NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2187

_____________

CAROL A. SULLIVAN; BRUCE SULLIVAN, Individually and/or as

Co-Administrators of the Estate of Sean P. Sullivan, Deceased,

 Appellants.

v.

WARMINSTER TOWNSHIP; WARRINGTON TOWNSHIP; 

MICHAEL MURPHY; JAMES J. MILLER; JAMES MCCAFFREY;

DANIEL LEPORACE; CHRISTOPHER SPRINGFIELD; SEAN HAROLD; 

RON SZYMBORSKI; CASEY BYRNE; JOHN BLANCHARD; QUENTIN FULLER,

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 07-cv-4447)

District Judge: Hon. R. Barclay Surrick 

_______________

ARGUED

January 10, 2012

Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

(Filed: February 6, 2012 )

_______________
2

Jason P. Grosselin

Richard M. Haggerty, Jr.

Elizabeth L. McLachlan

William M. McSwain [ARGUED]

Andrew P. Reeve

Drinker, Biddle & Reath

18th & Cherry Streets

One Logan Square - #2000

Philadelphia, PA 19103

 Counsel for Appellants

Christopher P. Boyle, Sr.

Charles W. Craven [ARGUED]

Joseph J. Santarone, Jr.

Marshall, Dennehey, Warner, Coleman & Goggin

620 Freedom Business Center - #300

King of Prussia, PA 19406

 Counsel for Appellees, Warminster Township,

 Michael Murphy, James McCaffrey, Daniel Leporace,

 Christopher Springfield, Sean Harold, Ron Szymborski,

 and Casey Byrne

Wendi D. Barish

Joseph Goldberg

Jamie L. Panzer

Syreeta J. Peake [ARGUED]

Weber, Gallagher, Simpson, Stapleton, Fires & Newby

2000 Market Street - #1300

Philadelphia, PA 19103

 Counsel for Appellees, John Blanchard, 

 Township of Warrington, James J. Miller,

 and Quentin Fuller

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

This case arises out of a confrontation between Sean Sullivan (“Sean”) and police 

officers from Warrington and Warminster Townships in Pennsylvania that resulted in 
3

Sean’s death.1

I. Background

 Sean’s parents, Carol Sullivan (“Carol”) and Bruce Sullivan (collectively 

“Plaintiffs”) brought claims, individually and as administrators of Sean’s estate, under 42 

U.S.C. § 1983 and Pennsylvania common law, alleging that the police officers used 

excessive force during their attempt to arrest Sean. After a twelve-day trial, the jury 

determined that the officers did not use excessive force, and the District Court entered 

judgment in favor of the officers and the townships. Plaintiffs appeal that judgment, 

arguing that the District Court abused its discretion by refusing to allow them to crossexamine one of the arresting officers regarding a pistol which Plaintiffs claim the officers 

planted as evidence on the day Sean was killed. They also say the Court should have 

allowed cross-examination about a police log that contained reports sent by the officers to 

police dispatchers during the attempt to arrest Sean. For the following reasons, we will 

affirm.

2

A. Carol’s Arrest and Sean’s Death

Early in the morning of March 31, 2006, police officers from Warminster 

Township went to the Sullivan home to serve Sean’s mother, Carol, with an arrest 

 1 We will be speaking about different members of the Sullivan family and so will 

use their first names for ease of reference, intending no undue familiarity or disrespect. 

The defendants in this case are: Warminster Township; Warrington Township; Michael 

Murphy; James J. Miller; James McCaffrey; Daniel Leporace; Christopher Springfield; 

Sean Harold; Ron Szymborski; Casey Byrne; John Blanchard; and Quentin Fuller. We 

refer to them collectively as “Defendants.”

2 Because Plaintiffs appeal a jury verdict, “we state the facts in the light most 

favorable to the prevailing party [at trial] ... based on the evidence introduced at trial.” 

Eshelman v. Agere Sys., 554 F.3d 426, 430 n.2 (3d Cir. 2009) (citing Johnson v. 

Campbell, 332 F.3d 199 (3d Cir. 2003)). 
4

warrant for several nonviolent misdemeanors. At the same time, the officers sought to 

question her about Sean’s involvement in a string of armed robberies in Warminster. 

When the officers arrived at the house and knocked on the door, they heard noises inside

but did not get an immediate response. Eventually, Carol answered the door and the 

officers informed her that they had a warrant for her arrest. Rather than complying with 

the officers’ requests for her surrender, however, Carol retreated into the house and 

resisted arrest. The officers followed her, placed her in handcuffs, and asked her where 

they could find Sean. According to one of the arresting officers, Carol immediately “lost 

the color in her face and started to go white as if she became scared,” as she looked 

towards a bedroom. (App. at 1973.) At about that time, the officers heard Sean shout, “I 

have a gun.” (Id.) 

Because Sean was in a bedroom with the door closed and was yelling that he had a 

gun, Officer Harold of the Warminster police immediately reported over the police radio 

that he had encountered an armed, barricaded suspect and had set up a security perimeter 

in the front and back of the Sullivan residence. As the law enforcement officers assumed 

their posts, Officer Harold called to Sean and told him to come out the front door. Sean,

however, refused to obey those commands and eventually climbed out a rear window. 

According to three of the officers at the scene, Sean immediately pulled a gun 

from his waistband when he hit the ground. Two officers testified that he pointed the gun 

directly at them. Believing that he posed a direct threat to their safety, those officers and 

several others fired approximately 55 rounds in Sean’s direction, six of which hit him and 
5

caused him to fall. After he fell, the officers provided him with medical aid, but, despite 

their efforts, Sean died from his gunshot wounds.

At some point after the shooting, the police officers recovered from the Sullivans’ 

backyard what they described as a “[b]lack Walther PPKS BB caliber pistol,” which they 

believed was the same gun that Sean possessed when he went out the rear window. (App. 

at 3357.) The officers reported the gun over the police radio, and their report was 

recorded in a dispatch log. The log entry, which states, “@ 6:53 HRS RECOVERED A 

FIREARM,” was recorded at approximately 7:12:54 a.m. (App. at 3420.) There is no 

evidence in the record of who created the log entry or why that individual recorded the 

discovery of the firearm at 7:12:54 a.m. 

B. Eric Yuetter’s Pellet Gun

Approximately two weeks before Sean’s death, Officer Harold and another police 

officer questioned an individual named Eric Yuetter in connection with the Warminster 

robberies. During that meeting, the officers confiscated a “black plastic HFC pellet gun,” 

which they marked as evidence to be destroyed. (App. at 3361.) Later, during discovery, 

a police report pertaining to that confiscation was provided to the Plaintiffs. Evidently 

concerned that Plaintiffs would try to argue that the pellet gun taken from Yuetter was 

planted as evidence in the Sullivans’ yard, Defendants filed a motion in limine to prevent

Plaintiffs from calling Yuetter as a witness to testify about “the confiscation of his black 

pellet gun.” (App. at 598.) Defendants argued that the District Court should preclude 

Yuetter from testifying because Plaintiffs had failed to identify him as a witness in their 

initial discovery disclosures, as required by Federal Rule of Civil Procedure 26. The 
6

District Court denied the motion as moot, because Plaintiffs indicated they could not find 

Yuetter and so no longer intended to call him as a witness. 

C. The Trial3

During trial, Plaintiffs sought to cross-examine Officer Harold concerning the 

dispatch log entry which stated that police officers recovered a firearm at the Sullivan 

residence at 6:53 a.m. The Court precluded that line of questioning, however, reasoning 

that Officer Harold could not testify to the accuracy of the dispatch log because he had no 

personal knowledge of its contents or how that specific entry was created.

4

 3 Though the Complaint originally set forth additional claims, the parties went to 

trial on the following: (1) Plaintiffs’ § 1983 excessive force claim against Defendants 

Blanchard, McCaffrey, Harold, and Leporace (Count I); (2) Plaintiffs’ § 1983 municipal 

liability claim against Warminster Township (Count IV); and (3) Plaintiffs’ intentional 

infliction of emotional distress claim against Defendants Blanchard, McCaffrey, Harold, 

and Leporace (Count IX). 

 Plaintiffs did 

not attempt to authenticate the log. 

4 When Plaintiffs attempted to cross-examine Officer Harold concerning the 

disputed log entry, the following colloquy ensued:

[Plaintiffs’ counsel]: Now that the radio tape is in I want to 

show them the log and show discrepancies between what we 

heard and what’s in the book.

The Court: All right, but you’ll have to get somebody to 

identify it.

...

[Plaintiffs’ counsel]: In that case I would want to add that I 

have an interest in, I just want to cross-examine [Officer 

Harold] about some things that –
7

During cross-examination, Plaintiffs also asked Officer Harold whether he had 

confiscated any “black pellet guns” during his investigation of the Warminster robberies. 

(App. at 3011.) In response, Officer Harold stated that he had not confiscated any “bebe 

pistols” during the robbery investigation. (Id.) Plaintiffs then attempted to question 

Officer Harold regarding the pellet gun that was confiscated when police officers 

questioned Yuetter on March 14, 2006. However, the District Court precluded Plaintiffs 

from pursuing that line of inquiry. The Court concluded that Yuetter’s pellet gun was 

irrelevant because Plaintiffs had failed to establish that it was the same gun that the 

officers allegedly placed on the Sullivan property on March 31, 2006. (See App. at 3013-

14 (“[The Court]: One of the theories of the case is that the gun was planted ... but, 

you’re trying to prove that on another occasion, this officer found a different gun.”).) 

 

The Court: Well, you’re not going to make statements like the 

log says this and the log says that and ask him questions

about it, counsel.

...

The Court: Counsel, when this log was created, you objected 

to its use and now you’re try[ing] to cross-examine based on 

it and there’s nobody here to give any testimony with regard 

to how it was created and what it represents.

...

The Court: Counsel, you can question him with regard to his 

testimony but if you’re going to try to use the log, you’re not 

going to refer to it and say the log says this and the log says 

that because that log has not been properly identified.

(App. at 3005-3006.)
8

After a twelve-day trial, and following a jury verdict, the District Court entered 

judgment in favor of Defendants. This appeal followed. 

II. Discussion5

Plaintiffs argue that the District Court abused its discretion by limiting the scope 

of cross-examination concerning the dispatch log and the confiscation of Yuetter’s pellet 

gun. We address those arguments in turn.

A. The Dispatch Log

Plaintiffs’ first contention is that the District Court erred in refusing to allow them 

to ask Officer Harold why the log entry, noting that a firearm was found at the Sullivan 

residence,

6

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

and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review the District 

Court’s ruling regarding the scope of cross-examination and whether to admit evidence 

for abuse of discretion. See United States v. Johnson, 302 F.3d 139, 152 (3d Cir. 2002) 

(evidence); United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991) (crossexamination).

was not recorded at the time the officers recovered the gun. They assert that 

the District Court wrongly concluded that Officer Harold had no personal knowledge of 

the contents of the log, and they point out that he had previously “testified to the process 

by which the [dispatch] log [was] generated.” (Appellants’ Opening Br. at 60.) 

Moreover, Plaintiffs contend that “Officer Harold was the most – perhaps the only –

6 As previously noted, the dispatch log stated that the police officers discovered a 

“firearm” at approximately 6:53 a.m. at the Sullivan residence. Although the term 

“firearm” is subject to more than one meaning, see Merriam Webster’s Collegiate 

Dictionary 437 (10th ed. 2002) (defining “firearm” as “a weapon from which a shot is 

discharged by gunpowder”); Black’s Law Dictionary 666 (8th ed. 2004) (defining 

“firearm” as “[a] weapon that expels a projectile (such as a bullet or pellets) by the 

combustion of gunpowder or other explosive”), it is undisputed that, in this case, the term 

as used in the log entry refers to either a pellet gun or a BB gun. 
9

qualified witness to explain the 19-minute gap” between 6:53 a.m., when a police officer 

supposedly discovered the firearm, and 7:12:54 a.m., when the discovery was recorded in 

the dispatch log. (App. at 61.) Defendants counter that “the cross-examination of Officer 

Harold regarding documents he did not create would have been improper lay witness 

opinion since Officer Harold had no first hand [sic] knowledge as to how the documents 

were created.” (Appellees’ Opening Br. at 42.) 

It is well-settled “that a party is guaranteed only an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever 

extent, the [party] might wish.” Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995) 

(internal quotation marks and citation omitted). Thus, when deciding whether to allow 

cross-examination, a “district court is required to strike a balance between the 

opportunity to cross-examine and the need to prevent repetitive or abusive crossexamination.” Id. (citing United States v. Casoni, 950 F.2d 893, 919 (3d Cir. 1991)). 

One of the things a district court may consider is whether the witness is competent to 

answer the questions being posed. See United States v. Scales, 594 F.2d 558, 561 (6th 

Cir. 1979) (holding that trial court did not err in limiting the scope of cross-examination 

when a “witness ... stated at the outset of cross-examination that he lacked personal 

knowledge ... and was therefore not competent to answer the question”).

The District Court did not abuse its discretion by precluding Plaintiffs from crossexamining Officer Harold regarding the contents of the dispatch log, because Plaintiffs

failed to establish that Harold had firsthand knowledge of the contents of the log or how 

the entry in question was created. Under Federal Rule of Evidence 602, “[a] witness may 
10

testify to a matter only if evidence is introduced sufficient to support a finding that the 

witness has personal knowledge of the matter.” Here, the only evidence Plaintiffs offered 

in support of their assertion that Officer Harold had firsthand knowledge of the disputed 

log entry is the fact that, during trial, he described generally how the police radio system 

operates in Bucks County, and he said that radio dispatchers in Bucks County typically

record each radio transmission from police officers in a log:

There would be a log. Not a log that I would keep, 

however[.] [W]hen you radio into dispatch, dispatch will take 

notes in what they call a CAD, which is a computer animated 

display, which is where the radio goes through.

So as they assign units out there, there would be a log 

that says 74-N arrived on scene and then the time would 

automatically be generated – I believe it’s automatically 

generated by the CAD. And then the dispatchers have the 

option of entering notes, if they have time to do that.

(App. at 3004.) That testimony, however, does not suggest that Officer Harold had 

personal knowledge of the contents of the log created on March 31, 2006, or why the 

individual who created the log that day recorded the discovery of the firearm at the 

Sullivan residence at 7:12:54 a.m. instead of 6:53 a.m. Instead, Officer Harold’s 

testimony merely demonstrates that he knew the log process generally and that the 

dispatch “[had] the option of entering notes” into a log “if they [had] time to do that.” 

(Id.) Nor is there any other evidence indicating that Officer Harold had personal 

knowledge of the contents of the log. Thus, because Plaintiffs failed to lay a proper 

foundation for cross-examining Officer Harold about the contents of the dispatch log and 
11

how it was created, the District Court did not abuse its discretion by preventing that

cross-examination.7

B. The Confiscation of Yuetter’s Pellet Gun

Plaintiffs also argue that the District Court abused its discretion by refusing to 

allow them to cross-examine Officer Harold regarding the confiscation of Eric Yuetter’s 

pellet gun. In support of that argument, they assert that the confiscation was highly 

relevant to their case because they sought to prove that the police planted a pellet gun at 

the Sullivan residence on the day Sean was killed, and, by precluding the crossexamination of Officer Harold, the District Court prevented Plaintiffs from impeaching 

his denial that he had confiscated a pellet gun only two weeks before the fatal shooting. 

The primary problem with Plaintiffs’ position is, again, a lack of foundation. 

Plaintiffs were obliged to demonstrate relevance, which on the record here, one could say 

they did not. Under Federal Rule of Evidence 401, evidence is relevant “if its existence 

 7 To the extent that Plaintiffs sought to cross-examine Officer Harold regarding his 

opinion as to the alleged delay between the time that the officer identified the firearm and 

the time that the discovery was recorded in the dispatch log, that line of questioning was 

impermissible under Rule 701. Under Rule 701, “testimony in the form of an opinion is 

limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to 

clearly understanding the witness’s testimony ...; and (c) not based on scientific, 

technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 

701. Rule 701(a) “is essentially a restatement of the personal knowledge requirement 

necessary for all lay witness [opinion] testimony.” United States v. Stadtmauer, 620 F.3d 

238, 263 (3d Cir. 2010). Accordingly, “[t]he requirement that a lay opinion be rationally 

based on the witness’ perception requires that the witness have firsthand knowledge of 

the factual predicates that form the basis for the opinion.” Gov’t of Virgin Is. v. Knight, 

989 F.2d 619, 629 (3d Cir. 1993); see United States v. Glenn, 312 F.3d 58, 67 (2d Cir. 

2002) (“[A] lay opinion must be rationally based on the perception of the witness. This 

requirement is the familiar requirement of first-hand knowledge or observation.”) 

(internal quotation marks and citation omitted). 
12

simply has some ‘tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.’” United States v. Jones, 566 F.3d 353, 364 (3d Cir. 2009) (quoting Fed. R. 

Evid. 401)). However, “[w]hen the relevance of evidence depends on whether a fact 

exists, proof must be introduced sufficient to support a finding that the fact does exist.” 

Fed. R. Evid. 104(b). In determining whether the proponent of the disputed evidence 

“has introduced sufficient evidence” under Federal Rule of Evidence 104(b), “the trial 

court ... examines all the evidence in the case and decides whether a jury could 

reasonably find the conditional fact ... by a preponderance of the evidence.” Huddleston 

v. United States, 485 U.S. 681, 689 (1988). The trial court itself does not weigh 

credibility or make a finding that the proponent of the evidence “has proved the 

conditional fact by a preponderance of the evidence.” Id. at 690. 

Here, the District Court had reason to understand that Plaintiffs’ theory of the case 

was that the gun found in the Sullivans’ backyard on March 31, 2006 was the same gun 

that was confiscated when police officers confronted Yuetter on March 14, 2006. Thus, 

in order for Yuetter’s pellet gun to be relevant to this case, Plaintiffs had to show that it 

was the same gun seized the day of Sean’s shooting.

8

 8 During oral argument, Plaintiffs’ counsel asserted that the confiscation of the 

pellet gun during on March 14, 2006 was relevant because it demonstrates that the police 

officers had access to a pellet gun on the day that Sean was killed. In other words, 

according to Plaintiffs’ counsel, the fact that the police officers had some access to a 

pellet gun on March 31, 2006 (even if the gun was different than the one that was 

confiscated when the officers questioned Yuetter on March 14, 2006) increases the 

likelihood that they planted a gun at the Sullivan residence when Sean was killed. That 

was not argued to the District Court. Instead, the position pressed on the District Court 

 However, they did not produce any 
13

evidence to that effect. The only proffer in fact indicated that, to the contrary, the plastic 

pellet gun confiscated from Yuetter was a different gun than the metal BB gun recovered 

from the Sullivans’ backyard. Plaintiffs’ solution seemed to be to seek, through crossexamination, some evidence to prove the conditional fact upon which the relevance of 

Yuetter’s pellet gun was pinned, i.e., that it was the same gun found in the Sullivans’ 

yard. It was thus no abuse of discretion to say that the proposed cross-examination was 

speculative and failed the test of relevance in the first instance. 

Perhaps, understanding the difficultly with their position on this point, Plaintiffs, 

through counsel at oral argument, were prepared to concede that their argument for 

relevance was weak. Instead, they asserted emphatically that, “This is not a case about 

relevance. ... This is a case about impeachment.” (Oral Argument at 37:10, Sullivan v. 

Warminster Township et al. (No. 11-2187), available at 

http://www.ca3.uscourts.gov/oralargument/ListArguments30.aspx.) But, Plaintiffs’ claim

that the District Court erred in not allowing them to impeach Officer Harold about the 

 

was that the Yuetter gun and the gun from Sean’s yard were one and the same, and the 

record demonstrates that the District Court understood that to be Plaintiffs’ theory. 

Indeed, the District Court made that clear when it sustained Defendants’ objection to 

Plaintiffs’ attempt to cross-examine Officer Harold concerning the pellet gun, stating, 

“[o]ne of the theories of the case is that the gun was planted ... but you’re trying to prove 

that on another occasion, this officer found a different gun.” (App. at 3013-14.) And, 

after the District Court made that statement, Plaintiffs’ counsel did not articulate the 

theory that Plaintiffs now assert on appeal – namely, that the confiscation of Yuetter’s 

pellet gun was relevant because it demonstrated that the police officers had access to 

pellet guns generally. Because there was no reason for the District Court to assume the 

theory of relevance Plaintiffs now assert, the District Court’s understanding of Plaintiffs’ 

argument regarding the relevance of the pellet gun confiscated on March 14, 2006 was 

entirely reasonable. 
14

pellet gun is also unpersuasive because they never described for the District Court the 

purpose of their proposed questions. 

Indeed, the sidebar conversation Plaintiffs point to as their proffer on 

impeachment is anything but clear.9

 9 That following discussion ensued during sidebar:

 The proffer focused again on whether the pellet gun 

[Defendants’ counsel]: Objection, Your Honor. This is --

this -- can I see you at sidebar?

...

[Defendants’ counsel]: This is -- this is about that Bryan 

Ubid (phonetic) that (inaudible) 271 but he used it. Now 

they’re attempting to use it with this witness.

[Plaintiffs’ counsel]: I have no plans on calling Mr. Ubid. 

I’ll simply call someone, impeaching -- his testimony is 

essentially I saw the gun, that’s how it got there, and my 

cross-examination is going to be, no, it wasn’t there. You had 

an opportunity to -- because you (inaudible). And in the 

course of the investigation, Sean (inaudible).

[Defendants’ counsel]: Your Honor, this is an attempt to get 

it in through the backdoor. You take the (inaudible) and the 

combination off the list. This was already argued sufficiently 

through the -- now they’re trying to backdoor that. They’ve 

withdraw[n] a motion because there’s not enough evidence, 

and now they’re going to back door it, and that’s the way they 

do it.

