Wilson v. Mahally

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN WILSON, Civil No. 3:18-cv-1637

Plaintiff (Judge Mariani)

v. .

LAWRENCE P. MAHALLY,

DENNIS GROMEL, and C.0. WILSON, :

Defendants

MEMORANDUM OPINION

1. INTRODUCTION

On August 17, 2018, Plaintiff Kevin Wilson, an inmate who was confined at all

relevant times at the State Correctional Institution at Dallas, Pennsylvania (“SCl-Dallas’),

initiated this action pursuant to 42 U.S.C. § 1983. Following the completion of discovery

and the disposition of dispositive motions, remaining are Plaintiff's claims of denial of

medical care and failure to protect, both in violation of the Eighth Amendment, against

Defendants Correctional Officers Dennis Gromel and Christopher Wilson as the result of

events which occurred on the evening of February 3, 2018.

Trial in this case is currently scheduled to commence on December 11, 2023.

Presently before the Court is Plaintiff's Motion in Limine to Exclude Evidence

Regarding his Convictions and Sentence (Doc. 130).

Il. STANDARD OF REVIEW

“The purpose of a motion in limine is to allow the trial court to rule in advance of trial

on the admissibility and relevance of certain forecasted evidence.” United States v.

Tartaglione, 228 F.Supp.3d 402, 406 (E.D. Pa. 2017). A court may exercise its discretion to

rule in limine on evidentiary issues “in appropriate cases.” /n re Japanese Elec. Prods.

Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Nevertheless, a

“trial court should exclude evidence on a motion in limine only when the evidence is clearly

inadmissible on all potential grounds.” Tartaglione, 228 F. Supp. 3d at 406.

Further, while motions in limine may serve as a useful pretrial tool that enables more

in-depth briefing than would be available at trial, a court may defer ruling on such motions “if

the context of trial would provide clarity.” Frintner v. TruePosition, 892 F.Supp.2d 699, 707

(E.D. Pa. 2012). Indeed, “motions in limine often present issues for which final decision is

best reserved for a specific trial situation.” Walden v. Georgia-Pacific Corp., 126 F.3d 506,

518 n.10 (3d Cir. 1997). Thus, certain motions, “especially ones that encompass broad

classes of evidence, should generally be deferred until trial to allow for the resolution of

questions of foundation, relevancy, and potential prejudice in proper context.” Leonard v.

Stemtech Health Scis., Inc., 981 F.Supp.2d 273, 276 (D. Del. 2013). Mcreover, “pretrial

Rule 403 exclusions should rarely be granted. . . . [A] court cannot fairly ascertain the

potential relevance of evidence for Rule 403 purposes until it has a full record relevant to

the putatively objectionable evidence.” In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859

(3d Cir. 1990) (emphasis in original).

Finally, it is important to note that “in limine rulings are not binding on the trial judge,

and the judge may always change his mind during the course of a trial.” Ohler v. United

States, 529 U.S. 753, 758 n.3 (2000).

Ill. ANALYSIS

Plaintiff's Motion in Limine to Exclude Evidence Regarding his Convictions and

Sentence (Doc. 130) requests that the Court preclude evidence of his prior convictions as

well as the length of the sentence of incarceration that he is currently serving. In response,

Defendants state that they do not oppose Plaintiffs Motion with respect to his narcotics

convictions in 2003 and 2004 or with respect to his 2012 attempted murder conviction.

(Doc. 137, at 1, 3). However, Defendants argue that Plaintiff's 2012 conviction for robbery

is admissible for impeachment purposes pursuant to Fed. R. Evid. 609. (/d. at 2-6).

In relevant part, Rule 609 provides that:

(a) In General. The following rules apply to attacking a witness's character for

truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or

by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal

case in which the witness is not a defendant; . . .

Fed. R. Evid. 609(a). However, if more than ten years have passed since the witness’

conviction or release from confinement, whichever is later, then the conviction is only

admissible if “its probative value, supported by specific facts and circumstances,

substantially outweighs its prejudicial effect” and the proponent of the evidence “gives an

adverse party reasonable written notice of the intent to use it so that the party has a fair

opportunity to contest its use.” Fed. R. Evid. 609(b).

Here, it is undisputed that Plaintiff Wilson was convicted of a crime punishable for

more than one year, i.e. robbery, and that he remains incarcerated at this time for his

August, 2012, conviction. Thus, subject to the balancing test of Rule 403, this crime “must

be admitted” pursuant to Rule 609(a)(1)."

