“a positive identification by a victim witness, without more, would usually be sufficient to establish probable cause”
How later courts described this case
- “a positive identification by a victim witness, without more, would usually be sufficient to establish probable cause”
- “A material fact is one that directly affects the outcome of the case.”
- “[T]he question of want of probable cause for [a] criminal prosecution which gave rise to [a] civil action, is a question not for the jury but for the court.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tahir Gardner, :
Appellant :
:
v. :
:
Terry Wealand and : No. 978 C.D. 2024
Jon Fustine : Submitted: April 13, 2026
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Senior Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: May 7, 2026
Tahir Gardner (Appellant) appeals the July 1, 2024 order (Trial Court
Order) of the Court of Common Pleas of Dauphin County (Trial Court) granting
summary judgment in favor of Terry Wealand (Officer Wealand) and Jon Fustine
(Officer Fustine) (collectively, Appellees) regarding Appellant’s Complaint that
raised claims of false imprisonment and violation of the Fourth Amendment of the
United States Constitution against Appellees. Upon review, we affirm.
I. Background and Procedural Posture
The Trial Court summarized the facts underlying the instant matter as
follows:1
1
In response to Defendants’ [First] Motion for Summary Judgment, on October 9, 2019,
the Trial Court conducted a hearing to determine whether issues of fact existed sufficient to submit
Appellant’s claims in this matter regarding probable cause, false arrest, and false imprisonment to
a jury. See Gardner v. Carter (C.P., No. 2014-CV-00737-CV, filed March 26, 2020) (March 2020
Opinion) at 1; see also Transcript of Proceedings, October 9, 2019, Reproduced Record (R.R.) at
239-316.
On January 28, 2012, [Officer] Wealand, driving a
marked police vehicle, was working with a special Street
Crimes Unit in the area of North Maclay Street in
Harrisburg, accompanied by officers Jon Fustine and
Nicholas Ishman on the 7 p.m. to 3 a.m. shift. Shortly after
midnight, [Officer] Wealand observed a stopped vehicle
blocking one-way Jefferson Street. As [Officer] Wealand
ran the license plate number, the vehicle drove around the
block then returned to the original position. Because
[Officer] Wealand’s police Chevy Tahoe sat higher than
the vehicle, he could observe that the driver wore a white
hoodie and a white knit cap. [Officer] Wealand next
observed an individual approach the vehicle and hand
something to the driver. [Officer] Wealand followed the
vehicle toward Emerald Street. [Officer] Wealand
observed the vehicle turn without signaling. At that point,
[Officer] Wealand could see a front and a rear seat
passenger in the vehicle. He activated his emergency
lights and initiated a traffic stop for the moving violation
of the driver’s failure to use a required signal when
turning.
The vehicle pulled over. [Officer] Wealand
positioned his police vehicle behind the vehicle, with
lights activated and a spotlight directed on the stopped
The Trial Court filed the March 2020 Opinion in response to a previous appeal of this
matter discussed infra. See Gardner v. Carter (Pa. Cmwlth., No. 413 C.D. 2020, filed March 1,
2023) (Gardner I). We observe that the Trial Court’s opinion pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a) (1925(a) Opinion), for the instant
appeal stated that “the [T]rial [C]ourt hereby adopts [the Trial Court’s] prior determination made
by Memorandum Opinion dated March 26, 2020, in support of its reasons for the Order issued July
1, 2024, pursuant to Pa.R.A[].P. 1925(a). We do not contemplate filing an additional opinion
currently.” 1925(a) Opinion at 2 (pagination supplied), R.R. at 391. We observe further that the
record and filings of the instant matter do not include a copy of the March 2020 Opinion referenced
in the 1925(a) Opinion. In lieu of requiring Appellant to file a supplemental record containing the
March 2020 Opinion, however, in the interest of judicial economy, in deciding the instant appeal,
this Court will employ the March 2020 Opinion contained in the Gardner I record, which the Trial
Court clearly and unambiguously identified in the 1925(a) Opinion.
2
vehicle. [Officer] Wealand and Officer Fustine exited
their vehicle and walked toward the stopped vehicle.
