The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
This is a civil rights case brought by pro se Plaintiff John Paul
Gomez against Defendant Officer James Markley arising from a traffic
stop and subsequent search of Plaintiff‟s vehicle, which occurred on
March 26, 2007.*fn1 Presently before the Court is
Defendant‟s motion in limine seeking to limit and/or preclude
Plaintiff from calling certain witnesses at trial and his brief in
support of same. (Docket Nos. 85, 86). Defendant argues that their
proposed testimony is irrelevant to the solitary issue of whether
Defendant had probable cause to conduct a search of Plaintiff‟s
vehicle for contraband, (see Docket No. 60-2), and/or because any
anticipated testimony by these witnesses will confuse the issue and
potentially mislead the jury if heard. (Docket No. 85 at 1).
Specifically, Defendant seeks to limit and/or preclude the following
witnesses‟ testimony in this case: (1) Officer Patrick Cooper, (2)
Officer Joseph Yost, (3) Chief Dorsey, (4) Michael Machek, (5) Cary
Jones, Esq., (6) John Gilbert, and (7) Peter Garcia. (Id.). In
response, Plaintiff concedes that he will not call Chief Dorsey to
testify; however, he disputes the preclusion of any "material
witness." (Docket No. 117 at 3). Plaintiff states that he may call
witnesses to testify if he chooses. (Id.). The Court heard argument on
the instant motion at
the final pretrial conference held on January 11, 2011. (Docket No.
123). At said conference, Plaintiff agreed to limit his case to those
witnesses listed on his Supplemental Pretrial Statement.*fn2
(See Docket Nos. 122, 123). Therefore, upon consideration of
the parties‟ arguments, and for the following reasons, the Court finds
that Defendant‟s arguments are well-taken and, consequently, Plaintiff
shall be precluded from presenting the disputed witnesses‟ testimony
""Relevant evidence‟ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The Federal Rules of Evidence provide that "[a]ll relevant evidence is admissible, except as otherwise provided.. Evidence which is not relevant is not admissible." Fed. R. Evid. 402. Additionally, the Court can preclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.
A trial court is afforded substantial discretion when striking a Rule 403 balance with respect to proffered evidence. McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009) (noting "a trial judge‟s decision to admit or exclude evidence under Fed. R. Evid. 403 may not be reversed unless it is arbitrary and irrational"). As the United States Court of Appeals for the Third Circuit has summarized, under Rule 403, "otherwise relevant and admissible evidence may only be excluded if the probative value of the evidence is substantially outweighed by its prejudicial effect." United States v. Universal Rehabilitation Services (PA), Inc., 205 F.3d 657, 664 (3d Cir. 2000). Thus, Rule 403 recognizes that the Court must employ a cost-benefit analysis in order to determine whether or not to admit evidence. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002). In particular, evidence may be excluded if its probative value is not worth the problems that its admission may cause, e.g., unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. Id.; see also Fed. R. Evid. 403. Notably, although the term "unfair prejudice" is often misstated as mere prejudice, properly applied, the prejudicial effect of admitting the evidence must rise to the level of creating an unfair advantage for one of the parties for the evidence to be excluded under Rule 403. Coleman, 306 F.3d at 1343 n.6.
In turn, Federal Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.." The Third Circuit applies a four-part test to determine the admissibility of Rule 404(b) evidence: (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the district court must charge the jury to consider the evidence only for the limited purpose for which it was admitted. Becker v. ARCO Chem. Co., 207 F.3d 176, 189 (3d Cir. 2000).
Evidence offered under Rule 404(b) to establish a plan or scheme, "may be admitted for the purpose of proving the defendant‟s commission of the subsequent act itself where that issue is disputed." As explained by the Third Circuit in J & R Ice Cream Corp. v. Cali. Smoothie Corp.:
Ordinarily, when courts speak of "common plan or scheme," they are referring to a situation in which the charged and the uncharged [acts] are parts of a single series of events. In this context, evidence that the defendant was involved in the uncharged [act] may tend to show a motive for the charged [act] and hence establish the commission of the . [act].
31 F.3d 1259, 1268-69 (3d Cir. 1994) (quoting Government of Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d Cir. 1992)). To admit evidence as establishing a plan or scheme under Rule 404(b), "[b]oth [acts] must be part of a common or continuing scheme; the plan must encompass or include both [acts]; the [acts] must be connected, mutually dependent and interlocking.. Both [acts] must be steps toward the accomplishment of the same final goal. They are different stages of the plan." Becker, 207 F.3d at 197. Notably, as part of this analysis, other courts have analyzed whether the prior and contested acts were temporally proximate, involved the same actors, and were closely related. See Meyer Chatfield Corp. v. Century Bus. Servs., Civ. No. 05-3673, 2010 U.S. Dist. LEXIS 83170, at *9-11 (E.D. Pa. Aug. 12, 2010).
In his written proffer of Officer Cooper as a witness a trial, Plaintiff states that Officer Cooper "will testify regarding his affidavit on record." (Docket No. 122 at 1). Officer Cooper‟s affidavit provides as follows.
In 1981, Officer Cooper became a police officer for the Midway Borough Police Department. (Id. at 1). Later, in 1992, Officer Cooper became the Borough‟s Chief of Police. (Id.). At that time, he was not aware of an enacted "Motor Vehicle Towing and Inventory Policy" for the Midway Borough and believes, based on his personal knowledge, that said policy did not exist during his tenure as police chief, which concluded with his retirement in 2004. (Id.). Similarly, Officer Cooper also had no knowledge of an enacted "Vehicle Impound Record." (Id.). He did, however, have personal knowledge of the "twenty-one pages [of] rules and regulations to be followed for guidance and government of the Midway Borough Police Department," which was adopted by the Midway Borough Counsel in 1998. (Id. at 1-2). Said rules and regulations were signed by every police officer employed by the Borough‟s police department. (Id. at 2).
Officer Cooper‟s affidavit then describes multiple traffic stops that Defendant allegedly made, which involve members of Officer Cooper‟s family. (Id. at 2-4). Specifically, in June 2006, Defendant is alleged to have stopped Officer Cooper‟s daughter for driving over the speed limit. (Id. at 2). Officer Cooper was called to the scene by his child. (Id.). Upon his arrival, Defendant advised Officer Cooper that he was going to search the vehicle for a concealed firearm based on his perception of a booklet in the car from the Allegheny County Sheriff‟s Office with instructions on how to obtain a firearm. (Id.). Officer Cooper told Defendant that these facts were insufficient to provide probable cause, which would justify the search. (Id.). In response, Defendant became agitated, used profanity, and threatened to cite Officer Cooper for disorderly conduct. (Id.). Defendant then proceeded to search the vehicle. (Id. at 2-3). After two hours, and finding no firearm, Defendant cited Officer Cooper‟s daughter for speeding. (Id. at 3). Ultimately, the speeding offense was dismissed at trial, where Defendant did not appear. (Id.).
Subsequently, in January 2007, Defendant is then alleged to have stopped Officer Cooper‟s son, while driving a friend‟s car, for driving ...