591 F.2d 1337
U. S.v.Pierson
No. 78-1945
United States Court of Appeals, Third Circuit
1/9/79

1
D.N.J.

AFFIRMED


38 Ill. App.3d 419 (1976)
347 N.E.2d 764
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
RICHARD EUGENE BLITZ, Defendant-Appellee.
No. 75-155.
Illinois Appellate Court  Fifth District.
Opinion filed April 28, 1976.
*420 Herbert J. Lantz, State's Attorney, of Chester (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State's Attorneys Association, of counsel), for the People.
Stephen P. Hurley and Thomas F. Sullivan, both of State Appellate Defender's Office, of Mt. Vernon, and John Ozella, Law Student, for appellee.
Order affirmed.
Mr. JUSTICE EBERSPACHER delivered the opinion of the court:
This is an appeal by the State, pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1973, ch. 110A, par. 604), from an order entered by the circuit court of Randolph County suppressing evidence seized by the police after the defendant, Richard Eugene Blitz, was stopped, ostensibly, for a traffic offense.
The defendant was charged by information with the unlawful possession of cannabis in that he possessed more than 30 grams but less than 500 grams of the controlled substance in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, 704(d)). The defendant moved to suppress the physical evidence against him on the grounds of unlawful search and seizure. After a hearing was conducted, the trial court granted the defendant's motion to suppress. This appeal followed.
The principle witnesses at the suppression hearing were the defendant and Kenneth Beam, a deputy sheriff of Randolph County. Beam had stopped the defendant who was driving a car on the night of February 23, *421 1975, in Steeleville. Beam testified that he and other officers searched the defendant's car and found cannabis in the trunk of this car.
Beam testified that he had the residence of a George Kraft, in Percy, under surveillance during the evening of February 23. According to Beam, the sheriff's office had received a "tip" that traffic in drugs was taking place at Kraft's house. Beam did not know the identity of the source of the "tip" and could not remember who in the sheriff's office told him about the alleged drug dealing at Kraft's.
Beam stated that during the night in question he observed a number of individuals drive up to and then enter the Kraft house. Then, in a relatively short period of time, these same individuals would depart. At one point, he saw two men go from the Blitz auto to Kraft's and then return to their car where they put a bag in the trunk.
Beam followed the Blitz auto when it left Kraft's. When they reached Steeleville, Beam pulled the Blitz car over. Beam described the defendant as being nervous because he hurried over to the squad car. Beam informed the defendant, who was driving, that he was stopped for having an inoperative license plate light. Within a few minutes, three other policemen arrived at the scene in response to a call for assistance by Beam.
After the occupants of the car were searched by the police, the interior of the car was searched. Finally, the police searched the trunk of the car. The defendant testified that the police searched the trunk without his permission. He admitted, however, that he did not protest because he was frightened by the "shotgun on me." Beam stated that the defendant gave him permission to search the car. According to police testimony, a paper bag was found in the trunk, which contained two plastic bags of cannabis.
The lower court entered a written order granting defendant's motion to suppress. The court found that Officer Beam did not have reasonable cause to search the trunk of defendant's car, nor was the search justified on account of the personal safety of the arresting officers. Furthermore, the lower court questioned the voluntariness of the defendant's consent to the trunk search given the fact that he was surrounded by four armed policemen, one of whom was brandishing a shotgun.
There are two issues raised by the State on appeal; first, whether the unverified information from an unidentified source together with certain "suspicious circumstances" observed by the police gave the police probable cause to search the trunk of defendant's car; and secondly, whether the search of the defendant's car was a valid search incidental to the arrest of defendant for a minor traffic violation. A collateral issue raised by the defendant, but ignored by the State, is whether the defendant consented to the search and if such consent was voluntary.
*422 Addressing the first of these issues the State argues that "corroborative" observations of deputy sheriff Beam on February 23, 1975, together with earlier observations of his fellow officers, operated to cure whatever deficiency existed with reference to the reliability of the State's unidentified informant. We disagree.
 1 While the legality of warrantless searches of automobiles differs from searches of stationary structures (Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280; Brinegar v. United States, 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302), the police must still have "`reasonable or probable cause' to believe that they will find an instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search." (Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 20 L.Ed.2d 538, 543, 88 S.Ct. 1472, 1475.) The record before us does not contain evidence that deputy sheriff Beam had reasonable or probable cause to believe that evidence pertaining to a crime would be found in defendant's vehicle. As far as the record shows, Officer Beam conducted the search of the defendant's vehicle because he suspected that there might be illegal substances in such car, however, the facts related by Beam are insufficient to constitute probable cause.
The trial court properly found that informant's information regarding drug traffic at the Kraft residence was unreliable. The trial court's finding was based on the fact that the State proffered no evidence regarding the informant's identity or his past reliability. Nor was this defect cured by the personal observations of deputy sheriff Beam, even if we include the earlier observations of other police which were allegedly related to Beam.
 2 At most, Beam was advised by his fellow officers that a large number of persons had been frequenting Kraft's residence. His own observations were limited to seeing two individuals from the defendant's car enter the Kraft residence and depart after about 10 minutes. Upon departing these individuals placed a bag in the trunk of defendant's car. Beam recognized one of the occupants of this car to be Michael Blitz, the defendant's brother. It was not shown, however, that Michael Blitz was known to be associated with drug traffic. After following the defendant's car Beam observed that the defendant's license plate light was not illuminated and that the license plate was obscured by a trailer hitch. Beam continued to follow the defendant's car in his unmarked police car. Beam noticed that each time he used his police radio one or more of the occupants in the defendant's car turned around and looked at him. When Beam finally stopped the defendant's car, the defendant jumped out of his car and hurried back to Beam's vehicle. Beam characterized the defendant as "acting in a nervous manner." Beam observed a citizen's *423 band radio in defendant's car, which he thought he heard when he approached the defendant's vehicle. After requesting all of the occupants to get out, each was searched. A knife was found on the person of Michael Blitz. None of the occupants attempted to flee the scene. We find these facts, whether considered individually or collectively, insufficient to elevate deputy sheriff Beam's suspicions to the requisite reasonable or probable cause necessary to justify a warrantless search of defendant's car for evidence pertaining to a crime unrelated to the minor traffic offense for which the defendant was, ostensibly, stopped.
 3 The next issue raised is whether the search of defendant's car was a valid search incident to an arrest. The trial court concluded that it was not, holding that the case of People v. Hendrix, 25 Ill. App.3d 339, 323 N.E.2d 505, controlled. We agree with the legal analysis set forth in Hendrix and its applicability to the instant case.
 4 The final issue presented for review is whether the defendant consented to the search and if such consent was voluntary.
The test to be employed to determine the question of whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, "is a question of fact to be determined from the totality of all the circumstances." (Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L.Ed.2d 854, 863, 93 S.Ct. 2041, 2048.) Since the trial court found that defendant's "bare" consent was given at a time when he "was in the presence of four police officers, one of whom was covering him with a loaded shotgun and in the words of the defendant himself he was in an extremely nervous and apprehensive condition" and such finding is not clearly unreasonable (see People v. Harris, 34 Ill.2d 282, 215 N.E.2d 214, 215), we agree with the trial court's conclusion that the defendant's consent, if given, was not voluntarily given. In the words of the court in People v. Clark Memorial Home, 114 Ill. App.2d 249, 254, 252 N.E.2d 546, 549, "The whole atmosphere of the purported consent was, at best, one of submission or resignation to police authority."
In reaching our conclusion that no valid consent was given we are not unmindful of the trial court's consideration of the fact that the defendant was neither advised of "his rights" or of his right to refuse the request by the police to search the trunk of his car. While the United States Supreme Court has stated that knowledge of the right to refuse consent need not be established by the government "as the sine qua non of an effective consent," it "is one factor to be taken into account." (Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L.Ed.2d 854, 862, 93 S.Ct. 2041.) It is clear that when this factor is considered in conjunction with atmosphere prevailing at the time the defendant allegedly gave his "consent," that such consent was not voluntary.
*424 Accordingly, the order entered by the circuit court of Randolph County suppressing evidence seized by the police from the defendant is affirmed.
Affirmed.
G.J. MORAN, J., concurs.
Mr. JUSTICE JONES, dissenting:
The majority has either overlooked or chosen not to apply several cases of our supreme court which clearly indicate that the motion to suppress in question should have been denied. Accordingly, I respectfully dissent.
In People v. Wiseman, 59 Ill.2d 45, 319 N.E.2d 225, the supreme court pointed out that a distinction between the search of an automobile and the search of a dwelling house has long been recognized, citing Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, and Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975.
In Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881, the supreme court held that searches of motorcars must meet the test of reasonableness under the fourth amendment before evidence obtained as a result of such searches is admissible and said that common sense dictates that questions concerning searches of motorcars or other things readily moved cannot be treated identically with searches of fixed structures like houses.
In People v. Palmer, 62 Ill.2d 261, 263-64, quoting from People v. Brown, 38 Ill.2d 353, the Illinois Supreme Court stated:
"`It has long been established that the constitutional safeguards contained in section 6 of article II of the Illinois constitution, and the fourth amendment to the United States constitution, do not prohibit all searches made without a warrant, but only those which are unreasonable, and that the determinations of the reasonableness of any given search must depend upon the facts in the particular situation. (United States v. Rabinowitz, 339 U.S. 56, 94 L.Ed. 653; People v. Watkins, 19 Ill.2d 11.) In Watkins we held that a search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officers from attack, to prevent the prisoner from escaping, or to discover the fruits of a crime. We went on to state that the total absence of license plates on a car could reasonably suggest a serious violation of the law which would justify a search.
In People v. Thomas, 31 Ill.2d 212, we held that if circumstances reasonably indicate that the police may be dealing, not with an ordinary traffic violator, but with a criminal, then a search of the *425 driver and his vehicle is authorized in order to insure the safety of the police officers and to prevent an escape.' 38 Ill.2d 353, 355."
Were we to apply the guidelines of the above cases to the facts present here, there is no question but that the motion to suppress would be denied.
Another case, People v. McKnight, 39 Ill.2d 577, 237 N.E.2d 488, is practically identical on its facts with the case under consideration. In McKnight the car was stopped for a mere traffic violation, no light over the license plate, there were suspicious movements of the defendant when a police spotlight was turned on him, the car did not belong to defendant, and, "most important of all," defendant's companion was armed. These factors the court found sufficient to give the police reasonable cause to believe that they were not dealing with ordinary traffic offenders and a warrantless search of the car which disclosed weapons was sustained.
Aligning the facts of this case with McKnight: deputy Beam followed defendant away from the Kraft house at night, he stopped defendant for not having an illuminated light over his license plate, after the stop the defendant jumped out of his car and hurried back to deputy Beam's car before Beam could get out of his car, the defendant appeared "shaky," upon a search of defendant and his brother, the brother was found to be armed with a hunting knife.
At this point the officers were fully justified in believing that they were dealing with something more than a mere traffic violator and conducting a search of defendant's automobile for fruits and instrumentalities of crime. People v. McKnight; People v. Thomas.
Although the parallel with McKnight would suffice to provide probable cause, there is much more evidence that could be used to furnish probable cause in this case. The sheriff's department had been keeping the house of George Kraft under surveillance for about a week and deputy Beam was but one of the officers involved. On the night in question Beam was on surveillance duty at the house. Other deputies told him that a reliable source had advised them that drugs were being sold at that particular house. The previous night one of the deputies on surveillance duty advised Beam that they had information that a shipment of drugs was coming in. Beam remained at his post for about 15 or 20 minutes during which time he noticed four to six cars drive up and leave after 5 or 10 minutes. Beam noticed a man named Michael Blitz (the defendant's brother) get out of a car, go into the house, leave about 5 minutes later and put a brown bag in the trunk of the car. Beam noticed that each time he used his radio to call for assistance the occupants of the car he was following would turn around and look although he was in an unmarked car at the time. When Beam walked to defendant's car he

