                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-3936
                                     _____________

                                   LAMAR COLLINS,
                                       Appellant

                                             v.

                                    RICHARD JONES,
                        Individually and in his official capacity as
                police officer for the Trainer Borough Police Department
                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                      (D.C. Civ. Action No. 2-13-cv-07613)
                 Magistrate Judge: Honorable David R. Strawbridge
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 13, 2016
                                  ______________

      Before: CHAGARES, GREENAWAY, JR., and RESTREPO, Circuit Judges.

                           (Opinion Filed: November 17, 2016)

                                      ____________

                                        OPINION *
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

         Lamar Collins, Appellant, appeals the denial of a motion for a new trial in his

malicious prosecution suit against Trainer Borough police officer Richard Jones,

Appellee. For the reasons set forth below, we will affirm the judgment of the District

Court.

                                     I. BACKGROUND

         On October 20, 2012, Jones, a police officer with the Trainer Borough Police

Department, detained Collins. Jones found in Collins’s car a large Ziploc bag containing

cash and two plastic bags containing what Jones perceived at the time, based on odor and

appearance, to be marijuana. A field test performed at the time showed the substance in

question to be marijuana. The same day, prosecution was initiated against Collins for

possession of a controlled substance and possession of drug paraphernalia.

         Residue from the plastic bags was sent to the state police laboratory for additional

testing. That test came back negative for marijuana in a report dated January 2, 2013.

Eventually, the prosecution of Collins was dropped. In response, Collins sued for

malicious prosecution under Pennsylvania state law. 1

         At trial, Jones made a motion in limine to preclude from evidence the state

laboratory report showing a negative result for marijuana. The Court granted that motion

over Collins’s objection. The jury ultimately found for Jones. Collins filed a post-trial

         1
        Additional defendants and causes of action were included in Collins’s original
complaint but by the time of trial, these additional defendants and causes of action had
been dismissed.
                                               2
motion seeking a new trial or relief from the entry of judgment under Federal Rules of

Civil Procedure 59(a)(1)(A), 59(e) and 60(b). That motion was denied and Collins now

appeals.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331 and

28 U.S.C. § 1367. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

       We review the District Court’s decision for abuse of discretion. “The standard of

review on a motion for a new trial is abuse of discretion . . . and to the extent that it

involves review of evidentiary rulings we use an abuse of discretion standard.” McKenna

v. City of Phila., 582 F.3d 447, 460 (3d Cir. 2009).

                                       III. ANALYSIS

       The Magistrate Judge offered three reasons for precluding evidence of the

negative lab report. None was an abuse of discretion.

       The Court began by explaining that the lab report was not relevant under Federal

Rules of Evidence 401 and therefore excludable. Evidence is only relevant if “it has any

tendency to make a fact more or less probable than it would be without the evidence.”

Fed. R. Evid. 401. Rule 402 provides that “[i]rrelevant evidence is not admissible” and

Rule 403 allows the exclusion of even relevant evidence where the evidence’s “probative

value is substantially outweighed” by a risk of “unfair prejudice, confusing the issues,

misleading the jury” or wasting time.


                                               3
       At issue before the jury in the malicious prosecution case was whether Officer

Jones had probable cause to charge Collins on October 20, 2012. At that time, Jones had

personally observed the substance and believed it to be marijuana. He had also

performed a field test for marijuana, which tested positive. The results of a lab test

conducted over two months later are plainly irrelevant to Jones’s determination of

probable cause in October. The Magistrate Judge had sound grounds on which to find

this evidence irrelevant for this purpose.

       Collins also argued that, even if the lab test was not admissible as direct evidence

of a lack of probable cause, he should have been permitted to use it to impeach Jones’s

credibility. However, Collins attempted to introduce the document through the business

record exception to the hearsay rule. Fed. R. Evid. 803(6). The Rule expressly requires

“the testimony of the custodian or another qualified witness” or a valid certification for

the record to be admissible. Id. Collins called no such custodian to testify. In fact, the

Court offered Collins the opportunity to present such a custodian and Collins declined to

do so. The Court did not abuse its discretion in requiring Collins to present a custodian

as the plain text of the Rule demands.

       The Court also found another form of testimony necessary to introduce the lab

report: “validation” as to the reliability of the report under Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993). Finding that Collins wanted to treat the lab report

as “true,” and therefore as “scientific knowledge,” id. at 590, the Court required that the

evidence be “supported by appropriate validation.” Id. The Magistrate Judge found that
                                              4
Collins merely “asked us to assume the reliability of the lab report” without providing

“any foundation or witness prepared to testify as to its reliability.” App. Vol. I at 6.

Collins offers no argument on appeal that the Magistrate Judge erred in making this

determination.

       Finally, the Magistrate Judge found that any error he might have made was

harmless. He suggested that an error in his evidentiary decision would not have had any

substantial influence on the verdict because the lab report was not available to Jones at

the time of the prosecution and because the jury already knew that eventually the

prosecution of Collins was dropped. Because we hold that the Court’s evidentiary

decision was not an abuse of discretion, we do not reach a harmless error analysis.

       The cases cited by Collins in support of his position are inapposite.

Commonwealth v. Brown, 631 A.2d 1014 (Pa. Super. Ct. 1993), discusses a state statute

allowing judicial notice of chemical tests in DUI proceedings under certain conditions.

This is not a DUI proceeding and that statute is inapplicable. In Commonwealth v.

Karch, 502 A.2d 1359 (Pa. Super. Ct. 1986), while the technician who performed the

relevant blood test did not testify, a physician did and explained the protocols for the test

to show its reliability. Id. at 1361. That case addressed whether the physician could

testify in place of the technician. Here, the question is not who may establish the

reliability of a test but whether reliability need be established at all. Finally, Collins cites

Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007), as making laboratory test results

prima facie admissible. Carter does not do this. It describes when the use of a lab test –
                                               5
in that case properly introduced as a business record by the lab manager’s testimony, id.

at 1262, 1265 – violates the Confrontation Clause.

       These cases are not relevant to the matter at hand and do not suggest that the

Magistrate Judge abused his discretion. Finding no abuse of discretion, we will affirm

the decision below.

                                   IV. CONCLUSION

       The Magistrate Judge had multiple reasons to exclude the lab report from evidence

and did not abuse his discretion in doing so. We therefore will affirm.




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