EMMI v. DEANGELO et al

Filing 38

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 08/21/2017. 08/21/2017 ENTERED AND COPIES E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN EMMI,
Plaintiff,
v.
MICHAEL DEANGELO, et al.,
Defendants.

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CIVIL ACTION
NO. 16-3774

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

August 21, 2017

Plaintiff John Emmi (“Plaintiff”) brings this action
under 42 U.S.C. § 1983 for excessive force and bystander
liability against Defendants Michael DeAngelo and Benjamin King,
both of whom are Pennsylvania State Police Troopers. During
trial, Defendants sought to introduce testimony from Plaintiff’s
wife, Marianne Emmi (“Mrs. Emmi”). Mrs. Emmi, though present in
court, invoked her spousal privilege and refused to testify. For
the reasons that follow, the Court upholds Mrs. Emmi’s claim to
spousal privilege but rules admissible certain portions of the
deposition Mrs. Emmi previously provided in this case.

I.

BACKGROUND
Plaintiff alleges in his complaint that, on July 21,

2014, he was pulling out of the driveway of his residence at
365C S. Old Middletown Road in Media, Pennsylvania, when he

noticed Defendants DeAngelo and King approaching his vehicle.
See Compl. ¶¶ 9-10, ECF No. 1. Upon seeing Defendants DeAngelo
and King, he turned off the engine of his vehicle, stepped out
of the vehicle, and placed his hands in the air. Id. ¶ 10.
Defendant DeAngelo then “suddenly and without any reasonable
justification” grabbed Plaintiff’s arm and “swung him around,
forcefully pushed his body up against the rear of his vehicle,
then proceeded to pull the Plaintiff’s arms around his back and
placed him in handcuffs.” Id. ¶ 11. While Plaintiff was being
handcuffed, Defendant King “without any reasonable
justification, repeatedly kneed Plaintiff in his right leg.” Id.
¶ 12. Plaintiff claims that “he was not resisting arrest and
[this] use of force was unreasonable under the circumstances in
violation of . . . the Fourth Amendment.” Id. ¶ 14.
Defendants’ version of the story includes the
following preamble, the truth of which Plaintiff has not
disputed:
On July 21, 2014 at approximately 6pm, Plaintiff and
his wife, Marianne Emmi, got into an argument at their
home in Middletown Township, Delaware County. Mrs.
Emmi eventually called 911. Plaintiff ripped the phone
off the wall during the call. Plaintiff also at some
point
climbed
in a
window
and
broke
a
vase.
[Defendants DeAngelo and King] were dispatched to the
location. They were informed by dispatch that it was
an active domestic dispute, the call had been cutoff
and the husband drove a pickup truck.
Defs.’ Final Pretrial Mem. at 1, ECF No. 22.

2

At trial, Defendants moved to compel Mrs. Emmi’s
testimony as a witness against Plaintiff. Alternatively,
Defendants sought to read into the record the deposition that
Mrs. Emmi had previously provided in this case. Plaintiff
opposed both requests. For the reasons that follow, the Court
finds that Mrs. Emmi has properly invoked her spousal privilege
and therefore may not be compelled to testify against Plaintiff,
her husband. Relevant portions of her deposition testimony,
however, may be read into the record pursuant to Federal Rule of
Civil Procedure 32 and Federal Rule of Evidence 804.

II.

PRIVILEGE
Federal Rule of Evidence 501 governs the applicability

of federal privileges and also delineates when state law
privileges apply to federal litigation. This rule provides in
full as follows:
The common law--as interpreted by United States courts
in the light of reason and experience--governs a claim
of privilege unless any of the following provides
otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege
regarding a claim or defense for which state law
supplies the rule of decision.
Fed. R. Evid. 501.