[Officer] Wealand approached on the driver’s side. In
addition to the lights of his vehicle, streetlights illuminated
the area. The driver turned toward [Officer] Wealand’s
flashlight. The front seat passenger began to exit the
vehicle; Officer Fustine ordered him to remain in the
vehicle. [Officer] Wealand observed the reverse taillights
illuminate. The driver then shifted the vehicle into reverse
at which point [Officer] Wealand got a “decent” look at
the driver. The vehicle backed up and collided with the
police vehicle.
In an effort to distract the driver, [Officer] Wealand
broke the driver’s side window with his flashlight. The
glass shattered into shards and fine pieces. [Officer]
Wealand reached into the vehicle and grabbed the driver’s
face with both hands. [Officer] Wealand testified that he
got a “good look” at the driver. The driver then placed the
vehicle into drive as [Officer] Wealand shouted to him to
stop what he was doing. With [Officer] Wealand’s arms
still in the vehicle, the vehicle veered toward him, causing
him to be caught in the vehicle. The vehicle travelled
fifteen to twenty feet, dragging [Officer] Wealand, until he
rolled off.
[Officer] Wealand observed the driver at two points
in the encounter: when he shone his flashlight on him and
when he had the driver’s [face] hands in his [hands]. He
observed that the driver was wearing a white hoodie
layered under a dark jacket[] and a flat brimmed baseball
cap.
[Officer] Wealand returned to his vehicle and began
pursuit of the subject vehicle. The officers broadcast a
description of the driver and his clothing. In the areas of
5th Street and Seneca Street[], officers came upon the
subject vehicle which had collided with an unoccupied
parked vehicle. [Officer] Wealand remained at the subject
vehicle. [Officer] Wealand observed a firearm and heroin
3
packets in plain view inside the vehicle. Officers Fustine
and Ishman fanned out to search for the vehicle occupants.
Harrisburg Police Officer Corporal Robert Yost was
working with the same Street Crimes Unit that night.
Corporal Yost was driving a different city-owned vehicle,
assisting a Dauphin County Adult Probation Officer.
Corporal Yost heard over the radio that [Officer] Wealand
had stopped a vehicle. Corporal Yost proceeded to that
location. While en route, he heard over the police radio
that the vehicle had crashed. As Corporal Yost drove
south on 5th Street, he learned that the occupants had fled
from the vehicle. As Corporal Yost reached the 2400
block of North 5th Street, directly south of where the
vehicle crashed, he saw individuals jumping over fences.
He observed the individuals within a minute of learning of
the crash. When the individuals observed the police
vehicle, they went south, fleeing through back yards. The
probation officer accompanying Corporal Yost gave chase
on Schuylkill Street; Corporal Yost was able to detain one
of the individuals, Ishmail Haigh who was jumping over
fences at 2459 North 5th Street. Corporal Yost detained
Ishmail Haigh at a point approximately sixty yards from
where the crash occurred.
As Corporal Yost detained Ishmail Haigh, he was
aware that another individual was sought, described as
wearing black with a white hat. Out of his peripheral
vision, Corporal Yost observed an individual,
accompanied by a female come out from between houses,
two to three houses away. The male individual, later
identified as [Appellant], was traveling west, the same
direction in which Haigh had jumped over fences.
Corporal Yost testified he suddenly encountered
[Appellant] and the female as they emerged from between
the houses. Corporal Yost testified, “[t]here was no time
to run. It was like wow. We’re all here at the same time,
you know what I mean?” Corporal Yost observed that
[Appellant] wore a black top with a white hood over his
head. The white hood appeared to be worn under the black
4
jacket. Corporal Yost detained [Appellant] based upon the
fact that [Appellant] matched the description of a person
fleeing from officers, that he was within a couple houses
of persons fleeing in the same direction, and that it would
have been unusual for a person to be simply out taking a
stroll on a cold January night. Corporal Yost placed
Ishmail Haigh and [Appellant] in handcuffs.
As [Officer] Wealand arrived at that location, the
detained individuals were sitting on the curb. [Officer]
Wealand recognized Ishmail Haigh as a person with whom
he had an encounter the previous evening. Haigh stated
that he was “just trying to run away because Wealand
broke out the window of the car.” [Officer] Wealand
recognized the other individual as the driver of the car on
which he had been dragged, [Appellant]. [Officer]
Wealand walked around [Appellant] to view him from the
left, the same vantage point as he had during the stop.