*426 noticed that an eight-channel radio was in the back seat and he heard the defendant's brother change the channel upon his approach.
The use of electronic technology by the defendant to monitor the police radio calls by deputy Beam adds a new dimension to fourth amendment reasonableness. It makes the rationale for warrantless search of automobiles of Carroll v. United States, Chambers v. Maroney, and Preston v. United States even more compelling.
In view of the facts and circumstances as they were disclosed to and discovered by deputy Beam he would have been derelict in his duty had he not made the stop and search in question here. A marshalling of the facts and circumstances surrounding the search places the case well within the limits of reasonable search and seizure permitted under the constitutions of the United States and the State of Illinois as those limits have been defined by the supreme courts of both jurisdictions.
Additional cases that would sustain the search in this case are People v. Wolf, 60 Ill.2d 230, 326 N.E.2d 766; People v. Holloman, 46 Ill.2d 311, 263 N.E.2d 7; People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577; People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580; People v. Davis, 33 Ill.2d 134, 210 N.E.2d 530; People v. Hendrix, 25 Ill. App.3d 339, 323 N.E.2d 505; and People v. Babic, 7 Ill. App.3d 36, 287 N.E.2d 24.
Notwithstanding the large number of cases which directly deal with the question, not one case is cited by the majority for their conclusion. Neither do they attempt to draw analogies or make comparisons of the facts present here with the facts of the decided cases, despite the striking similarity of McKnight. I would observe, too, that the majority participated in a panel that decided People v. Jefferies, 6 Ill. App.3d 648, 285 N.E.2d 592, that upheld the warrantless search of an automobile under circumstances considerably less compelling than those present here.


August 15, 2011, petitioners filed an amended petition asserting K.L.Y. developed
encephalopathy as a direct result of the measles, mumps, and rubella vaccine he received on
August 8, 2002. Amended Petition at ¶¶ 8, 15 (ECF No. 47).

       On June 18, 2014, petitioners filed a motion asking to be included in the J.M. et al. (02-
10V) omnibus case and status report indicating they agreed to be bound by the omnibus ruling.
(ECF No. 76). The undersigned issued a decision dismissing both J.M. et al. and this case on
August 31, 2017. J.M. et al. v. Sec’y of Health & Human Servs., 02-10V, 2017 WL 7409771
(Fed. Cl. Spec. Mstr. Aug. 31, 2017).

         On October 11, 2017, petitioners filed a motion for attorneys’ fees and costs. Petitioners’
Application (“Pet. App.”) (ECF No. 109). Petitioners request $34,713.18 in attorneys’ fees,
$902.65 in attorneys’ costs, and $7.00 in petitioners’ costs. Id. at 1.4 Thus, petitioners request a
total of $35,622.83 in fees and costs.

        On December 13, 2017, respondent filed a response indicating he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Respondent’s Response to Pet. App. (“Res. Response”) at 2 (citing § 15(e)(1)(A)-(B)) (ECF No.
110). “Respondent respectfully recommends the Chief Special Master exercise her discretion
and determine a reasonable award of attorneys’ fees and costs.” Id. at 3.

    For the reasons discussed below, the undersigned GRANTS petitioners’ motion and
AWARDS $32,804.39 in attorneys’ fees and costs and $7.00 in petitioners’ costs.

       [a]s a direct result of one or more vaccinations covered under the National Vaccine
       Injury Compensation Program, the vaccine in question has developed a
       neurodevelopmental disorder, consisting of an Autism Spectrum Disorder or a
       similar disorder. This disorder was caused by a measles-mumps-rubella (MMR)
       vaccination; by the “thimerosal” ingredient in certain Diphtheria-Tetanus-Pertussis
       (DTP), Diphtheria-Tetanus-acellular Pertussis (DTaP), Hepatitis B, and
       Hemophilus Influenza Type B (HIB) vaccinations; or by some combination of the
       two.

Autism General Order #1, filed July 3, 2002, Exhibit A, Master Autism Petition for Vaccine
Compensation at 2 which can be found on the court’s website at
http://www.uscfc.uscourts.gov/sites/default/files/autism/Autism+General+Order1.pdf.

        The OAP was “a general inquiry by the Office of Special Masters (“OSM”) regarding the
possible causal relationship between certain vaccinations . . . and autistic spectrum disorders or
similar neurodevelopmental disorders.”). See Notice, issued Mar. 7, 2005.
4
 Petitioners’ counsel, Mr. Shoemaker, filed the motion and billing records, without pagination,
as one document. The undersigned will use the page numbers generated by CM/ECF to identify
particular entries.
                                                 2
       I.      Discussion

         Under the Vaccine Act, a special master shall award reasonable attorneys’ fees and
 costs for any petition that results in an award of compensation. § 15(e)(1). When
 compensation is not awarded, the special master “may” award reasonable attorneys’ fees and
 costs “if the special master or court determines that the petition was brought in good faith
 and there was a reasonable basis for the claim for which the petition was brought.”
 §15(e)(3). Respondent has not objected to petitioners’ application for fees and costs on the
 basis of a lack of good faith or reasonable basis. The undersigned finds that petitioners
 brought their petition in good faith and with a reasonable basis, and therefore will award
 reasonable attorneys’ fees and costs.

               a. Attorneys’ Fees

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.

        Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in
[her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009).

         A special master need not engage in a line-by-line analysis of petitioner’s fee application
when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729
(Fed. Cl. 2011). Special masters may rely on their experience with the Vaccine Act and its
attorneys to determine the reasonable number of hours expended. Wasson, 24 Cl. Ct. 482, 484,
(Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed.
Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and
the number of hours claimed in attorney fee requests . . . [v]accine program special masters are
also entitled to use their prior experience in reviewing fee applications.” Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).

