1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-11-1996

Mosley v. Wilson

Precedential or Non-Precedential:

Docket 95-1989

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Recommended Citation

"Mosley v. Wilson" (1996). 1996 Decisions. Paper 12.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/12
 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 95-1989 

 

 JAMES MOSLEY, 

 Appellant 

 v. 

 

 JOSEPH WILSON; LEWIS WILSON; PETER MANGO 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. No. 91-cv-00712) 

 

 

 Argued July 15, 1996 

 Before: SLOVITER, Chief Judge, 

 COWEN and ROTH, Circuit Judges 

 

 (Opinion filed December 11, l996) 

 

Joseph P. Green, Jr. (Argued) 

Duffy & Green 

West Chester, PA 19380 

 Attorney for Appellant 

L. Rostaing Tharaud (Argued) 

Marshall, Dennehey, Warner, 

 Coleman & Goggin 

Philadelphia, PA l9l03 

 Attorney for Appellee 

 OPINION OF THE COURT 

SLOVITER, Chief Judge. 

 A federal jury was presented with four claims filed by 

James Mosley against Joseph Wilson, a police officer of East 
Fallowfield Township, Chester County, Pennsylvania: two claims 

for violations of Mosley's civil rights filed pursuant to 42 

U.S.C. § 1983, one of which was for arrest without probable cause 

and the other for use of excessive force, and two pendent state 

law claims, of which one was for malicious prosecution and the 

other for intentional infliction of emotional distress. The jury 

returned a verdict for plaintiff Mosley on the malicious 

prosecution claim, and for defendant Wilson on the other three 

claims. 

 The district court granted Wilson's post-trial motion 

and entered judgment as a matter of law for him on the malicious 

prosecution claim. Mosley appeals. 

 I. 

 FACTS AND PROCEDURAL HISTORY 

 This action arose out of events that were the subject 

of a criminal prosecution brought in the Court of Common Pleas of 

Chester County, Pennsylvania. Because Mosley's civil case was 

tried by a jury and the district court had no occasion to make 

detailed factual findings, we rely largely on the depiction of 

the relevant background events as set forth in Commonwealth v. 

Mosley, 535 Pa. 549, 637 A.2d 246 (1993), the Pennsylvania 

Supreme Court's opinion on Mosley's appeal in the criminal case. 

 The initial events that transpired on the evening of 

January 31, 1989 are essentially undisputed. About midnight, 

Mosley, described by the Pennsylvania Supreme Court as "somewhat 

disconcerted," arrived at the police station in East Fallowfield 

Township and met with defendant Officer Joseph Wilson, who was on 

duty that night. Id. at 247. Mosley told Wilson that he had had 

an argument with Sharon Smith, and that he had come to report his 

version of the events before he was arrested. While Mosley was 

in the police station, the police dispatcher informed Wilson that 

Smith had called in a complaint against Mosley. Officer Wilson 

then drove Mosley back to his residence in an attempt to mediate 

the dispute. Id. 

 After arriving at Mosley's home, Wilson went inside to 

speak to Smith, leaving Mosley in his patrol car. He returned a 

few minutes later and told Mosley that he was under arrest for 

assault and rape. (We note that Mosley was never charged with 

any crime in connection with the alleged assault and rape of 

Smith.) Wilson then locked Mosley in the police car and made a 

radio call for backup assistance from a neighboring municipality, 

and was shortly joined by his brother, Sergeant Lewis Wilson. 

The two officers went inside the house to continue interviewing 

Smith, and left Mosley locked in the back of the patrol car. Id. 

 From this point, the accounts of the evening's events 

diverge. The police officers maintain that while they were 

questioning Smith, Mosley began to bang violently and kick the 

inside of the police car, that Officer Wilson (the defendant in 

this case) attempted to handcuff him, that Mosley lunged at 

Officer Wilson and attempted to grab his gun while threatening to 

kill him, that they struggled and Sergeant Wilson ran outside and 

pulled Mosley off his brother, and that after several minutes of 

"wrestling," they handcuffed Mosley and took him to the hospital. 