[Officer] Wealand re-enacted the encounter by placing his
hands on [Appellant’s] face as he had during the stop.
[Officer] Wealand told [Corporal] Yost that he “had his
face in his hands just like this[.]” [Officer] Wealand
testified that the image of [Appellant’s] face in his hands
was the last “snapshot” he had of [Appellant]. [Appellant]
then mumbled something to the effect of “[y]ou got me[.]”
[Officer] Wealand observed a glittery substance on
[Appellant’s] jacket, made visible by the flashlights.
[Appellant] was searched and transported for processing.
[Officer] Wealand went to Harrisburg Hospital for
evaluation.
Other officers responded to the scene. The
headlights of the approaching vehicle made visible a
glittery substance on [Appellant’s] jacket. The glittery
appearance immediately reminded Corporal Yost of glitter
on the characters of a show “Twilight” which he had
recently watched with his wife. He found the appearance
of glitter “extraordinary[.]” Corporal Yost made the
observation of the glitter before [Officer] Wealand had
exited his vehicle. Corporal Yost testified that when
5
[Officer] Wealand arrived, he placed his hands on
[Appellant’s] face, looked directly at him, and said words
to the effect of “that’s the guy that was driving the car.”
Corporal Yost described the situation as fluid, that is, a
foot pursuit in high drug/high crime area[], with officers
arriving and maintaining an awareness of numerous
potential threats.
[Officer] Wealand testified that he is absolutely sure
that the person he saw in the vehicle was the individual
[Corporal] Yost detained, [Appellant].
Officer Jon Fustine was the rear passenger in the
police vehicle with [Officer] Wealand that night. Before
the stop, as the subject vehicle turned onto 5th Street, from
about [a] vehicle length away, Officer Fustine could see
that the driver wore a white hat or hoodie. Officer Fustine
did not see the driver during the stop, because he pursued
the front seat passenger, a Tyshawn Black.
At the time of the stop, Officer Fustine observed
[Officer] Wealand break the driver’s window, the vehicle
move in reverse, impact the police vehicle, and drive
forward, dragging [Officer] Wealand. After [Officer]
Wealand returned to the police vehicle, either Officer
Fustine or Officer Ishman reported locations and
descriptions over the radio. The description stated that the
suspect was wearing a white hat or hood. Officer Fustine
did not get a good look at the driver’s face.
Officer Fustine conducted the investigation of the
incident and filed charges against [Appellant] for
aggravated assault, reckless endangering, carrying a
firearm without a license, possession with intent to
distribute heroin, possession of drug paraphernalia,
escape, receiving stolen property, criminal mischief, and
traffic offenses. Officer Fustine relied solely upon
[Officer] Wealand’s identification of [Appellant] as the
driver of the vehicle as the basis for the arrest. A white
skull cap was found at the scene, collected as evidence and
6
sent for testing. A sweatshirt was also collected. No glass
was collected.
See Gardner v. Carter (C.P., No. 2014-CV-00737-CV, filed March 26, 2020)
(March 2020 Opinion) at 2-7 (internal record citations, footnotes, and some brackets
omitted).
This Court explained the procedural posture of this matter in its
decision in a previous appeal involving this matter as follows:
On January 28, 2012, police arrested Appellant and
charged him with various crimes[FN2] related to an incident
involving a motor vehicle traffic stop during which the
vehicle’s driver fled the scene and was pursued by police.
The incident ultimately concluded with Appellant’s
apprehension and identification by the officers involved.
On September 11, 2012, nine months after his arrest,
Appellant was released from custody after DNA testing on
items of clothing recovered from the scene of the incident
did not match Appellant’s DNA. The prosecution
ultimately nolle prossed the charges against Appellant on
February 25, 2013.
[FN2]
Aggravated assault, reckless endangerment,
carrying a firearm without a license, possession
with intent to distribute heroin, possession of drug
paraphernalia, escape, receiving stolen property,
criminal mischief, and traffic offenses.
