FRANKENFIELD v. SALISBURY TOWNSHIP

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

:

BUDD FRANKENFIELD, : CIVIL ACTION

Plaintiff, :

:

vs. : NO. 18-3069

:

SALISBURY TOWNSHIP, :

Defendant. :

__________________________________________:

MEMORANDUM OPINION

Perkin, Henry S., M.J. July 2, 2020

Plaintiff, Budd Frankenfield, filed this civil action against Defendant Salisbury

Township for alleged violations of the Uniform Services Employment and

Reemployment Act (“USERRA”), 38 U.S.C. § 4301, et seq. This matter proceeded to

trial on November 19, 2019. After two days of trial, the jury returned a verdict in favor

of Salisbury Township. Presently before the Court is Mr. Frankenfield’s Motion for New

Trial. Upon consideration of the Motion and Salisbury Township’s Response in

Opposition thereto, the Motion will be denied.

I. BACKGROUND.

Mr. Frankenfield, a patrolman who is employed by the Salisbury Township Police

Department, contends that Salisbury Township violated USERRA when it revoked his

probationary appointment to the Corporal position because of his ongoing military

service obligations in the United States Army Reserve. At the conclusion of the trial, the

jury found that Mr. Frankenfield had proven that his obligation for service in the military

was a motivating factor in Salisbury Township’s decision not to retain him in the

Corporal position following his probationary period in that capacity. Jury

Interrogatories/Verdict Sheet, Nov. 21, 2019, ECF No. 26. The jury then found that

Salisbury Township had proven by a preponderance of the evidence that it would have

denied Mr. Frankenfield the Corporal position even if Salisbury Township had not taken

into account Mr. Frankenfield’s military service obligation. Id. Mr. Frankenfield moves

for a new trial because he contends that: (1) the jury verdict was inconsistent and

evidence of the jury’s confusion over the law; and (2) the Court improperly allowed into

the case excessive hearsay evidence by Sergeant Sabo of Mr. Frankenfield’s conduct as a

Corporal.

II. STANDARD.

The ordering of a new trial is a matter committed to the sound discretion of the

district court. Bonjorno v. Kaiser Alum. & Chem. Corp., 752 F.2d 802, 812 (3d Cir.

1984), cert. denied, 477 U.S. 908 (1986); Fed. R. Civ. P. 59. The grant of a new trial may

be justified where, for example, material evidence has been improperly excluded or a

material issue has been improperly submitted to the jury. See Petree v. Victor Fluid

Power, Inc., 887 F.2d 34, 41 (3d Cir. 1989); 6A James M. Moore, et al., Moore’s Federal

Practice, ¶ 59.08.

When evaluating a motion for a new trial on the basis of trial error, the Court

must first determine whether an error was made in the course of trial, and then must

determine “whether that error was so prejudicial that refusal to grant a new trial would be

‘inconsistent with substantial justice.’” Farra v. Stanley-Bostitch, Inc., 838 F. Supp.

1021, 1026 (E.D. Pa. 1993) (citations omitted). “Absent a showing of ‘substantial’

injustice or ‘prejudicial’ error, a new trial is not warranted and it is the court’s duty to

respect a plausible jury verdict.” Goodwin v. Seven-Up Bottling Co. of Phila., CIV.A. No.

96-CV-2301, 1998 WL 438488, at *3 (E.D. Pa. July 31, 1998) (citing Videon Chevrolet,

Inc., v. Gen. Motors Corp., Civ. No. 91-4202, 1994 WL 188931, at *2 (E.D. Pa. May 16,

1994), aff’d, 46 F.3d 1120 (3d Cir. 1994)).

