The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
Defendant Marvin Burton seeks a new trial after a jury found him liable under 42 U.S.C. § 1983 for using excessive force when he fatally shot Raymond Pelzer on April 27, 2006. Burton claims I improperly allowed the jury to hear testimony that Pelzer was unarmed when Burton killed him. Burton argues such testimony was irrelevant and, in the alternative, unfairly prejudicial.
I will deny Burton's motion. The evidence at issue was relevant to the jury's determination of the circumstances leading up to Pelzer's shooting because it helped the jury resolve a critical credibility issue, and the probative value of the testimony was not substantially outweighed by the risk of unfair prejudice or confusion. See Fed. R. Evid. 403.
Just before 5:30 p.m. on April 27, 2006, Philadelphia Police Officer Kenora Scott*fn1 and her partner conducted an investigatory stop of three men at the intersection of Millick and Market Streets. Oct. 4 Tr. at 140-41, 151. One of those men was Raymond Pelzer. Id. at 141. Although he "had not committed any major violation of the law," id. at 144-45, Officer Scott frisked Pelzer to determine whether he had any weapons. Id. at 145-46. He was unarmed. Id. at 146. Pelzer provided Officer Scott with his identification, and she radioed dispatch his name and address to determine whether he was the subject of any warrants. Id. at 146-47.
Before Officer Scott received a response to her query, Pelzer ran. Oct. 4 Tr. at 150. Officer Scott and her partner began to chase Pelzer, who was heading north on Millick Street, and Officer Scott radioed for assistance. Id. at 152-54. After Pelzer fled, Officer Scott was advised there was a warrant for his arrest, but she received no further details about the nature of the warrant or the reason it was issued. Id. at 152.
Officer Miguel Curet and his partner were on their way to the location of Officer Scott's investigatory stop when they heard of Pelzer's flight. See October 5, 2010 Partial Transcript of Jury Trial*fn2 at 8, 43-44, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Oct. 5, 2010), ECF No. 96 [hereinafter Oct. 5 Tr.]. Upon learning of the foot pursuit, Officer Curet and his partner headed toward the home address given for Pelzer over police radio. Id. at 44. Along the way, Officer Curet's partner spotted Pelzer running into an alley in the 5900 block of Filbert Street, so they began searching on foot. Id. at 44-45, 47-48. Officer Curet's partner secured the south end of the alley running north between Salford and Redfield Streets, while Officer Curet went north on Redfield Street. Id. at 47-48. Officer Curet found an alley running west from Redfield Street toward Salford Street and, when he reached the entrance, he could see Pelzer down the alley in a backyard. Id. at 48-49. As he entered the alley, Officer Curet removed his gun from its holster. Id. at 24
Meanwhile, Burton and his partner were finishing an assignment nine blocks away. See October 6, 2010 Partial Transcript of Jury Trial*fn3 at 16, Pelzer v. City of Phila., No. 07-0038 (E.D. Pa. Oct. 6, 2010), ECF No. 115 [hereinafter Oct. 6 Tr.]. Upon hearing of the foot pursuit, Burton began searching on foot near the alleys where Officer Curet and his partner had reported seeing Pelzer. Id. at 20. When Burton turned south on Salford Street from Arch Street, he saw Pelzer attempting to climb over a gate to exit an alley next to 51 North Salford Street. Id. at 34-35, 43-44. Pelzer retreated after seeing Burton, who kicked the gate open and chased Pelzer east through the alley. Id. at 39-41, 57, 61. As he entered the alley, Burton drew his gun. Id. at 62.
Until this point, there is no meaningful dispute about the facts. However, Burton and Officer Curet offered divergent accounts of what transpired in the backyard where they encountered Pelzer. These two versions of the events immediately preceding Pelzer's death were at the heart of this trial, and are pivotal to the evidentiary determination at issue in Burton's motion.
Burton testified Pelzer was holding his right waistband area as he ran back the alley, causing Burton to suspect Pelzer might be armed. Oct. 6 Tr. at 62-63, 116-17. Burton lost sight of Pelzer when Pelzer turned into the yard at the rear of 51 North Salford Street. Id. at 74, 77, 81. According to Burton, he peeked around the back edge of the house into the yard and saw Pelzer attempting to climb over a fence into an adjacent backyard. Id. at 51, 79, 81, 84, 191-92. At that time, both of Pelzer's hands were visible, and Burton admits they were empty. Id. at 116, 126,128. Burton entered the yard and ordered Pelzer to stop. Id. at 119, 122-23, 128, 137. Pelzer dropped from the fence and faced Burton, with his left foot slightly in front of his right foot. Id. at 137-39, 143-44. Burton testified Pelzer had his right hand at his waist, tucked under his shirt, and did not comply with verbal commands to show his hands.*fn4 Id. at 137, 143-45, 193. In addition, Burton stated Pelzer rocked back and forth, shouting "fuck you, fuck you, do it, do it." Id. at 140, 145, 193.
Perhaps most critically, Burton testified his short encounter with Pelzer*fn5 culminated in Pelzer taking his right hand from his waist area and thrusting it forward toward Burton. Oct. 6 Tr. at 142, 145. Burton stated he saw something silver in Pelzer's hand and thought it was a gun. Id. at 145-46, 159. According to Burton, he shot Pelzer in response to the thrusting gesture, and based on his belief Pelzer was pointing a gun at him. Id. at 159, 194-95.
The only silver object recovered on or around Pelzer's body after the shooting was a cellular phone. Id. at 146.
Officer Curet testified he had a view of Pelzer's right side as he approached the yard where Pelzer and Burton were facing off. Oct. 5 Tr. at 52. Although Officer Curet agreed Pelzer was facing Burton, id. at 27, 33, his other observations differed significantly from those described by Burton. First, Officer Curet testified both of Pelzer's hands were outside his shirt, near his waist at his right side, fully visible. Id. at 33-34, 52. Second, Officer Curet said Pelzer never lifted his right arm or otherwise moved his hands before he was shot. Id. at 32-34. Third,Officer Curet did not hear Pelzer shout anything at Burton ...