
    John EMMI, Plaintiff, v. Michael DEANGELO, et al., Defendants.
    CIVIL ACTION NO. 16-3774
    United States District Court, E.D. Pennsylvania.
    Filed 08/21/2017
    
      Thomas Bruno, II, Abramson & Denen-berg, PC, Philadelphia, PA, for Plaintiff.
    Kevin R. Bradford, Office of the Attorney General, Je|frey Mozdziock, PA Office of. Attorney General, Philadelphia, PA, for Defendants.
   MEMORANDUM

EDUARDO C. ROBRENO, J.

Plaintiff John Emmi (“Plaintiff’) brings this action under 42 U.S.C. § 1983 for excessive force and bystander liability against Defendants Michael DeAngelo and Benjamin King, both of whom are Pennsylvania State Police Troopers. During trial, Defendants, sought to introduce testimony from Plaintiffs wife, Marianne Emmi (“Mrs. Emmi”), Mrs. Emmi, though present in court, invoked her spousal privilege and refused to testify. For the reasons that follow, the- Court upholds Mrs. Emmi’s claim to spousal privilege but rules admissible certain pprtions of the deposition Mrs. Emmi previously provided in this case.

L BACKGRO|JND

Plaintiff alleges in his complaint that, on July 21, 2014, he was pulling out of the driveway of his residence at 365C S. Old Middletown Road in Media, Pennsylvania, when he noticed Defendants DeAngelo and King approaching his vehicle. See Compl. ¶¶ 9-10, ECF No, 1. Upon seeing Defendants DeAngelo and King, he turned off the engine of his vehicle, stepped out of the vehicle, and placed his hands in the air. Id. ¶ 10. Defendant DeAngelo then “suddenly and without any reasonable justification” grabbed Plaintiffs arm.and “swung him around, forcefully pushed his body up against the rear of his vehicle, then proceeded to pull the Plaintiffs arms around his back and placed him in handcuffs.” Id. ¶ 11. While Plaintiff was being handcuffed, Defendant King “without any reasonable justification, repeatedly kneed Plaintiff in his right leg.” Id. ¶ 12. Plaintiff claims that “he was not resisting arrest and [this] use of force was unreasonable under the circumstances in violation of -... the Fourth Amendment.” Id. ¶ 14.

Defendants’ version of the story includes the following preamble, the truth of which Plaintiff has not disputed:

On July 21, 2014 at approximately 6pm, Plaintiff and his wife, Marianne Emmi, got into an argument at their home in Middletown Township, Delaware County. Mrs. Emmi eventually called 911. Plaintiff ripped the phone off the wall during the call. Plaintiff also at some point climbed in a window and broke a vase. [Defendants DeAngelo and King] were dispatched to the location. They were informed by dispatch that it was an active domestic dispute, the call had been cutoff and the husband drove a pickup truck.

Defs.’ Final Pretrial Mem. at 1, ECF No. 22.

At trial, Defendants moved to compel Mrs. Emmi’s testimony, as a witness against Plaintiff. Alternatively, Defendants sought to read into the record the deposition that Mrs. Emmi had previously provided in this case. Plaintiff opposed both requests. For the reasons that follow, the Court finds that Mrs. Emmi has properly invoked her spousal privilege and -therefore may not be compelled to testify against Plaintiff, her husband. Relevant portions, of her deposition testimony, however, may be read into the record pursuant to Federal Rule of Civil.Procedure 32 and Federal Rule of Evidence 804.

II. PRIVILEGE

Federal . Rule of Evidence 501 governs the applicability of federal privileges and also delineates when state, law privileges apply to federal litigation. This rule provides in full as follows;

The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless‘any of the following provides otherwise:
• the United States Constitution;
• a federal statute;' or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Fed. R. Evid. 501.

Although the Supreme Court has considered federal common law privileges for spouses in the context of criminal proceedings, the law is less clear regarding application of these privileges in civil proceedings. The Commonwealth of Pennsylvania, however, has. recognized two spousal privileges that may apply in a civil action. The first of these is a privilege not to testify against one’s spouse. See 42 Pa. Cons. Stat. § 5924 (“In a civil matter neither husband nor wife shall be competent or permitted to testify against each other.”). The second is a privilege not to testify regarding confidential communications between spouses. See 42 Pa. Cons. Stat. § 5923 (“[I]n a civil matter neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other.”).

“Rule 501 requires a district court exercising diversity jurisdiction to apply the law of privilege which would be applied by the courts of the state in which it sits.” Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978). In contrast, a federal question case usually calls for the application of federal privileges. See Wm. T. Thompson Co. v. Gen. Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982) (“[I]n federal question cases the federal common law of privileges applies.”). However, when there is no compelling federal interest, and the subject matter is one which traditionally has been assigned to the states and for which state jurisprudence is well developed, federal courts may “resort to state law analogies for the development . of a federal common law of privileges,” Id. at 104; Reo v. U.S. Postal Serv., 98 F.3d 73, 77 (3d Cir. 1996) (“Rather than developing a federal common law ... we can instead rely on the well-established rules of the various States.”); see also Nice v. Centennial Area Sch. Dist., 98 F.Supp.2d 665, 668 (E.D. Pa. 2000) (Robreno, J.) (citing Erwin Chemerinsky, Federal Jurisdiction, § 6.2.1 at 339 (2d ed. 1994)).