                                                 3
                         i. Hourly Rates

         Petitioners seek attorneys’ fees based upon the following hourly rates:

     Attorney     2005      2006     2007      2008    2009         2010      2011
    Shoemaker     $288      $299     $310     $324.26 $336.58                $336.58
      Gentry      $270
    Knickelbein   $225               $261     $271      $281        $291       $302
        G.                                               $110
    Shoemaker

     Attorney     2012      2013      2014      2015     2016      2017
    Shoemaker     $372      $385      $400      $415     $430      $440
      Gentry                $361
    Knickelbein   $313      $325      $337      $350     $365      $378

        In late 2016, Special Master Corcoran determined the attorneys at Mr. Shoemaker’s law
firm were entitled to attorneys’ fees based on hourly forum rates. See Jaffri v. Sec'y of Health &
Human Servs., No. 13-484V, 2016 WL 7319407, at *6 (Fed. Cl. Spec. Mstr. Sept. 30, 2016)
(finding the Davis exception set forth in Avera v. Sec’y of Health & Human Servs., 515 F.3d
1343, 1347-48 (Fed. Cir. 2008) did not apply). He awarded attorneys’ fees based upon rates
which fit within the forum rate ranges set forth in in McCulloch v. Sec’y of Health & Human
Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Jaffri,
2016 WL 7319407, at *4.

         The undersigned has also awarded fees for work performed by the attorneys at Mr.
Shoemaker’s law firm based upon forum rates. See Prokopeas v. Sec’y of Health & Human
Servs., No. 14-1717V, 2017 WL 6763067, at *4 (Fed. Cl. Spec. Mstr. Dec. 5, 2017); Miller v.
Sec’y of Health & Human Servs., No. 13-914V, 2016 WL 2586700, at *7 (Fed. Cl. Spec. Mstr.
April 12, 2016). As noted in Prokopeas, these rates conform to the forum rate ranges set forth in
Office of Special Masters’ 2015-2017 Fee Schedules5 which are based upon the standards set
forth in McCulloch. Prokopeas, 2017 WL 6763067, at *3 n.8. The undersigned finds petitioner
is entitled to attorneys’ fees based upon forum rates in this case.

       With a few exceptions, petitioner seeks attorneys’ fees based upon hourly rates which
have been previously awarded by the undersigned and other special masters.6 Petitioner has

5
 The 2015-2016 Hourly Rate Fee Schedule can be accessed at:
www.uscfc.uscourts.gov/sites/.../Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017
Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
6
 See Prokopeas, 2017 WL 6763067, at *5; Cunningham v. Sec’y of Health & Human Servs.,
No. 13-483V, 2017 WL 4323145, at *3-4 (Fed. Cl. Spec. Mstr. Sept. 1, 2017); Hooker v. Sec’y
of Health & Human Servs., No. 02-472V, 2017 WL 3033940, at *26 (Fed. Cl. Apr. 11, 2017);
                                                  4
deviated from these rates in the following instances:

       1. Ms. Knickelbein’s 2011 rate: $302 requested, $300 previously awarded;
       2. Ms. Knickelbein’s 2012 rate: $313 requested, $300 previously awarded; and
       3. Ms. Knickelbein’s 2014 rate: $337 requested, $325 previously awarded.

See Prokopeas, 2017 WL 6763067, at *5; Hooker, 2017 WL 3033940, at *26. Petitioner has
provided no reason why the undersigned should award attorneys’ fees at these increased rates.
The undersigned finds the rates previously awarded to be reasonable.

       Attorneys’ fees are awarded based upon the following rates:

   Attorney        2005     2006      2007       2008      2009        2010       2011
  Shoemaker        $288     $299      $310      $324.26   $336.58                $336.58
    Gentry         $270
  Knickelbein      $225               $261       $271       $281       $291       $300
 G. Shoemaker                                               $110

   Attorney        2012      2013      2014      2015     2016       2017
  Shoemaker        $372      $385      $400      $415     $430       $440
    Gentry                   $361
  Knickelbein      $300      $325      $325      $350     $365       $378

These decreased rates result in a deduction of $138.40.

       Additionally, the billing records show that the wrong attorney rate was applied in one
instance. The hourly rate of $325 was used to calculate the fees for .1 hours of time expended by
Mr. Shoemaker in 2013. Pet. App. at 8 (4/23/2013). Mr. Shoemaker’s hourly rate for 2013 is
$385. This mistake results in an increase of $6.00.

        Finally, petitioners have included .6 hours of time billed for “GAS” at a rate of $110.
The undersigned surmises this is Gretchen Shoemaker who acts as secretary for the firm.
Secretarial work is not compensated under the Program. See Rochester v. U.S., 18 Cl. Ct. 379,
387 (1989) (secretarial work “should be considered as normal overhead office costs included
within the attorneys’ fee rates.”); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014
WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014) (“[B]illing for clerical and other
secretarial work is not permitted in the Vaccine Program.”). However, in this instance, Ms.
Shoemaker is performing work related to the collection of medical records. Additionally, as
discussed below, the undersigned is reducing the fee amount by an additional 5 percent. Thus,
the undersigned will not deduct for this entry.

Mikkelson v. Sec’y of Health & Human Servs., No. 15-867V, 2016 WL 6803786, at*4 (Fed. Cl.
Spec. Mstr. Oct. 3, 2016); Jaffri, 2016 WL 7319407, at *6-7; Boylston v. Sec’y of Health &
Human Servs., No. 11-117V, 2016 WL 3080574, at *3-4 (Fed. Cl. Spec. Mstr. May 10, 2016);
Miller, 2016 WL 2586700, at *8.
                                                5
       All hourly rate adjustments result in a deduction of $132.40.

                      ii. Reduction of Billable Hours

       In addition to these rate adjustments, the undersigned finds a reduction in the number of
hours billed by Mr. Shoemaker is appropriate for several reasons. Mr. Shoemaker billed time for
unnecessary travel that was not related to the hearings in March and May 2016. Additionally,
many of the entries in the billing records submitted are vague and reflect an excessive number of
communications, both intra-office and with the other attorneys involved in the omnibus
proceeding.

       For these reasons, each of which are explained in further detail below, the undersigned
reduces the number of billable hours by 2.5 hours of time spent on unnecessary travel and by 5
percent7 to account for vague billing and excessive communications. These reductions result in
a further deduction of $2,679.04.

                              1. Fees Related to Unnecessary Travel

        Mr. Shoemaker billed 2.5 hours of time spent traveling to Chicago, Illinois in May 2014.8
Pet. App. at 10 (entry dated 5/25/2014). This travel was unrelated to travel for the hearings held
in March and May 2016, and the billing records indicate the purpose of the travel was for a
“meeting of omnibus lawyers.” Id. Petitioners have not provided any explanation as to why it
was necessary for such a meeting to take place in person, rather than over the phone. Indeed, the
billing records in this case otherwise reflect that counsel communicated over the phone at length
with co-counsel and experts. The undersigned thus finds the time billed by Mr. Shoemaker for
travel to Chicago, Illinois in May 2014, to be unreasonable and excessive.

                              2. Vague Billing and Excessive Communication

        The undersigned also finds that the number of hours billed should be reduced for vague
billing and for the excessive number of hours billed by Mr. Shoemaker to communicate with

7
 This 5 percent reduction was calculated after petitioners’ hourly rates were adjusted and the 2.5
hours of travel time was subtracted.

         Furthermore, the undersigned is aware that “percentage reductions [of fee awards] are
subject to heightened scrutiny.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. at 702
(citing Guerrero v. Sec’y of Health & Human Servs., 120 Fed. Cl. 474, 481-82 (2015) (quoting
International Rectifier Corp. v. Samsung Electrics Co., 424 F.3d 1235, 1239 (Fed. Cir. 2005))).
In this case, the undersigned has provided a “concise but clear explanation as to why the fee
reduction is justified” as required. Id. (internal citations omitted).
8
  Mr. Shoemaker also travel to Baltimore, Maryland in July 2014. Pet. App. at 11. It appears,
however, that he included only one-half of the time spent in the meeting and not the time spent
traveling to the meeting. Id. (entry dated 7/27/2014).

                                                6
attorneys at his law firm and other attorneys involved in the omnibus proceedings.9 For
example, the billing records include entries from July 22, 2015 through May 12, 2016, all but
one of which are described as “Review order.” See Pet. App. at 12-13. Other entries indicated
only “Email to Sabrina” or “Email from Sabrina.” See id. at 10 (first entry dated 5/22/2014).
Thus, it is difficult to understand the actual work Mr. Shoemaker performed and how it was
relevant to petitioner’s case. Petitioners have not provided information explaining why such
vague billing entries are otherwise reasonable or necessary.

         The undersigned has previously decreased an award of attorneys’ fees for vagueness.10
Other special masters as well as the undersigned have reduced fee awards for excessive and
duplicative intra-office communication.11 Additionally, the undersigned has previously reduced
a petitioner’s fee application when counsel bills for meetings between each other, as such billing
is excessive and duplicative.12 Petitioners have not provided a sufficient explanation of why it
was necessary for Mr. Shoemaker to spend this amount of time.