Appellant filed the Complaint on October 3, 2014, and
Appellees filed their “Answer of Defendants to Plaintiff’s
Complaint With New Matter Affirmative Defenses” on
May 29, 2015. The parties conducted the depositions of
Appellant and a defense witness on August 16, 2016, and
January 19, 2017, respectively. Thereafter, on March 1,
2017, Appellees filed “Defendants’ Motion for Summary
Judgment” ([First] Summary Judgment Motion), arguing,
inter alia, that Appellees were entitled to immunity
7
because they had probable cause to arrest and charge
Appellant. Appellant filed his “Response to Defendants’
[First] Motion for Summary Judgment” on April 14, 2017.
On June 4, 2019, the [T]rial [C]ourt granted the [First]
Motion for Summary Judgment as it applied to the other
defendants in this matter[FN3] but not as to Appellees. See
Trial Court Memorandum Opinion and Order dated June
4, 2019 (Trial Court June 2019 Opinion) at 4-6. Instead,
the [T]rial [C]ourt scheduled an evidentiary hearing to
address the “remaining factual and legal issues” pertaining
to Appellees. See Trial Court June 2019 Opinion at 6. The
[T]rial [C]ourt explained this decision thusly:
Whether or not evidence of willful misconduct
exists to submit the matter to a jury is a matter for
the court. At oral argument, counsel presented
statements of fact regarding the observations of the
officers and of Appellant, which facts did not
appear in the record. The [T]rial [C]ourt therefore
ordered that counsel file deposition transcripts.
Counsel filed Appellant’s transcript, but
communicated to the [T]rial [C]ourt by letter that
no depositions of officers have been taken. It is
necessary for the [T]rial [C]ourt to take evidence
on those matters in order to resolve the issues
before us.
Trial Court June 2019 Opinion at 5.
[FN3]
The [T]rial [C]ourt granted summary
judgment as to the other defendants named in the
Complaint – Thomas Carter, Nicholas Ishman,
Robert Yost, and the Harrisburg Police Bureau.
See Trial Court [Trial Court June 2019 Opinion] at
6. Appellant does not appeal that grant of
summary judgment as to those defendants in the
instant matter.
8
The [T]rial [C]ourt conducted the hearing on October 9,
2019. Thereafter, based on the evidence adduced at the
October 2019 hearing,[FN4] the [T]rial [C]ourt determined
that Appellees were entitled to immunity because probable
cause to arrest Appellant existed at the time of the incident.
See [March 2020 Opinion] at 7-11. Therefore, on March
26, 2020, the [T]rial [C]ourt granted the [First] Summary
Judgment Motion. See [] March 2020 Opinion at 11.
Appellant timely appealed to this Court.
[FN4]
See [March 2020 Opinion], at 2-7.
Gardner v. Carter (Pa. Cmwlth., No. 413 C.D. 2020, filed March 1, 2023) (Gardner
I), slip op. at 2-4 (internal brackets omitted; certain footnotes omitted).
This Court vacated the Trial Court’s March 26, 2020 Order on appeal,
explaining that the Trial Court had improperly conducted a factual hearing prior to
granting the First Summary Judgment Motion. See Gardner I, slip op. at 4-6 &
Order. This Court explained that,
[i]n so doing, the [T]rial [C]ourt created and considered
evidence that did not exist and was not part of the record
at the time the Appellees filed the Summary Judgment
Motion. In effect, the [T]rial [C]ourt conducted a
bifurcated bench trial on the issue of probable cause for
the purpose of deciding the [First] Summary Judgment
Motion in a matter where Appellant had requested a jury
trial.
Gardner I, slip op. at 5. This Court concluded that this was error and noted that
Pennsylvania’s Rules of Civil Procedure do not allow for
such proceedings at the summary judgment stage and
instead expressly limit the record upon which a motion for
summary judgment is to be decided to existing pleadings,
depositions, answers to interrogatories, admissions and
affidavits, and expert reports. See Pa.R.C[iv].P. []1035.1.
9
In this case, Appellees could have taken further
depositions and submitted the transcripts thereof in
anticipation of filing their [First] Summary Judgment
Motion, but did not. As a result, the proper extent of the
summary judgment record was the pleadings and
discovery that existed at the time of the filing of the [First]
Summary Judgment Motion, including the transcripts of
the completed depositions of Appellant and Appellant’s
witness. Therefore, the [T]rial [C]ourt erred by
conducting the October 9, 2019 hearing and then relying
on the evidence adduced at that hearing, which should not
have formed part of the summary judgment record, to
decide the [First] Summary Judgment Motion as to
Appellees.