Id. 
 Mosley's vastly different version of the story is that 

after he was locked in the car for 30 minutes while the officers 

spoke with Sharon Smith, he began to bang on the inside of the 

car to get the officers' attention and gain his release. Officer 

Wilson came outside, opened the car door and assaulted him, and 

then pulled him out of the car and continued the assault, aided 

by Sergeant Wilson, until they beat him into submission before 

finally taking him to the hospital. Id. 

 Mosley was prosecuted and tried before a state court 

jury on charges arising out of the events, which convicted him on 

charges of terroristic threats, simple assault, recklessly 

endangering another person, and resisting arrest, in violation of 

18 Pa.C.S.A. § 2706, § 2701(a)(1), § 2705, and § 5104, 

respectively. Mosley was acquitted of aggravated assault. In 

addition, the trial court found Mosley guilty of the summary 

offenses of criminal mischief and disorderly conduct, 18 

Pa.C.S.A. § 3304(a)(2) and § 5503(a)(1). 

 On appeal, the Pennsylvania Supreme Court overturned 

Mosley's conviction because a key prosecution witness, Sergeant 

Wilson, had an ex parte conversation outside the courtroom with a 

juror who eventually became the jury foreperson. During the 

conversation, the juror told Sergeant Wilson that he was from 

West Caln and was a friend of the Chief of Police there, and 

Sergeant Wilson "complimented the juror on the quality of his 

hometown police department." Id. at 249. The Pennsylvania 

Supreme Court held that the trial judge erred in failing to 

question the juror about any possible taint that might have 

resulted from this conversation and therefore the judge was 

unable to determine whether the encounter constituted harmless 

error. Accordingly, the Court vacated Mosley's conviction and 

granted him a new trial. Id. at 250. Instead of retrying the 

case, however, the prosecutor granted Mosley nolle prosequi and 

dropped all criminal charges against him. 

 Before the resolution of his appeal of conviction, 

Mosley filed this civil suit against Officer Wilson, Sergeant 

Wilson, and police chief Peter Mango, alleging that the police 

committed battery, assault, false imprisonment, malicious 

prosecution, and malicious use and abuse of process. Mosley 

eventually dismissed the claims against Sergeant Lewis Wilson and 

Peter Mango, and trial proceeded before a jury on all claims 

against Officer Joseph Wilson in the Eastern District of 

Pennsylvania, bifurcated as to liability and damages. The first 

trial ended in a hung jury. At the second trial, Mosley's claims 

were reduced to two federal civil rights claims filed pursuant to 

42 U.S.C. § 1983 alleging arrest without probable cause and use 

of excessive force, and two pendent state law tort actions of 

malicious prosecution and intentional infliction of emotional 

distress. The jury returned a verdict in favor of Mosley on the 

state claim of malicious prosecution, but found for Wilson on all 

other counts. 

 Following the verdict, Wilson, arguing that the verdict 

on malicious prosecution was inconsistent with the verdict in his 

favor on the civil rights claims, moved to "mold the verdict into 

a consistent verdict." App. at 102. The district court granted 
the motion, issuing judgment as a matter of law pursuant to 

Fed. R. Civ. P. 50 for Wilson on the malicious prosecution claim 

on the ground that the verdicts on the different counts were 

"blatantly inconsistent." Id. The district court reasoned that 

because the jury must have found that probable cause existed to 

find for Wilson on the unlawful arrest claim, and because 

probable cause for arrest is a "necessary element" in the 

malicious prosecution claim, the verdicts were legally 

inconsistent. The district court reasoned: "If probable cause 

existed for one claim, it had to exist for the other claim." Id. 

Consequently, the court "molded" the verdict in favor of Wilson 

on all counts. 

 Mosley's appeal brief states that he seeks

reinstatement of the malicious prosecution verdict, and if he 

could present his damage claim to the same jury he would waive 

retrial on the civil rights claims. He states that if that jury 

is not available, he seeks remand for a new trial on both his 

malicious prosecution claim and on his civil rights claims, 

because the latter were marred by a legally erroneous 

instruction. Obviously, the same jury is not available, and we 

confine ourselves to Mosley's request for a new trial on the 

civil rights claims as well as the malicious prosecution claim. 

 II. 