III. DISCUSSION.

A. Whether the Jury Verdict Was Inconsistent.

Mr. Frankenfield contends that the verdict was inconsistent because the jury

found that his return to military service was a motivating factor in the decision to revoke

his probationary appointment to a Corporal position and Salisbury Township

demonstrated that the adverse job action would have occurred even without considering

Plaintiff’s military service. Plaintiff contends that this verdict was inconsistent and the

jury was confused as to the law. Plaintiff cites the following language in the jury

instructions:

Salisbury Township claims that Mr. Frankenfield’s application for and

membership in a uniformed service was not a motivating factor in its

decision and that it did not promote Mr. Frankenfield for other reasons.

An employer may not discriminate against an employee because of the

employee’s membership or application for membership in a uniformed

service. But an employer may decline to promote an employee for any

other reason, good or bad, fair or unfair. If you believe Salisbury

Township’s reasons for its decision not to promote Mr Frankenfield and

find that its decision was not motivated by Mr. Frankenfield’s membership

or application for membership in a uniformed service, you must not

second guess Salisbury Township’s decision, and you must not substitute

your own judgment for Salisbury Township’s judgment – even if you

disagree with it.

. . . .

To decide whether Mr. Frankenfield’s membership or application

for membership in a uniformed service was a motivating factor in

Salisbury Township’s decision not to promote Mr. Frankenfield, you may

consider the circumstances of Salisbury Township’s decision. For

example, you may consider whether you believe the reasons that Salisbury

Township gave for the decision. If you do not believe the reasons that it

gave for the decision, you may consider whether the reasons were so

unbelievable that they were a cover-up to hide the true discriminatory

reasons for the decision.

N.T., 11/21/19, pp. 123-24. Mr. Frankenfield argues that before the jury answered yes to

jury interrogatory Number 1, “Do you find that Plaintiff Bud Frankenfield, has proven by

a preponderance of the evidence that his obligation for service in the military was

a motivating factor in Defendant Salisbury Township’s decision not to promote him to

the Corporal position?” Dkt. No. 26, p. 1, the jury must have considered and rejected

Salisbury Township’s stated reasons for reducing him in rank, which would make the

jury’s affirmative determination in Question 2, “Do you find that Defendant Salisbury

Township has proven by a preponderance of the evidence that it would have denied Mr.

Frankenfield the promotion to Corporal even if Salisbury Township had not taken Mr.

Frankenfield’s obligation for service in the military into account” inconsistent.

Mr. Frankenfield points only to a portion of the language in the jury

instructions. Following the above cited instructions, the Court also instructed the

jury:

If you find in Mr. Frankenfield’s favor for each element that he

must prove, you must decide whether Salisbury Township has shown by a

preponderance of the evidence that it would have denied Mr. Frankenfield

a promotion even if Salisbury Township had not taken Mr. Frankenfield’s

membership or application for membership in a uniformed service into

account. If you find that Mr. Frankenfield would not have been promoted

for a reason or reasons other than his membership or application for

membership in a uniformed service, you must make that finding in your

verdict.

If you find for Mr. Frankenfield and against Salisbury Township

on this defense, you must consider Mr. Frankenfield’s compensatory

damages.

Id. at 124. This USERRA jury instruction is the Standard Civil Jury Instruction

from the United States Court of Appeals for the Eleventh Circuit, which reflects

the two-step burden-shifting framework for analyzing USERRA claims in the

United States Court of Appeals for the Third Circuit. In Murphy v. Radnor

Township, 542 F. App’x 173 (3d Cir. 2013), the Court advised that:

USERRA, by its own terms, establishes a two-step burden-shifting

framework by which to analyze such claims. First, the plaintiff alleging

the discriminatory act bears the initial burden of showing that the

“employee’s military service was a substantial or motivating factor in the

adverse employment action.” Sheehan v. Dep’t of Navy, 240 F.3d 1009,

1013 (Fed.Cir. 2001) (internal quotation marks omitted).

A motivating factor does not mean that it had to be the sole cause

of the employment action. Instead, it is one of the factors that a truthful

employer would list if asked for the reasons for its decision. Indeed,

[m]ilitary status is a motivating factor if the defendant relied on, took into

account, considered, or conditioned its decision on that consideration.

Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir.

2005) (alteration in original) (internal quotation marks and citations

omitted).

If the plaintiff meets his burden, the burden of proof then shifts to

the employer, who must prove that it would have taken the adverse action

for non-discriminatory reasons, regardless of the employee’s military

service. Sheehan, 240 F.3d at 1013. This standard of proof is the “but for”

test. Coffman, 411 F.3d at 1238. “All that is meant [by this standard] is

that if the [employer] had two reasons for taking an adverse action against

the [employee], one of them forbidden by the statute and the other not, and

the [employer] can show that even if the forbidden one had been absent

the adverse action would still have been taken, the [employee] loses.”

Madden v. Rolls Royce Corp., 563 F.3d 636, 638 (7th Cir. 2009).

Id. at 176-77 (footnotes omitted). The USERRA instruction given to the jury mirrored

the Third Circuit’s framework. Thus, it was proper.

Plaintiff also argues that the Court essentially eliminated Plaintiff’s argument that

the stated reasons offered by Salisbury Township were pre-textual by

instructing the jury that they could not “second guess” the township’s

stated reasons for firing the Plaintiff. The jury was essentially told that

they could not reject those reasons if they found them to be a poor reason

to deny someone a promotion. Such a belief would cause the jury to reject

that reason as a pre-text for purposes of answering Question 1. That same

juror could then feel bound to accept that reason for purposes of Question

2 after being told that they could not second-guess the stated reasons.

Pl.’s Br., pp. 3-4. A careful reading of the instructions shows that the Court instructed

the jury that they could not second guess Salisbury Township’s decision to deny Mr.

Frankenfield the Corporal position if the jury believed the reasons provided by Salisbury

Township and the decision not to promote was not motivated by Mr. Frankenfield’s

membership or application for membership in a uniformed service. The jury was free to

accept or reject the reasons provided by Salisbury Township for its decision.

Fed.R.Civ.P. 51 provides that a party may not assign as error defects in jury

instructions unless the party distinctly stated its objection before the jury retired to

consider its verdict. Cooper Distrib. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549

(3d Cir. 1999) (citing Fed. R. Civ. P. 51 and Smith v. Borough of Wilkinsburg, 147 F.3d

272, 277 (3d Cir.1998) ( “[T]o preserve an issue for appeal, counsel must state distinctly

the matter objected to and the grounds of the objection.”)). Mr. Frankenfield’s counsel

made no objection to the jury instructions before the jury retired to consider its verdict.

Mr. Frankenfield’s counsel also agreed to the form of the Verdict Sheet and had no

objection to the Verdict Sheet prior to the submission of the jury instructions and Verdict

Sheet to the jury nor when the jury returned with their verdict. Therefore, any objection

to the Verdict Sheet is now foreclosed. See Jacobs v. City of Phila., No. 03-CV-950,

2005 WL 1899499, at *11 (E.D. Pa. Aug. 8, 2005) (citations omitted) (Baylson, J.). The

jury verdict was not internally inconsistent and there was no error in the Court’s

USERRA instruction, which followed Circuit case law. The Verdict Sheet was also

consistent with the USERRA instruction and Circuit case law. Thus, this claim provides

no support for Plaintiff’s Motion for a new trial.

B. Whether the Court Permitted the Admission of Improper and

Prejudicial Hearsay Evidence.

Mr. Frankenfield contends that he should be granted a new trial on the basis that

this Court permitted the introduction of improper, prejudicial hearsay evidence through

the testimony of Sergeant Christopher Sabo. Sergeant Sabo is the “sergeant of

Investigations and Special Services, which is criminal investigations, crime scene, school

resource officers, basically anything but patrol.” N.T., 11/20/19, p. 168. According to

Mr. Frankenfield, Sergeant Sabo’s testimony regarding multiple incidents cast him in a

negative light despite the fact that the Sergeant had little or no direct involvement in

those incidents and he testified to multiple facts using the hearsay statements of others.

