Pa. Super. 1992)).

- 18 -

J-A14023-24

In this case, ICC was prejudiced severely by the admission of the subject

evidence. The cross-examination of Hare became an impromptu mini-trial on

a subject entirely collateral to the allegations of ICC’s negligence. The

apparent strategy of Hernandez’s counsel had little to do with impeaching Hare

with inconsistent statements or the like; it was more an attempt to equate

allegedly unethical conduct with negligent conduct.

Hernandez’s counsel drove the point home in closing by arguing that

ICC should be found liable because it (through its owner, Hare) had a

propensity to break “promises after promise.” See N.T. Trial, 2/21/2023,

(a.m. session), at 39-40. That is, ICC was more likely to be negligent in

keeping its worksites safe because Hare had demonstrated through his

conduct with SEPTA that he was an unscrupulous person:

Mr. Hare made all of these promises. [ICC] made all of these

promises. SEPTA made a promise to pay them. They did that. Mr.

Hare never said, you shouldn't pay us, we're not actually doing

this. He took and said—what he did do, he actually subbed it out

to his company, [MSI] which violated the contract, because he

wasn't allowed to sub it to people that he actually had a financial

interest in. They broke promise after promise.

****

They failed to have a single ICC worker on site. Remember, he

subbed it all out to his own company that he owned. They

improperly subbed it to [MSI].

Id., at 41-46.

As a result, the jury could easily have confused Hare’s questionable

business practices with the issue of ICC’s liability for negligence. The evidence

of Hare’s alleged failure to meet his contractual obligations under the DBE

- 19 -

J-A14023-24

provisions of the SEPTA contract, and Hare’s ownership of MSI, also potentially

influenced the jury to base the verdict on its animus toward Hare rather than

on the evidence of ICC’s liability in tort for the injuries that Hernandez

sustained.

Thus, for the reasons stated above, I must respectfully dissent from the

Majority’s decision as to Issues Six, Seven, and Eight. Instead, I would find

prejudicial error in the admission of the objected to testimony and grant ICC

a new trial. In all other respects, I concur with the Majority’s decision.

- 20 -