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PETTIJOHN v. WUSINICH

February 14, 1989

ELWOOD L. PETTIJOHN
v.
CHIEF MARTIN WUSINICH, DETECTIVE DAVID PEIFER and DETECTIVE DAVID MUCKER



The opinion of the court was delivered by: KATZ

 MARVIN KATZ, UNITED STATES DISTRICT JUDGE

 In this civil rights action brought pursuant to 42 USC. ยง 1983, plaintiff, Elwood L. Pettijohn, alleges that on July 10, 1987 he was arrested in Delaware by defendants, Pennsylvania police officers, without a warrant and without probable cause. Mr. Pettijohn further alleges that he was then transported involuntarily across state lines to Pennsylvania, where he was interrogated for a period of several hours, after which time he was released. Defendants' conduct occurred during the course of their investigation of a June 27, 1987 bank robbery in Media, Pennsylvania. Ultimately Mr. Pettijohn was arrested and brought to trial in state court on criminal charges stemming from the June 27, 1987 incident. On May 5, 1988, a jury found Mr. Pettijohn guilty on these charges. Mr. Pettijohn has not yet been sentenced in the criminal case. This civil case, which was filed by Mr. Pettijohn on February 24, 1988 and is scheduled to proceed to jury trial on February 21, 1989, is currently before the court on two motions in limine submitted by Mr. Pettijohn, one to preclude prior convictions, the other to preclude the May 5, 1988 finding of guilt for bank robbery.

 Plaintiff's motion to preclude prior convictions

 Plaintiff asserts that he must personally testify at trial in order to substantiate his civil rights claim. If he does testify, pursuant to Federal Rule of Evidence 609 his credibility may be subject to impeachment by evidence of certain prior convictions. In this motion, plaintiff contends that, for purposes of impeaching his credibility as a witness, evidence of all convictions over ten years old should be precluded from being offered at trial.

 Rule 609(b) sets forth the standard governing admissibility for impeachment purposes of convictions more than ten years old. The rule provides that evidence of such convictions is not admissible "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b). Plaintiff argues, citing Rule 609(b) for support, that evidence of the following convictions must be precluded:

 1. September 30, 1974 conviction for theft, receiving stolen goods and conspiracy.

 2. March 21, 1975 conviction for burglary, criminal trespass, theft and receiving stolen goods.

 3. February, 1975 conviction for resisting arrest.

 4. August 12, 1975 conviction for resisting a police officer.

 5. November 7, 1975 conviction for retail theft.

 6. January, 1976 conviction for retail theft.

 7. August 2, 1976 conviction for theft by deception. *fn1"

 In a recent decision construing Rule 609(b), this court noted that among the factors to be taken into account in balancing probative value against prejudicial effect in this context are: the kind of crime involved; when the conviction occurred; the importance of the witness' testimony to the case; the centrality of the witness' credibility; the impeachment value of the prior crime; and the similarity of the past crime to the case sub judice. U.S. v. D'Agata, 646 F. Supp. 390, 391 (E.D.Pa. 1986), citing Government of Virgin Islands v. Bedford, 671 F.2d ...


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