Pursuant to Federal Rule of Evidence 403, “[t}he court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. In determining

whether the probative value of a prior criminal conviction is substantially outweighed by the

prejudicial effect of admitting that conviction in a civil case, the Third Circuit has “directed

that four factors should be weighed against the potential for prejudice in admitting a

conviction: (1) the nature of the conviction; (2) the time elapsed since the conviction; (3) the

1 Rule 609(a)(2) requires that evidence of a prior conviction “must be admitted if the court can

readily determine that establishing the elements of the crime required proving--or the witness's admitting--a

dishonest act or false statement.” Fed. R. Evid. 609(a)(2). However, the Third Circuit has concluded that

the crime of robbery does not involve dishonesty or false statements such as to render that conviction

automatically admissible. See Walker v. Horn, 385 F.3d 321, 334 (3d Cir. 2004) (“[A]lthough robbery is

certainly a very serious crime, it does not involve communicative or expressive dishonesty. Therefore, the

district court erred by holding that robbery is a crime involving dishonesty that is automatically admissible

under Rule 609(a)(2).”). Thus, this Court applies the balancing test required by Rule 403 in determining the

admissibility of Plaintiffs robbery conviction at the upcoming civil trial.

importance of the witness's testimony to the case; and (4) the importance of 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) (citing Gov't of the Virgin Islands v. Bedford, 671

F.2d 758, 761 n. 4 (3d Cir.1982))).

With respect to the first factor, when evaluating the nature of the conviction, “courts

consider both the impeachment value of the prior conviction as well as its similarity to the

charged crime.” United States v. Caldwell, 760 F.3d 267, 286 (3d Cir. 2014). “[O]ften,

crimes of violence are less probative of honesty than are crimes involving deceit or fraud.”

Sharif v. Picone, 740 F.3d at 273. Additionally, “[w]ith respect to the similarity of the crime

to the offense charged, the balance tilts further toward exclusion as the offered

impeachment evidence becomes more similar to the crime for which the defendant is being

tried.” Caldwell, 760 F.3d at 286.

As explained, supra n.1, a conviction for robbery does not categorically qualify as a

crime involving a dishonest act or false statement for purposes of Rule 609(a)(2). However,

common human experience acts of deceit, fraud, cheating, or stealing, for example,

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. 1987)). Wilson's crime of robbery, which necessarily involves an act of

Stealing, thus borders on those types of crimes which can be deemed to adversely reflect on

his character for truthfulness. Furthermore, the nature of Wilson’s conviction for robbery is

not related to the issues at trial, to wit, Eighth Amendment claims of denial of medical care

and failure to protect. Thus, the first factor weighs in slightly in favor of admitting the

conviction for robbery.

The second factor — the time elapsed since the conviction — weighs against

admission of the conviction. Wilson was convicted of robbery and attempted murder in

August of 2012, more than 11 years ago. Although Wilson remains incarcerated on this

conviction, and therefore is not subject to the ten-year limitation on using evidence set forth

in Rule 609(b), “even where the conviction is not subject to the ten-year restriction, ‘the

passage of a shorter period can still reduce [a prior conviction’s] probative value.” Caldwell,

760 F.3d at 287 (quoting Wright & Gold, Federal Practice and Procedure § 6134, at 258).

Cf. Sharif, 740 F.3d at 273 (“When a prior conviction is not ‘remote in time’ from the time of

trial, it is more relevant to the case at hand than when it is an older conviction.”) (citing for

comparison Seventh Circuit case wherein conviction in the last six months was highly

probative with Eastern District of Pennsylvania case where eight year old conviction was

deemed to have diminished probative value). Here, the 11-years that have elapsed since

the time of Wilson’s conviction for robbery render the conviction too remote in time to be

anything more than minimally probative.

In addition, the overlapping third and fourth factors, see Sharif, 740 F.3d at 273,

specifically the importance of Plaintiff Wilson’s testimony to the case and the importance of

his credibility to his present claims, weigh against the admission of the conviction for

robbery.2

Wilson's testimony is clearly significant at trial where he will be testifying as to his

recollection of the events underlying his claims. However, while Defendants assert that

Plaintiff is “presumably, the only witness testifying on his behalf’ (Doc. 137, at 5), the record

presently belies this assertion. Plaintiff has subpoenaed two inmates to appear at trial, at

least one of whom is expected to testify that he witnessed one of the attacks on Plaintiff

Wilson that underlies Plaintiff's claims at trial. (See Doc. 92-2 (Declaration of Raymond

Bruton); Doc. 145 (granting Plaintiff's request for a writ of habeas corpus ad testificandum

for Raymond Bruton)). It is indisputable nonetheless that Plaintiff's credibility is a critical

issue in this case. This Court recognizes that “[w]hen the defendant’s credibility is a central

issue, this weighs in favor of admitting a prior conviction,” Caldwell, 760 F.3d at 288.

However, at least in the criminal context, the Third Circuit has also “acknowledge[d] the

tension between the related third and fourth factors”, i.e. the apparent tension between the

importance of the witness/defendant's testimony to the case with the importance of the

credibility of the witness/defendant, Caldwell, 760 F.3d at 287 n. 14. Here, by virtue of the

claims presented by Plaintiff (Eighth Amendment violations of his rights by correctional

officers while incarcerated), the date of these alleged violations (February of 2018) and the

-2.The case law cited herein, in particular with respect to the third and fourth factors, must be

examined in light of the civil nature of this case where the need for the plaintiff to testify generally lies at the

heart of the plaintiffs ability to attempt to prove his claims and survive a Fed. R. Civ. P. 50 motion.

jury’s awareness that Plaintiff is currently incarcerated five years later, the nature of the

conviction itself is of minimal probative value. See Tabron v. Grace, 898 F.Supp. 293, 296

(M.D.Pa. 1995) (“The mere fact of incarceration in a state correctional institution, however,

is a significant tool for undermining the credibility of an inmate witness, and that

incarceration will become known to the jury in this case, as happens in any Eighth

Amendment action brought by a state inmate.”). Where the jury is already aware that

Plaintiff has committed at least one criminal offense and was incarcerated in 2018 and is

currently incarcerated, the admission of the nature of the criminal conviction itself is highly

prejudicial to Plaintiff and of little probative value with respect to Plaintiff's claims at trial or to

the defenses of Corrections Officers Wilson and Gromel.

Although the Court finds that the probative value of the robbery conviction is

substantially outweighed by a danger of unfair prejudice and misleading the jury, upon

3 In addition to the probative value of the robbery conviction being substantially outweighed by a

danger of unfair prejudice, the probative value of this conviction is also substantially outweighed by a

danger of misleading the jury. As summarized by the Superior Court of Pennsylvania when affirming

Wilson’s appeal from the lower court’s November 16, 2012 aggregate judgment of sentence of 20 to 40

years’ imprisonment, followed by 15 years’ probation:

[Wilson] was sentenced at count 1, criminal attempt—murder of the first degree, to 20 to 40

years’ imprisonment; count 2, aggravated assault, merged with count 1; count 3, robbery,

10 years’ probation consecutive to count 1; count 4, possession of a firearm, five years’

probation consecutive to count 3; and on count 7 firearms not to be carried without a license

and count 9, PIC, no further penalty was imposed.

Comm. v. Wilson, 2014 WL 10588739 (Pa. Super. Ct. Sept. 22, 2014). Wilson’s current incarceration is

thus the result of his conviction for attempted murder, not for robbery for which he received a sentence of

probation. Presenting the jury with evidence that Wilson was convicted of robbery creates a significant

danger of misleading the jury to believe that his incarceration in 2018 was due to a criminal conviction for

robbery.

consideration of the Rule 403 balancing factors and the dictates of Rule 609(a), the Court

will permit Defendants to question Plaintiff as to whether he has been convicted of a felony

for impeachment purposes. Defendants will not be permitted to introduce evidence

concerning the nature or circumstances of any of Plaintiff's criminal convictions.

For these reasons, a Rule 403 balancing analysis leads this Court to conclude that

the probative value of Wilson’s prior criminal conviction for robbery in 2012 is substantially

outweighed by the prejudicial and misleading effect of admitting that conviction in a civil

case such as this. Plaintiffs motion to exclude this evidence, as well as evidence of the

length of his sentence, will be granted with the exception that Defendants’ may inquire as to

whether Plaintiff has been convicted of a felony offense.

IV. CONCLUSION

For the forgoing reasons, Plaintiffs Motion in Limine to Exclude Evidence Regarding

his Convictions and Sentence (Doc. 130) will be granted as modified herein. A separate

Order follows.

/

i ce Ahly

Robert D. Mariani

United States District Judge