United States District Court, M.D. Pennsylvania
September 23, 2005.
MARYANN TUCCI, Individually and on behalf of her minor children, Isaiah Tucci and Jonathan Tucci, and CARMEN TUCCI, Individually and on behalf of his minor children, Isaiah Tucci and Jonathan Tucci, Plaintiffs
JAMES M. DIXON Defendant. PATRICIA DUKSTA, Plaintiff v. DAVID COFFMAN Defendant.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
This matter is before the Court on Plaintiffs' Motion for
judgment as a matter of law and/or for a new trial following an
adverse jury verdict. Maryann Tucci, along with her husband,
Carmen, and their minor children (sometimes referred to
collectively as the "Tucci Plaintiffs"), and Patricia Duksta had
presented to the jury civil rights and state law claims arising
out of separate encounters with members of the City of Hazleton Police
Department.*fn1 As to the Tucci claims, the jury found that
Maryann Tucci had not shown that Officer Dixon had used
unreasonable force against her or engaged in a malicious
prosecution of her. The jury further found that Officer Dixon had
entered the Tucci home with consent, thereby undermining the
Tucci Plaintiffs' Fourth Amendment illegal entry claim. With
respect to the claims asserted by Plaintiff Duksta, the jury
found that she had failed to prove that Defendant Coffman had
used unreasonable force against her or engaged in a malicious
prosecution of her.
The following issues are presented on Plaintiffs' post-trial
(1) Whether the court erred in not directing judgment as a
matter of law in favor of the Tucci Plaintiffs based upon
Defendant Dixon's entry into their home, and in allowing the jury
to determine whether consent could be inferred from the totality
of the circumstances, including the presence of another law
enforcement officer in the Tucci home when Dixon entered it?
(2) Whether the evidence, as a matter of law, compelled the
conclusion that Officer Dixon had used unreasonable force against
(3) Whether the court erred in refusing to allow Plaintiffs to
impeach Defendants based upon alleged inconsistent statements
made by their attorney in answering the Complaint, even though Plaintiffs conceded that they had no evidence that
Defendants ever reviewed the Answer to the Complaint or otherwise
adopted their attorney's statements?
(4) Whether the Court erred in instructing the jury that the
existence of probable cause on at least one of the criminal
charges brought against a Plaintiff would be sufficient to defeat
the Plaintiff's malicious prosecution claim?
The issues have been fully briefed. In addition, oral argument
was conducted on July 25, 2005. For the reasons that follow,
Plaintiffs' motion will be denied.
Each of the issues presented by Plaintiffs, along with the
evidence germaine to that issue, will be assessed separately. In
undertaking this review, this Court will, as required, view the
evidence in the light most favorable to Defendants, giving them
"the advantage of every fair and reasonable inference."
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
A. The Tucci Claim of Illegal Entry Asserted Against Officer
The Tucci Fourth Amendment illegal entry claim was considered
by the jury in the context of three conflicting versions of the
incident. On June 20, 2001, Constable Joseph Corradini attempted
to serve an arrest warrant upon Louis Tucci, son of Plaintiffs
Carmen and Maryann Tucci, for unpaid traffic fines. Shortly after
Constable Corradini arrived at the Tucci residence, Louis Tucci
appeared and informed the Constable that he would retrieve his
credit card from the Tucci home to pay the fines. Louis Tucci entered
the home, but he fled the scene through the back door.
At the request of the responsible District Magistrate,
Constable Corradini returned to the Tucci residence during the
evening of June 20, 2001, accompanied by Officers Dixon and
Coffman. Officer Coffman watched the rear of the property, and
was not involved in the encounter. The parties are in agreement
that Constable Corradini went to the front door of the Tucci home
while Officer Dixon concealed himself from view. The stories
diverge considerably at this point.
According to Maryann Tucci, she met Constable Corradini at the
front door. She refused his request to search the home to see if
her son, Louis, was present, claiming that he did not live there.
She also testified that Corradini did not enter the home before
Officer Dixon appeared at the front door. Instead, he called to
Officer Dixon, and both Corradini and Dixon entered her home
together, without any expression of consent on her part.*fn2
Constable Corradini testified that he remained outside the
screen door on the front porch of the property at all times
during the encounter. He said that when Maryann Tucci did not
seem to understand the import of the warrant for her son's
arrest, he summoned Officer Dixon for assistance. He testified
that he and Officer Dixon remained outside the home at all times. In response to questioning from the Court, Constable Corradini
stated that he could not recall whether he had entered the home
at any time during the incident. He also testified, however, that
he would only enter a home if consent had been secured.
