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Brown v. Moschetta

COMMONWEALTH COURT OF PENNSYLVANIA
Jul 12, 2011
No. 1666 C.D. 2010 (Pa. Cmmw. Ct. Jul. 12, 2011)

Opinion

No. 1666 C.D. 2010

07-12-2011

Alton D. Brown, Appellant v. S. E. Moschetta, S. W. Miller, and Officer Bowser


BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

Appellant Alton D. Brown (Plaintiff), a state prison inmate representing himself, appeals from an order of the Court of Common Pleas of Greene County (trial court) that denied his motions for post-trial relief and entered judgment on a defense jury verdict in his civil rights action against Appellees Shawn Moschetta-Irey (Moschetta), Steven W. Miller (Miller) and David Bowser (Bowser) (collectively, Defendants). Plaintiff advances 17 arguments why the trial court erred in denying his motion for a new trial. He also contends the trial judge abused his discretion in refusing recusal. Discerning no error on the part of the trial court, we affirm.

The Honorable William R. Nalitz, President Judge, presided.

Defendant Bowser died in an unrelated training accident in 2002.

I. Background

A. Incident

In its opinion in support of its order denying Plaintiff's post-trial motions, the trial court summarized the facts as follows. This matter has its origins in an incident that occurred in January 2000, while Plaintiff was located in the Restricted Housing Unit (RHU) at the State Correctional Institution at Greene (SCI-Greene). At all relevant times, Defendants were corrections officers at SCI-Greene.

On January 31, while Plaintiff waited in his cell for his noon meal, Defendant Moschetta placed a meal tray in the tray slot or "pie hole" of Plaintiff's cell door. The tray fell to the floor, and a dispute arose between Plaintiff and Moschetta concerning why the tray fell. Plaintiff believed Moschetta either carelessly or intentionally placed the tray in the slot so it would fall. Moschetta believed Plaintiff either threw it out of his cell or pushed it to the floor.

According to Plaintiff, Moschetta then told him he would not get lunch. Moschetta also directed threats and racial epithets at him. Moschetta locked the tray slot and left. Shortly thereafter, she returned with Defendants Miller and Bowser. Moschetta opened the food slot, told Plaintiff to stand back, and sprayed a chemical agent into the cell that incapacitated Plaintiff. In an attempt to cover up their assault on Plaintiff, Moschetta filed a misconduct against him alleging Plaintiff threatened to harm her the next time she opened the tray slot.

B. Amended Complaint

In early January 2002, Plaintiff filed a complaint, and thereafter an amended complaint, against Defendants. Plaintiff's amended complaint included a state tort claim and a civil rights claim under 42 U.S.C. §1983 (civil action for deprivation of constitutional and statutory rights). In Count II, Plaintiff alleged Defendants conspired to assault him with chemical agents and then covered up the assault by falsely reporting that he threatened Moschetta. In Count III, Plaintiff alleged Defendants violated his Eighth Amendment rights by using excessive force against him. In Count IV, Plaintiff alleged Defendants violated his First Amendment rights by assaulting him in retaliation for his exercise of his right to file prison grievances. Plaintiff sought compensatory and punitive damages against Defendants and requested a jury trial.

Following the trial court's decision overruling their preliminary objections, Defendants filed an answer and new matter denying Plaintiff's allegations. They alleged Plaintiff threw his food tray out of the tray slot. Moschetta then locked the tray slot. Plaintiff made a verbal threat against her, using abusive language. Moschetta issued a misconduct report against Plaintiff for threatening an employee with harm, refusing to obey an order and using abusive language.

Following the close of pleadings, Plaintiff engaged in extensive discovery. In June 2007, the trial court issued an order scheduling a jury trial to begin in October 2007. However, in August 2007, Moschetta's military reserve unit was deployed overseas, and the court continued the trial generally.

In October 2008, after Moschetta was released from active duty, the trial court scheduled a pre-trial conference. Following the conference, the trial court scheduled jury selection and trial for early April 2009.

In March 2009, Plaintiff requested a continuance because of his temporary relocation from his regular housing at SCI-Graterford to SCI-Pittsburgh so he could testify in another inmate's lawsuit. The trial court denied Plaintiff's motion.

C. Trial

In April 2009, the case proceeded to trial, and Plaintiff presented his case to the jury. Plaintiff first examined Captain Patrick Oddo, who was a lieutenant at SCI-Greene on January 31, 2000. See Notes of Testimony (N.T.), April 7-9, 2009, at 56-84. He testified DOC policies are enforced on a daily basis at SCI-Greene. Id. at 59-60. Planned use of force is regulated by specific guidelines. Id. at 61. It must be approved by the shift commander. Id. at 62. It requires an informed assembly of staff, including a commissioned officer (captain or lieutenant). Id. The use of force would be videotaped. Id. Following the event, the inmate would be medically examined and photos taken. Id.

Plaintiff asked the next witness, Major Lorenda Winfield, similar questions regarding DOC policies and procedure. See id. at 93-98. Major Winfield also testified for Defendants later in the trial. See N.T. at 287-93.

At the time of the January 2000 incident, then-Captain Winfield was the shift commander. Id. at 288. Major Winfield explained DOC's policies and procedures for using OC (oleum capsicum) spray. See id. at 288-93. It is only used in forced cell extractions of problem inmates. Id. at 289-90. The shift commander determines if a forced cell extraction will be done and must authorize the use of OC. Id. at 290. Only a Corrections Officer 3 (lieutenant), a commissioned officer, can use OC. Id. at 291. It is stored in an armory. Id. Only commissioned officers have a key to the armory. Id. Defendant Moschetta, a Corrections Officer 1 at the time of the alleged incident, was not authorized to use OC. Id.

Further, an inmate must be medically cleared for OC use. Id. at 292. Once an inmate is medically cleared, the ventilation is shut down. Id. Otherwise, the 23 other inmates in the pod would be affected. Id. Their eyes would begin to itch, mucus would flow from their noses, they would start coughing and having trouble breathing. Id. at 293. All corrections officers, including Major Winfield, are sprayed with OC during training to know its effects. Id. To the best of Major Winfield's knowledge, no one was sprayed with OC on January 31, 2000. Id.

Major Winfield also testified that to the best of her knowledge corrections officers at SCI-Greene follow all polices and procedures. Id. at 297. Any reports of unauthorized use of OC would be immediately investigated. Id. at 295. Also, OC is stored in metal canisters, and if a corrections officer brought it into the prison, a metal detector would catch it. Id. at 298.

Plaintiff presented the testimony of three inmates in neighboring cells who witnessed the incident. He also testified on his own behalf. He is well known for frequently filing prison grievances. See id. at 173-251. Regarding the incident, he testified Moschetta put the tray on the door and it slipped off. Id. at 205. Moschetta then accused Plaintiff of throwing his tray and told him he would not get any more food. Id. "When I asked her for another tray she stated that your black ass wouldn't get another tray, nor the remainder of your meal and if you don't like it, you can file another grievance like you always do." Id. Plaintiff then asked to see Moschetta's supervisor. Moschetta then told him, "All you going to see is a good ass whipping if you don't get off the door." Id.

Inmate Jerome Prevet was housed at SCI-Greene at the time of the incident. He recalled that Defendant Moschetta placed the tray on the door and it fell on the floor. N.T. at 104-05. Moschetta accused Plaintiff of pushing the tray from the door, and an argument ensued. Id. at 105. She left and came back. Id. "When she came back she came back with a number of officers and she had a can in her hand, then a few words were said about you pushing the tray from the door and what occurred is they started spraying." Id. Prevet had no problem seeing the incident. Id. He could also smell the spray, and he had to move to the back of his cell. Id. at 105-106. Prevet put his towel up against the door to block the smell. Id. at 113.
Inmate James Jones also witnessed Defendants repeatedly spray Plaintiff with "pepper spray mace, whatever you want to call it ...." Id. at 121. Plaintiff was trying to explain that he only wanted something to eat. Id.
Inmate Theodore Legget also vaguely remembered the incident. Id. at 127. He recalled hearing the tray hit the floor and Plaintiff asking for another tray. Id. at 128. Legget heard Plaintiff say "she is spraying me" and then Legget felt the effects of the spray in his cell. Id. at 129.

They then got into an argument, and Moschetta left. Id. About 10 or 15 minutes later, Moschetta returned with Defendants Miller and Bowser. Id. at 205-06. Defendant Miller told Plaintiff to step back from the door. Id. at 206. Miller then opened the tray slot and Moschetta "sprayed me with a container of some kind of chemical agent." Id. Moschetta sprayed for about a minute. Id. Moschetta then filed a misconduct report charging Plaintiff with threatening an employee with harm, refusing to obey an order and using abusive language. See Defs' Ex. 1.

As a result of the incident, Plaintiff suffered immediate physical pain. Id. at 218. He also claimed he suffered long-term psychiatric injuries. Id. at 218-19.

Defendant Moschetta also testified. See id. at 143-73. Moschetta issued a misconduct report on January 31, 2000 after Plaintiff threw his tray out of his "pie hole." Id. at 148. After she locked the pie hole, Plaintiff yelled, "you f***in['] b**ch you'll be paying when you do open this pie hole." Id. Moschetta also testified she did not make Plaintiff's food tray fall and she did not spray Plaintiff with a chemical agent. Id. at 148-49. Moschetta never sprayed an inmate with OC during her entire career. Id. at 161.

Defendant Miller also testified. See id. at 254-66. Miller did not see the tray fall, but heard the noise. Id. at 254. He also heard Plaintiff threaten Moschetta. Id. at 255. At the time, Miller was serving bread at another cell. Id. Miller further testified neither he nor Moschetta sprayed OC in Plaintiff's cell. Id. at 263-65.

Ultimately, following the parties' closing arguments and instructions from the trial court, the jury entered the following verdict against Plaintiff:

1. Do you think Defendant Shawn (Moschetta) Irey used grossly excessive force against Plaintiff Alton Brown on January 31, 2000?


