GRABSKI v. CITY OF PHILADELPHIA et al

Filing 38

MEMORANDUM ORDER THAT DEFENDANT'S MOTION IN LIMINE TO PRECLUDE THE INTRODUCTION OF POLICE DIRECTIVE 22 (DOC. NO. 31 ), IS DENIED. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 4/4/2014. 4/4/2014 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRADICO GRABSKI, aka John F.
Grabski

GERALD LOGAN

CIVIL ACTION

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v.

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NO. 12-4978

MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.

April 4, 2014

Defendant has filed a motion in limine to admit Plaintiff’s prior criminal record in
this civil rights/excessive force case.1 Defendant argues that Plaintiff’s convictions for
burglary and sexual assault are admissible to impeach his character for truthfulness and
show Plaintiff’s motive for resisting arrest. See Doc. 32. Plaintiff contends that the court
should exclude Plaintiff’s criminal record because Defendant has failed to provide any
documentation to support Plaintiff’s past criminal record and also argues that such
admission would severely prejudice his case. See Doc. 33.
Initially, I note that Defendant has not provided actual records of the convictions.
Rather, Defendant has provided a two-page computer printout from a New Jersey court
database. See Doc. 35 at 9-10 (ECF pagination). The first page shows 1) a sexual assault
charge initiated on August 11, 1993, to which Plaintiff pled guilty and was sentenced on
March 24, 1995, and 2) a burglary charge initiated on December 25, 1998, to which

With the dismissal of Plaintiff’s Monell claim and the City of Philadelphia as a
defendant, only Plaintiff’s Fourth Amendment excessive force claim against Officer
Logan remains.
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Plaintiff pled guilty and was sentenced on March 4, 1994. The second page of the
printout shows, somewhat confusingly, that Plaintiff was sentenced on March 24, 1995,
for burglary, but with the case number identified in the sexual assault case, and that the
sentence was fifteen years. Plaintiff testified at his deposition that he served twelve years
in prison from 1993 to 2004 on a conviction for sexual contact and burglary. See id. at 7
(Grabski Dep. at 16-17). Because Defendant has not obtained an actual record of the
convictions, I infer that Defendant plans to use the fact of the convictions during crossexamination of Plaintiff and does not seek to introduce the convictions themselves.
Defendant seeks admission of Plaintiff’s criminal record both to impeach his
character for truthfulness pursuant to Federal Rule of Evidence 609 and to show
Plaintiff’s motive for resisting arrest pursuant to Federal Rule of Evidence 404(b)(2).
Plaintiff contends that the convictions should be excluded pursuant to Federal Rule of
Evidence 403 because admission of the convictions would unfairly prejudice Plaintiff.
A.

Impeachment

Subject to Rule 403, Rule 609(a)(1) requires admission of a criminal conviction to
impeach a witness in a civil case if the crime was punishable by more than one year in
prison, and Rule 609(a)(2) requires admission of a conviction for any crime if the court
can readily determine that the crime was a dishonest act or false statement. Rule 403
requires the court to exclude such evidence if “its probative value is substantially
outweighed by a danger of . . . unfair prejudice.”2 The prejudice burden is reversed with

2

The Third Circuit has explained that the court is to consider four factors against
the potential for prejudice in the Rule 403 analysis: (1) the nature of the conviction; (2)
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respect to older convictions. Specifically, with respect to a conviction for which the
witness was released more than ten years ago, Rule 609(b) states that such conviction is
admissible only if its probative value substantially outweighs its prejudicial effect.
It appears from the available evidence that Plaintiff was released in 2004 on a
conviction for both sexual assault and burglary. Without any information as to the date
of his release in 2004, it is not clear whether Plaintiff was released more than ten years
ago and thus whether the matter is governed by the prejudice analysis of Rule 403, or the
prejudice analysis of Rule 609(b). On the facts of this case, I do not find the distinction
material, and would reach the same outcome under either analysis.
With respect to Plaintiff’s sexual assault conviction, Defendant argues that the
conviction is “especially probative of Plaintiff’s truthfulness because Plaintiff lied about
the charge being reduced to ‘sexual contact’ in his deposition.” See Doc. 35 at 2. I
disagree. Without evidence of the actual conviction, there is insufficient foundation for
the inference Defendant would have the jury draw. More to the point, the risk of
prejudice considering the nature of the crime substantially outweighs its probative value.
With respect to the burglary conviction, this offense falls under Rule 609(a)(2) as
a crime of dishonesty. It is clearly relevant to Plaintiff’s credibility, and even under the
stricter standard of Rule 609(b), its probative value substantially outweighs its prejudicial
effect. See Pa. Trust Co. v. Dorel Juvenile Group, Inc., 851 F. Supp.2d 831, 845 (E.D.
the time elapsed since the conviction; (3) the importance of the witness’s testimony to the
case; and (4) the importance of credibility to the claim at hand. Sharif v. Picone, 740
F.3d 263, 272 (3d Cir. 2014) (citing United States v. Greenridge, 495 F.3d 85, 97 (3d Cir.
2007)).
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Pa. 2011) (burglary is crimen falsi implicating character for truthfulness); DelGrosso v.
City of Philadelphia, Civ. No. 09-1000, 2010 WL 3384822, at *1 (E.D. Pa. Aug. 20,
2010) (allowing burglary, receipt of stolen property and theft by deception convictions to
challenge character for truthfulness but rejecting use of simple assault conviction);
United States v. Slade, Cr. No. 12-367, 2013 WL 5873576, at *5 (E.D. Pa. Nov. 1, 2013)
(Surrick, J.) (access device fraud conviction slightly more than ten years old admissible
under 609(b)) (citing United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992)
(affirming admission of 13-year old burglary conviction under Rule 609(b)) . Plaintiff’s
credibility will be an essential component of his case because the case will, in all
likelihood, turn on the jury’s acceptance or rejection of Plaintiff’s rendition of the facts.
An appropriate limiting instruction will be fashioned to safeguard against any improper
inference based on the prior conviction.
2.

Motive

Defendant also seeks the admission of Plaintiff’s criminal convictions to show
motive pursuant to Rule 404(b). Because the jury will be asked to decide whether
Defendant’s actions were objectively reasonable under the circumstances, the jury will
necessarily have to consider whether Plaintiff resisted arrest in determining the
reasonableness of the force used to effectuate that arrest. Defendant argues that
Plaintiff’s two prior felony convictions, subjecting him to heightened penalties under
Pennsylvania’s Three Strikes Law if he were convicted of another crime, provided a
motive for him to resist arrest. See Doc. 32 at 5. On this point, Defendant’s argument is
too tenuous. Defendant’s argument presupposes that Plaintiff knew that Pennsylvania
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had a Three Strikes Law, and that Plaintiff would have concluded that the purchase of a
small amount of marijuana would subject him to its penalties. Because it is unlikely that
Plaintiff contemplated Pennsylvania’s Three Strikes Law when he was arrested for
having purchased a small amount of marijuana, I reject Defendant’s argument and will
limit admission of the prior burglary conviction to its impeachment purpose.
An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRADICO GRABSKI, a/k/a “John F.
Grabski
v.
GERALD LOGAN

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CIVIL ACTION

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:
:
:

NO. 12-4978

ORDER
AND NOW, this 4th day of April, 2014, upon consideration of Defendant’s
Motion in Limine to Admit Plaintiff’s Criminal Record, the response, reply, and for the
reasons stated in the accompanying memorandum, IT IS HEREBY ORDERED that the
Motion is GRANTED IN PART and DENIED IN PART. Defendant may impeach
Plaintiff with his burglary conviction, but Defendant may not refer to Plaintiff’s sexual
assault conviction.

BY THE COURT:
/s/ELIZABETH T. HEY
____________________________________
ELIZABETH T. HEY
UNITED STATES MAGISTRATE JUDGE