        An application for fees and costs must sufficiently detail and explain the time billed so
that a special master may determine, from the application and the case file, whether the amount
requested is reasonable. Bell v. Sec’y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989);
Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec.
Mast. June 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed. Id.

9
  Out of the almost 200 entries contained in the billing records for Mr. Shoemaker’s work,
approximately 90 of the entries met this criteria. This time was also billed in Ms. Knickelbein’s
time and in billing records from the other attorneys with whom Mr. Shoemaker communicated.
10
  Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *8 (Fed. Cl.
Spec. Mstr. Feb. 4, 2016); Barry v. Sec’y of Health & Human Servs., No. 12-39V, 2016 WL
6835542, at *8 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reduced a fee award by 10 percent due to
vague billing entries).
11
   See Lord v. Sec’y of Health & Human Servs., No. 12-255V, 2016 WL 3960445, at *7 (Fed.
Cl. Spec. Mstr. June 13, 2016); Ericzon v. Sec’y of Health & Human Servs., No. 10-103V,
2016 WL 447770, at *4 (Fed. Cl. Spec. Mstr. Jan. 15, 2016); Austin v. Sec’ y of Health &
Human Servs., No. 10-362V, 2013 WL 659574, at *14 (Fed. Cl. Spec. Mstr. Jan. 31, 2013)
(Special Master Vowell deducted fees for excessive intra-office communication in a case
where seven attorneys at CHCC billed for attending conferences and drafting memoranda
about the case); Soto v. Sec’y of Health & Human Servs., No. 09-897V, 2011 WL 2269423,
at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011) (Special Master Millman reduced CHCC’s fees for
intra-office communications and meetings); Carcamo v. Sec’y of Health & Human Servs.,
No. 97-483V, 2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May 20, 2011) (Special Master
Millman reduced fees when two attorneys at the Law Offices of Dale K. Galipo billed for the
same meetings with a client).
12
  Bondi v. Sec’y of Health & Human Servs., No. 12-476V, 2017 WL 1046526 (Fed. Cl. Spec.
Mstr. Feb. 23, 2017) (reducing counsel’s invoice for three law firm partners each billing time for
case meetings and emails with each other).
                                                7
at *8. Taken as a whole, Mr. Shoemaker’s billing entries were so vague that the undersigned
could not understand much of the actual work that he performed and its relevance to the case.

               b. Attorneys’ and Petitioners’ Costs

        Petitioners request $7.00 in out-of-pocket costs and $902.65 in attorneys’ costs. Pet.
App. at 1. Like attorneys’ fees, attorneys’ costs must also be reasonable. Sabella, 86 Fed. Cl. at
206. Petitioners seek only the costs expended to obtain, copy, and mail medical records and to
pay the court’s filing fee. Pet. App. at 3-13 and 25-40. Petitioners did not include any of the
costs associated with Mr. Shoemaker’s travel to Chicago in May 2015. Thus, the undersigned
finds all costs sought to be reasonable and reimburses them in full.

       II.     Conclusion

       For the reasons set forth above, the undersigned finds that petitioners are entitled to an
award of attorneys’ fees and costs. The amount of the award is computed as follows:

Total Fees and Costs Requested:                                     $35,622.83

Attorneys’ Fees:
      Total Requested:                                              $34,713.18
      Reduction for Rate Adjustments:                                 ($132.40)
      Reduction for Unnecessary Time                                ($1,000.00)
      5 % Reduction:                                                ($1,679.04)
      Total Awarded:                                                $31,901.74

Attorneys’ Costs:
      Total Requested:                                                $902.65
      Reduction                                                        ($0.00)
      Total Awarded:                                                  $902.65

Petitioners’ Costs:
       Total Requested:                                                 $7.00
       Reduction:                                                      ($0.00)
       Total Awarded:                                                   $7.00

       Accordingly, the undersigned awards $32,811.39 in fees and costs as follows:

             1. $32,804.39 in attorneys’ fees and costs, in the form of a check payable jointly
                to petitioners and petitioners’ attorney, Clifford John Shoemaker; and

             2. $7.00 in petitioners’ costs, in the form of a check payable to petitioners.

                                                8
        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
     court shall enter judgment in accordance herewith.13

        IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master

13
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either
separately or jointly, filing a notice renouncing the right to seek review.
                                               9


553 S.E.2d 333 (2001)
251 Ga. App. 27
HIXON
v.
The STATE.
No. A01A1267.
Court of Appeals of Georgia.
August 1, 2001.
*334 Brian M. House, Ringgold, for appellant.
Herbert E. Franklin, Jr., Dist. Atty., Leonard C. Gregor, Jr., Asst. Dist. Atty., for appellee.
ELDRIDGE, Judge.
A Catoosa County jury convicted Teresa Darlene Hixon as a party for aiding and abetting Tyrone Taylor Tony Huff and Leonard Allen Smith in the commission of single counts of statutory rape and child molestation, respectively, against her minor daughter, then age 13. The superior court sentenced her to concurrent fifteen-year sentences to confinement on each offense to serve five years and the remainder probated. Defendant appeals contending: (1) that the evidence was insufficient to support her convictions, and (2) that the superior court erred in failing to merge her convictions of child molestation into those for statutory rape, requiring reversal of the child molestation convictions and the sentences thereon. We disagree and affirm.
1. One may be charged and convicted for the commission of a crime whether directly or indirectly committed. Jordan v. State, 272 Ga. 395, 396, 530 S.E.2d 192 (2000).
Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he [or she]:... (3) [i]ntentionally aids or abets in the commission of the crime; or (4) [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime.
OCGA § 16-2-20. If one is to be a party to a crime,
[a] common criminal intent must be proven.... Jones v. State, 250 Ga. 11, 13, 295 S.E.2d 71 (1982). While mere presence at the scene of a crime and mere approval of the criminal act do not amount to sufficient evidence to establish that a defendant is a party to the crime [whether as an aider or abettor or otherwise] (Brown v. State, 250 Ga. 862(1), 302 S.E.2d 347 (1983)[; Jones v. State, 233 Ga.App. 291, 293(2), 503 S.E.2d 902 (1998)(aiding and abetting encompasses concept of helping in the commission of a crime)]), criminal intent may be inferred from a defendant's conduct before, during and after the commission of the crime. Sands v. State, 262 Ga. 367(2), 418 S.E.2d 55 (1992). Evidence of a defendant's conduct prior to, during, and after the commission of [the] criminal act will authorize the defendant's conviction ... if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act. Simpson v. State, 265 Ga. 665, 461 S.E.2d 210 (1995). See also Burks v. State, 268 Ga. 504, 491 S.E.2d 368 (1997).
Jordan v. State, supra. That the underlying offenses were committed in the summer and early fall of 1997 as alleged is undisputed. Viewed in the light most favorable to supporting the jury's verdict, Murray v. State, 239 Ga.App. 659, 522 S.E.2d 48 (1999), the evidence otherwise shows that beyond encouraging or helping her daughter in the acts in issue as to Huff, the defendant twice ordered her daughter to have intercourse with him.[1] Moreover, upon being given use immunity, Huff testified that the defendant, in effect, authorized him to have sex with the victim daughter, telling him, "I don't care if [you do]." That being so, there was sufficient evidence to authorize a rational trier of fact to find the defendant guilty of statutory rape and child molestation beyond a reasonable doubt as to Huff. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 *335 (1979); Jordan v. State, supra; see also White v. State, 257 Ga. 236, 356 S.E.2d 875 (1987) (proof of principal's guilt a necessary element in crime of one charged as aider, abettor, counselor, helper in commission of crime).
There is also evidence that the victim expressed concern to the defendant that she was pregnant by Smith. While it is not clear in the record that the defendant had earlier been aware that her daughter was involved in a sexual relationship with Smith, the record reflects that the defendant responded to her daughter's concern by saying only that she would check into getting her birth control pills. When the victim later attempted to end her relationship with Smith, the couple fought in the presence of the defendant. Following the fight, the defendant "whipped [the victim] with a hickory for getting into the fight with [Smith]." The defendant thereafter allowed Smith to continue living in her home. Because the victim feared Smith, the victim witness coordinator of the county district attorney's office, in coordination with the Department of Family & Children Services, arranged to have the victim live with her grandmother. After a day or two, the victim returned home where Smith, unimpeded by the defendant as a resident parent, continued to have occasional sexual intercourse with the victim. Under these circumstances, the jury could have inferred that the defendant intentionally offered her daughter "encouragement" in a continuing sexual relationship with Smith. Simpson v. State, supra. Consequently, there likewise was sufficient evidence to authorize a rational trier of fact to find the defendant guilty of statutory rape and child molestation beyond a reasonable doubt as to Smith. Jackson v. Virginia, supra; Jordan v. State, supra; White v. State, supra.
2. The defendant incorrectly argues that the instances of child molestation here merged with those of statutory rape. While it is well settled that "`[a]n accused may be prosecuted for both rape and child molestation based upon the same misconduct, but ... may not be convicted of both[,]'" Coker v. State, 164 Ga.App. 493, 495(3), 297 S.E.2d 68 (1982), citing Lamar v. State, 243 Ga. 401, 403 (3), 254 S.E.2d 353 (1979), merger does not lie as to separate offenses. Stroud v. State, 193 Ga.App., 82, 83(4), 387 S.E.2d 37 (1989). The record shows that Huff and Smith had sexual intercourse with the underage victim on multiple occasions; however, the defendant was convicted and sentenced as a party upon one count of statutory rape involving each man. To the extent that Huff and Smith had sexual intercourse with the victim more than once, each committed acts of child molestation by touching the victim's vagina with their penises in acts of sexual intercourse entirely separate from that underlying defendant's convictions for statutory rape. It follows that conviction and sentence for both crimes were authorized.
Judgment affirmed.
ANDREWS, P.J., and MILLER, J., concur.
NOTES
[1]  On one occasion, the defendant obtained a county pregnancy test for her daughter when she expressed concern that she was pregnant by Huff. After learning that the result was negative and returning home, the defendant told her daughter that "[Huff] was in their in the bed and she should go in and try again." On another occasion, the daughter having told the defendant that "[Huff] made her bleed," the defendant told her, "[C]lean yourself up and go back in."