 DISCUSSION 

 A. 

 We consider first Mosley's contention that the district 

court erred in applying Rule 50(b) setting aside the jury's 

verdict for Mosley on the malicious prosecution claim based on 

the court's view that that verdict was inconsistent with the 

jury's verdict for Wilson on the civil rights claims. Our review 

of the court's grant of judgment as a matter of law is plenary. 

Duquesne Light Co. v. Westinghouse Electric Corp., 66 F.3d 604, 

613 (3d. Cir. 1995). 

 Under Rule 50(a), the court may grant judgment as a 

matter of law only if "a party has been fully heard on an issue 

and there is no legally sufficient evidentiary basis for a 

reasonable jury to find for that party on that issue." Fed. R. 

Civ. P. 50(a). In granting judgment as a matter of law following 

a jury verdict, the district court must view the evidence in the 

light most favorable to the non-moving party, and determine 

whether the record contains the "'minimum quantum of evidence 

from which a jury might reasonably afford relief.'" Parkway 

Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir. 

1993) (quoting Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d 

Cir. 1990)). 

 Here, the district court did not conclude that there 

was insufficient evidence to support the jury's finding of 

malicious prosecution. Instead, the court concluded only that 

the jury's verdict for Mosley on the malicious prosecution claim 

was inconsistent with its verdict for Wilson on the civil rights 

claim. The court explained as follows: 

 In order for the jury to have found in favor of the 

 defendant on plaintiff's civil rights claim for arrest 
 without probable cause, the jury would have had to 

 conclude that the defendant did in fact have probable 

 cause to arrest the plaintiff. However, in order to 

 have found in favor of the plaintiff on the malicious 

 prosecution claim, the jury would have had to conclude 

 that the defendant lacked probable cause to arrest 

 plaintiff since lack of probable cause is a necessary 

 element of a claim for malicious prosecution in 

 Pennsylvania. . . . Thus, the jury's verdict as to 

 those two claims was blatantly inconsistent. 

App. at 102 (emphasis in original). 

 Wilson cites no authority that authorizes a district 

court to grant judgment as a matter of law based on the jury's 

inconsistency on different claims. The closest analog in the 

Federal Rules of Civil Procedure appears in Rule 49(b) which 

considers the appropriate course when a jury returns inconsistent 

answers to interrogatories or when a general verdict is 

accompanied by one or more inconsistent interrogatory answers. 

See Fed. R. Civ. P. 49(b). In the latter circumstance the 

district court must either return the jury for further 

consideration of the verdicts or order a new trial. As we 

explained in Repola v. Morbark Industries, Inc., 934 F.2d 483, 

495 (3d Cir. 1991), it would be "[n]either fair [n]or appropriate 

simply to excise the jury's . . . finding and to enter judgment 

for [defendant]" based on the jury's verdict on a different claim 

that rendered the verdicts inconsistent. Without the court 

finding that the evidence was insufficient, the decision would be 

arbitrary and would trench on the Seventh Amendment. 

 Indeed, the inappropriateness of entering judgment as a 

matter of law solely on the basis of inconsistent verdicts is 

evident in the procedural requirements for such a judgment 

established by the Federal Rules of Civil Procedure. A motion 

for judgment as a matter of law rendered after trial must be made 

on grounds that were previously asserted in a motion for directed 

verdict prior to submission of the case to the jury. See Fed. R. 

Civ. P. 50(b) advisory committee's note; see also Simmons v. City 

of Philadelphia, 947 F.2d 1042, 1077 (3d Cir.), cert. denied, 503 

U.S. 985 (1991); Abraham v. Pekarski, 728 F.2d 167, 172 (3d 

Cir.), cert. denied, 467 U.S. 1242 (1984). Obviously the 

inconsistency of the verdicts could not have been raised in a 

motion for directed verdict prior to jury deliberations. 

 Rule 49(b) does not address the issue before us here - 

that of inconsistent general verdicts. We have found little 

precedent on this issue but there is a comprehensive discussion 

of inconsistent general verdicts in the opinion of Justice 

Stevens in Los Angeles v. Heller, 475 U.S. 796, 804-06 (1986) 

(Stevens, J. dissenting), where the underlying fact pattern bore 

some similarity to that before us. Although the Supreme Court 

did not address the issue before us in its per curiam decision, 

Justice Stevens' dissent did discuss at some length whether 

inconsistent general verdicts in a civil case should be allowed 

to stand. Justice Stevens noted that when faced with apparently 

inconsistent verdicts in a civil case, the district court can 
take several approaches. He noted that "in certain

circumstances, a court retains the authority, even in a civil 

case, to allow an apparently inconsistent verdict to stand." 

Heller, 475 U.S. at 805; see United States Football League v. 

National Football League, 644 F. Supp. 1040, 1045 (S.D.N.Y. 1986) 

(stating that "inconsistent verdicts on separate claims in a 

civil action are fully permissible."), aff'd, 842 F.2d 1335 (2d 

Cir. 1988); see also Globus v. Law Research Service, Inc., 418 

F.2d 1276, 1290 n.17 (2d Cir. 1969) (stating that "consistent 

jury verdicts are not, in themselves, necessary attributes of a 

valid judgment."), cert. denied, 397 U.S. 913 (1970). 

 Second, Justice Stevens noted the court's "duty to 

attempt to read the verdict in a manner that will resolve 

inconsistencies." Heller, 475 U.S. at 806. In this court, that 

requirement is illustrated by our decision in Loughman v. ConsolPennsylvania Coal Co., 6 F.3d 88, 108 (3d Cir. 1993), holding 

that a jury's finding that 100% of the harm was due to one 

defendant's actions was not inconsistent with the jury's finding 

of liability for all of the defendants. 

 Third, Justice Stevens referred to the trial judge's 

responsibility "upon receiving an apparently inconsistent verdict 

. . . not to retain half of the verdict, but to resubmit the 

question to the jury." Heller, 407 U.S. at 806. That duty is 

comparable to the requirement imposed by Rule 49(b) when the 

answers to special interrogatories are inconsistent. See note 1, 

supra. 

 Finally, Justice Stevens observed that "if verdicts are 

genuinely inconsistent and if the evidence might support either 

of the 'inconsistent' verdicts, the appropriate remedy is 

ordinarily, not simply to accept one verdict and dismiss the 

other, but to order an entirely new trial." Heller, 407 U.S. at 

806. He then cited this court's opinion in Malley-Duff & 

Associates, Inc. v. Crown Life Ins. Co., 734 F.2d 133, 145 (3d 

Cir.), cert. denied, 469 U.S. 1072 (1984), which, although it 

dealt with inconsistent special verdicts under Rule 49(a) rather 

than inconsistent general verdicts, is illustrative of the 

procedure to be used in the latter situation. 

 It is of considerable significance that none of the 

approaches referred to by Justice Stevens supports the action of 

the district court in this case, i.e., directing a judgment 

notwithstanding the jury's verdict on one claim on the sole 

ground that it was inconsistent with the jury's verdict on 

another claim. It follows that the district court erred as a 

matter of law. 

 B. 

 Wilson argues that we should sustain the district 

court's order on the ground that it "correctly amended" the 

jury's verdict for Mosley on his malicious prosecution claim 

because the jury's verdict was precluded as a matter of law. He 

argues that despite the later reversal of Mosley's conviction by 

the Pennsylvania Supreme Court, Mosley's conviction by the jury 

for terroristic threats, assault, reckless endangerment and 

resisting arrest, and the court's conviction of him on his 

summary offenses arising out of the same incident, was 
dispositive of the probable cause issue in his civil action. 

Therefore, he claims, the issue of probable cause should never 

have gone to the jury. 

 Issue preclusion, or collateral estoppel, bars 

relitigation of issues adjudicated in a prior action. Swineford 

v. Snyder County Pa., 15 F.3d 1258, 1266 (3d Cir. 1994). Under 

this principle a conviction ordinarily will be a bar to a 

subsequent state court suit for damages, such as one for 

malicious prosecution. See W. Page Keeton, D. Dobbs, R. Keeton, 

& D. Owen, Prosser and Keeton on The Law of Torts § 119, at 874 

(5th ed. 1984). The underlying rationale given is that because a 

plaintiff in a malicious prosecution action must show the 

favorable termination of the underlying proceeding, a civil 

plaintiff whose conviction has not been reversed is unable to 

prove one of the essential elements of the tort - lack of 

probable cause for the proceeding. Id. 

 A different situation is presented when a conviction 

has later been overturned. The courts appear to be divided on 

the preclusive effect that the initial conviction should have on 

the issues of probable cause for the arrest and/or prosecution in 

a subsequent action for malicious prosecution brought against the 

police or municipal authorities. On one hand, the Restatement 

(Second) of Torts, views a conviction, even if later overturned, 

as "conclusively establish[ing] the existence of probable cause, 

unless the conviction was obtained by fraud, perjury or other 

corrupt means." Restatement (Second) of Torts § 667(1) (1977). 

The rationale given is that a guilty verdict establishes "that 

the person who initiated the proceedings had reasonable grounds 

for so doing." Id. at § 667(1) cmt. b. 

 On the other hand, there is "a considerable minority 

view which regards the conviction as creating only a presumption, 

which may be rebutted by any competent evidence showing that 

probable cause for the prosecution did not in fact exist." 

Prosser and Keeton on The Law of Torts § 119, at 882. 

 The division among the states was noted in the separate 

opinions in Heck v. Humphrey, 114 S. Ct. 2364 (1994), where a 

closely divided Supreme Court considered the related issue of the 

effect of a conviction on the plaintiff's right to recover 

damages in a civil rights action brought under 42 U.S.C. § 1983. 

Justice Scalia authored the majority opinion, which held that "in 

order to recover damages for allegedly unconstitutional 

conviction or imprisonment, or for other harm caused by actions 

whose unlawfulness would render a conviction or sentence invalid, 

a § 1983 plaintiff must prove that the conviction or sentence has 

been reversed on direct appeal, expunged by executive order, 

declared invalid by a state tribunal authorized to make such 

determination, or called into question by a federal court's 

issuance of a writ of habeas corpus." Id. at 2372 (emphasis 

added). Justice Souter, writing separately for the four Justices 

who concurred only in the judgment, agreed with the majority 

insofar as its rule applied to prison inmates seeking § 1983 

damages in federal court, but objected to application of the 

majority's rule to those civil plaintiffs "who cannot first 

obtain a favorable state ruling," or who can no longer bring a 
habeas action because they are no longer in custody. Id. at 2379 

(Souter, J. concurring in the judgment). 

 Heck did not involve a conviction that had been 

reversed on direct appeal, as Mosley's was here, but in the 

course of the two opinions and their footnotes the Justices 

alluded to the effect of a conviction that was later reversed on 

a common law malicious prosecution claim. Justice Souter cited 

authority that at common law a prior conviction, although 

reversed, "dissolved [a] claim for malicious prosecution because 

the conviction was regarded as irrebuttable evidence that the 

prosecution never lacked probable cause." Id. at 2377. He 

acknowledged that this rule has been relaxed in more recent 

times. Id. at 2377 n.3. 

 Justice Scalia responded that even early in the common 

law it was recognized that there must be exceptions (such as in 

cases involving fraud, perjury, or mistake of law) to "the 

general rule that a conviction defeated the malicious prosecution 

plaintiff's allegation (essential to his cause of action) that 

the prior proceeding was without probable cause." Id. at 2372 

n.4. He further noted that the Court had recognized in Crescent 

City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120 

U.S. 141, 149 (1887)), that "'[h]ow much weight as proof of 

probable cause shall be attributed to the judgment of the court 

in the original action, when subsequently reversed for error, may 

admit of some question.'" Id. 

 We must look to the current state of Pennsylvania law 

because malicious prosecution is a common law claim, and we are 

bound to give a state court judgment the same preclusive effect 

as would the courts of that state. See 28 U.S.C. § 1738 (1988); 

Swineford, 15 F.3d at 1266. If the highest court has not spoken 

to the issue, we can garner assistance from the decisions of the 

state's intermediate appellate courts in predicting how the 

state's highest court would rule. Gares v. Willingboro Township, 

90 F.3d 720, 725 (3d Cir. 1996); McKenna v. Pacific Rail Serv., 

32 F.3d 820, 825 (3d Cir. 1994). 

 The Pennsylvania Supreme Court has apparently not 

determined what preclusive effect should be given to a conviction 

that was later overturned in a subsequent malicious prosecution 

suit. There are contrary signals from the intermediate 

Pennsylvania courts. Compare Cosmas v. Bloomingdales Bros., 

Inc., 442 Pa. Super. 476, 482, 660 A.2d 83, 86 (1995) (stating 

that a conviction even if overturned is conclusive proof of the 

existence of probable cause unless the party can show undue 

influences at work in the conviction proceedings) with Cap v. KMart Discount Stores, Inc., 357 Pa. Super. 9, 12, 515 A.2d 52, 53 

(1986) (holding that conviction by a justice of the peace 

reversed on appeal does not preclude action for malicious 

prosecution even without any showing of undue influence in the 

process). Fortunately, we need not predict in this case 

precisely how the state supreme court would resolve the issue 

because under either analysis, Mosley's jury conviction, which 

was later overturned, could not preclude litigation of the issue 

of probable cause in this civil action. 

 
 In this case, we will assume arguendo that Wilson 

correctly states that under Pennsylvania law "the overturning of 

a conviction does not negate the finding of probable cause by the 

court absent 'fraud or other undue influences.'" Appellee's brief 

at 11 (quoting Cosmas, 660 A.2d at 86). We therefore proceed to 

examine the Pennsylvania Supreme Court's opinion reversing 

Mosley's conviction to ascertain whether the basis for its action 

undermines the effect of the original conviction on the 

establishment of probable cause. 

 Examination of the opinion shows that the Court 

reversed Mosley's conviction because of its concern that Mosley's 

trial was tainted by a lack of objectivity on the part of the 

jury. The Court "decline[d] to adopt a per se rule which would 

require the disqualification of a juror anytime there is ex parte 

contact between that juror and a witness," but instead held that 

when such a "communication or contact has occurred between a 

juror and a witness, prejudice may be inferred at the discretion 

of the trial judge." Mosley, 637 A.2d at 249. To rebut the 

inference of prejudice, "the communication must be explained or 

shown to be harmless." Id. 

 The Court then reviewed the contact in this case: 

 In the instant case, an important Commonwealth 

 witness engaged in an ex parte conversation with a 

 juror who later served as foreman of the jury. The 

 witness, Sergeant Lewis Wilson, was not only one of the 

 arresting officers, but was also directly involved in 

 the altercation which led to the charges upon which 

 Appellant was convicted. Since there were no 

 corroborating eye witnesses, the case turned on a 

 credibility determination between Appellant and the two 

 police officers. 

 The conversation between Sergeant Wilson and the 

 juror amounted to more than a brief, incidental 

 contact. The two engaged in a dialogue in which the 

 juror conveyed the fact that he was from West Caln and 

 was a friend of the Chief of Police in that 

 municipality. Sergeant Wilson then complimented the 

 juror on the quality of his hometown police department. 

Id. at 249. The Court further stated: 

 Although we diverge from the "rebuttable 

 presumption of prejudice" rule used by the [Supreme 

 Court of Utah] in Pike, we agree with the view that a 

 juror may be subject to a subconscious influence or 

 bias as a result of an unexpected cordial encounter 

 with a witness. This subconscious influence may have 

 the improper effect of enhancing the credibility of the 

 witness in the eyes of that juror. 

 In the instant case, the trial judge never 

 questioned the juror about any possible taint which may 

 have resulted from his conversation with Sergeant 
 Lewis. Instead, defense counsel was given the 

 opportunity to call witnesses in support of his Motion 

 to Disqualify the Juror. This placed defense counsel 

 in the difficult position of deciding whether to avoid 

 questioning the juror or run the risk of antagonizing a 

 juror who might remain to decide his client's fate. 

 The juror was never called as a witness by either side 

 at the voir dire hearing on the Motion. Without the 

 juror's testimony, the trial judge was not in a 

 position to determine that the encounter between 

 Sergeant Wilson and the juror amounted to harmless 

 error. Consequently, the trial judge's denial of 

 Appellant's Motion to Disqualify the Juror was an abuse 

 of discretion. 

Id. at 250. The Court concluded: 

 We, therefore, cannot say with any degree of 

 certainty that the contact did not establish a rapport, 

 albeit unconscious, between Sergeant Wilson and the 

 jury foreman which in some way influenced the outcome 

 of the trial. 

Id. (emphasis added). 

 The Pennsylvania Supreme Court's lack of confidence in 

the reliability of the factfindings seems to us to be precisely 

the sort of "undue influence" referred to in Cosmas and 

encompassed by the Restatement (Second) of Torts § 667(1). Even 

courts that today adhere to the view that a conviction 

notwithstanding reversal is proof of probable cause leave some 

opening for these situations where the reversal impugns the 

reliability or integrity of the factfinding in the initial 

conviction. That was certainly the case in the Pennsylvania 

Supreme Court's reversal of the conviction in Mosley. We believe 

that the Pennsylvania courts, even if the position in Cosmos is 

adopted by its Supreme Court, would find that the circumstances 

set forth in the Mosley opinion are the kind of "undue influence" 

that negates the finding of probable cause that stems from the 

initial conviction. For this reason, we hold that Mosley's 

conviction in the Court of Common Pleas on charges of terroristic 

threats, simple assault, recklessly endangering another person 

and resisting arrest are not conclusive of whether there was 

probable cause to prosecute him for these offenses. Accordingly, 

once his conviction was overturned, he was entitled to litigate 

the issue in his civil case and the district court erred in 

declining to give Mosley the benefit of the jury's judgment on 

his claim of malicious prosecution. 

 We will therefore reverse the trial court's order 

granting judgment as a matter of law on the malicious prosecution 

claim. Because the district court entered its judgment before 

the jury considered the damage issue, we will remand for a new 

trial. 

 C. 

 Of course, the Supreme Court's holding in Heck would 
also apply to Mosley's § 1983 claims, the issue directly before 

the Court in that case. However, the district court permitted 

Mosley's § 1983 claims to go to the jury, which decided against 

him. Mosley nonetheless argues that he is entitled to a new 

trial on his civil rights claims because the district court gave 

an erroneous jury charge. The portion of the charge to which 

Mosley points was as follows: 

 The negligence on the part of a police officer does not 

 violate a person's constitutional rights . . . . In 

 order to find the police officer liable to the 

 plaintiff, you must find that he acted with deliberate 

 or reckless indifference to [Mosley's] safety. 

 Davidson v. O'Lone, 752 F.2d 817, 828 (3d Circuit 

 1984), affirmed sub nom. Davidson v. Cannon, 106 S. Ct. 

 668 (1986). 

 Deliberate or reckless indifference does not 

 simply mean extreme carelessness; it means much more. 

 To be found deliberately or recklessly indifferent, the 

 defendant must have disregarded a serious known risk of 

 harm under circumstances which make that disregard 

 clearly unreasonable. 

App. at 33-34 (emphasis added). At the court's invitation, a 

juror requested that these paragraphs be repeated as soon as they 

were given, and the court did so. 

 Our review of the jury charge is plenary as Mosley 

claims the district court employed an incorrect legal standard in 

stating that Mosley was required to prove deliberate indifference 

by the police officer to succeed on those claims. Griffiths v. 

Cigna Corp., 988 F.2d 457, 462 (3d Cir.), cert. denied, 510 U.S. 

865 (1993). If, looking at the charge as a whole, "the 

instructions were capable of confusing and thereby misleading the 

jury," we must reverse. Id. 

 It is not entirely clear whether the trial court 

intended that its instruction that the jury had to find that 

Wilson acted "with deliberate or reckless indifference to 

[Mosley's] safety," App. at 32-33, was to pertain only to the 

excessive force claim or to both civil rights claims. The 

instruction did not identify the particular "constitutional 

rights" to which it referred. Reading the full charge, we 

believe there was sufficient ambiguity in this regard that the 

jury could have been led to believe that it had to find that 

Wilson acted with deliberate or reckless indifference with regard 

to both civil rights claims. 

 In a case such as this, where it is undisputed that the 

arrest and use of force were intentional acts, the district court 

erred by instructing the jury as to "deliberate indifference." 

This instruction required the jury to determine the officer's 

subjective intent, whereas the appropriate inquiry on both civil 

rights claims is an objective one. 

 To find that there was an unlawful arrest in violation 

of the Fourth Amendment, the jury need only have found that under 

the facts and circumstances within Wilson's knowledge, a 
reasonable officer could not have believed that an offense had 

been or was being committed by the person to be arrested. SeeOrsatti v. 

New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 

1995); United States v. Cruz, 910 F.2d 1072, 1076 (3d. Cir.), 

cert. denied, 498 U.S. 1039 (1991). To find that Wilson used 

excessive force, the jury was required to determine whether he 

used force that was objectively reasonable under the 

circumstances and facts confronting him at that time, without 

regard to his underlying motivation. See Groman v. Township of 

Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). Neither of these 

inquiries required the jury to consider Wilson's subjective 

intent. Accordingly, an instruction on "deliberate indifference" 

had no place in connection with either of the § 1983 claims and 

erroneously added an element of subjective intent to Mosley's 

claims. 

 The district court cited Davidson v. O'Lone, 752 F.2d 

817, 828 (3d. Cir. 1984) (en banc), affirmed sub nom. Davidson v. 

Cannon, 474 U.S. 344 (1986), in support of its deliberate 

indifference instruction. In Davidson, we held that an 

allegation that prison officials had negligently failed to 

protect the plaintiff inmate from another inmate did not state a 

claim under § 1983 for deprivation of a Fourteenth Amendment 

liberty interest, a conclusion affirmed by the Supreme Court. 

That case is inapplicable here where there is no dispute that 

Wilson committed intentional acts when he arrested Mosley and 

used physical force against him. Whether he intended to violate 

his civil rights in the process is irrelevant. 

 Wilson argues that even if there were error in the 

charge, it was harmless. As his counsel stated at oral argument: 

"I simply do not believe that given the facts of the case, this 

notion of `deliberate indifference'. . . that doesn't appear to 

have any direct application here would have been a serious 

consideration." Alternatively, Wilson argues that the error 

actually benefitted Mosley by allowing the jury to find in his 

favor even if the deprivation of his rights was not intentional, 

because the deliberate indifference standard is "lower" than that 

for an intentional deprivation of rights. Appellee's Brief at 

13-14. 

 A trial court's errors are harmless only if it is 

"highly probable" that they did not affect the outcome of the 

case. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d 

Cir. 1985). We need not decide whether in all circumstances a 

jury instruction that has no application to the charges at issue 

leads to reversible error because in this case we believe that 

the charge was indeed "capable of confusing and thereby 

misleading the jury." Griffiths, 988 F.2d at 462. 

 The jury could not be expected to understand that the 

deliberate indifference instruction was inapplicable and should 

have been disregarded. Certainly the deliberate indifference 

charge given could have led a jury consisting of laypersons 

unfamiliar with the complex jurisprudence of § 1983 to inject a 

state of mind inquiry. It may have believed that to find for 

Mosley on his unlawful arrest claim, it was required to find not 

only that Wilson lacked probable cause to arrest him but also 
that Wilson was subjectively aware of the potential violation of 

Mosley's rights, and "deliberately indifferent" thereto. 

Similarly, as to the excessive force claim, the charge could have 

led a jury to believe that it had to find not only that Wilson 

used excessive force under the circumstances, but that he did so 

with "deliberate indifference," in the sense that he was aware 

that the force he was using might be excessive. Because a 

finding concerning the officer's state of mind is not required 

for either civil rights claim, we cannot find that it is "highly 

probable" that the jury's verdict was unaffected by the 

deliberate indifference instruction and therefore harmless error. 

We will therefore also remand the § 1983 claims as well to the 

district court for a new trial. 

 III. 

 CONCLUSION 

 For the foregoing reasons, we will reverse the order of 

the district court granting Wilson judgment as a matter of law on 

the malicious prosecution claim, and remand that claim as well as 

Mosley's civil rights claims to the district court for a new 

trial. 

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