Yes ___ No X

If you answer Question 1 "Yes", proceed to Question 2. If you answer Question 1 "No", sign your name to the last page of this document and notify the Court that you have reached a verdict.
Jury Questionnaire, 04/09/09 (Certified Record (C.R.) at Item 30)), at 1.

D. Post-Trial Motions

Following the verdict, Plaintiff filed post-trial motions seeking a new trial and alleging numerous errors or abuses of discretion by the trial court. In his brief in support of post-trial motions, Plaintiff asserted the trial court committed the following 17 errors or abuses of discretion:

(1) The trial court abused its discretion in denying Plaintiff's motion for a continuance;

(2) The trial court denied Plaintiff a fair trial by allowing DOC to be in charge of security;

(3) The trial court erred in requiring Plaintiff's housing at SCI-Greene;

(4) The trial court erred in denying Plaintiff's retaliation witnesses;

(5) The trial court erred in denying Plaintiff's evidence of a practice of abuse at SCI-Greene;
(6) The trial court erred in denying Plaintiff's request to call DOC officials as witnesses;

(7) The trial court erred in denying Plaintiff's record of grievances and the responses thereto;

(8) The trial court erred in allowing Defendants' counsel to impeach Plaintiff's testimony with his amended pre-trial narrative statement;

(9) The trial court erred in allowing Defendants' counsel to question Plaintiff as to whether he talked to his witnesses prior to trial;

(10) The trial court erred in allowing Defendants' direct examination of witnesses called by Plaintiff during his case in chief;

(11) The trial court erred in denying Plaintiff's request to present rebuttal evidence regarding Major Winfield's testimony;

(12) The trial court erred in denying evidence needed to impeach Defendant Moschetta's reputation for honesty;

(13) The trial court erred in failing to give Plaintiff's retaliation claim to the jury;

(14) The trial court erred in informing the jury of Defendant Moschetta's military service;

(15) The trial court erred in denying Plaintiff's voir dire questions;

(16) The trial court erred in denying Plaintiff's proposed jury instructions;

(17) The trial court erred in employing tactics designed to hinder Plaintiff's trial performance and by favoring Defendants at trial, and by its post-trial behavior.

In a July 2010 opinion and order, the trial court considered and rejected each of Plaintiff's arguments. Accordingly, the trial court denied Plaintiff's post-trial motions and directed the county prothonotary to enter judgment on the jury's verdict. Plaintiff appeals.

II. Issues

On appeal, Plaintiff contends the trial court erred in denying him a new trial. In his brief, Plaintiff raises the same 17 issues he raised before the trial court. Plaintiff also contends the trial judge abused his discretion by refusing to recuse from post-trial proceedings.

III. Discussion

A. Standard/Scope of Review

"When responding to a new trial, a trial court must follow a two-step process." Daddona v. Thind, 891 A.2d 786, 797 (Pa. Cmwlth. 2006) (citing Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000)). "First, it must decide whether one or more mistakes occurred at trial." Id. "Second, if the court concludes a mistake occurred, it must determine whether the mistake was a sufficient basis for granting a new trial." Id. "The harmless error doctrine underlies every decision to grant or deny a new trial." Id. "A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would rule differently; the moving party must show prejudice resulting from the mistake." Id.

"As an appellate court, to review the two-step process of the trial court for granting a new trial, we also employ a two prong analysis." Id. "First, we examine the decision of the trial court that a mistake occurred." Id. at 797-98. "If the alleged mistake involved an error of law, we must scrutinize for legal error." Id. at 798. "If, on the other hand, the alleged mistake involved a discretionary act, we must review for an abuse of discretion." Id. "If there were no mistakes at trial, we must affirm a decision by the trial court to deny a new trial as the trial court cannot order a new trial where no error of law or abuse of discretion occurred." Id.

B. Judicial Discretion

Many of the assigned errors fall within the judge's discretion in presiding over a trial. "In all civil litigation, the trial court possesses broad power and discretion to control the course of the trial." Dadonna, 891 A.2d at 800. A trial court is allowed wide discretion to exercise control over the conduct of counsel. Id. The judge's discretion, without abuse, must control. Id.

"Judicial discretion, broadly defined, is the option which a judge may exercise either to do or not to do that which is proposed to him." Gillespie v. Dep't of Transp., 886 A.2d 317, 319 (Pa. Cmwlth. 2005) (citation omitted). "As a guide to judicial action, it means a sound discretion exercised with due regard for what is right and equitable under the circumstances and under the law." Id. (emphasis added). "Abuse of discretion is not merely an error of judgment; however, if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or record, discretion is abused." Id. (emphasis deleted). With these principles in mind, we review Plaintiff's arguments.

C. Analysis of Issues

1. Denial of Continuance

Plaintiff first contends the trial court abused its discretion in denying his March 2009 request for a continuance due to his temporary transfer from SCI-Graterford, where his case files were located, to SCI-Pittsburgh, for approximately a month or two, to testify in another inmate's case. He asserts the denial of the continuance prejudiced him because he did not have enough time to adequately prepare for trial.

The decision to grant or deny a continuance falls exclusively within the trial court's discretion. Gillespie. In late October 2008, the trial court scheduled a jury trial for early April 2009. Nevertheless, Plaintiff voluntarily chose to testify in another inmate's case in Pittsburgh. Three weeks before trial, Plaintiff requested a continuance. Given the lengthy period of time Plaintiff had to prepare for trial, the late date of Plaintiff's continuance request, and his decision to testify in another trial in Pittsburgh regardless of the approaching April 2009 court date in his own trial, we discern no abuse of discretion by the trial court in denying Plaintiff a continuance.

2. Courtroom Security

Plaintiff next contends the trial court denied him a fair trial by allowing DOC to be in charge of security. This assignment of error wholly lacks merit, for several reasons.

We agree with the trial court that it is ludicrous to suggest the presence of uniformed DOC personnel in the courtroom prejudiced Plaintiff. See Trial Ct., Slip Op., 07/13/10, at 2-3. As the trial court observed, during Plaintiff's opening statement he informed the jury that the alleged assault on him occurred while he and his witnesses were state prison inmates in the RHU at SCI-Greene, a maximum security prison. Therefore, Plaintiff himself disclosed his custodial relationship with DOC.

The trial court also explained that the Greene County Sheriff's Office, with only five or six deputies, lacked sufficient resources to transport Plaintiff and his witnesses from SCI-Greene to the courthouse, furnish adequate security for the trial and perform the Sheriff's regular duties. This explanation is persuasive.

In addition, although Plaintiff was restrained by a stun belt worn under his clothing, he appeared in court in civilian clothes, with no visible means of restraint. Prejudice of this situation, therefore, is unclear at best.

Moreover, Plaintiff acknowledges the trial court instructed the jury not to consider any of the courtroom security measures in its deliberation. In sum, given all circumstances here, the trial court did not abuse its discretion or deny Plaintiff a fair trial by allowing uniformed DOC personnel to provide security during the trial. See, e.g., Sides v. Cherry, 609 F.3d 576 (3d Cir. 2010) (in determining whether to impose restraints on a prisoner plaintiff in a civil trial, the court must balance the prejudice to the prisoner plaintiff with need to maintain safety or security).

3. Housing at SCI-Greene

Plaintiff also asserts the trial court erred or abused its discretion by requiring Plaintiff's housing at SCI-Greene. He argues his return to SCI-Greene sabotaged his trial by triggering symptoms caused by his post-traumatic stress disorder (PTSD) and other psychiatric conditions.

In rejecting this argument, the trial court reasoned that even if Plaintiff's return to SCI-Greene made him uncomfortable, there is no competent evidence that it impeded his case. SCI-Greene, located about three miles from the courthouse, provided the best location to house Plaintiff.

Further, Plaintiff presented no medical or third-party evidence supporting any of his claims. As the trial court noted, most attorneys, particularly newer attorneys, experience such things as irritability, fear, lapses in concentration and inarticulateness at times during a trial. See Trial Ct., Slip Op., 07/13/10, at 4-5. We discern no error or abuse of discretion in the trial court's rejection of this argument.

4 & 5. Retaliation Witnesses & Evidence of Practice of Abuse

Next, Plaintiff argues the trial court erred in denying his request to present testimony from 13 inmate witnesses concerning SCI-Greene's practice of issuing false misconducts in retaliation for an inmate's filing of grievances or complaints. We disagree.

"Our Rules of Evidence vest the trial court with the authority to determine the admissibility of the evidence as well as to control the scope of examination." Rettger v. UPMC Shadyside, 991 A.2d 915, 925 (Pa. Super. 2010). Here, the trial court correctly observed that Plaintiff alleged excessive use of force and retaliation occurred on January 31, 2000. Only the three inmate witnesses called (Prevet, Jones and Legget) saw or heard anything on that date.

The other 13 inmate witnesses offered testimony about routine practices at SCI-Greene. Such testimony would have unduly lengthened the trial and would not help the jury understand what happened on the date in question. Moreover, this evidence was available from Plaintiff and from the three inmate witnesses who were permitted to testify. In sum, even if probative, any value of this cumulative testimony would be outweighed by its confusion of the issues and its needless waste of time. See Pa. R.E. 403 (relevant evidence may be excluded if its probative value is outweighed such dangers as: confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence). No error is evident.

6. DOC Policy Witnesses

Plaintiff further contends the trial court erred in denying his request to call certain DOC officials as witnesses. Plaintiff sought to call as witnesses: a former DOC Secretary (Jeffrey Beard), the SCI-Greene Superintendent (Louis Folino), a former SCI-Greene Superintendent (Conner Blaine, Jr.) and a DOC Hearing Officer (B.E. Ansell). Plaintiff sought to question these witnesses regarding DOC's use of force and inmate misconduct/disciplinary policies.

The trial court properly excluded this evidence. First, Captain Oddo and Major Winfield testified regarding DOC's use of force and inmate misconduct/disciplinary policies. Thus, any further similar evidence may be excluded as cumulative. Pa. R.E. 402; Rettger. More importantly, Defendants acknowledged that any use of OC spray without authorization from the shift commander would violate DOC's regulations and policies, and that there was no such authorization in this case. Consequently, DOC's policies were not in dispute.

7. Plaintiff's Record of Grievances

Also, Plaintiff asserts the trial court erred in refusing to admit his record of grievances, and the responses thereto, into evidence. We disagree.

The trial court properly excluded as irrelevant any grievance that did not deal with the events of January 31, 2000. Pa. R.E. 402; Rettger. These grievances may also be excluded as being confusing and misleading to the jury. Pa. R.E. 403; Rettger.

8. Impeachment of Plaintiff's Testimony

Plaintiff also contends the trial court erred in allowing Defendants' counsel to impeach his testimony with his amended pre-trial statement. See N.T. at 224-31. Plaintiff asserts Defendants' counsel's reference to his pre-trial statement constituted a ruse designed to "dupe" the jury making it appear he changed his story. See Plaintiff's Br. at 26-27.

Like the trial court, "We are not sure we understand this issue." See Trial Ct., Slip. Op., 07/13/10, at 7. On cross examination, Defendants' counsel asked Plaintiff whether his pre-trial statement set forth any claims or cause of action based on grievances unrelated to Defendants' actions on January 31, 2000. Counsel asked, "There's no where in that Pre-trial Statement that you talk about that five years of grievances that we spent all day yesterday talking about, right?" N.T. at 227. Plaintiff objected to Defendants' counsel "trying to list my claims in a Pre-Trial Narrative Statement." Id. at 227. The trial court overruled the objection. Id.

"All witnesses, whether called by plaintiff or defendant, may be impeached by the other side." Feingold v. Se. Pa. Transp. Auth., 488 A.2d 284, 290 (Pa. Super. 1985). It is not at all unusual during a trial that unanticipated testimony on one side may require impeachment by the other side. Id. Given Plaintiff's attempt to introduce his history of grievances into evidence, we discern no error by the trial court in permitting Defendants' counsel to inquire regarding the relationship of the prior grievances to the claims at trial.

9. Preparation of Witnesses

Next, Plaintiff argues the trial court erred in allowing Defendants' counsel to inquire whether Plaintiff talked to his witnesses prior to trial and to mention that during closing arguments.

We disagree. As the trial court observed, Plaintiff failed to object to Defendants' counsel's questions or closing argument. In order to preserve an issue for review, litigants must make timely and specific objections during trial. Harman. Granting or denying an untimely objection lies within the discretion of the trial court. Id. Here, the trial court did not err or abuse its discretion in rejecting Plaintiff's argument.

Moreover, counsel did nothing improper by mentioning to the jury that Plaintiff talked to his witnesses prior to trial. Indeed, this is a common area of questioning. Also, Plaintiff could have countered Defendants' arguments regarding his witnesses during his own closing argument. In short, we discern no error.

10. Defendants' Direct Examination of Plaintiff's Witnesses

Plaintiff challenges the trial court allowing Defendants' counsel to conduct direct examination of Defendant Moschetta during his case in chief.

Plaintiff called Moschetta as an adverse witness during his case in chief and asked her about her training and the misconduct report she issued on the day of the incident. See N.T. at 142-46. The trial court then permitted Defendants' counsel to present Defendant Moschetta's testimony regarding what happened during the incident.

A trial judge possesses broad power and discretion to control the course of the trial. Daddona. The trial court may permit witnesses to be called out of order; it has broad discretion in regulating the order in which testimony and evidence is presented. Pa. R.E. 611(a); Harsh v. Petroll, 840 A.2d 404 (Pa. Cmwlth. 2003). As the trial court noted, both Plaintiff and Moschetta were present during the incident and saw what happened. See N.T. at 145-46. The trial court did not abuse its discretion by permitting Defendants' counsel to present Moschetta's version of the incident during Plaintiff's case in chief.

11. Plaintiff's Rebuttal Evidence

Plaintiff also assigns error in the trial court denying his request to present rebuttal evidence challenging Major Winfield's testimony. She testified that OC spray cannot be used without authorization from the shift commander and that, to the best of her knowledge, corrections officers at SCI-Greene follow policies and procedures. Plaintiff asserts he had evidence of other inmate abuse by corrections officers at SCI-Greene.

The admission of rebuttal evidence is within the discretion of the trial judge. Daddona. The trial court did not abuse its discretion by excluding Plaintiff's "anything's possible" evidence. Such evidence is irrelevant and likely to confuse the jury. Pa. R.E. 402, 403.

12. Impeachment of Defendant Moschetta

In addition, Plaintiff contends the trial court erred in denying admission of evidence needed to impeach Defendant Moschetta's reputation for honesty. Moschetta testified she did not spray Plaintiff with a chemical agent on the date in question and that she never sprayed an inmate during her career. Plaintiff asserts he could present testimony from another inmate, Abdul Brown, who witnessed Defendant Moschetta in possession of a chemical agent on a prior occasion.

However, as the trial court noted, Plaintiff never proffered any testimony that Defendant Moschetta used chemical agents against inmates in the past. Any other impeachment testimony would have been collateral.

As a general rule, a witness's credibility may not be impeached by a collateral matter. Ra. R.E. 404(b)(1); (evidence of prior alleged acts of misconduct are not admissible to prove character of person); Brinich v. Jencka, 757 A.2d 388 (Pa. Super. 2000). Therefore, the trial court did not err or abuse its discretion in denying Plaintiff's request to present evidence of other alleged misconduct by Defendant Moschetta.

13. Plaintiff's Retaliation Claim

Plaintiff assails the trial court's failure to submit his retaliation claim to the jury. However, as discussed more fully below, Plaintiff's retaliation claim was presented to the jury in an "either/or" format. See Jury Questionnaire, 04/09/09, at 1-2. See also N.T. at 333-37 (jury instructions on the elements of Plaintiff's retaliation claim). Moreover, as the trial court observed, Plaintiff failed to object to the jury charge. Accordingly, this issue is waived. Pa. R.A.P. 302(b); Larch v. Haverford State Hosp., 620 A.2d 37 (Pa. Cmwlth. 1993).

Additionally, Plaintiff's assignment of error lacks merit. Had the jury found Defendant Moschetta used grossly excessive force against Plaintiff and Defendants Miller and Bowser failed to protect Plaintiff from an unlawful use of force, they would have answered the following questions:

3. (a) Do you find Defendant Shawn (Moschetta) Irey retaliated against Plaintiff for exercising a constitutionally protected right in retaliation to the alleged events of January 31, 2000?


Yes ___ No ___

(b) Do you find Defendant Steven Miller retaliated against Plaintiff for exercising a constitutionally protected right in retaliation to the alleged events of January 31, 2000?


Yes ___ No ___

(c) Do you find Defendant David Bowser retaliated against Plaintiff for exercising a constitutionally protected right in retaliation to the alleged events of January 31, 2000?


Yes ___ No ___
Jury Questionnaire, 04/09/09, at 1-2.

A trial court is vested with substantial discretion in fashioning a jury charge. Rettger. Unless the charge misstates the law or mischaracterizes the evidence in a way that undermines the accuracy of the verdict, we will not interfere with the trial court's discretion. Id.

There are three elements to a prison retaliation claim. An inmate must establish that he engaged in constitutionally protected conduct, that prison officials took adverse action and that the protected conduct was a substantial or motivating factor for the action. Yount v. Dep't of Corr., 600 Pa. 418, 966 A.2d 1115 (2009). "'Adverse action' for purposes of evaluating an inmate's retaliation claim is one which is sufficient to deter a person of ordinary firmness from exercising his [constitutional rights.]" Id. at 428, 966 A.2d at 1121 (citation omitted). Further, given the potential for abuse in retaliation claims, an inmate must show that the action against him lacked any legitimate penological justification. Id.

Here, we discern no abuse of discretion in presenting Plaintiff's retaliation claim in an "either/or" format. This is because Plaintiff's retaliation claim was based on the same operative facts as the excessive force claim. Both claims were predicated on Plaintiff's version of what happened during the incident: Defendants took adverse action against Plaintiff by assaulting him and filing false misconduct reports. Plaintiff's version of what happened depended entirely on his credibility and the credibility of three other inmates of the RHU at SCI-Greene.

In reviewing a denial of a motion for new trial, a court "must consider the evidence in the light most favorable to the verdict winner." Stong v. Commonwealth, 817 A.2d 576, 582 (Pa. Cmwlth. 2003). In addition, credibility determinations are within the province of the jury. Id. Here, the jury found Defendant Moschetta did not use excessive force. Reviewing the evidence in a light most favorable to Defendants, it is clear that the jury accepted Defendants' version of the incident and found that Defendants did not assault Plaintiff.

On the basis of the same review of the evidence, Defendants established a legitimate reason for issuing a misconduct report against Plaintiff. Using abusive language, Plaintiff threatened Defendant Moschetta during the incident. He told her she "would pay" the next time she opened his tray slot. As the jury obviously accepted this version of events, it determined Defendants were reacting to Plaintiff's conduct on the day of the incident, rather than reacting to past grievances Plaintiff filed. Thus, even after a merits review, no error is apparent on this issue.

14. Defendant Moschetta's Military Service

Next, Plaintiff contends the trial court erred in informing the jury of Defendant Moschetta's military service. Plaintiff asserts evidence of a party's military service is character evidence which is generally inadmissible in civil actions. See Greenberg v. Aetna Ins. Co., 427 Pa. 494, 235 A.2d 582 (1967) (testimony of plaintiff's heroic record in World War II improperly admitted where plaintiff's character was not at issue).

Here, in response to a jury question as to why the case took so long to come to trial, the trial judge, over Plaintiff's objection, told the jury that Defendant Moschetta's National Guard unit was called to active duty in Iraq. See N.T. at 349-52. Under the Servicemember Civil Relief Act, a lawsuit cannot proceed against a servicemember who is overseas. Here, answering the jury's question was not error.

See 50 App. U.S.C. §522.

Plaintiff's reliance on Greenberg is misplaced. In this case the trial court did not comment on, and no one testified about, Moschetta's military service. Thus, Plaintiff's argument that he was unfairly prejudiced by the trial court's reference to Moschetta's military service lacks any merit.

15. Voir Dire

Also, Plaintiff asserts the trial court erred in placing limitations on his voir dire questions. He contends the trial court failed to allow crucial questions designed to obtain the potential jurors views toward, among other things, African Americans, club memberships, political associations and military service.

A trial court has broad discretion in determining the procedure, scope and manner of the voir dire examination. Mansour v. Linganna, 787 A.2d 443 (Pa. Super. 2001). Absent obvious error, the trial judge's decisions will not be reversed. Id.

Voir dire is not intended to provide parties with a better basis upon which to exercise peremptory challenges; rather, it contemplates the use of probing questions that uncover bias and facilitate the exercise of challenges for cause. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988); Commonwealth v. Sweeney, 464 Pa. 425, 347 A.2d 286 (1975).

Here, the trial court found a number of Plaintiff's 34 proposed questions (Plaintiff's Br. at 43-44) redundant and irrelevant to a determination of whether a juror had a fixed opinion or was otherwise subject to be dismissal.

Our careful review of the jury selection transcript indicates the trial judge adequately questioned the potential jurors during voir dire regarding Plaintiff's concerns. In particular, he asked them whether they would be more inclined to believe one witness over another because of their race, or because of their status as police officers, corrections offices or prison inmates. The questions asked were sufficient to provide Plaintiff with a competent, fair and impartial jury. We discern no abuse of discretion by the trial judge in limiting Plaintiff's voir dire questions. Mansour.

16. Proposed Jury Instructions

Plaintiff further challenges the trial court's denial of his proposed jury instructions on impeachment of Defendant Moschetta, on the existence of a continuing practice of retaliation at SCI-Greene, and on punitive damages. We disagree.

Regarding the impeachment of Defendant Moschetta's testimony, the trial court gave the standard jury instructions on burden of proof, credibility of witnesses and the resolution of conflicting testimony. See N.T. at 324-29. No error is evident.

As to retaliation, the trial court adequately instructed the jury on alleged retaliation by Defendants against Plaintiff on January 31, 2000 for filing grievances. See id. at 333-37. Plaintiff did not present any evidence that Defendants retaliated against him prior to the incident for filing grievances. Again, no error is evident.

Regarding punitive damages, a trial court enjoys broad discretion to determine whether a plaintiff presented sufficient evidence of outrageous conduct to support an award of punitive damages. Lesoon v. Metro. Life Ins. Co., 898 A.2d 620 (Pa. Super. 2006). Punitive damages are properly assessed where a party's actions are so outrageous as to show intentional, willful, wanton or reckless conduct resulting from either an evil motive or a reckless indifference to the rights of others. Id.

The trial court explained that Plaintiff's proof did not satisfy the requirement of outrageous conduct. This was primarily because there was no proof of physical injury, medical treatment, or even a change of activities for Plaintiff. Thus, the supposed effect of Defendants' alleged conduct was minimal. Also, Plaintiff offered proof that false misconduct reports and racial slurs were routine events, not the extraordinary occurrences which justify punitive damages. Reviewing the transcripts, we agree with the trial court's assessment.

Even assuming Plaintiff presented evidence of outrageous conduct, the jury clearly rejected his evidence and entered a verdict in favor of Defendants on his claim of excessive use of force. Thus, consideration of damages was unnecessary, and the trial court's failure to instruct on punitive damages constituted, at most, harmless error. Daddona.

17. Trial Court Bias

Plaintiff asserts the trial judge denied him a fair trial by employing tactics designed to hinder Plaintiff's trial performance and by favoring Defendants at trial, and by his post-trial behavior. Trial judges should avoid any conduct that gives the appearance of bias or prejudice. Harman. Impartiality of the trial court is fundamental to our judicial system. Id.

"In this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself/herself the symptoms of bias and prejudice." Borough of Kennet Square v. Lal, 645 A.2d 474, 478 (Pa. Cmwlth. 1994). Bias, for purposes of disqualification of a judge, refers to an inclination or disposition toward a party in the litigation which sways judgment to one side and renders the judge unable to exercise his functions in an impartial manner. Sherman v. Kaiser, 664 A.2d 221 (Pa. Cmwlth. 1995). "A mere adverse ruling, without more, does not demonstrate the bias required for a recusal to be granted." Commonwealth v. Miller, 541 Pa. 531, 554, 664 A.2d 1310, 1321 (1995).

Here, Plaintiff enumerates 20 "inappropriate acts" by the trial judge that demonstrate his alleged bias that resulted in an unfair trial. See Plaintiff's Br. at 51-53. We reviewed each of Plaintiff's assertions, and we agree with the trial court that Plaintiff's assertions of bias lack merit. In its opinion, the trial court stated:

Plaintiff complains that, inter alia, we ordered Plaintiff's witnesses to appear in prison garb. This of course is not true. We did not order them to appear in civilian clothes, for reasons discussed, supra.

Plaintiff complains that we did not order Plaintiff to have the opportunity to interview his witnesses prior to trial. He seems to believe that he is entitled to some special consideration because he and witnesses are inmates are in the custody of the Department of Corrections. Whatever impediments Plaintiffs [sic] has in preparing and prosecuting his case were caused by the legitimate security concerns of the Department of Corrections, to whose care and custody Plaintiff and his witnesses were committed with due process of law. Having launched civil litigation in an attempt to obtain compensatory and punitive damages, that is money, he must operate within the rules of civil procedure and the regulations of the Department of Corrections.

Plaintiff complains that we prohibited him from reading his statement. This ruling was an attempt to help Plaintiff. He apparently has never seen the effect on a jury of being read to. Ordering him to testify rather than read his statement helped to keep the jury involved and attentive.

Plaintiff complains that we allowed hostile witnesses to be unresponsive. The obvious response to this complaint is to suggest that Plaintiff lacks the interrogation skills to act as his own attorney.

The balance of the points raised by Plaintiff in his request for post-trial relief are discussed in other parts of this Opinion. We note however, that a consistent thread in these objections is to blame the court for what most objective observers would consider to be a failure of
advocacy. Any gap in the record Plaintiff believes to be sabotage rather than his failure to make a record. Any failure to object to unfavorable rulings was caused by Plaintiff's mental condition, as a result of abuse by DOC personnel or bias from this court rather than his own inadvertence or ignorance. In fact, none of these objections have merit.

Plaintiff filed a lawsuit. The defendants responded. A jury was summoned. The parties offered testimony and evidence for the jury to consider. The jury deliberated and then found in favor of the defendants. There was nothing unfair or improper about the trial or the verdict.
Trial Ct., Slip. Op., 07/13/10, at 12-14.

As discussed above, the trial court possesses broad power and discretion to control the course of the trial. Daddona. Nothing in the rulings or actions challenged by Plaintiff indicate the trial court abused its discretion or failed to act in an impartial manner. Consequently, Plaintiff's assertions of bias lack merit. Id.

D. Recusal

As a final matter, we address Plaintiff's contention that the trial judge abused his discretion by refusing to recuse himself from post-trial proceedings. In a motion for recusal following the verdict, Plaintiff raised essentially the same arguments he later raised in his post-trial motions and subsequent appeal to this Court. See Plaintiff's Motion for Recusal, 04/14/09 (C.R., Item No. 26). By order dated December 9, 2009, the trial court denied Plaintiff's motion. See C.R., Item No.13.

"Before it can be said that a judge should have recused himself, the record must clearly show prejudice, bias, capricious disbelief or prejudgment." Dunn v. Bd. of Prop. Assessment Appeals & Review of Allegheny County, 877 A.2d 504, 517 (Pa. Cmwlth. 2005). "In addition, it is well settled that a party seeking recusal or disqualification of a trial judge must raise the objection at the earliest possible moment or the claim will be regarded as time barred." Id. "Moreover, the ultimate decision on recusal is within the sound discretion of the jurist whose recusal is sought." Id. "Thus, the propriety of the trial court's ruling on a motion to recuse is reviewed under an abuse of discretion standard." Id.

For the reasons discussed above, we discern nothing in record that indicates the trial judge abused his discretion or failed to act in an impartial manner. Adverse rulings, without more, do not establish the bias required for a recusal. Miller. Consequently, Plaintiff's assertion that the trial judge abused his discretion by failing to recuse from post-trial motions is completely devoid of merit. Id.

E. Conclusion

For the above reasons, we affirm the trial court's denial of Plaintiff's post-trial motions.

/s/_________

ROBERT SIMPSON, Judge ORDER

AND NOW, this 12th day of July, 2011, for the reasons in the foregoing opinion, the order of the Court of Common Pleas of Greene County denying Appellant Alton D. Brown's motions for post-trial relief is AFFIRMED.

/s/_________

ROBERT SIMPSON, Judge


Summaries of

Brown v. Moschetta

COMMONWEALTH COURT OF PENNSYLVANIA
Jul 12, 2011
No. 1666 C.D. 2010 (Pa. Cmmw. Ct. Jul. 12, 2011)
Case details for

Brown v. Moschetta

Case Details

Full title:Alton D. Brown, Appellant v. S. E. Moschetta, S. W. Miller, and Officer…

Court:COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Jul 12, 2011

Citations

No. 1666 C.D. 2010 (Pa. Cmmw. Ct. Jul. 12, 2011)