                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2008

Mullins v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1578




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"Mullins v. Philadelphia" (2008). 2008 Decisions. Paper 780.
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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 07-1578
                                        ___________

                                    XAVIER MULLINS,

                                                     Appellant

                                              v.

            CITY OF PHILADELPHIA; WALI SHABAZZ, in his individual
              capacity and as an agent of the City of Philadelphia; HUGH
               BECKER, in his individual capacity and as an agent of the
                                  City of Philadelphia
                     ____________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 06-cv-02186)
                        District Judge: Honorable John R. Padova
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 18, 2008
                Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                               (Opinion filed: July 30, 2008)
                                       ___________

                                         OPINION
                                        ___________

PER CURIAM

       Xavier Mullins appeals the District Court’s judgment entered in appellees’ favor

after a jury trial. The history of this case and the details of Mullins’s claims are well
known to the parties and need not be discussed at length. Briefly, Mullins filed a

counseled civil rights complaint alleging that he was beaten by two deputy sheriffs while

an inmate in the Criminal Justice Center. After a jury found in favor of the appellees, the

District Court entered judgment in their favor, and Mullins filed a pro se notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291.

       Mullins argues that the verdict is against the weight of the evidence. “[N]ew trials

because the verdict is against the weight of the evidence are proper only when the record

shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on

the record, cries out to be overturned or shocks our conscience.” Marra v. Phila. Hous.

Auth., 497 F.3d 286, 309 n.18 (3d Cir. 2007) quoting Williamson v. Consolidated Rail

Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). Here, Mullins and three inmates testified that

appellee Shabazz began the altercation by punching Mullins. Mullins and another inmate

testified that Mullins was kicked and hit after being restrained. Appellees Shabazz and

Becker as well as two other sheriffs testified that Mullins started the fight by punching

Shabazz several times and that it took several sheriffs to bring Mullins down. They

testified that Mullins was not assaulted once he was restrained. Thus, the verdict was

based on the credibility of the witnesses. Credibility determinations are the province of

the factfinder. Scully v. US WATS, Inc., 238 F.3d 497, 506 (3d Cir. 2001). We may not

substitute our judgment for that of the jury on disputed issues of fact. Gebhardt v. Wilson

Freight Forwarding Co., 348 F.2d 129, 133 (3d Cir. 1965).



                                              2
       Mullins also argues that he should have been permitted to introduce evidence that

he was found not guilty of assaulting Shabazz. We review the admission or exclusion of

evidence for an abuse of discretion. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d

408, 412 (3d Cir. 2002). The standards of proof in the criminal case and in this civil case

are different. That a factfinder did not find beyond a reasonable doubt that Mullins

assaulted Shabazz does not mean that a civil jury could not find by a preponderance of the

evidence that Mullins started the conflict. See One Lot Emerald Cut Stones and One

Ring v. United States, 409 U.S. 232, 235 (1972)(“[An acquittal] does not constitute an

adjudication on the preponderance-of-the-evidence burden applicable in civil

proceedings.”) The District Court did not abuse its discretion in denying Mullin’s motion

to admit evidence of his acquittal.

       Mullins contends that the District Court should have allowed Mullins to call

Detective Fong, who investigated the incident, as a witness. At trial, Mullins’s counsel

indicated that he wanted to call Fong only to testify about the limited scope of Fong’s

investigation. The District Court sustained the appellees’ objection as to relevancy but

noted that Mullins could call Fong on rebuttal; Mullins did not do so. Mullins now

argues that he was seeking Fong’s testimony on the authenticity of the photographs taken

of Shabazz after the incident and whether Fong’s investigation revealed that Mullins had

assaulted Shabazz. However, Mullins himself introduced the photographs of Shabazz at

trial, and Fong had no personal knowledge of the events at issue. The District Court did



                                             3
not abuse its discretion in refusing to allow Mullins to call Fong.

       Mullins argues that he should have been permitted to call three witnesses who

would testify that Shabazz had assaulted them while they were inmates. However,

pursuant to Federal Rule of Evidence 404(a), character evidence is generally not

admissible “for the purpose of proving action in conformity therewith on a particular

occasion.” Mullins attempts to recharacterize the testimony as challenging Shabazz’s

credibility and not his character. We reject that characterization and conclude that the

District Court did not abuse its discretion in not allowing the inmates’ testimony.

Moreover, we note that two of the inmates pled guilty to assault charges from their

encounters with Shabazz.

       Similarly, Mullins argues that the District Court erred in not allowing Mullins’s

witness, Lavond Hill, to testify as to Shabazz’s reputation. In response to a question from

appellees’ counsel as to how he knew Shabazz, Hill stated that Shabazz had a bad

reputation. Mullins’s counsel argued that appellees had opened the door to evidence of

Shabazz’s reputation. The District Court did not allow that testimony. Again, Mullins

argues that he sought to introduce evidence of Shabazz’s reputation as to his truthfulness.

Again, we reject that characterization of the proposed testimony and conclude that the

District Court did not abuse its discretion in denying testimony of Shabazz’s reputation.

By asking Hill how he knew Shabazz, appellees’ counsel did not “open the door” to

admission of such evidence.



                                              4
      For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s judgment.




                                            5