The purpose of the spousal'privileges “is generallysaid to be ‘the preservation of marital harmony and the resultant benefits to society from that harmony.’” Ebner v. Ewiak, 335 Pa.Super. 372, 484 A.2d 180, 183 (1984) (quoting Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 404 A.2d 410, 413 (1979)); see also CAP Glass, Inc, v. Coffman, 130 A.3d 783, 788 (Pa. Super. Ct. 2016) (“Like § 5924, [§ 5923] serves to protect and promote marital harmony.”). Despite serving a similar purpose, however, the “testimonial” and “communications” privileges remain distinct:

[T]he spousal incompetence provision of section 5924 and the spousal confidential communication privilege of section 5923 are quite separate and distinct. The former provision disqualifies a husband or wife to give any testimony adverse to the spouse subject to the exceptions in 5924(b); the latter is much more limited and relates to the competence of a spouse to testify regarding confidential communications.

CAP Glass, Inc., 130 A.3d at 788 (quoting B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 666 (Pa. Commw. Ct. 2012)).

In this case, Mrs. Emmi has invoked her absolute privilege under § 6924 to not testify as a witness for Defendants against Plaintiff, her husband. The Court upholds this privilege on the basis that (1) as a matter of undisputed fact, Mrs. Emmi is currently married to Plaintiff; and (2) as a matter of law, Mrs. Emmi’s testimony would be “against” Plaintiff. See 42 Pa. Cons. Stat. § 5924.

At least one other court within this judicial district has held that testimony regarding “interactions with a third party” is “not testimony ‘against’ [the other spouse] and does not violate Section 5924.” Carroll v. Student Transp., Inc., No. 10-1439, 2011 WL 382563, at *2 (E.D. Pa. Feb. 7, 2011). Nevertheless, this Court holds that Mrs. Emmi’s testimony would be “against” Plaintiff within the meaning of § 5924 because she was called to testify by the adverse party, Le., Defendants in this case. This interpretation of “against” accords with the purpose of the marital privileges; the very act of testifying as a witness on behalf of an adverse party, regardless of the subject matter of the testimony, cannot fairly be said to preserve and promote “marital harmony.” Ebner, 484 A.2d at 183.

III. ADMISSIBILITY

Given Mrs. Emmi’s proper invocation of the privilege and refusal to testify, the Court finds that she is “unavailable” for purposes of Federal Rule of Civil Procedure 32, which provides in part that a “[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds ... on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of five testimony in open court—to permit the deposition to be used.” Fed. R. Civ. P. 32(a)(4)(E). The relevant portion of Mrs. Emmi’s testimony pertains to the 911 call she made immediately prior to the incident at issue in this case, and it is undisputed that the recording of this 911 call is no longer available. This testimony includes the information Mrs. Emmi provided to 911 authorities, which bears relevance to Defendants’ assertions that they were responding to “an active domestic dispute” and that “the [911] call had been cutoff.” Defs.’ Final Pretrial Mem. at 1. The jury appropriately may make critical inferences, based at least in part on this testimony, as to what knowledge and state of mind Defendants might have had as they approached Plaintiff in his driveway on the evening in question.

This testimony shall not be considered hearsay because Mrs. Emmi is also “unavailable” as a witness under the Federal Rules of Evidence. See Fed. R. Evid. 804(a)(2) (“A declarant is considered to be unavailable [to testify] as a witness if the declarant ... refuses to testify about the subject matter despite a court order to do so.”). Mrs. Emmi’s unavailability triggers the exception providing that any “testimony that was given as a witness” at a “lawful deposition” during the “current proceeding” is “not excluded by the rule against hearsay if the declarant is unavailable as a witness.” Fed. R. Evid. 804(b)(1)(A).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Mrs. Emmi cannot be compelled to testify against her husband, Plaintiff John Emmi. However, insofar as certain portions of Mrs. Emmi’s deposition testimony relate to the 911 call immediately preceding the incident underlying this litigation and sheds light on the complete set of circumstances surrounding that incident, these portions shall be admissible pursuant to Federal Rule of Evidence 804(b)(1)(A) and “in the interest of justice” under Federal Rule of Civil Procedure 32(a)(4)(E).

APPENDIX 1 
      
      . See generally Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (privilege against adverse spousal testimony); Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed, 306 (1951) (privilege for confidential marital communications).
     
      
      . Mrs. Emmi was represented during her brief appearance in court by Dana Ingham, Esquire, an attorney retained by Mrs. Emmi in connection with her marital issues after her deposition but prior to the start of trial in this case. Mrs. Emmi testified on the record at trial that she wished to invoke her spousal privilege to not testify against Plaintiff.
     
      
      . Mrs. Emmi did not contend, and the Court does not find, that the § 5923 privilege for confidential marital communications is applicable in this case.
     
      
      .Counsel for Defendants explained on the record at trial that, due to very high call volume, recordings of 911 calls are typically maintained for no longer than a few months. This lawsuit was not filed until nearly two full years after the incident occurred.
     
      
      . Specifically, all testimony from page 13, line 23 through page 17, line 11 of Mrs. Emmi's deposition in this case shall be admissible. See Appendix 1. All other portions of the testimony are deemed inadmissible on grounds that its prejudicial nature substantially outweighs its probative value. See Fed. R. Evid. 403.
     