3

Although the Supreme Court has considered federal
common law privileges for spouses in the context of criminal
proceedings, 1 the law is less clear regarding application of
these privileges in civil proceedings. The Commonwealth of
Pennsylvania, however, has recognized two spousal privileges
that may apply in a civil action. The first of these is a
privilege not to testify against one’s spouse. See 42 Pa. Cons.
Stat. § 5924 (“In a civil matter neither husband nor wife shall
be competent or permitted to testify against each other.”). The
second is a privilege not to testify regarding confidential
communications between spouses. See 42 Pa. Cons. Stat. § 5923
(“[I]n a civil matter neither husband nor wife shall be
competent or permitted to testify to confidential communications
made by one to the other.”).
“Rule 501 requires a district court exercising
diversity jurisdiction to apply the law of privilege which would
be applied by the courts of the state in which it sits.”
Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978). In
contrast, a federal question case usually calls for the
application of federal privileges. See Wm. T. Thompson Co. v.
Gen. Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982) (“[I]n
1

See generally Trammel v. United States, 445 U.S. 40
(1980) (privilege against adverse spousal testimony); Blau v.
United States, 340 U.S. 332 (1951) (privilege for confidential
marital communications).
4

federal question cases the federal common law of privileges
applies.”). However, when there is no compelling federal
interest, and the subject matter is one which traditionally has
been assigned to the states and for which state jurisprudence is
well developed, federal courts may “resort to state law
analogies for the development of a federal common law of
privileges.” Id. at 104; Reo v. U.S. Postal Serv., 98 F.3d 73,
77 (3d Cir. 1996) (“Rather than developing a federal common law
. . . we can instead rely on the well-established rules of the
various States.”); see also Nice v. Centennial Area Sch. Dist.,
98 F. Supp. 2d 665, 668 (E.D. Pa. 2000) (Robreno, J.) (citing
Erwin Chemerinsky, Federal Jurisdiction, § 6.2.1 at 339 (2d ed.
1994)).
The purpose of the spousal privileges “is generally
said to be ‘the preservation of marital harmony and the
resultant benefits to society from that harmony.’” Ebner v.
Ewiak, 484 A.2d 180, 183 (Pa. Super. Ct. 1984) (quoting
Commonwealth ex rel. Platt v. Platt, 404 A.2d 410, 413 (Pa.
Super. Ct. 1979)); see also CAP Glass, Inc. v. Coffman, 130 A.3d
783, 788 (Pa. Super. Ct. 2016) (“Like § 5924, [§ 5923] serves to
protect and promote marital harmony.”). Despite serving a
similar purpose, however, the “testimonial” and “communications”
privileges remain distinct:

5

[T]he spousal incompetence provision of section 5924
and the spousal confidential communication privilege
of section 5923 are quite separate and distinct. The
former provision disqualifies a husband or wife to
give any testimony adverse to the spouse subject to
the exceptions in 5924(b); the latter is much more
limited and relates to the competence of a spouse to
testify regarding confidential communications.
CAP Glass, Inc., 130 A.3d at 788 (quoting B.K. v. Dep’t of Pub.
Welfare, 36 A.3d 649, 656 (Pa. Commw. Ct. 2012)).
In this case, Mrs. Emmi has invoked her absolute
privilege under § 5924 to not testify as a witness for
Defendants against Plaintiff, her husband. 2 The Court upholds
this privilege on the basis that (1) as a matter of undisputed
fact, Mrs. Emmi is currently married to Plaintiff; and (2) as a
matter of law, Mrs. Emmi’s testimony would be “against”
Plaintiff. See 42 Pa. Cons. Stat. § 5924.
At least one other court within this judicial district
has held that testimony regarding “interactions with a third
party” is “not testimony ‘against’ [the other spouse] and does
not violate Section 5924.” Carroll v. Student Transp., Inc., No.
10-1439, 2011 WL 382563, at *2 (E.D. Pa. Feb. 7, 2011).
Nevertheless, this Court holds that Mrs. Emmi’s testimony would

2

Mrs. Emmi was represented during her brief appearance
in court by Dana Ingham, Esquire, an attorney retained by Mrs.
Emmi in connection with her marital issues after her deposition
but prior to the start of trial in this case. Mrs. Emmi
testified on the record at trial that she wished to invoke her
spousal privilege to not testify against Plaintiff.
6

be “against” Plaintiff within the meaning of § 5924 because she
was called to testify by the adverse party, i.e., Defendants in
this case. 3 This interpretation of “against” accords with the
purpose of the marital privileges; the very act of testifying as
a witness on behalf of an adverse party, regardless of the
subject matter of the testimony, cannot fairly be said to
preserve and promote “marital harmony.” Ebner, 484 A.2d at 183.

III. ADMISSIBILITY
Given Mrs. Emmi’s proper invocation of the privilege
and refusal to testify, the Court finds that she is
“unavailable” for purposes of Federal Rule of Civil Procedure
32, which provides in part that a “[a] party may use for any
purpose the deposition of a witness, whether or not a party, if
the court finds . . . on motion and notice, that exceptional
circumstances make it desirable--in the interest of justice and
with due regard to the importance of live testimony in open
court--to permit the deposition to be used.” Fed. R. Civ. P.
32(a)(4)(E). The relevant portion of Mrs. Emmi’s testimony
pertains to the 911 call she made immediately prior to the
incident at issue in this case, and it is undisputed that the

3

Mrs. Emmi did not contend, and the Court does not
find, that the § 5923 privilege for confidential marital
communications is applicable in this case.
7

recording of this 911 call is no longer available. 4 This
testimony includes the information Mrs. Emmi provided to 911
authorities, which bears relevance to Defendants’ assertions
that they were responding to “an active domestic dispute” and
that “the [911] call had been cutoff.” Defs.’ Final Pretrial
Mem. at 1. The jury appropriately may make critical inferences,
based at least in part on this testimony, as to what knowledge
and state of mind Defendants might have had as they approached
Plaintiff in his driveway on the evening in question.
This testimony shall not be considered hearsay because
Mrs. Emmi is also “unavailable” as a witness under the Federal
Rules of Evidence. See Fed. R. Evid. 804(a)(2) (“A declarant is
considered to be unavailable [to testify] as a witness if the
declarant . . . refuses to testify about the subject matter
despite a court order to do so.”). Mrs. Emmi’s unavailability
triggers the exception providing that any “testimony that was
given as a witness” at a “lawful deposition” during the “current
proceeding” is “not excluded by the rule against hearsay if the
declarant is unavailable as a witness.” Fed. R. Evid.
804(b)(1)(A).

4

Counsel for Defendants explained on the record at
trial that, due to very high call volume, recordings of 911
calls are typically maintained for no longer than a few months.
This lawsuit was not filed until nearly two full years after the
incident occurred.
8

IV.

CONCLUSION
For the foregoing reasons, the Court concludes that

Mrs. Emmi cannot be compelled to testify against her husband,
Plaintiff John Emmi. However, insofar as certain portions of
Mrs. Emmi’s deposition testimony relate to the 911 call
immediately preceding the incident underlying this litigation
and sheds light on the complete set of circumstances surrounding
that incident, these portions shall be admissible pursuant to
Federal Rule of Evidence 804(b)(1)(A) and “in the interest of
justice” under Federal Rule of Civil Procedure 32(a)(4)(E). 5

5

Specifically, all testimony from page 13, line 23
through page 17, line 11 of Mrs. Emmi’s deposition in this case
shall be admissible. See Appendix 1. All other portions of the
testimony are deemed inadmissible on grounds that its
prejudicial nature substantially outweighs its probative value.
See Fed. R. Evid. 403.
9

APPENDIX

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MARIANNE EMMI
that had been occurring like weeks and days
prior to that. But John came home that
afternoon extremely intoxicated, and he started,
you know, getting loud with me.
And it's like it was so long ago, and
it all happened so quickly. I don't -- it's
very vague to me at this point.
Q. Okay. And if you don't remember
specifics, that's fine.
A. So I just want to be honest about
that.
Q. Right, and I appreciate that.
A. Yeah.
Q. And if you don't remember specifics,
that's fine. Just tell me what you do remember.
A. I do remember him taking my phone
outside and smashing it and breaking my phone,
so then I locked the latch because, you know, I
got scared, and he climbed in the window. There
was a big vase there. Not even a -- like a huge
vase. And he smashed it, and that's to the
point where I called the police.
Q. So he came home. Do you know where he
had been?

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MARIANNE EMMI
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A. He had been down to his cousin's
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house, I'm pretty sure, and he picked up a pizza I 3
on the way home and...
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Q. And he smashed the -- was it a cell
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phone, or a cordless phone, or .. ?
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A. A cell phone.
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Q. A cell phone. Whose phone was it?
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A. Mine.
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Q. All right. And did he rip it from
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you, or how did he get it?
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A. Yeah. I guess he took it out of my
112
hands. Like I said, it all happened very
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quickly.
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Q. Were your sons around?
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A. Yeah. They there at the time.
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Q. So you closed the front door to
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prevent him from coming back in?
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A. Yeah.
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Q. I think you said at that point he
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climbed into -, 21
A. Well, there is a window in our house
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that we can -: 23
Q. Climb into?
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A. Yeah.
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MARIANNE EMMI

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Is that the dining room window?

Q. Did he have difficulty getting in
through that window?
A. Not that I can remember. No. I don't
think so.
Q. The vase being smashed, was that in
the process of that, or did he -A. He came in like mad, and that was what
he first did.
Q. So is that before he climbed in the
window?
A. Well, the vase was right there.
Q. Right.
A. In like the comer of the dining room
where the window was. It had like pussy willows
in it, and stuff like that.
Q. And he smashed it -A. Yeah.
Q. -- to the ground?
A. Yeah.
Q. Were you scared?
A. Yeah.
Q. And that's why you called --

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MARIANNE EMMI
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A. Yeah.
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Q. -- 911?
A. But there had been things leading up
to that days prior, so it was -- I hate to say
I
it was like about to happen at some point, you
know. There were other things that happened
that scared me and stuff like that.
Q. In the days prior, you did not call
the police?
A. No.
Q. State police patrols your ~rea?
A. Yeah.
Q. You don't have a local police
department?
A. No, we don't. Yeah, because I'm
outside the borough of Media.
Q. So you have a Media address?
A. Yeah.
.
Q. But you're technically outside the
borough of Media?
A. Yeah. We're in Middletown Township.
Q. Explain to me what you said when you
called the police. I know this is tedious.
A. Well, I think I called on the house

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MARIANNE EMMI
line at that point. Yeah. Well, they asked me
a series of questions like was there a gun in
the house. You know, that kind of stuff, and
then they came to the house. I mean, once you
call, they're going to come no matter what.
Q. Right, right. But I do need to know
what you remember of those series of
questions -A. They asked if there was alcohol
involved.
Q. -- when you were on the phone.
A. They asked ifthere was a firearm in
the house.
Q. Okay. And how did you answer those
questions?
A. Yes, yes. Well, I'm not sure ifl
said about the firearm because I wasn't positive
it was in the house. That I can't be sure of.
Q. It wasn't out in the area?
A. No. I mean, I know that John has a
gun. Yeah.
Q. John has a gun. Okay.
A. And I didn't expect that he was going
to use it on me. Trust me.

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MARIANNE EMMI
Q. Right.
A. I know that's probably what they have
to ask.
Q. Right, right. Sure. What did you say
about alcohol involved? You said, "Yes"?
A. Yeah. I was pretty sure that, you
know ...
Q. Do you remember if they asked any
questions about what type of vehicle he had?
A. I think they did actually because then
he got in the car -- he got in his truck to
leave. At that point they were already coming
down our street. Not our street, our driveway.
Q. So he got in the truck to leave. Were
you still on the phone when he got in the truck
to leave?
A. I don't think so.
Q. But they may have asked about what
type of truck he has -- what type of vehicle he
has? I'm sorry.
A. I think that they did. Yeah. I don't
remember to be honestly. Yeah. But we live
back off the road, so we have a rather long
private driveway.

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MARIANNE EMMI
Q. Right.
A. So he was backing out.
Q. I'm going to get to that.
A. Okay. Sorry.
Q. Because that's pretty much what this
whole lawsuit is about.
What type of vehicle does he have, or
did he have at that time?
A. Well, at the time he had a Frontier.
I think a pickup truck, a Frontier.
Q. What color was it?
A. Gray, like a grayish color. It was -I mean, he has a new car since then, so I think
it's a Frontier. It's a pickup truck.
Q. Oh, that's fine. It's a pickup truck?
A. Yeah.
Q. That's totally fine. So how did the
91 I call end? Did it end abruptly, or was it..?
A. Yeah, it was real quick. Yeah, yeah.
Q. Did he rip a phone off the wall?
A. I don't remember that. I don't think
so.
Q. Did Mr. Emmi interfere with that phone
call at all to your recollection?

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MARIANNE EMMI
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A. Well, I had said I was going to call
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Q. Okay, okay. So you had the cell
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A. Yeah, at first.
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Q. And you said you were going to call
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A. Yeah.
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Q. -- because he didn't want you calling
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A. Yeah.
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Q. And he did that out front?
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A. Yeah. And then I locked the top
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Q. And then he climbed in the window.
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A. -- and that made him ve
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.-- , -;~ a sequence of events, did- 21 you call 911 on I guess what would be the house
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A. After he broke the vase. Like, after
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Q. While you were speaking to 911, the
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