486 F.2d 1021
UNITED STATES of America, Plaintiff-Appellee,v.L. J. LUTON, Defendant-Appellant.
No. 73-2585 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Nov. 21, 1973.Rehearing Denied Jan. 24, 1974.

James T. Bridges, Belzoni, Miss., for defendant-appellant.
H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Will R. Ford, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.
Before BELL, GODBOLD and GEE, Circuit Judges.
BELL, Circuit Judge:

1
Appellant was convicted on a onecount indictment for possession of an unregistered firearm in violation of 26 U.S.C.A. Sec. 5861(d).  The weapon was discovered in the trunk of appellant's car during a search following appellant's arrest pursuant to an arrest warrant on state burglary charges.  Appellant moved to suppress the shotgun on the grounds it was seized during an illegal search.  The trial court denied this motion and, after a jury verdict of guilty, sentenced appellant to 13 months imprisonment.

2
Two issues are raised before this court.  First, appellant claims that the government failed to prove venue, inasmuch as there was no direct proof that appellant possessed the weapon within the Northern District of Mississippi.  Both venue and territorial jurisdiction of a federal district court in criminal cases depend on some part of the criminal activity having occurred within its territory. 18 U.S.C.A. Secs. 3231, 3237, Rule 18, F.R.Crim.P. While the government has the burden of proof on this question, the standard of proof is more relaxed than for other elements of a criminal prosecution.  It is necessary only that the location of criminal activity be established by a preponderance of the evidence, Cauley v. United States, 5 Cir., 1966, 355 F.2d 175, and "if upon the whole evidence it may be inferred that the crime was committed where the venue was laid, that is sufficient."  Weaver v. United States, 5 Cir., 1962, 298 F.2d 496, 498.  The record indicates that the place where appellant was arrested, and thus where he is known to have had possession of his car and its contents, was outside the city limits of Belzoni, Mississippi.  How far outside that city does not appear and appellant's position is that the record is insufficient to prove that the arrest occurred close enough to Belzoni to be within Humphreys County (the southernmost county of the Northern District of Mississippi).  We do not agree.  Appellant was arrested at his job by a Belzoni city policeman accompanied by a Humphreys County deputy sheriff.  Further, testimony supports the inference that appellant first obtained possession of the weapon within the Belzoni city limits.  We are of the opinion that the record is sufficient to support jurisdiction and venue in the Northern District of Mississippi.

3
Appellant's second contention is that the unregistered shotgun was found during an illegal search.  The trial court concluded that appellant consented to the search.  While the testimony is conflicting, this finding is not clearly erroneous.

4
Appellant contends, however, that as a matter of law he could not give a valid consent if he was not first informed that he had the right to withhold consent and to require the police to obtain a search warrant upon a showing of probable cause.  He seeks to distinguish Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, on the grounds that it dealt only with consent given by an individual who was not in police custody.  He contends that custody is such an inherently coercive condition that a person subject to it must be specifically informed of his rights before he can waive them.  This contention is without merit in the light of United States v. Legato, 5 Cir., 1973, 480 F.2d 408, 413, and United States v. Canseco, 5 Cir., 1972, 465 F.2d 383, 385.  These cases establish that in this circuit valid consent to search may be given by a person under arrest who has not been specifically informed of his Fourth Amendment rights, so long as there is no proof of coercion or intimidation and if prior to the search Miranda warnings are given.  See Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.  The record of this case clearly establishes that appellant was not coerced or intimidated by the arresting officers.  Further, the district court was not clearly erroneous in its conclusion that appellant received Miranda warnings before consenting to the search.

5
Affirmed.

*
 Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409


           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Chin                               :
                                          :
                   v.                     :   No. 1871 C.D. 2017
                                          :   Argued: June 7, 2018
New Flyer of America, Inc. and            :
Southeastern Pennsylvania                 :
Transportation Authority                  :
                                          :
Appeal of: New Flyer of America,          :
Inc.                                      :

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                          FILED: July 16, 2018

      Steven Chin (Chin) suffered personal injuries when a bus struck him while he
crossed a street in a crosswalk in Philadelphia.       In addition to Southeastern
Pennsylvania Transportation Authority (SEPTA), which owned and operated the
bus, Chin sued the bus manufacturer, New Flyer of America, Inc. (New Flyer),
asserting negligence and product liability/defective design claims related to New
Flyer’s placement of the driver’s side or roadside mirror that Chin alleged obstructed
the bus driver’s view. A jury returned a verdict in favor of New Flyer on the product
liability/defective design claim but against New Flyer on the negligence count,
apportioning liability as 25 percent for New Flyer and 75 percent for SEPTA.1 New
Flyer filed various post-trial motions, which were denied by the Court of Common
Pleas of Philadelphia County (trial court), and judgment was entered. New Flyer
appealed, and on appeal, we affirmed the trial court’s order, except to the extent the
trial court found New Flyer’s argument that the verdict was against the weight of the
evidence was waived. Chin v. New Flyer of America, Inc., 169 A.3d 689, 692-94,
703 (Pa. Cmwlth. 2017) (Chin I). On that issue, we vacated the trial court’s order
and remanded the matter for the trial court to issue an opinion and order addressing
the merits of New Flyer’s evidentiary weight claim. On remand, the trial court again
found the issue was waived but also addressed the merits, concluding the verdict was
not against the weight of the evidence. New Flyer has appealed, and we are once
again called upon to review the trial court’s Order.

                        Factual and Procedural Background
       We restate the facts as set forth in Chin I:

              On September 5, 2012, Chin was walking west along Arch
       Street, near the intersection with Sixth Street in Philadelphia, on his
       way to work. At the same time, a bus operated by SEPTA was also
       traveling west on Arch Street and stopped at a traffic light at the same
       intersection. After the signal changed, the bus proceeded to make a left
       turn onto Sixth Street, where it struck Chin, who was approximately
       halfway across the crosswalk at the time.

              Chin, who was 25 years old at the time of the accident, suffered
       a degloving injury, which occurs when the skin and soft tissue are torn
       from the bone, to his right foot and ankle. He was initially denied pain
       medication because it would interfere with efforts to determine the
       extent of his nerve damage in his right foot and ankle. Because of the
       soft tissue injury, doctors could not use internal screws or pins to

       1
         Although SEPTA settled before trial, it remained on the verdict slip for purposes of
apportionment.

                                             2
stabilize the multiple fractures in the foot and ankle; instead, they were
stabilized using an external fixator system, which is screwed through
the skin and into the bone. Chin testified that he was hospitalized for
approximately one month before he was released home, where he was
bedridden because of the external fixator, which was not removed until
January 2013. After several months of physical therapy, Chin is able
to walk, but his right ankle is stuck in a downward pointed position with
very limited motion, affecting his gait. His doctors testified that the
injury is permanent, and his abnormal gait is impacting his knee, hip,
and back; they have not ruled out the need for future surgery. Since his
injury, Chin has not been able to return to running, a sport he once
enjoyed.

       At trial, the driver of the bus testified that he saw three other
individuals waiting at the corner but did not see Chin because the
driver’s side mirror, also known as the roadside mirror, obstructed his
view during left-hand turns. New Flyer designed and manufactured the
buses.     SEPTA provided technical specifications, which were
developed by its engineering group. The technical specifications called
for use of an 8” x 15” Rosco brand mirror on the driver’s side but did
not specify the height to mount it, stating only that it should be
positioned “to minimize blind spots for the operator in front of mirrors.”
On the other hand, the specifications were specific as to the height of a
curbside mirror, which is located on the right side of the bus. When
New Flyer was unable to build the buses to meet the specification for
the curbside mirror, it contacted SEPTA and sought a change to the
height specifications. At no time did New Flyer request a change
related to the driver’s side mirror or advise SEPTA that the Rosco
mirror should not be used.