Gardner I, slip op. at 5-6. Accordingly, the Court vacated the Trial Court’s order
granting the First Summary Judgment Motion and remanded the matter for further
proceedings. See Gardner I, slip op. at 6 & Order.
On remand, Appellees conducted the depositions of Officer Fustine,
Officer Wealand, and Corporal Yost. See Reproduced Record (R.R.) at 317-26.
Each deposition consisted of a stipulation between the parties to adopt as evidence
the transcript of the Trial Court’s previous hearing conducted on October 9, 2019,
and testimony from each witness that their answers to questions on the day of the
deposition would be the same as the responses previously given at the October 9,
2019 hearing. See id. Thereafter, Appellees filed the Motion for Summary
Judgment by Defendants Terry Wealand and Jon Fustine (Second Summary
Judgment Motion) based, in part, on the previous October 9, 2019 testimony per the
deposition stipulations. See Second Summary Judgment Motion, R.R. at 128-326.
Appellant filed a brief in opposition to the Second Summary Judgment Motion and
Appellees filed a response thereto. See Plaintiff’s Brief In Opposition to
Defendants’ Motion for Summary Judgment, R.R. at 328-41; see also Defendants’
10
Reply to Plaintiff’s Brief In Opposition to Defendants’ Motion for Summary
Judgment, R.R. at 343-58. The Trial Court granted the Second Summary Judgment
Motion via the Trial Court Order on July 1, 2024, and Appellant timely appealed to
this Court. See Trial Court Order, R.R. at 360; see also Notice of Appeal, R.R. at
362-70.
II. Issues
On appeal,2 Appellant claims that the Trial Court erred by granting
summary judgment to Appellees because outstanding issues of fact exist as to
whether Appellees had probable cause to arrest Appellant. See Appellant’s Br. at 63
2
Our standard of review of the grant of summary judgment is de novo and our scope of
review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). A motion for summary
judgment is properly granted if “there is no genuine issue of any material fact as to a necessary
element of the cause of action.” Pa.R.Civ.P. 1035.2(1). “Summary judgment may be entered only
when, after examining the record in the light most favorable to the non-moving party, and resolving
of all doubts as to the existence of a genuine issue of material fact against the moving party, the
moving party is clearly entitled to judgment as a matter of law.” Pyeritz, 32 A.3d at 692.
3
Appellant stated his issues presented as follows:
1. Whether the fact that [Appellant] and Ms. Ezell’s deposition
testimony that [Appellant] did not have glass on his clothing
constituted a material fact?
2. Whether the [H]onorable [T]rial [C]ourt erred in granting
[s]ummary [j]udgment for the [f]alse [a]rrest and [f]alse
[i]mprisonment [c]laims as to [Officer] Wealand and Officer Fustine
because the undisputed material facts do not establish probable
cause to arrest [Appellant]?
3. Whether the [H]onorable [T]rial [C]ourt erred in concluding that
[Officer] Wealand was entitled to qualified immunity under federal
law? More specifically, whether the undisputed material facts in
this case make it clear that his conduct was unlawful?
Appellant’s Br. at 6.
11
& 17-22. Specifically, Appellant alleges that the question of whether there was glass
on his sweatshirt at the time of his arrest remains outstanding and disputed and
therefore precludes a grant of summary judgment in Appellees’ favor. See id. at 6
& 16-17. Additionally, Appellant claims the Trial Court erred by granting summary
judgment to Appellees based on immunity because Appellees acted unlawfully. See
id. at 6 & 22-24.
III. Discussion
A. Probable Cause for Arrest
In his first and second issues, Appellant claims that the Trial Court erred
by granting summary judgment because outstanding issues of fact exist in this matter
precluding summary judgment. See Appellant’s Br. at 16-22. First, Appellant
claims broadly that the undisputed material facts of the underlying case did not
establish probable cause for Appellees to arrest Appellant. See id. at 17-22. Second,
Appellant argues that deposition testimony that Appellant did not have glass on his
sweatshirt created an outstanding issue of fact that precluded summary judgment in
favor of Appellees. See id. at 16-17. We do not agree.
In Pennsylvania, “[t]he elements of false arrest/false imprisonment are:
(1) the detention of another person (2) that is unlawful.” Manley v. Fitzgerald, 997
A.2d 1235, 1241 (Pa. Cmwlth. 2010). Likewise, in the federal system,4 “[t]o bring
a claim for false arrest, a plaintiff must establish (1) that there was an arrest; and (2)
that the arrest was made without probable cause.” Harvard v. Cesnalis, 973 F.3d
190, 199 (3d Cir. 2020) (internal quotation marks omitted). Where facts are
4
We observe that Appellant pursued false arrest claims pursuant to 42 U.S.C. § 1983 and
Pennsylvania common law. Thus, out of an abundance of caution, we include citations to both
federal and Pennsylvania law in our discussion of probable cause for arrest.
12
undisputed, a determination regarding probable cause for an underlying arrest in a
civil action is a question of law to be determined by the court. See Simpson v.
Montgomery Ward & Co., 46 A.2d 674, 676 (Pa. 1946) (“[T]he question of want of
probable cause for [a] criminal prosecution which gave rise to [a] civil action, is a
question not for the jury but for the court.”). Where an arrest is based on probable
cause, the underlying guilt or innocence of the arrested individual is immaterial to
the lawfulness of the arrest. See Manley, 997 A.2d at 1241 (“An arrest based upon
probable cause would be justified, regardless of whether the individual arrested was
guilty or not.” (quoting Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).
Further,
[p]robable cause is a much lower standard than proof
beyond a reasonable doubt[.] Rather, probable cause is a
reasonable ground of suspicion supported by
circumstances sufficient to warrant that an ordinary
prudent person in the same situation could believe a party
is guilty of the offense charged. Additionally, if probable
cause is shown to exist, the arresting officer’s motive, even
if malicious, is immaterial. Likewise, an acquittal or other
adjudication of innocence at a subsequent proceeding does
not establish a lack of probable cause at the time of arrest.
Id. at 1239 (internal quotation marks and citations omitted); see also Harvard, 973
F.3d at 199-200 (“An officer has probable cause to arrest a person when the facts
and circumstances within the arresting officer’s knowledge are sufficient in
themselves to warrant a reasonable person to believe that an offense has been or is
being committed by the person to be arrested.” (Internal quotation marks omitted)).
This Court has further explained that
[p]robable cause does not exist where there is evidence of
the unreliability of the witness whose statement is relied
13
upon, where exculpatory evidence is disregarded, and
where material facts are withheld or misrepresented;
however, a police officer has no duty to investigate
exculpatory evidence that is not readily available,
speculative information provided by the accused, and the
statements of a single credible witness may serve as
sufficient evidence of probable cause.
Combs v. Blowes (Pa. Cmwlth., No. 1561 C.D. 2013, filed Feb. 17, 2015),5 slip op.
at 10-11; see also Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000) (“a positive
identification by a victim witness, without more, would usually be sufficient to
establish probable cause”). As the Superior Court of Pennsylvania has noted 6
regarding the requirements of an identification to sustain probable cause for arrest:
“it is established in this Commonwealth that tentative identifications are sufficient
even to sustain a conviction. Certainly, no more is required for an arrest.”
Commonwealth v. Miller, 438 A.2d 995, 999 (Pa. Super. 1981).
In determining that probable cause to arrest Appellant existed in this
case, the Trial Court noted that
[Officer] Wealand was the victim of aggravated assault
and reckless endangering, having been dragged by the
eluding vehicle. [Officer] Wealand observed [Appellant]
two times during the traffic stop. He then unequivocally
identified [Appellant] as the driver at the time of
[Appellant’s] detention by [Corporal] Yost. There existed
no exculpatory evidence or substantial evidence of any
unreliability of [Officer] Wealand’s identification.
5
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be
cited for their persuasive value.
6
Although not binding, Superior Court decisions are persuasive authority in this Court.
See Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
14
March 2020 Opinion at 9.
We agree with the Trial Court that probable cause to arrest Appellant
existed under the circumstances of this case. In arresting Appellant, Corporal Yost
relied upon the identification provided by Officer Wealand. Officer Wealand, who
was both a responding police officer and the victim of the crimes for which
Appellant was arrested, arrived at the scene where Appellant was detained, looked
directly at Appellant, examined Appellant by placing his hands on Appellant’s face,
and then unequivocally identified Appellant to Corporal Yost. Regardless of the
accuracy of this identification, there exists no question that this was the information
known to Corporal Yost when he arrested Appellant.7 Officer Wealand’s positive
identification warranted Corporal Yost’s belief that the offenses described by Officer
Wealand had been committed and that Appellant had committed those offenses. In
other words, regardless of its accuracy, Officer Wealand’s positive identification
provided Corporal Yost with probable cause to arrest Appellant. See Manley; Renk;
Harvard.
Additionally, despite Appellant’s suggestions, we have found no
evidence in the record indicating that Officer Wealand’s identification was
7
We appreciate that, while the court determines the existence of probable cause based on
undisputed facts, as discussed supra, when the facts underlying probable cause are disputed, a jury
may be required to play a role in determining underlying facts. See Simpson v. Montgomery Ward
& Co., 46 A.2d 674 (Pa. 1946). We observe that the instant matter, however, is not such a case
where the operative fact required for the probable cause determination – that Corporal Yost was
operating on Officer Wealand’s positive identification – is independent of the accuracy of Officer
Wealand’s identification.
15
unreliable.8 To the extent that Appellant suggests that the police officers were
obligated to test Appellant’s sweatshirt or to obtain DNA test results before arresting
him, we disagree. See Appellant’s Br. at 22. As discussed supra, in determining
whether probable cause exists to arrest an individual suspected of committing
crimes, “a police officer has no duty to investigate exculpatory evidence that is not
readily available[.]” Combs, slip op. at 10-11. Accordingly, the Trial Court did not
err in determining that Corporal Yost had probable cause to arrest Appellant based
on Officer Wealand’s identification.9 Because Corporal Yost had probable cause to
arrest, the Trial Court properly granted summary judgment on Appellant’s false
imprisonment claim.
Appellant’s suggestion that conflicting testimony obtained at a later
time regarding whether glass was present on his sweatshirt at the time of his arrest
somehow created an issue of material fact as to whether police had probable cause
to arrest him is likewise incorrect. See Appellant’s Brief at 16-17. To defeat
summary judgment, a disputed fact must be material to – i.e., have the ability to
directly affect – the outcome of a case. See Logans’ Rsrv. Homeowners’ Ass’n v.
McCabe, 152 A.3d 1094, 1099 n.8 (Pa. Cmwlth. 2017) (“A material fact is one that
directly affects the outcome of the case.”) (quoting Kenney v. Jeanes Hosp., 769
A.2d 492, 495 (Pa. Super. 2001)). Whether glass was present on Appellant’s
8
We find Appellant’s suggestion that Officer Wealand somehow attempted to identify
Appellant by touch, see Appellant’s Brief at 19-20, to be completely unsupported by, and in fact
expressly disproven by, the record. See R.R. at 260-62.
9
Officer Fustine also relied on Officer Wealand’s identification in conducting the
investigation into the charges and as the basis for Appellant’s arrest. See March 2020 Opinion at
7. To the extent Officer Fustine’s justification for lodging the subsequent charges would need to
be considered in this matter, we observe that, as with Corporal Yost’s arrest of Appellant discussed
supra, Officer Wealand’s identification provides such justification as well.
16
clothing is not material to the determination of whether the police had probable cause
to arrest Appellant in this matter. Officer Wealand’s identification that provided the
probable cause for Appellant’s arrest was based on Officer Wealand’s multiple
observations of Appellant’s face and was independent of any evidence of glass on
Appellant’s sweatshirt.10 Accordingly, as the Trial Court noted, “[Appellant’s]
claims that he did not have glass on his clothing . . . raise no issue[] of material fact
to as to the existence of probable cause [to arrest].” March 2020 Opinion at 9. Thus,
Appellant’s claim that this alleged discrepancy in the testimony created a dispute
regarding a material fact that precluded summary judgment fails.
B. Immunity Claim
In his final argument, Appellant alleges that the Trial Court erred by
determining that Appellees were entitled to immunity11 under the facts of this case.
See Appellant’s Br. at 22-24. We discern no error.
Federal qualified immunity shields government officials performing
discretionary functions from liability for civil damages provided “their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Gilles v. Davis, 427 F.3d 197, 203 (3d Cir. 2005)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Further,
10
In fact, Officer Wealand testified explicitly that he would have been able to positively
identify Appellant in the absence of glass on Appellant’s clothing. See R.R. at 284.
11
While he mentions “qualified immunity under federal law” in the heading of the
immunity argument section of his brief, see Appellant’s Brief at 22, we note that Appellant bases
his immunity argument solely on state immunity under the Political Subdivision Tort Claims
Act, 42 Pa.C.S. §§ 8541-8542. See Appellant’s Br. at 22-24. We discuss federal qualified
immunity herein nonetheless, as did the Trial Court.
17
[q]ualified immunity encompasses mistaken judgments
that are not plainly incompetent. Under qualified
immunity, police officers are entitled to a certain amount
of deference for decisions they make in the field. They
must make split-second judgments–in circumstances that
are tense, uncertain, and rapidly evolving. The
reasonableness of the officer’s belief should be judged
from that on-scene perspective, not with the perfect vision
of hindsight.
Gilles, 427 F.3d at 207 (internal quotation marks and citations omitted).
Additionally, in Pennsylvania, the Political Subdivision Tort Claims Act 12 (“Tort
Claims Act”) provides immunity for employees of local agencies unless the
employee’s actions constituted a crime, actual fraud, actual malice, or willful
conduct. See 42 Pa.C.S. § 8550.13
Appellant suggests that the deposition testimony claiming that no glass
was present on Appellant’s clothing at the time of his arrest evidences actions by
Officer Wealand and Officer Fustine that constitute crimes, actual fraud, actual
malice, or willful conduct. See Appellant’s Br. at 23. Appellant argues that, if
believed, “the inescapable conclusion” from such testimony would necessarily be
12
42 Pa.C.S. §§ 8541-8542.
13
Section 8550 of the Tort Claims Act provides:
In any action against a local agency or employee thereof for
damages on account of an injury caused by the act of the employee
in which it is judicially determined that the act of the employee
caused the injury and that such act constituted a crime, actual fraud,
actual malice or willful misconduct, the provisions of sections 8545
(relating to official liability generally), 8546 (relating to defense of
official immunity), 8548 (relating to indemnity) and 8549 (relating
to limitation on damages) shall not apply.
42 Pa.C.S. § 8550.
18
that Officer Wealand and Officer Fustine lied about facts leading to Appellant’s
arrest and then created false police reports regarding the same, thus evidencing fraud,
malice, and willful misconduct. Id. Appellant then sweepingly concludes that
“[o]ne can hardly imagine an act that would be more indicative of fraud, malice, and
willful misconduct.” Id. We do not agree. Even if true, a lack of glass on
Appellant’s clothing does not mandate a determination that Officers Wealand and
Fustine were lying as opposed to simply mistaken in consideration of their on-scene
perspective at the time of Appellant’s arrest. Appellant’s binary suggestion that a
conflict in testimony necessarily illustrates a situation where an individual is either
(1) correct, or (2) lying, is incongruent with basic human experience and is not
supported by law. We further note that Appellant cites no legal support regarding
his hyperbolic suggestion that a dispute in the testimony would create an
“inescapable conclusion” that Officers Wealand and Fustine were lying, thus
evidencing fraud, malice, or willful misconduct. See id.
Based on the facts described supra, the Trial Court determined that
Officers Wealand and Fustine were immune from Appellant’s claim of false arrest
under federal law in this matter because their “identification and arrest of [Appellant]
were reasonable judgments under the circumstances.” March 2020 Opinion at 10.
Likewise, the Trial Court determined that state law immunity also applied to the
instant case because “the record is devoid of evidence of malice, willful misconduct,
or intentional wrongdoing related to the identification and arrest of [Appellant].” Id.
at 11. Despite Appellant’s unsupported suggestions to the contrary, we agree with
the Trial Court’s determination on this issue. As such, Appellant’s claim that
Appellees were not entitled to immunity fails.
19
IV. Conclusion
For these reasons, we affirm the Trial Court Order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tahir Gardner, :
Appellant :
:
v. :
:
Terry Wealand and : No. 978 C.D. 2024
Jon Fustine :
ORDER
AND NOW, this 7th day of May, 2026, the July 1, 2024 order of the
Court of Common Pleas of Dauphin County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge