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Wayne Prater v. City of Philadelphia

September 7, 2012

WAYNE PRATER,
PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge

MEMORANDUM OPINION

Plaintiff Wayne Prater claims Defendants, Philadelphia Police Officers Edward Solvibile and Joseph Walsh, violated his Fourth Amendment rights to be free from unreasonable seizures and the use of excessive force when they arrested him on December 2, 2009. He also alleges Officer Solvibile's actions during the arrest constituted an assault and battery under Pennsylvania state law. Prater now seeks to exclude the following evidence at trial: (1) evidence of his prior convictions; (2) evidence of his past arrests and other bad acts; and (3) evidence of his current incarceration. I deny Prater's motion in part and grant it in part as discussed below.

I. Evidence of Prater's Prior Convictions

Without identifying any of his prior convictions, Prater alleges evidence of those convictions should be barred because they "could only be used to create an inference that [he] has an aggressive and criminal disposition." Prater's Motion in Limine (doc. 43), at p. 2. Officers Solvibile and Walsh contend Prater's convictions for crimes punishable by more than one year of imprisonment must be admitted pursuant to Rule 609(a)(1)(A) of the Federal Rules of Evidence.

Rule 609 governs the use of prior criminal convictions to impeach a witness's character for truthfulness. When ten years have passed since the witness's conviction or release from confinement, evidence of the conviction is admissible only if its probative value substantially outweighs its prejudicial effect. See Fed. R. Evid. 609(b)(1). Earlier convictions "for a crime that . . . was punishable by death or by imprisonment for more than one year" must be admitted, subject to Rule 403, which states that a court may exclude relevant evidence if its probative value is substantially outweighed by "a danger of one or more of the following: unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting of time, or needlessly presenting cumulative evidence." Fed. R. Evid. 609(a)(1), 403.

Prater's criminal history includes the following convictions:

* June 28, 2012 - Guilty of three counts of contempt for violation of an order, two counts of burglary, two counts of criminal trespass, two counts of simple assault, two counts of harassment, and one count of each of the following: criminal mischief, terroristic threats with intent to terrorize, resisting arrest, aggravated assault, possession of an instrument of a crime, stalking, repairing/selling/dealing with offensive weapons, and recklessly endangering another. See See Ex. A to Defendants' Response (doc. 45), First Judicial District of Pennsylvania Court Summary, pp. 1-3. Prater is awaiting sentencing for these convictions. See id.

* March 16, 2010 - Guilty of contempt for violation of an order, stalking, and harassment and sentenced to a term of imprisonment of time served to six months and two twelve-month probationary terms. See id. at p. 9.

* February 21, 1997 - Guilty of retail theft and criminal conspiracy and sentenced to probation. See id. at p. 4.

A. Prater's March 2010 and June 2012 Convictions Prater's March 2010 and June 2012 convictions may be admitted, subject to the Rule 403 balancing test, if they are for crimes punishable by imprisonment for more than one year.

The majority of Prater's March 2010 and June 2012 convictions are for felonies and first-or second-degree misdemeanors, all of which are punishable in Pennsylvania by terms of imprisonment of more than one year. See 18 Pa. C.S. § 1103 (limiting sentences of imprisonment for felony convictions to a maximum of seven to twenty years depending on the degree of felony); id. § 1104 (limiting sentences of imprisonment for first- or second-degree misdemeanors to a maximum of two to five years). Some of Prater's convictions are for summary offenses or misdemeanors of the third degree, which are not punishable in Pennsylvania by a term of imprisonment of more than one year. See id. § 1104 (limiting sentences of imprisonment for third-degree misdemeanors to no more than one year); 23 Pa. C.S. § 6114 (limiting sentence for crime of contempt for violation of an order to an imprisonment term of no more than six months). These latter convictions for summary offenses and third-degree misdemeanors -- namely, Prater's convictions for harassment and contempt for violation of an order -- are inadmissible under Rule 609(a)(1).

Prater's convictions for the felonies and first- and second-degree misdemeanors -- namely, Prater's convictions for burglary, criminal trespass, criminal mischief, terroristic threats, resisting arrest, simple assault, aggravated assault, causing catastrophe, possession of instrument of a crime, stalking, repairing/selling/dealing with offensive weapons, and recklessly endangering another -- are admissible if their probative value is not substantially outweighed by unfair prejudice, confusion of issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. This balancing test requires consideration of: (1) the type of crimes involved; (2) when the convictions occurred; (3) the importance of the witness's testimony to the case; and (4) the importance of the witness's credibility. See United States v. Greenridge, 495 F.3d 85, 97 (3d Cir. 2007).

The first Greenridge factor focuses primarily on whether the witness's prior convictions are for the same or substantially the same conduct at issue in the case being tried. See id. at 97; United States v. Cherry, No. 10-cv-091, 2010 WL 3156529, at *6 (E.D. Pa. Aug. 10, 2010). When prior convictions are based on similar conduct, they generally should be "admitted sparingly" because "there is an inevitable pressure on lay jurors to believe that if he did it before he probably did it this time." Cherry, 2010 WL 3156529, at *6.

This case does not concern crimes by Prater, but rather alleged violations by Officers Solvibile and Walsh. Nevertheless, because the officers will claim Prater resisted arrest, see Defendants' Response, at pp. 3-4, Prater's aggressiveness will be a factor at trial and his multiple convictions for violent and assaultive crimes may lead the jury to believe he has an aggressive character that required Officer Solvibile to use excessive force to restrain him on December 2, 2009. See Lewis v. Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993) ("[A]ssault convictions skirt too close to the impermissible suggestion that the plaintiff had a propensity toward violence and acted in conformity with his aggressive predisposition."). Prater's multiple convictions also may shift the jury's focus from the elements of his claims against the officers to Prater's character. See Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989) ("Evidence that a litigant or his witness is a convicted felon tends to shift a ...


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