       A design engineer at New Flyer testified that the driver’s side
mirror on SEPTA buses is mounted at 46 inches high whereas driver’s
side mirrors on buses for other transportation authorities are typically
mounted between 40 to 41 inches high. In a subsequent build cycle,
New Flyer lowered the mount of the driver’s side mirror by five to six
inches on the SEPTA buses. When SEPTA contacted New Flyer about
the change, New Flyer retrofitted the buses with a new arm, which
raised the height of the mount back to 46 inches. The design engineer
was not aware of any other customer using a 46-inch mount, which is
the highest mount he was aware of, but the mirror does not violate any
laws or regulations. He explained that the mirror causes an 8-inch
obstruction, and the A-post, which is the post at the end of the
windshield, causes another 4-inch obstruction. No matter what height

                                    3
the mirror is mounted, New Flyer representatives said an obstruction
would result because visual obstructions are inherent in mirrors.

       After an increase in pedestrian accidents where drivers raised
concerns about sight lines related to the mirrors, SEPTA conducted
various line of vision checks. Two were internally conducted in 2004
and 2012, respectively, both of which acknowledged a temporary
obstruction but nonetheless determined the allegation of an engineering
flaw in the New Flyer bus was unfounded. SEPTA also contracted with
a third party, STV, to evaluate the driver’s side mirror in 2013. The
STV report states that the mirrors are located higher than the normal
mount and that the Rosco mirror is taller than most bus mirrors. The
STV report states that reducing the height of the top of the mirror by 4
inches would provide an additional 17 feet of visibility. STV
recommended that SEPTA consider, inter alia, lowering or reducing
the size of the driver’s side mirror in the future. In 2015, SEPTA
voluntarily retrofitted its entire fleet with a smaller mirror at its own
cost.

       To help combat the visual obstruction caused by the driver’s side
mirrors, SEPTA developed a pedestrian awareness program to train
drivers to utilize multiple techniques to mitigate it. These techniques
include: waiting four seconds after a signal changes before beginning
a turn as the delay would allow any pedestrians to clear the obstruction;
squaring off turns, meaning drivers pull straight ahead into the
intersection prior to commencing the turn, such that any pedestrians
would be visible through the side window; and “rocking and rolling,” a
technique whereby the driver would rock back and forth and from side
to side in their seat to see around the mirror. The driver here, a 28-year
veteran of SEPTA, testified he did use these techniques.

       Over the years, the union representing SEPTA drivers raised the
issue of visual obstructions because of the mirrors in defending drivers
involved in left-hand turn accidents.FN2 Following two fatal pedestrian
accidents in 2006, SEPTA contacted a representative at New Flyer,
requesting that he provide testimony at arbitration hearings for the
drivers involved in those accidents. The representative was advised by
in-house counsel and outside counsel for New Flyer to not provide
testimony regarding the mirrors because they were concerned about
potential exposure to litigation.

                                    4
                 FN2
                    In 2011, there were four left-hand turn accidents, three in
                 2012, and five in 2013, one of which was fatal. SEPTA drivers
                 make approximately 100,000 left-hand turns per day.

Chin I, 169 A.3d at 692-94.
        At the conclusion of trial, the jury found in favor of New Flyer on the product
liability/defective design claim but against it on the negligence claim. The jury
awarded Chin $5 million in non-economic damages. Following trial, New Flyer
filed a Motion for Post-Trial Relief (Post-Trial Motion), seeking judgment
notwithstanding the verdict (judgment n.o.v.), a new trial on the merits and/or on
damages, or remittitur, all of which were denied by the trial court.
        New Flyer then appealed to this Court asserting:                   (1) the verdict was
irreconcilably inconsistent when the jury found there was no product defect but still
found New Flyer acted negligently; (2) the jury’s verdict was against the weight of
the evidence or not supported by sufficient evidence; (3) the trial court erred in
refusing to charge the jury on the sophisticated user and sophisticated purchaser
doctrines; and (4) the trial court erred in refusing to grant a new trial as to damages
or remittitur based upon an excessive verdict. We affirmed the trial court, except to
the extent the trial court found New Flyer had waived its weight of the evidence
claim by asserting the verdict was against the weight of the evidence in boilerplate
fashion in its Rule 1925(b) Statement of Errors Complained of on Appeal (Rule
1925(b) Statement).2 We held New Flyer could not have filed a more specific Rule

        2
            Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure provides, in pertinent
part:
        If the judge entering the order giving rise to the notice of appeal (“judge”) desires
        clarification of the errors complained of on appeal, the judge may enter an order
        directing the appellant to file of record in the trial court and serve on the judge a
        concise statement of errors complained of on appeal (“Statement”).

Pa.R.A.P. 1925(b).

                                                 5
1925(b) Statement because the trial court issued only a one-page order denying the
Post-Trial Motion, without any explanation of its reasoning, and because the record
also did not contain any explanation. Chin I, 169 A.3d at 699-700 (citing Ryan v.
Johnson, 564 A.2d 1237, 1239 (Pa. 1989); Hess v. Fox Rothschild, LLP, 925 A.2d
798, 804 (Pa. Super. 2007)). We held our appellate review was hampered by the
lack of a trial court opinion discussing the merits of New Flyer’s evidentiary weight
claim. Id. at 700. Accordingly, we vacated the trial court’s order finding the issue
waived and remanded the matter for the trial court to issue an opinion and order
addressing the merits. Id.

                             Trial Court’s Opinion on Remand
         On remand, the trial court explained why its waiver determination was proper
and proffered a different reason for finding waiver. (Trial Court Opinion on Remand
(Remand Op.) at 1-14.) In its original Rule 1925(a) Opinion, the trial court found
New Flyer waived the argument because of a lack of specificity in its Rule 1925(b)
Statement. (Trial Court Rule 1925(a) Op. at 4-5.) In its Remand Opinion, the trial
court stated that New Flyer waived the weight of the evidence argument by failing
to address the issue with any specificity in its Post-Trial Motion or supporting
memorandum of law. (Remand Op. at 3-14.)
         As instructed, the trial court also addressed the merits of New Flyer’s weight
of the evidence claim, finding the claim to be without merit. The trial court found
New Flyer’s strategy of shifting the burden of safe design and operation to SEPTA
worked, but only in part, noting the apportionment of liability. According to the trial
court:

         [t]he jury . . . refused to permit New Flyer to shift onto SEPTA the
         responsibility for New Flyer’s negligent design and placement of the

                                            6
       . . . mirror, New Flyer’s lack of investigation when it was informed that
       the “blind-spot” was causing pedestrian accidents, and New Flyer’s
       failure to warn SEPTA that the placement of the mirror was
       problematic.

(Id. at 16.)
       The trial court found that the evidence fully supported the jury’s verdict. First,
it found ample evidence to support the conclusion that New Flyer placed the mirror
at an unusual and unsafe height. (Id. at 16-20.) In particular, the trial court cited to
the Technical Specifications that required New Flyer to locate the mirrors “to
minimize blind spots for the operator.” (Id. at 17 (quoting Technical Specifications,
Reproduced Record (R.R.) at 457a).) According to the trial court, New Flyer took
the position that there was no “blind spot” but only a “visual obstruction,” and
therefore, nothing had to be done to address the situation. (Remand Op. at 18-19.)
The trial court further found there was evidence that New Flyer mounted the mirrors
five to six inches higher than where it normally mounted mirrors for other customers.
(Id. at 18 (citing Notes of Testimony (N.T.), December 8, 2015, a.m. session, at 17,
R.R. at 245a).) In addition, the trial court cited the testimony of New Flyer’s
Director of New Product Development, who agreed the mirrors should be placed “as
low as possible” to avoid obstruction. (Remand Op. at 18 (quoting N.T., December
10, 2015, p.m. session, at 26-27, R.R. at 372a).) The trial court noted that Chin’s
expert analyzed the mirror’s placement and resulting blind spot in less than an hour,
something that New Flyer similarly should have undertaken but did not. (Remand
Op. at 18 (citing N.T., December 8, 2015, p.m. session, at 25-26, R.R. at 271a-72a).)
In summary, the trial court found it was not against the weight of the evidence for
the jury to have concluded:

              New Flyer had a duty to position the roadside mirror at a safe
               height that minimized blind spots,

                                           7
            New Flyer placed the roadside mirror six inches higher than it
             normally positioned mirrors,

            New Flyer did nothing to determine what effect that position
             might have on the driver’s view of pedestrians,

            the unusual height created an unsafe blind spot or “visual
             obstruction” blocking the driver’s view of pedestrians like
             [Chin], and

            New Flyer was negligent in failing to do anything to prevent the
             “visual obstruction” created by New Flyer’s placement of the
             roadside mirror.