Mr. Frankenfield specifically notes that Sergeant Sabo testified about an

investigation of a gang “jump out” despite Sabo’s absence for the investigation and only

Mr. Frankenfield’s direct supervisor, Sergeant Soberick, testified that the gang “jump

out” was a reason for Mr. Frankenfield’s failure to complete probation. The trial

transcript shows the following direct questioning of Sergeant Sabo by defense counsel:

Q: All right. Now, there was also an incident with regard to what’s

been referred to as a jump out.

A: Correct.

Q: And were you involved in the repercussions from that incident?

A: I certainly was.

Q: Would you explain what happened?

A: This was in the month of April, I believe. So it would’ve been two

months or three months after the promotional process and I was on my

way to work and I received a call from a captain of another police

department yelling, why aren’t we investigating this –

MR. DURKIN [Mr. Frankenfield’s counsel]: Objection, Your Honor.

Hearsay again.

MR. ASHLEY [Salisbury Township’s counsel]: It’s not hearsay, Your

Honor. It’s an oral fact.

THE COURT: Well, again, this is to simply show why the officer

took certain action. The statement that was made is not evidence in this

matter, and you should not consider it for its truth. On that basis, I will

overrule the objection.

THE WITNESS: I was on the phone with an irate ranking official

from another police department asking why we were not investigating and

actively working on a stabbing and shooting that occurred in Salisbury

Township on my way into work. So I proceeded to call the on-duty

corporal as well as the detective and find out what actually happened that

evening.

They looked at the reports. There was no report. And the other

corporal stated, I was at roll call, which was at shift change to exchange

information and nothing was said to me that anything happened in our

township last night.

MR. DURKIN: Objection, Your Honor. Again, this is hearsay.

THE COURT: May I see counsel?

(Sidebar begins at 3:31 p.m.)

THE COURT: It’s not hearsay depending on where you’re going

with this. Where you going with this?

MR. ASHLEY: He’s trying to explain that he had problems with

him about doing the reporting. The impact of not having the report.

THE COURT: Now why is that hearsay?

MR. DURKIN: That part is fine. But he’s now talking -- now he’s

introducing what other corporals are saying to him who aren’t here

testifying.

MR. ASHLEY: Judge, he’s explaining as part of the process, it

should have been (indiscernible), the corporals. The corporals knew

nothing about it. And therefore, that was one of the issues that they had to

address.

THE COURT: I think it shows how he got to a certain point with

regard to the reports. Isn’t that what he attested to?

MR. DURKIN: Yeah. And this is also cumulative. This has already

been gone over ad nauseum.

THE COURT: I’m not worried about cumulative.

MR. DURKIN: Ad nauseum.

THE COURT: I want to hear you on the hearsay issue.

MR. DURKIN: He can say that he investigated the situation and he

found out that Budd didn’t do a report.

THE COURT: (Indiscernible) show a basis as to why he’s –

MR. DURKIN: Now they’re introducing that he didn’t tell the

corporal, but they’re not bringing in the corporal. They’re putting it in as

a hearsay statement through somebody else. Without that statement,

there’s no way that that jury has any information that he didn’t pass this on

at roll call.

MR. ASHLEY: Well, he talked to the corporal and the corporal told

him. He didn’t get the information and that’s –

THE COURT: And then he went back and did what? Isn’t that

where you are with this –

MR. ASHLEY: That’s where I’m trying to get to, yeah.

THE COURT: That’s what I’m asking, where you going with it?

MR. ASHLEY: Well, he’s going to explain that he found out they

went back, and they went to the Plaintiff and he indicated he had not done

the report.

THE COURT: That’s not hearsay. And my question or the

instruction should help with that. Overrule the objection.

(Sidebar ends at 3:33 p.m.)