[Plaintiffs’ counsel]: But it’s not the same --

[Defendants’ counsel]: It’s not the same --

[Plaintiffs’ counsel]: It’s not the same.

The Court: Will you let one speak at a time?

[Defendants’ counsel]: Apologies, Your Honor.
15

 

[Plaintiffs’ counsel]: I’m not -- it’s true that we withdraw the 

-- (inaudible).

The Court: Well, tell me this. This witness has said he did 

not recover a

[Plaintiffs’ counsel]: His documents won’t prove as well.

The Court: Well, tell me what the documents say.

[Plaintiffs’ counsel]: Officer Harold, Lieutenant Springfield, 

Mr. Outland --

[Defendants’ counsel]: (Inaudible).

The Court: It’s a different gun, a different length?

[Defendants’ counsel]: Yes.

[Plaintiffs’ counsel]: We can talk about it.

[Defendants’ counsel]: He’s trying to bring it (inaudible).

The Court: Well, why do you have to be able to do it, Mr. 

McSwain?

[Plaintiffs’ counsel]: Because -- 

The Court: You have -- 

[Plaintiffs’ counsel]: -- this is one of the theories of the case.

The Court: One of the theories of the case is that the gun was 

planted -- 

[Plaintiffs’ counsel]: Yes.

The Court: -- but you’re trying to prove that on another 

occasion, this officer found a different gun.

[Plaintiffs’ counsel]: I don’t think it necessarily was a 

different gun but they can question him as to that.
16

confiscated on March 14, 2006 was the same gun that the officers took from the 

Sullivans’ yard. While a very generous, after-the-fact reading of the record might 

support Plaintiffs’ contention that they sought to introduce the disputed testimony for the 

purpose of impeachment by contradiction, (see App. at 3013-14), a fair reading of the 

colloquy is that the District Court was being presented once more with the “it’s the same 

gun” argument, and the Court was not accepting it. In short, because the Plaintiffs never 

adequately communicated to the District Court their desire to impeach Officer Harold 

regarding the confiscation of Yuetter’s pellet gun, we cannot say that the District Court 

abused its discretion in limiting the scope of cross-examination.

10

 

 See Old Chief v. 

The Court: Sustained.

(App. at 3013-14.)

10 We also note that, in light of the evidence adduced at trial, one may wonder 

whether impeachment of Officer Harold’s testimony regarding the confiscation of 

Yuetter’s pellet gun would have had any effect on the jury’s verdict. As previously 

noted, when Plaintiffs’ counsel asked Officer Harold whether he confiscated any “black 

pellet guns” during his investigation of the Warminster robberies, he replied that he did 

not confiscate any “bebe pistols” prior to March 31, 2006. Officer Harold’s answer to the 

question posed by Plaintiffs’ counsel was, at best, unresponsive, particularly since the 

record demonstrates that Harold was present when a police officer confiscated a “black 

plastic HFC pellet gun” on March 14, 2006. Nevertheless, it is unclear how his answer 

would so tarnish his credibility that it would change the jury’s overall assessment of the 

evidence. Plaintiffs’ theory of the case hinged on the assertion that Sean did not have a 

gun when he exited the Sullivan residence and ran towards the back fence. That theory 

was supported by the eye-witness testimony of the Sullivans’ neighbors, Robert and 

Kelly Franks, who stated that Sean did not have a gun when the police officers fired at 

him. The jury, however, believed the testimony of two police officers who stated that 

Sean pulled a gun from his waistband when he landed on the ground after exiting the 

back window of the Sullivan residence. The jury also, apparently, credited the testimony 

of a third officer who stated that Sean fired a pistol at the police officers as he ran toward 
17

United States, 519 U.S. 172, 182 n.6 (1997) (noting that “[i]t is important that a 

reviewing court evaluate the trial court’s decision from its perspective when it had to rule 

and not indulge in review by hindsight.”). 

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s order. 

 

the back fence. Given the jury’s decision to reject the powerful testimony given by Kelly 

and Robert Franks, which directly contradicted the testimony of the police, one might 

well conclude that it is highly probable that Officer Harold’s evasive response, even if 

highlighted by effective impeachment, would not have affected the outcome of the case. 

See Walker v. Horn, 385 F.3d 321, 334 (3d Cir. 2004) (standard of review for nonconstitutional error allows a finding of harmlessness “if it is highly probable that the error 

did not affect the outcome of the case.”).