(Remand Op. at 19-20.)
      Second, the trial court found “New Flyer abandoned its duty to design and sell
a safe bus and made the driver solely responsible to overcome the ‘visual
obstruction’ New Flyer itself created.”      (Id. at 20.)   New Flyer placed sole
responsibility on the driver of the bus, although its own witness acknowledged “that
New Flyer had a general duty to ‘make the driver’s job as easy as possible’ and to
‘minimize the [driver’s] head or body movement to either look around or over the
top’” of the mirror. (Id. at 20 (quoting N.T., December 10, 2015, p.m. session, at
34-35, R.R. at 374a).) Meanwhile, the trial court noted Chin’s expert testified that
driver mistakes happen and even if the driver utilized the rock and roll method, he
“might not clear the obstruction every time.” (Remand Op. at 20 (citing N.T.,
December 8, 2015, p.m. session, at 27, R.R. at 272a).) Accordingly, the trial court
found “[i]t was not against the weight of the evidence for the jury to determine that
New Flyer forsook and breached its duty to design and sell a safe bus, and was
negligent in foisting upon the driver the sole responsibility to overcome the unsafe
mirror placement chosen by New Flyer.” (Remand Op. at 20.)

                                         8
      Third and finally, the trial court found “New Flyer was more interested in
minimizing its own legal liability instead of minimizing the dangers created by its
unsafe placement of the mirror.” (Id. at 21.) The trial court noted that, in 2006, New
Flyer became aware that SEPTA buses were involved in fatal accidents involving
pedestrians during left-hand turns. The trial court explained that a labor relations
representative for SEPTA asked New Flyer’s safety manager to testify about the
mirrors at a hearing for a discharged driver who claimed the accident she was
involved in was caused by the blind spot resulting from the mirror’s placement. New
Flyer’s safety manager later learned about a second fatal accident involving a similar
claim. (Id. (citing N.T., December 8, 2015, a.m. session, at 64-67, R.R. at 256a-
57a).) According to the trial court, “[t]his information had clear safety implications
regarding the placement of the mirrors on the buses New Flyer designed and sold to
SEPTA.” (Remand Op. at 21.) But, instead of raising those concerns with the safety
committee or engineering department, the safety manager emailed New Flyer’s in-
house counsel, who advised the safety manager to not talk to SEPTA about the
mirrors. In-house counsel wrote:

      I’m sufficiently concerned about exposure to New Flyer at this point
      that I don’t think that we should provide any information to SEPTA.
      Any information that we give them regarding the mirrors would be
      discoverable by the driver and estates of the victims of the bus
      accidents. There is no upside to New Flyer in providing any
      information to [SEPTA] and much liability exposure. In addition, I am
      concerned that any information we provide which [sic] may be
      unfavorable to New Flyer.

                                          9
(Id. at 21-22 (quoting Ex. P-8, R.R. at 494a).)3 Based on the above, the trial court
found “[i]t was not against the weight of the evidence for the jury to determine that
New Flyer knew that the placement of the mirror was unsafe and, instead of
remedying the danger, only looked to protect itself from liability.” (Id. at 22.)
       By Order dated November 14, 2017, the trial court denied New Flyer’s weight
of the evidence claim, and this appeal followed.

                                        Parties’ Arguments
       On appeal, New Flyer raises two issues: (1) whether the trial court erred in
again finding New Flyer waived its weight of the evidence challenge; and
(2) whether the trial court erred in granting judgment against New Flyer when the
verdict was contrary to the weight of the evidence.4
       With regard to the issue on the merits, New Flyer argues “[t]he overwhelming
record evidence unquestionably shows that the jury’s finding of liability against New
Flyer is contrary to the weight of the evidence.” (New Flyer’s Brief (Br.) at 22.) In
particular, it lists 17 reasons the verdict is against the weight of the evidence:

            SEPTA specified the 15" by 8" ROSCO mirror for operator and
             passenger safety reasons in its detailed contract specifications.
             (R.[R. at] 230a).

            SEPTA evaluated and approved the placement of the mirror
             during a 90-day trial period with the pilot bus prior to production.
             (R.[R. at] 230a).

       3
         At argument, there were questions related to the admissibility of the emails and whether
they were protected by attorney-client privilege. Following argument, counsel for Chin submitted
an unsolicited letter to this Court providing further response to these questions. New Flyer filed
an application seeking leave to respond to Chin’s letter. Because the letter is an improper post-
argument submission, we do not consider it. Accordingly, New Flyer’s application is denied as
moot.
       4
         We have reordered New Flyer’s issues for ease of resolution.

                                               10
 SEPTA’s engineers evaluated and approved the placement of the
  mirror during complete pre-delivery inspections of the fleet and,
  again, after SEPTA took possession of the fleet. (R.[R. at] 231a).

 SEPTA trained its operators on driving techniques to avert any
  temporary obstruction including avoiding a “fixed stare” into the
  side view mirror, engaging in active scanning and head-turning,
  waiting four seconds before initiating a left turn, using the “rock
  and roll” technique to look around the mirror, and “boxing-off”
  the left turn. (R.[R. at] 288a, 291a-93a, 297a).

 SEPTA conducted line-of-vision studies in 2004 on the New
  Flyer bus which revealed a temporary one-second obstruction as
  may exist in any motorized vehicle. (R.[R. at] 345a).

 SEPTA concluded that its drivers safely avoid the temporary
  obstruction through SEPTA’s prescribed defensive driving
  techniques. (R.[R. at] 345a-46a).

 SEPTA concluded that there was no engineering flaw in the
  mirror configuration as a result of the 2004 study. (R.[R. at]
  346a).

 SEPTA knew the mirror creates a temporary obstruction but
  rejected, in 2006, New Flyer’s 920 series of buses with the driver
  side mirror located six inches lower or at 40 inches. (R.[R. at]
  231a).

 SEPTA requested that New Flyer raise the mirror back to the
  height of the prior 912 series, or 46 inches, to maintain the
  consistency of the fleet. (R.[R. at] 359a, 233a-34a).

 SEPTA’s Senior Project Designer recognized that the lower
  mirror made it more difficult for drivers, especially taller drivers,
  to see the rear of the bus. (R.[R. at] 233a).

 SEPTA conducted an investigation of the similarly-constructed
  New Flyer hybrid SEPTA buses in August 2012 after which
  SEPTA concluded that, with proper driving techniques, the
  driver side mirror does not create a blind spot. (R.[R. at] 347a,
  297a).

                                11
           SEPTA determined that driver error was the sole cause of the
            accident. (R.[R. at] 299a, 343a-44a, 349a[,] 502a).

           [Chin]’s experts admitted that the Driver would have seen [Chin]
            if he had looked over the mirror while scanning the intersection.
            (R.[R. at] 217a-18a, 273a).

           New Flyer’s expert confirmed that driver error caused the
            accident. (R.[R. at] 385a, 390a).

           SEPTA voiced no complaints about the mirror to New Flyer.
            (R.[R. at] 231a).

           Prior to [Chin]’s accident in 2012, SEPTA had only informed
            New Flyer of two prior left turn accidents, which were not
            definitively attributed to the mirror, since the rollout of the New
            Flyer buses in 2001. (R.[R. at] 258a).

           SEPTA employs approximately 4,000 bus drivers, SEPTA’s
            drivers make nearly 100,000 left turns per work day, there are
            approximately 220 work days per year, and, in sum, SEPTA
            makes 22 million left turns per year by 4[,]000 different drivers.
            (R.[R. at] 288a, 295a).

(Id. at 22-23 (emphasis in original).)
      New Flyer argues the trial court erred in a number of regards. First, it
contends the trial court erred in concluding the verdict was not against the weight of
the evidence because the jury apportioned 25 percent fault to New Flyer. New Flyer
argues the issue is whether the jury’s finding of liability was against the weight of
the evidence, and the apportionment of fault was based on an erroneous finding of
liability. Second, New Flyer argues the trial court “erred, as a matter of law, in
uncritically deferring to the jury’s role of making credibility determinations.” (Id.
at 25.) According to New Flyer, the trial court had the authority and duty “to invade
the jury’s assessment of credibility when it is unreliable and untrustworthy.” (Id.)
New Flyer does not explain how the jury’s credibility assessments were unreliable

                                         12
or untrustworthy.5 Next, New Flyer takes issue with the trial court’s conclusion that
the mirror was placed at an unusual and unsafe height. It claims the trial court
improperly focused on testimony that the mount was higher on SEPTA buses than
buses for other New Flyer customers, while there was evidence that all SEPTA buses
had the mirror positioned at the same height, as did buses in New York and Boston.
It also notes there was no data to support the trial court’s conclusion that these buses
were involved in more accidents than buses with lower mounts. New Flyer also
disputes the trial court’s characterization of the evidence, such as the testimony of
New Flyer’s safety manager. In addition, it argues that even assuming, arguendo,
that the height of the mirror was unsafe, it was still unreasonable to find New Flyer
negligent because

       it was undisputed that SEPTA knew that New Flyer’s use of the
       contractually-mandated 15" by 8" mirror would necessarily create a
       temporary visual obstruction for the driver; it was undisputed that
       SEPTA itself evaluated the bus during a pilot program; it was
       undisputed that SEPTA trained its drivers to avoid the obstruction; it
       was undisputed that SEPTA conducted multiple sight-line
       investigations, and it was undisputed that SEPTA insisted that New
       Flyer maintain the mirror at the 46-inch height in subsequent lots of
       buses. It was further undisputed that, during the 11 years before
       [Chin]’s accident, SEPTA reported to New Flyer only two left-turn
       accidents, which SEPTA itself did not definitively attribute to the
       height of the mirror.