THE COURT: Ladies and gentlemen, I’m overruling the objection

on hearsay. As I’ve instructed you before, the purpose of the out-of-court

statements, the statements that would normally be hearsay, you may not

accept them for the truth of that fact. This is background as to what the

sergeant did later on with regard to this information and it’s only for that

purpose.

It is not for you to decide whether those statements made to the

sergeant were true. You may proceed with that question.

MR. ASHLEY: Okay.

BY MR. ASHLEY:

Q: Do you remember where you were?

A: I checked to see if any reports were written. There were no

reports. Nothing was said at shift change or roll call. And I proceeded

down to the scene to try and investigate to see what happened.

Q: Did you ultimately find out who the corporal was on duty when

this incident took place?

A: At the time, it was Corporal Frankenfield. Yes.

Q: All right. And did you contact him with regard to why there was no

report written?

A: I did speak to him about that, yes.

Q: And what did he say?

A: There was no reason given.

Q: He just didn’t do it?

A: I asked him to write the report as soon as possible and that I

already took the number and wrote the report and he had to do a

supplement to that.

Q: Okay. And again, what was the importance of having the report

done shortly after the incident took place?

A: Well, several important facts. One, it was a stabbing with a shot

fired at the person. Two, there was still a crime scene with blood evidence

found at the scene. And no information was passed along to the shifts,

either coming or going from the department at the time. And through

investigation, it was found out that this isn’t the first time this happened

down at this location. And it’s a safety issue for everyone involved.

Q: The police would want to know that these incidents were

happening in that area?

A: That’s correct.

Q: All right. And again, when you discuss this issue with the Plaintiff,

he didn’t have any explanation about why he didn’t write a report?

A: He did not. And I asked him the right to supplement and that ended

up being generated three days after I asked him to write a supplement

A.S.A.P.

Q: How long does it take to generate these types of reports?

A: To take a number and generate a report, it takes literally seconds,

but to actually do a full report, a couple of minutes.

Q: All right. So he would have had to spend the time to – what

information would have been in that report?

A: Location, date, time, caller information, basic general information

of what happened. And what I actually did was got Allentown’s report and

actually cut and pasted it into our report to get more information. That was

to add to our report because I had nothing to go on.

Q: Are you the Plaintiff’s direct supervisor?

A: At times I can be, yes.

Q: And did you become aware -- did you have any conversations with

him other about this incident, but other incidents that you discussed with

them and counseled him on how to handle them?

A: Yes.

N.T., 11/20/19, pp. 173-179. Sergeant Sabo also testified that Plaintiff repeatedly tried to

test liquid narcotics using a test meant for dry narcotics, but Sabo never witnessed

Plaintiff performing these tests, therefore Plaintiff contends this testimony was hearsay.

The testimony, objections and court rulings regarding narcotics testing is:

Q: Okay. And did you observe any problems or deficiencies with the

Plaintiffs performance of his obligations as a corporal?

A: I did, yes.

Q: And what were they and can you explain them to the jury?

A: Throughout the year, several cases were brought before me that

ended up from -- into criminal investigations with deficiencies that we

noticed on patrol. I think one of the first cases that I tried to counsel and

help with was a workman’s comp claim. That would have been shortly

after promotion of the corporals. And also Frankenfield cut his hand while

testing drugs that were subject to an arrest. In our testing process, you can

only test powders with our drug test kits and this happened to be a liquid

and liquids don’t work in our drug test kits.

So I saw the workman’s comp claim and obviously it caused

concern that liquids were being tested in the powder test kits. So I spoke

with Officer Frankenfield about that as well as everyone else in the

department. We did a roll call training and also mention to everyone that

we want to make sure we don’t test the liquid form in a powdered kit.

Q: And you said -- did you say roll call?

A: At shift change we have what’s called roll call where the corporals

or the sergeants would relay information to the next shift coming on.

Obviously, we work 24/7. So you have a platoon coming off, a platoon

coming on, an exchange of information that’s necessary to operate the

police department in a safe and proper manner.

Q: It’s an important procedure?

