Opinion
No. 1778 C.D. 2011
06-06-2012
Almalik Lucas, Appellant v. City of Philadelphia and Philadelphia Police Department and Police Officer Jose Ramon #4035 and Police Officer Ryan Murphy #7298 and John Does I-X
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Almalik Lucas (Lucas) asks whether the Court of Common Pleas of Philadelphia County (trial court) erred in granting summary judgment in favor of Philadelphia Police Officers Jose Roman (Officer Roman) and Ryan Murphy (Officer Murphy) (collectively, the Officers) and dismissing his claims arising from the Officers' alleged use of excessive force against him. Specifically, Lucas contends genuine issues of material fact remain in dispute, and the trial court erred in considering Officer Murphy's affidavit under Nanty-Glo Borough v. American Surety Company, 309 Pa. 236, 163 A. 523 (1932).
I. Background
In October 2005, the Officers observed Lucas in what they believed was a stolen car and decided to further investigate. The Officers' investigation led to a foot-chase and then a scuffle between Officer Roman and Lucas. Ultimately, the incident ended when Officer Murphy shot Lucas three times at close range, which, in turn, led to both Lucas's hospitalization and arrest.
After further investigation, the Officers learned that Lucas was subject to an outstanding arrest warrant related to an attempted murder for a shooting, to which he subsequently pled guilty. Thereafter, Lucas was charged with aggravated assault and theft arising from his struggle with Officer Roman.
Thereafter, Lucas filed a tort action for assault and battery against the City of Philadelphia, the Philadelphia Police Department, Officer Roman, Officer Murphy, and an unknown number of John Does (collectively, the Defendants). Specifically, he alleged the Officers used excessive force in apprehending him, particularly when Officer Murphy shot him. The trial court placed Lucas's suit in deferred status based on his incarceration for attempted murder.
In July 2009, Lucas pled guilty to the aggravated assault of Officer Roman and the attempted theft of Officer Roman's service weapon for his conduct during his 2005 arrest. At the guilty plea hearing, the prosecution described the incident for the record.
We summarize the facts pertinent to this appeal accordingly.
• On the evening of October 2, 2005, Officer Roman and Officer Murphy were patrolling a high-stolen car area in plain clothes and
in an unmarked police car. As they patrolled, they saw Lucas exiting a car, which was parked in the wrong direction on the street and lacked a license plate.
• At that time, Officer Roman got out of the car, wearing his identification around his neck, and approached Lucas to investigate what they believed to be a stolen car. As he approached, Officer Roman identified himself as a police officer. Lucas turned, and started walking away. When Lucas reached the corner he began running. Officer Roman immediately pursued. As Officer Roman chased on foot, Officer Murphy drove around the block to cut Lucas off.
• Eventually, Officer Roman grabbed Lucas as he attempted to scale a fence. Lucas was substantially heavier and taller than Officer Roman. While Officer Roman pulled Lucas down, Lucas turned and grabbed Officer Roman's gun from his hip holster. A struggle over the gun ensued.
• During the scuffle, Officer Roman got his finger on the trigger and discharged his weapon in an attempt to cause Lucas to recoil. His attempt failed, and Lucas bit his hand. As the struggle continued, Officer Roman twisted his ankle and fell and yelled, "[h]e's got my gun, he's got my gun." Supplemental Reproduced Record (S.R.R.) at 38b.
• At that time, Officer Murphy jumped over the fence, and ordered Lucas to drop the gun. Lucas did not comply. Officer Murphy shot Lucas three times at close range. Lucas and Officer Roman fell in opposite directions, and Officer Roman secured his weapon. The Officers immediately called for medical aid.
After hearing the facts, Lucas agreed to their completeness and correctness. Thereafter, the trial court accepted his guilty plea and sentenced him to a term of 8 ½ to 17 years of incarceration.
In 2011, the trial court removed Lucas's civil suit from deferred status. Thereafter, the Defendants moved for summary judgment based on governmental immunity. As supporting evidence, the Defendants submitted Lucas's complaint, the guilty plea hearing transcript, and an affidavit from Officer Murphy. In Officer Murphy's affidavit, he stated, in addition to the previously agreed upon facts, that at the time he fired his weapon he believed Officers' lives were in danger.
Based on the record, which primarily consisted of the facts Lucas agreed to at his guilty plea hearing, the trial court determined there were no genuine issues of material fact in dispute. Additionally, addressing the merits, the trial court determined the Officers were immune from liability as each acted within the scope of his duties as a police officer, and that neither used excessive force. Lucas appeals to this Court.
The trial court also determined the City of Philadelphia was immune from liability, and that the Philadelphia Police Department could not be sued as an entity independent from the City of Philadelphia. The claims against the John Does were also dismissed. These conclusions are not at issue in this appeal.
II. Issues
On appeal, Lucas contends important details of the October 2005 incident remain in dispute. Specifically, Lucas points to gaps in the agreed upon narrative, such as: the parties' exact positions, the amount of time that elapsed, the lack of medical and ballistic evidence, and whether Lucas actually had control of Officer Roman's gun or heard the order to drop it. Additionally, Lucas argues facts regarding Officer Murphy's intent, and why he shot three times instead of once, remain in dispute as the only evidence submitted on those issues was Officer Murphy's self-serving affidavit. As such, Lucas argues the trial court erred in entering summary judgment.
In response, the Officers contend the facts Lucas stipulated to at his guilty plea hearing are sufficient grounds to grant summary judgment regardless of Officer Murphy's affidavit. Additionally, the Officers argue Lucas waived both issues, i.e., (1) whether genuine issues of material fact are in dispute, and (2) whether Officer Murphy's affidavit is not conclusive under Nanty-Glo.
III. Discussion
A. Waiver
It is beyond argument that a non-jurisdictional issue not raised before the trial court will not be considered on appeal. Pa. R.A.P. 302; Dollar Bank v. Swartz, 540 Pa. 369, 657 A.2d 1242 (1995). To preserve an issue, a party must make a timely objection to the trial court and raise the issue at all relevant times. Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (1993).
Here, Lucas consistently argued that material facts remained in dispute and that the facts agreed upon at his guilty plea hearing are not dispositive. Therefore, his primary contention was preserved. See Dollar Bank. However, Lucas's objection to the admission and consideration of Officer Murphy's affidavit pursuant to Nanty-Glo was not presented to the trial court; therefore, it is waived.
Additionally, for the following reasons Lucas's argument (that Officer Murphy's affidavit was improperly considered) is meritless. First, the trial court did not rely on Officer Murphy's affidavit. Second, as discussed below, the trial court did not need to consider Officer Murphy's state of mind in determining whether his use of force was excessive. See Moody v. Phila. Hous. Auth., 673 A.2d 14 (Pa. Cmwlth. 1996) (whether a police officer used excessive force is a question of whether the amount of force was objectively reasonable without regard to the officer's state of mind). Third, it appears the Defendants submitted Officer Murphy's affidavit to prove it was justified under 18 Pa. C.S. §508 (justified use of lethal force), which was not a ground for the trial court's decision.
B. Summary Judgment
Our review of a trial court's order granting summary judgment is limited to deciding whether the court committed an error of law or abused its discretion. Boro. of Pitcairn v. Westwood, 848 A.2d 158 (Pa. Cmwlth. 2004). Summary judgment is appropriate when, after viewing the record in the light most favorable to the non-moving party, it is determined that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. The material facts alleged in a suit claiming excessive force are for a jury to determine; whether, based on those facts, a police officer's actions were objectively reasonable is a question of law. Carswell v. Boro. of Homestead, 381 F.3d 235 (3d Cir. 2004).
Summary judgment may be granted when the pleadings, depositions, answers to interrogatories, and admissions and affidavits show there is no genuine issue of material fact in dispute as to any element of a cause of action or defense, and the moving party is entitled to a judgment as a matter of law. Pa. R.C.P. Nos. 1035.1-1035.2; Guy M. Cooper, Inc. v. Bilt-Rite Contractors, Inc., 903 A.2d 608 (Pa. Cmwlth. 2006).
1. Governmental Immunity Defense
Local agencies are granted governmental immunity from liability for injury to person or property caused by the local agency or its employees, subject to exceptions, under 42 Pa. C.S. §§ 8541-8542. Renk v. City of Pitts., 537 Pa. 68, 641 A.2d 289 (1994). Likewise, a local agency employee, acting within the scope of his office or duty, is cloaked with immunity to the same extent as the agency. Id. However, an employee's immunity does not extend to damages resulting from crime, actual fraud, actual malice, or willful misconduct. 42 Pa. C.S. §8550; Kuzel v. Twp. of N. Huntingdon, 658 A.2d 856 (Pa. Cmwlth. 1995).
Where a plaintiff alleges assault and battery against a police officer, he must establish the officer acted outside the scope of his job, i.e., committed willful misconduct. Renk. For police officers, such willful misconduct is established by showing the officer not only intentionally used force, but intentionally used excessive force. Id. This heightened standard, willful misconduct aforethought, shields police officers from liability for damages incidental to police operations, which may otherwise constitute an intentional tort if committed by a private citizen. Id.
The question of whether an officer used excessive force requires determining whether the force used was objectively reasonable in light of the surrounding facts and circumstances. Moody v. Phila. Hous. Auth., 673 A.2d 14 (Pa. Cmwlth. 1996). Relevant considerations include, "whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting or attempting to evade arrest by flight." Graham v. Conner, 490 U.S. 386, 396 (1989) (considering excessive force claims under 42 U.S.C. §1983). If a police officer uses reasonable force in making a lawful arrest, he cannot be liable for assault and battery. Renk.
Claims against police officers for excessive use of force are typically brought in federal court under the Fourth Amendment pursuant to 42 U.S.C. §1983. See Jones v. City of Phila., 68 Pa. D. & C.4th 47 (C.P. Phila. 2004), reversed, 890 A.2d 1188 (Pa. Cmwlth. 2006) (noting the same).
Thus, where, as here, a defendant asserts the defense of governmental immunity, the material facts necessary are those that describe the circumstances in which the government employee intentionally used force on the plaintiff and the amount of force used.
2. The Effect of a Guilty Plea Colloquy
When accepting a guilty plea, a trial court must determine whether there is a factual basis for the plea. Pa.R.Crim.P. 319. In other words, the trial court must consider whether the defendant acknowledges facts that constitute an offense. Id. By acknowledging the facts of an offense during his guilty plea colloquy, the defendant also accepts the legal consequence of those facts. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). Specifically, by pleading guilty to a non-summary offense, and admitting to the facts of the crime, a defendant is precluded from re-litigating those stipulated facts in a subsequent suit. Id.; Dep't of Transp. v. Mitchell, 517 Pa. 203, 535 A.2d 581 (1987); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965); Hawkins v. Unemployment Comp. Bd. of Review, 695 A.2d 963 (Pa. Cmwlth. 1997). See also In re Adoption of S.A.J., 575 Pa. 624, 838 A.2d 616 (2003) (admissions contained in a stipulation constitute a judicial admission in subsequent litigation).
Our Supreme Court's analysis in Mitchell is instructive on this issue. In Mitchell, the Department of Transportation (DOT) sought damages against the defendants for making fraudulent misrepresentations to DOT when securing a government contract. Prior to DOT's civil suit, the defendants entered into a negotiated guilty plea to a federal indictment arising out of their use of the mail to carry out their fraudulent scheme against DOT. Thereafter, based on the guilty plea to the facts in the indictment, DOT filed a motion for summary judgment, which the trial court granted. Ultimately, our Supreme Court affirmed stating in pertinent part:
[s]ince [a] criminal conviction may be used to establish the operative facts in a subsequent civil case based on those same facts ... and since a guilty plea constitutes an admission to all the facts averred in the indictment ... which [the defendant] admitted in any event, the lower court in this case was correct in granting summary judgment.Id. at 214, 535 A.2d at 586 (internal citations omitted).
Here, like in Mitchell, Lucas entered a negotiated guilty plea. Before the trial court accepted his plea, the prosecutor described the facts that formed the basis for the charges into the record. S.R.R. at 38b-39b. Lucas agreed with the facts as read and conceded he had nothing to add. Id. at 39b. Thus, Lucas is precluded from litigating those facts in this suit. Mitchell. Therefore, because the circumstances surrounding Lucas's arrest were previously established during his guilty plea hearing, no material facts remain in dispute.
Specifically, the following exchange occurred:
[Prosecutor]: ...I just want to make sure ... [Lucas] agrees to the factual scenario, whether there are any objections or if there's anything he needs to add.
[Lucas's Attorney]: No, Your Honor.
* * *
[Lucas's Attorney]: ...my client does agree with the factual scenario. Just to clarify, he does agree with the factual scenario.
Next, we consider the merits of the Defendants' motion for summary judgment. Here, as to Officer Roman, the facts do not support that he used any more force than was necessary to apprehend Lucas. Specifically, Officer Roman's use of force was limited to pulling Lucas down from a fence, and wrestling with him in an attempt to secure his service weapon. Clearly, Officer Roman's actions were objectively reasonable; therefore, he is immune from suit. See Renk (striking a suspect during a scuffle is reasonable). Cf. Keenan v. City of Phila., 936 A.2d 566 (Pa. Cmwlth. 2007) (hitting an already detained suspect is unreasonable).
Likewise, in light of the exigent circumstances Officer Murphy faced, his use of force was not excessive. In pursuing Lucas, Officer Murphy observed his partner in a losing struggle with a much larger man who was attempting to evade police custody. S.R.R. at 38b. Additionally, after already hearing one gunshot, Officer Murphy heard his partner yell, "he's got my gun, he's got my gun." Id. Officer Roman commanded Lucas to drop the weapon, which he did not do. Id. At that time, he fired three rounds at Lucas, which allowed Officer Roman to separate and secure his weapon. Id. Such quick action by a police officer was objectively reasonable; therefore, it was not excessive. Lamont v. New Jersey, 637 F.3d 177 (3d Cir. 2011) (shooting a suspect was not excessive force where he appeared to be drawing a gun during a chase).
IV. Conclusion
In order for Lucas to establish the Officers committed willful misconduct, he must prove the Officers intended and used objectively unreasonable force. See Kuzel; Moody. Here, the undisputed material facts support the trial court's determination that both officers used a reasonable amount of force in placing Lucas in custody under the circumstances. See Renk; see, e.g., Lamont. Therefore, as Lucas is unable to establish the Officers committed willful misconduct, each is entitled to governmental immunity. Thus, the trial court did not err in granting the Officers' motion for summary judgment.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 6th day of June, 2012, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge
Supplemental Reproduced Record at 39b.