       5
          Later in its brief, New Flyer suggests the jury’s findings should not be given much
deference because “this was the same jury that incongruously found that New Flyer was negligent
for placing the roadside mirror at an unsafe level, but that its product was not defective.” (New
Flyer’s Br. at 29.) In an accompanying footnote, New Flyer discusses its prior attempt to seek
judgment n.o.v. or a new trial based on the jury’s inconsistent verdict. (Id. at 29-30 n.4.) This
Court previously found that issue was waived as New Flyer did not object following announcement
of the verdict but before the jury was discharged. Chin I, 169 A.3d at 697. New Flyer states it is
not seeking to relitigate that issue, “but merely cites the inconsistency as cause to question the trial
court’s unwavering deference to the jury’s conclusions.” (New Flyer’s Br. at 29-30 n.4.)

                                                  13
(Id. at 30-31.) It further argues that vehicle manufacturers must rely on drivers
exercising due care. New Flyer asserts “it is contrary to the evidence for the jury to
have found New Flyer negligent when the purported hazard – the obstruction caused
by the mirror – was well-known, accepted, and guarded against by SEPTA,” and
“[t]o impose liability on New Flyer, under the circumstances, for the Driver’s
isolated act of negligence, improperly imposes strict liability on New Flyer to
guaranty the safety of its product.” (Id. at 31.)
      As to the issue of waiver, New Flyer contends this Court already found the
issue was not waived. New Flyer maintains it preserved the weight of the evidence
argument in its Post-Trial Motion, supporting brief, and at argument.
      Chin counters that the trial court identified three separate bases for finding the
verdict was not against the weight of the evidence: (1) New Flyer negligently placed
the mirror, which needlessly created a visual obstruction or blind spot; (2) New Flyer
negligently shifted all responsibility to the driver to overcome the visual obstruction
or blind spot it created; and (3) New Flyer negligently refused to investigate or
communicate with SEPTA regarding the mirror when concerns arose. Chin further
argues that New Flyer points to evidence of SEPTA’s negligence, but this, “in no
way detracts from the evidence against New Flyer.” (Chin’s Br. at 33.) Chin
disputed that the trial court mischaracterized testimony, arguing it was accurate.
Further, Chin disputes that the trial court could substitute its credibility
determinations for those of the jury. In short, Chin argues, New Flyer wants the
Court to reweigh the evidence. He points out that the existence of conflicting
evidence does not, in itself, make a verdict against the weight of the evidence. Chin
contends his negligence claim against New Flyer “involved duties New Flyer owed

                                          14
directly to Mr. Chin as a member of the general public.” (Chin’s Br. at 42.) Finally,
Chin adds that New Flyer waived the weight of the evidence claim.

                                        Analysis
      We begin with the waiver issue. As discussed above, this Court previously
found New Flyer did not waive its argument concerning whether the verdict was
against the weight of the evidence. Chin I, 169 A.3d at 698-99. In reaching this
conclusion, we did not agree with the trial court that New Flyer filed a vague,
boilerplate Rule 1925(b) Statement, thereby waiving the issue. Upon remand, the
trial court now contends it found the issue waived because New Flyer did not
develop its argument in its Post-Trial Motion; instead, it merely mentioned in
boilerplate fashion that the verdict was against the weight of the evidence. We
decline to find waiver on this newly-asserted basis.           Rather, based upon the
arguments made in its Post-Trial Motion, supporting memorandum of law, and at
argument, we find that New Flyer adequately preserved the issue.
      Turning to the merits of the claim, “[i]n evaluating a claim that a verdict is
against the weight of the evidence, Pennsylvania courts employ a shocks-the-
conscience litmus.” Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 956 A.2d 967,
973 (Pa. 2008). That is, a verdict is against the weight of the evidence if it is “so
contrary to the evidence that it shocks one’s sense of justice.” Criswell v. King, 834
A.2d 505, 512 (Pa. 2003) (internal quotation and emphasis omitted). A trial court’s
ability to award a new trial on such grounds is “narrowly circumscribed.” U.S.
Mineral, 956 A.2d at 973. That is because questions of credibility are “exclusively
for the factfinder.” Id. “A jury is entitled to believe all, part, or none of the evidence
presented [and] can believe any part of a witness’[s] testimony that they choose, and

                                           15
may disregard any portion of the testimony that they disbelieve.”             Tucker v.
Bensalem Twp. Sch. Dist., 987 A.2d 198, 205 (Pa. Cmwlth. 2009) (internal quotation
omitted). We cannot award a new trial so long as there is evidence to support the
jury’s finding. Id. A mere conflict in evidence is not enough to disturb a verdict.
Irey v. Dep’t of Transp., 72 A.3d 762, 771 (Pa. Cmwlth. 2013). Finally, we review
a trial court’s denial of a motion for a new trial on the ground that the verdict was
against the weight of the evidence for abuse of discretion. U.S. Mineral, 956 A.2d
at 973.
      New Flyer contends that the verdict here is against the weight of the evidence,
pointing to evidence that SEPTA, not New Flyer, was the negligent party. However,
after reviewing the record, we agree with the trial court that the jury’s verdict is not
against the weight of the evidence. The trial court carefully set forth evidence that
supports Chin’s negligence claim and the jury’s verdict against New Flyer.
Specifically, the trial court found New Flyer repeatedly claimed that SEPTA
mandated where the roadside mirror should be placed, thereby excusing it of
liability. Yet, as the trial court noted, the technical specifications were silent on how
high the mirrors should be positioned and only required that the mirrors be placed to
minimize blind spots. However, there was evidence New Flyer mounted the mirror
on SEPTA buses five to six inches higher than for other customers and this created
a blind spot/visual obstruction. Although there was evidence that SEPTA educated
drivers on how to overcome this visual obstruction, the trial court found there was
also evidence that this was not a guaranteed fix. In addition, the trial court found
evidence that New Flyer was aware of safety issues related to the mirrors but did
nothing. Specifically, the trial court cited the testimony of New Flyer’s safety
manager, who testified he was contacted by SEPTA representatives in 2006

                                           16
following two fatal pedestrian accidents wherein the union representing the
discharged drivers alleged the mirrors were to blame. Despite this knowledge, New
Flyer did not investigate, although its in-house and outside counsel acknowledged
potential exposure to litigation. This is just some of the evidence that the trial court
cited that was sufficient to support the jury’s verdict.
      We are not dismissive of the evidence that New Flyer points to as evidence it
was not negligent. We are cognizant that there is conflicting evidence that, if
accepted, would support a finding of no negligence. However, it is not for this Court
to make credibility determinations or reweigh the evidence. U.S. Mineral, 956 A.2d
at 973. Rather, our review is limited to whether the jury’s verdict shocks one’s sense
of justice. Id. What New Flyer is really arguing about is how the jury as fact-finder
weighed the evidence and found New Flyer liable. Given the evidence presented,
we cannot conclude the verdict shocks one’s sense of justice. So long as there is
evidence to support the jury’s verdict, a new trial is not warranted. Tucker, 987 A.2d
at 205. Here, although there is conflicting evidence to support a verdict in favor of
New Flyer, importantly, there is also evidence which supports the jury’s verdict
against it. Therefore, the trial court did not abuse its discretion in denying the Post-
Trial Motion, and the verdict must be upheld. Accordingly, we affirm.

                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge

                                          17
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Chin                            :
                                       :
                  v.                   :   No. 1871 C.D. 2017
                                       :
New Flyer of America, Inc. and         :
Southeastern Pennsylvania              :
Transportation Authority               :
                                       :
Appeal of: New Flyer of America,       :
Inc.                                   :

                                   ORDER

      NOW, July 16, 2018, the Order of the Court of Common Pleas of Philadelphia
County, in the above-captioned matter, is AFFIRMED. The post-argument letter
received from Appellee’s counsel is STRICKEN, and Appellant’s Application for
Leave to Submit Response to same is DISMISSED AS MOOT.

                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge