                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 17-2004


                          UNITED STATES OF AMERICA

                                          v.

                               LUCAS SUMLER,
                                     Appellant
                   ____________________________________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                    (D.C. Crim. Action No. 2-16-cr-00218-001)
                       District Judge: Honorable Esther Salas
                    ____________________________________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                January 23, 2018

               Before: GREENAWAY, JR., KRAUSE, Circuit Judges,
                          and JONES, District Judge.*

                          (Opinion filed: February 15, 2018)




      *
         The Honorable John E. Jones, III, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
                                          OPINION


JONES, District Judge.

          Lucas Sumler was convicted following a two-day jury trial for possession of a

weapon by a convicted felon, in violation of 18 U.S.C. § 922(g). Sumler appeals the final

judgment of conviction, entered on April 24, 2017, arguing that the District Court erred

in two rulings regarding the admissibility of testimony from a police officer. We will

affirm.

I.        Background

          Sumler was arrested on March 25, 2016 near the Dayton Townhouses in Newark,

New Jersey. The Dayton Townhouses have direct access to a grass alleyway leading to a

fence that separates the complex from the bordering town of Elizabeth, New Jersey. As

part of their evening patrol, Detectives Stephen Perez and Steven Dellavalle positioned

themselves in front of the fence bordering the towns. Prior to this particular evening,

Detective Dellavalle had received an anonymous tip that individuals used the fence to

flee law enforcement.

          From their position near the fence, the Detectives observed Sumler and others

gathered near one of the townhouses. The Detectives relayed their observations to two

other detectives, who sat in unmarked police vehicles nearby. After receiving the


          
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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information from Detectives Perez and Dellavalle, both cars drove towards the group of

people from different directions. As the vehicles approached, Sumler walked away from

the group. He then ran towards the fence where Detectives Perez and Dellavalle were

positioned.

       According to the testimony offered at trial, Sumler stopped and pulled out a loaded

firearm when he saw the Detectives by the fence. Both Detectives drew their weapons

and pointed them at Sumler. Sumler threw the firearm and ran in the opposite direction.

He was arrested shortly thereafter and a firearm was recovered from nearby.

       Before trial, Sumler moved to exclude as hearsay any testimony that Detective

Perez received a tip or an intelligence report that people used the fence behind the Dayton

Townhouses to flee from the police.1 Though Sumler’s primary objection was that the

testimony constitutes hearsay, he devoted most of his discussion to argue that the

testimony was unreliable and prejudicial in suggesting that the fence was used by



1
  The transcript of Sumler’s pre-trial motion argument is somewhat vague because his
arguments could be read to pertain to testimony from either Detective Perez or
Dellavalle, or perhaps both. At various points both Sumler and the District Court are
clearly referring to one specific person, see App. 27 (“If he wants to say …”), 29 (“I will
permit him to say. . .”), and at times the District Court refers to both officers, see App. 30
(“I will permit the officers to testify . . . .”). However, in his brief in support and brief in
reply for his appeal, Sumler only references Detective Perez’s testimony. Further, Sumler
makes clear that his pre-trial arguments were focused on Detective Perez when he quotes
the transcript of those proceedings and adds “Officer Perez” in brackets to clarify who he
was referring to when he stated “he” during his pre-trial motion argument. Appellant’s
Reply Br. 3. Sumler also does not respond to Appellee’s contention that Detective
Perez’s testimony was cumulative of Detective Dellavalle’s, which Sumler “does not
challenge [] on appeal.” Appellee’s Br. 15. Given all of this, we construe Sumler’s pre-
trial motion, and the District Court’s ruling on said motion, to pertain to the testimony of
Detective Perez.
                                               3
individuals to evade the police. Sumler maintained, “[i]t is the escape word that bothers

me. I have no problem with, if it is something more generic but would give the officer an

opportunity to explain it is an area people can go in and out of.” App. 28. The District

Court denied the motion, ruling that “it is not hearsay.” App. 29. Regarding prejudice, the

District Court concluded that the testimony is fair to “explain why the officers positioned

themselves on foot.” App. 30. The District Court commented that it was “not sure the

word escape is inordinately prejudicial, but [] understand[s] your concern with the word

escape and provided that we can get that conveyed to the jury without using necessarily

the word escape, I think it is fair testimony for this jury to receive.” App. 29-30.

       The prosecution agreed to avoid using the phrase “escape route.” During Detective

Perez’s testimony at trial, Sumler renewed his objection that the testimony was unduly

prejudicial. Sumler argued that the word “escape” “is not probative of anything,” though

the jury can get “the information that people use that as a way to exit the complex.” App.

118. The District Court recognized that the word escape “[f]rankly, is [] prejudicial”, but

overruled his objection under Federal Rule of Evidence 403. App. 118. The testimony

ultimately elicited by the prosecutor from Detective Perez is as follows:

          Q:         Detective, that area that you and Detective Dellavalle positioned
                     yourself at, isn’t it true that you had received information that that
                     specific area had been used by people to exit the complex?
          A:         That’s correct.
          Q:         And to evade the police?
          A:         Yes.
          Q:         And before that date, had you yourself seen people use that as an
                     exit to evade the police?
          A:         Yes, I have.

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          Q:         And approximately how many times?
          A:         Approximately five times.

App. 119. At the time of Detective Perez’s testimony, Detective Dellavalle had already

testified that he and Detective Perez positioned themselves where they had because he

had “received information that that grassy gap area is used by people who want to avoid

apprehension by the police.” App. 67. Sumler did not object to this portion of Detective

Dellavalle’s testimony.

       The jury ultimately found Sumler guilty of unlawful possession of a firearm by a

felon, and he was sentenced to 105 months in prison and a three-year term of supervised

release. This appeal followed.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review of the

District Court’s determination as to whether the officer’s testimony is hearsay is plenary.

United States v. Donley, 878 F.2d 735, 737 (3d Cir. 1989). We review whether the

evidence should have been excluded as unduly prejudicial under Rule 403 for abuse of

discretion. Id. However, “we do not afford [a] court the deference normally afforded

when we review for abuse of discretion if the district court failed to engage in on-the-

record balancing.” United States v. Bailey, 840 F.3d 99, 117 (3d Cir. 2016). Even if we

find that the District Court’s evidentiary ruling was in error, we must consider the

harmless error doctrine: “A non-constitutional error at trial does not warrant reversal

where ‘it is highly probable that the error did not contribute to the judgment.’” United

                                             5
States v. Stadtmauer, 620 F.3d 238, 265–66 (3d Cir. 2010) (quoting United States v.

Helbling, 209 F.3d 226, 241 (3d Cir. 2000)).

III.   Discussion

       Sumler appeals his final judgment of conviction and argues that the District Court

committed error in its two rulings regarding the admissibility of Detective Perez’s

testimony. First, Sumler argues that the District Court erred in its pre-trial ruling that the

testimony was not hearsay. Second, Sumler argues that the Court failed to engage in the

proper balancing analysis under Rule 403 in its resolution of his objection to Detective

Perez’s testimony at trial, and that the probative value of the testimony was substantially

outweighed by the potential for prejudice. We will address each argument in turn and, for

the reasons that follow, we will affirm.

       A. Hearsay

       Rule 801(c) defines hearsay as a statement, other than one made by the declarant

while testifying at the trial or hearing, “offer[ed] in evidence to prove the truth of the

matter asserted.” Fed. R. Evid. 801(c). The District Court ruled that Detective Perez’s

testimony was not hearsay because it was offered to “explain why the officers positioned

themselves on foot.” App. 30. We see no error in the District Court’s determination of the

purpose of the statement. Certainly, its purpose was not to persuade the jury of the truth

that others in the past have used the fence behind the Dayton Townhouses to flee from

the police. It was for the jury to understand why Detectives Perez and Dellavalle were

standing in the dark by the fence on the night of Sumler’s arrest.



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       In United States v. Sallins, we cautioned that “[w]hile officers generally should be

allowed to explain the context in which they act, the use of out-of-court statements to

show background has been identified as an area of ‘widespread abuse.’” 993 F.2d 344,

346 (3d Cir. 1993) (quoting 2 McCormick on Evidence § 249, at 104 (4th ed. 1992)).

Sumler invokes Sallins and argues that admission of Detective Perez’s statement under

the guise of background information was an abuse. To this end, Sumler argues that the

District Court admitted “too much unnecessary background information.” Appellant’s Br.

25. Sumler contends that the only background information necessary would have been

that the fence was an area in which people can go in and out; the additional out-of-court

statement that people used the fence to flee from the police was not essential to further

explain the Detectives’ actions.

       This case is distinguishable from Sallins. There, the trial court admitted the

contents of a 911 call that described a “black male wearing all black clothing carrying a

gun” at a certain location. Sallins, 993 F.2d at 347. Police responded by speeding to the

location and there observed the defendant throw an object that appeared to be a gun and

run. Id. at 345. The prosecution repeatedly “used the contents of the radio call to prove

the truth of the matter asserted, that there was a black man wearing all black clothes with

a gun at the place and time in question, as well as to establish the implied fact that [the

defendant] was the man with the gun.” Id. at 347. The describing information was

unnecessary to explain why the officers pursued the defendant because they testified that

they saw him throw what appeared to be a gun; in pursuing the defendant, they were not

acting because of the contents of the 911 call. See id. We therefore held that the

                                              7
testimony was offered for the truth of the matter asserted rather than as background to

explain the officer’s actions.

       Here, the statement did not concern any details used to describe Sumler or to

prove Sumler’s guilt. It was offered to explain why two Detectives positioned themselves

in a seemingly odd area during patrol that night. While Detective Perez did testify that he

had personally witnessed people use the fence as an exit to evade the police, using the

additional background information that the Detectives received a tip pointing them

towards that position to explain their actions is a “valid,” “non-hearsay purpose.” Id. at

346. Sumler maintains that the same information could have been conveyed with general

terms that the fence was an area used by people to enter and exit the complex; however,

this information does not express the same explanation for why two special enforcement

bureau detectives would position themselves in that specific spot. While there are

undoubtedly countless ways for a person to enter and exit the Dayton Townhouses

complex, the Detectives positioned themselves by the fence in response to information

that this is the area where suspects were likely to flee.

       We therefore find no error in the District Court’s ruling that Detective Perez’s

statement was not hearsay because it was not offered for the truth of the matter asserted.

We note that even if we were to assign error to the District Court’s conclusion in this

regard, that error would be harmless for two reasons; first, Detective Perez immediately

conveyed similar information based on personal knowledge that he had seen people use

the fence to evade the police, rendering the testimony alternatively admissible pursuant to

Rule 602, see Fed. R. Evid. 602. Second, and as aforestated, by the time Detective Perez

                                               8
made the statement in question, Detective Dellavalle had already testified to the same

information regarding a tip that people use the area to evade the police. Sumler did not

object to Detective Dellavalle’s testimony at trial and does not address his testimony on

appeal. We therefore could easily conclude that even if Detective Perez’s testimony

constituted inadmissible hearsay, “it is highly probable that the error did not contribute to

the judgment.” United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000) (quoting

United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc)).

       B. Federal Rule of Evidence 403

       Rule 403 provides that “[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Rule 403 is a balancing

test, and “[l]ike any balancing test, the Rule 403 standard is inexact, requiring sensitivity

on the part of the trial court to the subtleties of the particular situation, and considerable

deference on the part of the reviewing court to the hands-on judgment of the trial judge.”

United States v. Guerrero, 803 F.2d 783, 785 (3d Cir. 1986).

       Sumler argues that the District Court failed to engage in the on-the-record

balancing required for Rule 403 determinations. This argument is patently without merit

in light of the record. The District Court considered the risk of prejudice and the

probative value of Detective Perez’s testimony both during Sumler’s pre-trial motion

hearing and in response to Sumler’s objection at trial. On the record, the District Court

considered the purpose and probative value of the proposed testimony, see, e.g., App. 27

                                               9
(“[W]e have to allow officers to testify, at least generally, why they positioned

themselves there. To not explain that to the jury I think is confusing.”), and the potential

for prejudice, see, e.g., App. 29 (“I am not sure the word escape is inordinately

prejudicial, but I can understand your concern with the word escape. . . .”); see also App.

118 (“I am not sure whether it was necessary, but the government decided to compromise

and make, and not use the word escape. I think it is fair cross examination.”). This is a far

cry from cases where the district court’s “Rule 403 balancing does not reflect the

meaningful evaluation of [] competing considerations as required by our cases” or where

the district court’s ruling entails “nothing more than a bare recitation of Rule 403.”

United States v. Caldwell, 760 F.3d 267, 284 (3d Cir. 2014). Sumler is correct that the

District Court’s on-the-record consideration of Sumler’s objection at trial was brief and

did not include the formulaic Rule 403 balancing language. However, it is clear from the

record that the District Court carefully and fully evaluated the admissibility of Detective

Perez’s testimony with regard to its probative value and potential for prejudice at two

separate stages of the proceedings, and we perceive no error in its methodology. To find

otherwise would elevate form over substance in the face of a record that unmistakably

reflects the District Court’s substantive analysis.

       Accordingly, because the District Court “is in the best position to assess the extent

of the prejudice caused a party by a piece of evidence,” we afford the trial judge “very

substantial discretion” in Rule 403 determinations. United States v. Long, 574 F.2d 761,

767 (3d Cir. 1978). “A district court’s decision, therefore, cannot be reversed merely

because we, as members of a reviewing court, possess a different view concerning the

                                              10
probative value or prejudicial effect of the challenged evidence.” United States v.

Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000). It is not our place

to opine whether we would have admitted the evidence under Rule 403 in the first

instance, but to determine whether the district court’s conclusion is “arbitrary and

irrational.” In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir. 1997) (quoting

Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990)); see also Long,

574 F.2d at 767 (“If judicial self-restraint is ever desirable, it is when a Rule 403 analysis

of a trial court is reviewed by an appellate tribunal.”).

       We hold that the District Court did not abuse its discretion in admitting Detective

Perez’s testimony over Sumler’s Rule 403 objection. Further, for the same reasons noted

in the previous section regarding hearsay, even if the admission of Detective Perez’s

testimony was in error, that error was harmless.

IV.    Conclusion

       For the foregoing reasons, we will affirm the District Court’s final judgment of

conviction.




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