A: It much so is.

Q: All right. I’m sorry that I interrupted you. Can you go back then?

A: So I did a roll call training, went over the testing kits of how they

should be used, how they can’t be used, what’s proper, what’s improper,

not only for a safety and workman’s comp reason, but because that’s not

what the test kits do. And throughout the year, two other times and

specific as Officer Frankenfield continued to test those test kits with the

liquid form.

Q: So you had to explain that that test wouldn’t work?

A: Correct. So I explained to him personally. We did a roll call

training not to single him out and to all the officers, because obviously,

first of all, we had a workman’s comp claim, not necessarily from the

liquid. It was it was a break of an ampule that punctured a finger, which

had to be checked out at the hospital.

But also reviewed with everyone safety precautions and how to test

the drugs in the liquid form. And ultimately, it comes to investigations and

we test it with a different type of test kit.

Q: Did you have any concerns that he continued to perform the test

improperly?

A: I did for the fact that his subordinates came to us and expressed

concern that it was –

MR. DURKIN: Objection, Your Honor. Hearsay.

THE COURT: Sustained.

MR. ASHLEY: Judge, this is just –

THE COURT: Let me instruct the jury. The information that’s

being elicited is not for the truth of it. It’s to show what the officer did or

what the sergeant did next. On that basis, I’m going to allow it.

BY MR. ASHLEY:

Q: Go ahead.

A: I’m sorry. Can you repeat the question, please?

Q: You were explaining what the officers would come to you.

A: Yeah. Through knowledge, it was obtained from officers that are

his subordinates that they observed Officer Frankenfield testing a liquid

again in the powdered test kits.

MR. DURKIN: Objection again, Your Honor. Move to strike. This

is a hearsay statement. This is not something this witness knows of his

own knowledge.

THE COURT: I have overruled the objection, and I’ve given a

cautionary instruction to the jury. That was simply to show why the officer

had concerns. It’s not for the truth of what those hearsay statements were.

That’s not being proven in this case. The objection is overruled on that

basis.

BY MR. ASHLEY:

Q: And when somebody continues to perform an activity that you

basically instructed them not to do, do you feel that that has an impact on

their ability to be a supervisor within the police department?

A: It certainly does. It questions their ability to make decisions and

their command presence within the police department of what their

subordinates will think of decisions that are going to be made.

N.T., 11/20/19, pp. 170-73. Sergeant Sabo also testified regarding a theft investigation at

Lehigh Valley Hospital for which he was not present. Mr. Frankenfield maintains that

this testimony was hearsay. The testimony, objection and ruling by the Court was:

Q: Were there any other issues with regard to his involvement with,

let’s call it criminal activity at the Lehigh Valley Hospital Center?

A: There was another case that I recall that was a theft of products

from the hospital. And during this case, this caused an issue because we

had a complaint from the hospital directly to myself about inaction of the

police department. And when I obtained the video and reviewed the

video, it pointed back to one of the cases also Frankenfield had where no

action was taking on an arrestable offense.

Q: When you say you saw the video, what was occurring?

A: It was a theft of product from the hospital during the wintertime,

and it was also a motor vehicle code violation.

Q: And he didn’t prosecute those offenses?

A: He made contact with the parties involved and let them go. We

obtained the video and subsequently an arrest was made.

Q: And what does that indicate? It doesn’t sound like it’s a very

significant incident. Why would that impact his ability to be a corporal?

Q: Our department works with a lot of organizations and we have to

have very good working relationships with a lot of businesses, especially a

large hospital in our jurisdiction. And by having complaints about officers

or complaints about our department for not following through with

workloads or –

MR. DURKIN: Objection, Your Honor. He’s testifying as to what

the hospital thinks. He hasn’t been qualified –

THE COURT: Overruled.

MR. DURKIN: -- an expert in public policy.

THE COURT: Overruled. You may answer the question.

THE WITNESS: It affects our working relationships as a police

department and our accountability that we have with these organizations in

our community that we work with.

BY MR. ASHLEY:

Q: After you learned of these incidents, did you have any contact with

the Plaintiff about them?

A: I did. On every incident I at least spoke to him verbally. And on

several of those occasions, we had roll call training and also several

memos went out as a whole, not to target any certain individual.

Q: All right. And when you had the contact with him, was it one on

one sometimes?

A: It was.

Q: And did you counsel him at that time?

A: Counseled him, coached him. Whatever terminology you want to

use. But brought the issue to light and attempted to correct the behavior.

Q: Was any discipline given for these types of incidents?

A: It was not.

Q: Why not?

A: We were cautioned by our civil service attorney that discipline is

negotiable and grievable, and to make sure that we coach, mentor and try

and change behavior. And if someone does not successfully meet the

criteria of their probation, so be it.

Q: All right. Your idea by coaching him at all was to get him to meet

the requirements so he could pass probation; is that correct?

A: Correct.

Q: Is that what the whole process was designed to do?

A: That’s the entire process. Correct.

N.T., 11/20/19, pp. 181-84. Mr. Frankenfield contends that the Court’s instruction that

the jury could not consider this testimony for the truth of the matter asserted was

insufficient and Salisbury Township never used this testimony for any purpose other than

to “smear” Mr. Frankenfield’s performance as a Corporal. Pl.’s Br., pp. 4-5. Salisbury

Township responds that

[t]his was information that Sergeant Sabo received in the normal course of

business and was a factor in his evaluations of Mr. Frankenfield’s

performance. The purpose of this testimony was not to smear the Plaintiff

but to continue to demonstrate that he failed to perform his functions and

duties as a Corporal in a good manner that would reflect well on the

Salisbury police department and that his failure to perform simple tasks,

negatively impacted the department and reflected negatively on his

performance which clearly demonstrated that he was not successfully

complet[ing] his probation.

Resp., p. 5.

Federal Rule of Evidence 801(c)(2) defines hearsay as a statement, other than one

made by the declarant while testifying at the trial or hearing, “offer[ed] in evidence to

prove the truth of the matter asserted.” Fed. R. Evid. 801(c)(2). The cautionary

instructions provided to the jury explained that Sergeant Sabo’s testimony was not

hearsay because it was “background as to what the sergeant did later on with regard to

this information and it’s only for that purpose,” it was “simply to show why the officer

had concerns” and “to simply show why the officer took certain action.” N.T., 11/20/19,

pp. 172, 173, 174.

In United States v. Sallins, 993 F.2d 344 (3d Cir. 1993), the Third Circuit Court of

Appeals cautioned that “[w]hile officers generally should be allowed to explain the

context in which they act, the use of out-of-court statements to show background has

been identified as an area of ‘widespread abuse.’ ” Id. at 346 (quoting 2 McCormick on

Evidence § 249, at 104 (4th ed. 1992)). The use of out-of-court statements to show the

background of actions taken by Sergeant Sabo to counsel Mr. Frankenfield and to

personally investigate the cited incidents was permissible in this case. To the extent

Sergeant Sabo was offering the statements made to him to explain his actions in

following up on investigations of the gang “jump out” and theft at Lehigh Valley

Hospital and to explain his concerns and his counseling of Mr. Frankenfield and all other

officers regarding drug testing, those statements were not offered for their truth. Rather,

they were offered for to explain the statements’ effect on Sergeant Sabo as the listener of

the statements. They were admissible for a non-hearsay purpose. Larochelle v. Wilmac

Corp., 769 F. App’x 57, 65 (3d Cir. 2019) (citing United States v. Edwards, 792 F.3d

355, 357 n.2 (3d Cir. 2015) (admitting third-party statements to show their effect on the

listener)). Thus, Mr. Frankenfield’s Motion for a new trial based on the admission of

improper, prejudicial hearsay evidence must be denied.

An appropriate Order follows.