Officer Dixon's recollection of the event was that, when
summoned for assistance, he went to the front door and saw
Corradini standing inside the home, conversing with Maryann
Tucci. Officer Dixon then entered the home. He admitted that he
did not ask permission to enter. He also testified, without
contradiction, that neither Maryann Tucci nor her husband,
Carmen, who was present, objected to his presence inside the
home. Officer Dixon explained that when he inquired as to whether
the premises could be searched to ascertain whether Louis Tucci
was present, Maryann Tucci said that she did not want to discuss
the matter in front of her other children. Officer Dixon
testified that he then suggested that they go outside to discuss
the matter on the front porch. According to Dixon, Maryann Tucci
then followed him and Constable Corradini out to the front porch,
where a verbal altercation ensued.
At the conclusion of the trial, the Tucci Plaintiffs moved for
judgment as a matter of law on the Fourth Amendment illegal entry
claim, asserting that the absence of evidence that any member of
the Tucci family consented to Dixon's entry into the home
compelled a liability determination in their favor. The Tucci
Plaintiffs' motion was denied, and the matter was submitted to
the jury with the following instructions:
[Y]ou must decide whether defendant Dixon "crossed"
the "threshold" of the Tucci home without
consent. . . . In deciding whether any person provided "consent" for
defendant Dixon to enter the Tuccis' home, you must
also know that consent cannot be implied by mere
acquiescence. In other words, in order to constitute
consent, it must be explicit. There is no consent if
defendant Dixon entered the home without specific
consent. . . .
To sum up, you must decide . . . if Maryann Tucci or
another plaintiff explicitly gave consent to
defendant Dixon to enter the home.
(Jury Charge, Dkt. Entry 77, at 19, 20.)
During deliberations, the jury asked the Court the following
(1) Can consent be implied by the presence of the
Constable already being in the home?
(2) Can consent given to [the] Constable be extended
to the officer since the Constable requested the
After conferring with counsel, and consulting pertinent case law,
the Court determined to respond to the jury's question in a
manner consistent with the holding in Pavao v. Pagay,
307 F.3d 915
, 919-21 (9th Cir. 2002). Specifically, the jury was
essentially instructed that Officer Dixon could not show consent
to enter from Plaintiffs' failure to object to his entry. The
jury was informed that a defendant, however, can justify an entry
into a home on the basis of implied consent, meaning consent
inferred from the conduct or actions of the person in charge of
the place. The jury was further instructed that implied consent
could not be inferred lightly. Consistent with Pavao, the jury
was told that "`every encounter has its own facts and its own
dynamics,'" id. at 919, and no general rule exists as to when
consent may or may not be implied. The jury was told that it needed to consider the
totality of the circumstances apparent to the officer at the time
the entry was made, and that it could take into account the facts
that Constable Corradini was already in the home when Officer
Dixon entered and that Constable Corradini had called for Officer
Dixon's assistance while Constable Corradini was inside the home,
provided, of course, that the jury credited that version of the
incident. This supplemental instruction was given over
Plaintiffs' objection on the basis that consent can never be
implied, but must be explicitly stated.
The Tucci Plaintiffs persist in arguing that consent may never
be inferred by a law enforcement officer. Instead, under their
view, a law enforcement officer without a search warrant must
always ask permission to enter a home, even when a fellow law
enforcement officer is already inside, conversing with an
occupant in a non-hostile manner.
There is, however, a considerable body of case law recognizing
the concept of implied consent, which is to be decided on the
basis of all the circumstances apparent to the law enforcement
officer. See, e.g., United States v. Ramirez-Chilel,
289 F.3d 744, 751-53 (11th Cir. 2002); Pavao, 307 F.3d at 919. The
supplemental jury instructions were consistent with this
Moreover, viewed in the light most favorable to Defendant
Dixon, there was adequate evidence from which a jury could
conclude that Officer Dixon would have thought that he had
consent to enter. Constable Corradini testified that he would
have entered the home only if permission had been granted. Officer Dixon observed Constable
Corradini inside the home when Officer Dixon arrived at the front
door. The Tucci Plaintiffs did not assert a Fourth Amendment
illegal entry claim against Constable Corradini, thus suggesting
that he had indeed been given permission to enter,
notwithstanding Maryann Tucci's testimony to the contrary.
