BROWN v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID BROWN

Plaintiff.

CIVIL ACTION

v. NO. 18-1126

MICHAEL McCAFFERTY et al.,

Defendants.

PAPPERT, J. February 24, 2020

MEMORANDUM

Plaintiff David Brown alleges that two Philadelphia Police Department officers

entered his home illegally and subjected him to excessive force while arresting him.

Trial begins tomorrow. Brown filed a Motion in Limine to exclude evidence of his prior

convictions.1 The Court denies the Motion for the reasons that follow.

I

Brown filed a Motion in Limine seeking to prohibit Officers Michael McCafferty

and William Kolb from introducing evidence of Brown’s prior convictions to impeach his

character for truthfulness. (Pl.’s Mot. in Limine, ECF No. 88.) In their response,

Defendants state that they seek to admit evidence of Brown’s prior convictions for both

impeachment purposes and as evidence of his motive. See (Defs.’ Resp., ECF No. 90).

Within the last ten years, Brown has been convicted of the following three crimes in

1 Defendants also filed a Motion in Limine to exclude a state court’s decision to suppress

physical evidence in Brown’s criminal case that resulted from the same arrest at issue here. (Defs.’

Mot. in Limine, ECF No. 87.) Brown’s final pretrial memorandum states that he “does not contest

Defendants’ motion in limine to exclude evidence of the court’s decision to suppress the firearm.”

(Pl.’s Final Pretrial Memorandum 3 n.1, ECF No. 93.) The Court accordingly grants Defendants’

Motion.

New Jersey: (1) resisting arrest in 2016; (2) burglary in 2016; and (3) aggravated

assault in 2011. (Pl.’s Mot. 2.) The parties do not dispute that these convictions were

punishable by imprisonment for more than one year.

A

Defendants contend that the burglary conviction must be admitted as a crime of

dishonesty under Federal Rule of Evidence 609(a)(2). The Third Circuit Court of

Appeals has not ruled on whether burglary requires proving a “dishonest act or false

statement,” but consistent with other circuits, this Court will analyze the burglary

conviction—as well as the other two convictions—under Rule 609(a)(1)(A). See Fed. R.

Evid. 609(a)(1)(A), (a)(2). See, e.g., United States v. Mejia-Alarcon, 995 F.2d 982, 989

(10th Cir. 1993) (“[C]rimes like burglary, robbery, and theft” fall outside the per se

category of 609(a)(2)); United States v. Pritchard, 973 F.2d 905, 909 n.6 (11th Cir. 1992)

(same); United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982) (same); United

States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977) (same).

In civil cases under Rule 609(a)(1)(A), evidence of a conviction to impeach a

witness’s character for truthfulness must be admitted, subject to Rule 403. The Court

weighs four factors against the potential prejudice in admitting the conviction: (1) the

nature of the conviction, (2) the time elapsed since the conviction, (3) the importance of

the witness’s testimony to the case, and (4) the importance of the credibility to the

claim at hand. Sharif v. Picone, 740 F.3d 263, 272 (3d Cir. 2014) (citing United States

v. Greenidge, 495 F.3d 85, 97 (3d Cir. 2007)).

In considering the nature of the convictions, the aggravated assault conviction

involves force and/or violence. Crimes of violence are less probative of honesty than are

crimes involving deceit or fraud, so the first Greenidge factor weighs in Brown’s favor

for that conviction. The resisting arrest conviction also does not involve deceit or fraud,

which again weighs in Brown’s favor. For the burglary conviction, however, the nature

of that offense weighs in favor of admission because “cheating, or stealing are

universally regarded as conduct which reflects adversely on a man’s honesty and

integrity.” Sharif, 740 F.3d at 273 n.10 (quoting Gordon v. United States, 383 F.2d 936,

940 (D.C. Cir. 1967)).

The second Greenidge factor weighs in favor of admission. The 2016 convictions

are approximately three to four years old, which is “not so far remote in time as to be

irrelevant.” Sharif, 740 F.3d at 273. And as for the 2011 conviction, “the probative

value of an older conviction may remain undiminished” when there are intervening

convictions, such as Brown’s 2016 convictions. United States v. Caldwell, 760 F.3d 267,

287 (3d Cir. 2014).

The final two Greenidge factors—the importance of the witness’s testimony and

his credibility—both weigh heavily in favor of admission because Brown’s testimony

and credibility are crucial to his claims. Indeed, it appears that Brown is the sole

witness in support of his unreasonable search and excessive force allegations.

Upon balancing the Greenidge factors, the probative value of the three

convictions to impeach Brown’s character for truthfulness is not substantially

outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. The primary

concern is that the jury will think Brown has a propensity to act in conformity with his

prior bad acts. Brown’s convictions, however, are unrelated to the specific facts

underlying his Fourth Amendment claims, and the Court will provide the jurors with a

limiting instruction regarding their admissibility. The convictions are therefore

admissible under Rule 609(a)(1)(A).

B

Defendants also seek to admit evidence under Rule 404(b) regarding the

“circumstances of [Brown’s] arrest” occurring on the night at issue in this case. (Defs.’

Resp. 5.) Specifically, Defendants seek to admit Brown’s aggravated assault and

burglary convictions—which the parties do not dispute made him ineligible to possess a

firearm—in order to establish that Brown had a motive to throw a gun out a second-

story window of his home. See (id.)

For evidence of a crime, wrong, or other act to be admissible under Rule 404(b),

it must (1) have a proper evidentiary purpose, (2) be relevant, (3) satisfy Rule 403, and

(4) must be accompanied by a limiting instruction where requested about the purpose

for which the jury may consider it. United States v. Green, 617 F.3d 233, 249 (3d Cir.

2010). Evidence admitted under Rule 404(b) must establish a chain of inferences, no

link of which is based on a propensity inference. United States v. Smith, 725 F.3d 340,

345 (3d Cir. 2013).

One disputed fact in this case is whether Brown threw a firearm out his second-

floor window. This alleged act purportedly led to his arrest and the Defendants’ alleged

use of excessive force. Defendants have a proper evidentiary purpose under Rule 404(b)

to admit evidence of the convictions because they establish that Brown had a motive to

discard the gun when the Defendants announced their presence in his house. Second,

the two convictions are relevant because their purpose to establish motive makes the

alleged fact that Brown tossed the firearm more probable than it would be without the

motive evidence. Third, under Rule 403’s balancing test, admitting the convictions is

not substantially outweighed by a danger of unfair prejudice because the evidence

carries some probative value, and the risk of prejudice is small considering the jurors

will already learn of the convictions for impeachment purposes under Rule 609. And

finally, any risk of prejudice will be minimized by use of a limiting instruction. The

aggravated assault and burglary convictions are accordingly admissible under Rule

404(b) for the limited purpose of establishing Brown’s motive.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.