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Warren v. Township of Derry

July 20, 2007

SAMUEL L. WARREN AND OLANDIS WARREN, PLAINTIFFS
v.
TOWNSHIP OF DERRY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is plaintiffs' motion in limine (Doc. 64), which asks the court to exclude the following evidence at trial: (1) plaintiffs' prior criminal convictions, (2) the value of all items that plaintiffs placed in a grocery cart at Fox's Food Market and the total amount of money that plaintiffs possessed on the date of the incident,*fn1 and (3) any testimony that a Fox's Food Market employee observed two men matching plaintiffs' descriptions acting suspiciously on the day prior to the incident. For the reasons that follow, the motion will be granted in part and denied in part.

I. Factual Background*fn2

This case involves the response by defendant-police officers to a complaint of retail theft by employees of Fox's Food Market. (Doc. 39 ¶¶ 15-17; Doc. 48 ¶¶ 15-17.) After receiving a radio transmission describing the retail theft suspects, defendant Officer Kenneth M. Shank ("Officer Shank") observed plaintiffs outside of a convenience store near Fox's Food Market. (Doc. 39 ¶¶ 18-20; Doc. 48 ¶¶ 18-20.) Believing plaintiffs to be the suspects, Officer Shank approached plaintiffs and asked for their identification. (Doc. 39 ¶¶ 21, 23-24; Doc. 48 ¶¶ 21, 23-24.) The parties dispute what unfolded next; however, it is apparent that plaintiffs' vehicle was searched and that, at some point, a scuffle ensued. Plaintiffs were arrested and charged with retail theft and criminal conspiracy. (Doc. 39 ¶¶ 26, 37; Doc. 48 ¶¶ 26, 37.) The charges were ultimately dismissed by District Justice Dominick A. Pelino. (Doc. 39 ¶ 38; Doc. 48 ¶ 38.)

Plaintiffs subsequently instituted the above-captioned action, alleging that defendants' conduct violated their civil rights. (Doc. 1.) Following the court's decision on defendants' motion for summary judgment, the following claims remain: (1) excessive use of force and unlawful search pursuant to 42 U.S.C. § 1983, (2) intentional discrimination on the basis of race in violation of 42 U.S.C. § 1981, (3) assault and battery, and (4) intentional infliction of emotional distress. (See Doc. 58.) A jury trial is scheduled to commence on August 14, 2007. (See Doc. 61.)

On June 25, 2007, plaintiffs filed the instant motion. (Doc. 64.) The motion requests, inter alia, that defendants be precluded from proffering evidence of plaintiffs' prior convictions. Specifically, plaintiff Olandis Warren ("Olandis") was convicted of theft of property and use of prohibited offensive weapons in 1992 and of retail theft in 1991, 1993, 1994, 1996, and 1999. (Doc. 67 at 7-9.) Plaintiff Samuel Warren ("Samuel") was convicted of retail theft in 1988, criminal trespass in 1989, and robbery and theft of leased property in 2006. (Id.) The motion has been fully briefed and is ripe for disposition.

II. Discussion

A. Prior Criminal Convictions

Defendants seek to introduce evidence of plaintiffs' prior criminal convictions for impeachment purposes and as substantive evidence. (See Doc. 68 at 12.) Turning first to the issue of impeachment, Federal Rule of Evidence 609 allows the following types of evidence to be admitted for impeachment purposes:

(1) evidence that a witness . . . has been convicted of a crime . . . if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . . .

(2) evidence that any witness has been convicted of a crime . . . if it involved dishonesty or false statement, regardless of the punishment.

FED. R. EVID. 609(a). The admission of such evidence is limited to convictions that occurred within the last ten years unless the court finds that the probative value of an older conviction, as "supported by specific facts and circumstances" surrounding the case, "substantially outweighs its prejudicial effect." See id. 609(b).

In the matter sub judice, Olandis's theft of property and use of prohibited offensive weapons convictions in 1992 and retail theft convictions in 1991, 1993, 1994, and 1996 are beyond the ten-year limitations period, as are Samuel's retail theft conviction in 1988 and criminal trespass conviction in 1989. See id. 609(b). Defendants have not identified any "specific facts and circumstances" that are sufficient to necessitate the use of these convictions for impeachment purposes. Id. Defendants contend only that plaintiffs' convictions should be admitted because plaintiffs "are key witnesses" and their "propensity for deceptive and dishonest conduct has a direct bearing on their credibility." (See Doc. 68 at 13.) Such generalizations apply to nearly every case and do not constitute the type of "specific, articulated facts" that must be proffered before a conviction that exceeds the ten-year limitations period may be admitted. See United States v. D'Agata, 646 F. Supp. 390, 392 (E.D. Pa. 1986) (noting that convictions beyond the ten-year limitations period should be admitted "very rarely and only in exceptional circumstances"). Accordingly, the court concludes that the aforementioned convictions may not be used for impeachment purposes.

Although Samuel's 2006 theft of leased property conviction occurred within the ten-year limitations period, this conviction was not punishable by "imprisonment in excess of one year," as required by Federal Rule of Evidence 609(a)(1). (See Doc. 67 at 7 (discussing the conviction's grading as a misdemeanor)). Nor did the conviction involve "an act of dishonesty or false statement," as required by Federal Rule of Evidence 609(a)(2). See 18 PA. CONS. STAT. ANN. ยง 3932 (defining the offense of theft of leased property); see also United States v. Johnson, 388 F.3d 96, 99-100 (3d Cir. 2004) (concluding that theft crimes are ...


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