Significantly, Carmen Tucci did not testify at trial, although he
was a co-plaintiff who was present at the time of the incident in
question. No objection was voiced by Maryann Tucci when Officer
Dixon entered the home. Given her argumentativeness, as displayed
during the encounter that occurred on her front porch a few
minutes later, a jury could certainly conclude that she was not
the kind of person who would be too meek to tell a police officer
that he could not come in or must leave. Officer Dixon testified
that Maryann Tucci followed him and Corradini out to the front
porch when Officer Dixon suggested they do so to avoid discussing
the matter in front of Maryann Tucci's other children. At this
stage, of course, this testimony must be credited. Under all
these circumstances, there were ample grounds for concluding that
Officer Dixon could infer consent to enter the home. See Babb
v. Deomampo, 230 F.3d 1366, 2000 WL 1208199, at *1 (9th Cir.
2000). Accordingly, the Tucci Plaintiffs are not entitled to
judgment as a matter of law or a new trial on the Fourth
Amendment illegal entry claim.
B. Maryann Tucci's Unreasonable Force Claim Against Officer
While acknowledging that "[w]hether force used to seize a
person was or was not reasonable is generally a jury question,"
(Brief in Support of Post-Trial Motion, Dkt. Entry 91, at 21), Maryann Tucci contends that "on the undisputed facts, it was
unreasonable as a matter of law for Dixon to grab Ms. Tucci by
the arm, put her in a `control technique,' pull her from her
home, put her arm behind her back, bruise her arms, and put her
against a stone wall for at least ten seconds." (Id.)
Were the evidence as one-sided as suggested by Plaintiffs'
counsel, judgment as a matter of law may indeed have been
warranted. But viewed in the light most favorable to Officer
Dixon, the evidence permitted a finding that Maryann Tucci became
belligerent on the front porch of her home. She refused to calm
down. When she went to return to her house, she remained on the
threshold with the screen door open, and then struck Dixon with
the screen door at least twice. It was only then that Officer
Dixon used a "soft hand control technique" to subdue her in
response to her attack. It is also noteworthy that, while Maryann
Tucci testified that Officer Dixon slammed her against the stone
wall of the house three to four times, Constable Corradini flatly
denied that version of the event. Furthermore, Maryann Tucci was
unable to explain how Officer Dixon caused bruises on her arms.
The question for the jury to decide was whether Officer Dixon's
actions were "objectively reasonable" in light of the facts and
circumstances confronting him. See Saucier v. Katz,
533 U.S. 194, 202 (2001); Carswell v. Borough of Homestead,
381 F.3d 235, 240 (3d Cir. 2004). Significantly, the jury was instructed
that, if it credited Ms. Tucci's version, then she was entitled
to the jury's verdict. The jury was also told, however, that if
it found that the incident occurred as Officer Dixon contended, then the jury had to decide whether
the amount of force used by Officer Dixon was reasonable under
the circumstances. It is obvious from the jury's verdict that
Maryann Tucci's version was not credited. As noted above, there
was ample evidence to support a determination that the amount of
force employed was objectively reasonable under the
circumstances. Thus, Maryann Tucci is not entitled to judgment as
a matter of law on her unreasonable force claim.
C. Impeachment of Defendants by Answer to Complaint
Plaintiffs request a new trial on the ground that they were
severely prejudiced by the inability to confront the individual
Defendants with responses to particular paragraphs of the
Complaint as prior inconsistent statements of the Defendants.
Plaintiffs wanted to confront Defendants with certain denials of
averments for purposes of arguing that the Defendants were not
credible witnesses. Plaintiffs rely upon the general principle
that a lawyer's response to a pleading is binding on the
attorney's client. Plaintiffs' reliance upon this general
proposition misses the mark for at least two reasons.
First, Plaintiffs were not precluded at any time from utilizing
statements made in the Answer to the Complaint as admissions. And
second, Plaintiffs conceded that they were unable to show that
either individual Defendant had reviewed the Answer to the
Complaint, or otherwise adopted the denials to particular
averments. Essentially, Plaintiffs want to convert an agent's
statement, binding on the principal as an admission, into a prior
inconsistent statement of the principal himself.
As a general rule, an "[impeaching] statement must be that of
the witness to be impeached and not of some other person."
Penguin Books U.S.A., Inc. v. New Christian Church of Full
Endeavor, 262 F. Supp. 2d 251, 262 (S.D.N.Y. 2003); see
also, United States v. Schoenborn, 4 F.3d 1424, 1429 n. 3
(7th Cir. 1993) (statement of another person not adopted by the
witness could not be used to impeach witness as a prior
inconsistent statement under Fed.R. Ev. 613); United States v.
Almonte, 956 F.2d 27, 29 (2d Cir. 1992) ("`third party's
characterization' of a witness's statement does not constitute a
prior statement of that witness unless the witness has subscribed
to that characterization"); United States v. Chavez,
979 F.2d 1350, 1355 (9th Cir. 1992) (third party statement not adopted by
witness may not be used for impeachment purposes). As one court
has observed, "[i]t is an entirely different matter to offer one
declarant's statement to impeach the credibility of another
witness. Merely offering a contradictory account offered by one
witness does not go to another witness's credibility. . . ."
United States v. Bao, 189 F.3d 860, 866 (9th Cir. 1999).
Plaintiffs could not meet the foundational requirement of
showing that the statements in question were made or adopted by
the witnesses themselves. Thus, no error was committed in
refusing to allow use of responses to averments of the Complaint
as prior inconsistent statements of the witnesses themselves.
Accordingly, Plaintiffs are not entitled to a new trial on this
ground. D. The Malicious Prosecution Claims
Plaintiffs' final argument is that they are entitled to a new
trial on the malicious prosecution claims because the court erred
in instructing the jury that Defendants were entitled to prevail
if they established probable cause for either of the charges
brought against Maryann Tucci and Patricia Duksta. Plaintiffs
argue that a "seizure" of the person, "otherwise reasonable
because there is probable cause for some charge, becomes
`unreasonable' when there is not probable cause for all charges."
Plaintiffs cite no authority in support of this proposition.
Maryann Tucci was charged with harassment in violation of
18 Pa. Cons. Stat. Ann. § 2709(a)(1), and disorderly conduct, in
violation of 18 Pa. Cons. Stat. Ann. § 5503(a)(2). Plaintiff
Duksta was charged with public drunkenness in violation of 18 Pa.
Cons. Stat. Ann. § 5505, and disorderly conduct, in violation of
18 Pa. Cons. Stat. Ann. § 5503(a)(4). Both Plaintiffs were
acquitted of the charges. The jury was instructed that the fact
of acquittal did not mean that the prosecutions lacked probable
cause, but that the charging officers shouldered the burden of
convincing the jury by a preponderance of the evidence that
probable cause existed. After explaining the elements of the
crimes charged, the Court further instructed the jury that if it
found that the charging officer had established probable cause
for either of the charges brought by that charging officer, then
the jury must find in favor of that charging officer on the
malicious prosecution claim. The jury, however, was not asked to
make a separate finding on probable cause. Instead, the only
questions posed to the jury was whether Plaintiffs separately established that the charging officers had maliciously prosecuted
them, which the jury answered in the negative.
The instruction on probable cause was prompted by the fact that
a civil rights malicious prosecution claim is grounded in the
Fourth Amendment protection against infringement upon liberty.
That is, an essential element of a § 1983 malicious prosecution
claim is that "the plaintiff suffered a deprivation of liberty
consistent with the concept of seizure as a consequence of a
legal proceeding." DiBella v. Borough of Beachwood,
407 F.3d 599, 601 (3d Cir. 2005). A restraint on one's liberty without
probable cause would offend the Fourth Amendment. If there exists
probable cause, then the deprivation of liberty is justified.
Because the restraint on liberty remains the same even if
probable cause may be lacking for a particular charge, a person
has not sustained an actionable wrong where there existed
probable cause for at least one of the charges.*fn3
It is also significant that Plaintiffs do not argue in support
of their motion that the evidence was insufficient to establish
probable cause on all charges brought against Maryann Tucci and
Patricia Duksta. There certainly was ample evidence from which
the jury could find the existence of probable cause for all charges brought.
Accordingly, Plaintiffs are not entitled to a new trial on this
For the reasons set forth above, Plaintiffs' post-verdict
motion will be denied. An appropriate Order follows. ORDER
NOW, THIS 23rd DAY OF SEPTEMBER, for the reasons set forth in
the foregoing Memorandum, IT IS HEREBY ORDERED THAT Plaintiffs'
post-verdict motion (Dkt. Entry 89) is DENIED.
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