Charles J. Melton v. City of Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3052
___________
CHARLES J. MELTON,
Appellant
v.
CITY OF PHILADELPHIA; MICHAEL MURPHY, Officer, Badge Number 1531;
DICKIE HUDECKI, Officer, Badge Number 21-43, Individually and as Police
Department; MOTOROLA CORP; ED LANDER, Mr. Owner, Office of the CEO
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:05-cv-00366)
District Judge: Honorable Eduardo C. Robreno
___________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 24, 2009
Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges
(Opinion filed: August 26, 2009)
___________
OPINION
___________
PER CURIAM
Charles J. Melton appeals pro se from the judgment of the District Court, entering
a jury verdict against him. For the following reasons, we will affirm the judgment.

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Apparently, Melton reached out of his car window, caught hold of a woman, and1
began driving in reverse. Officer Murphy intervened and punched Melton in the face,
injuring him. Based upon these events, Melton was convicted of simple assault, reckless
endangerment, and possession of an instrument of crime.
In a footnote, the District Court stated that Melton agreed to dismissal of all but the2
Fourth Amendment claim. On appeal, Melton does not dispute the dismissal of the other
claims.
2
I. Background
In early 2005, Melton initiated a pro se civil rights action pursuant to 42 U.S.C.
§ 1983 in the United States District Court for the Eastern District of Pennsylvania.
Melton claimed to have suffered constitutional violations during a March 2003 physical
altercation that ultimately led to his arrest and conviction. Specifically, Melton claimed1
that Officer Michael Murphy used excessive force during the course of Melton’s arrest, in
violation of the Fourth Amendment. In addition, Melton raised various claims against the
City of Philadelphia, Officer Murphy’s partner, Officer Scott Hudecki, Motorola
Corporation, and Motorola’s CEO, Edward Zander.
In 2005, the District Court dismissed Melton’s claims against Zander for failure to
state a claim upon which relief could be granted. In October 2007, after a lengthy period
on the suspense docket, the District Court ordered the case to return to the active docket.
Melton then retained private counsel. Melton voluntarily dismissed his claims against
Motorola and the City of Philadelphia, and on April 23, 2008, the District Court
dismissed all remaining claims except Melton’s Fourth Amendment claim that Defendant
Murphy employed excessive force against him.2

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Melton filed several post-trial motions in the District Court: for a new trial, to excuse3
the filing of a transcript, to proceed in forma pauperis, and for the appointment of
counsel. On July 24, 2008, the District Court denied the post-trial motions without
prejudice.
3
Shortly before trial, Melton moved for withdrawal of his counsel, arguing that he
was receiving ineffective assistance. The District Court denied the request. In July 2008,
Melton’s Fourth Amendment claim proceeded to a jury trial. Pursuant to the jury’s
verdict, on July 10, 2008, the District Court entered judgment in favor of Officer Murphy
and against Melton. Proceeding pro se, Melton filed the instant appeal. We have3
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
II. Analysis
A.
Melton first claims ineffective assistance of counsel, arguing that his retained
counsel failed to present to the District Court the testimony of certain necessary fact and
expert witnesses. Specifically, Melton argues that he wished to present a “civilian
witness” who “was going to give contra[dic]tory statement and introduce evidence
[contrary to] that of officer Murphy’s et al.” Melton contends that counsel failed to
interview or subpoena this unnamed individual, and complains of a “lack of prosecution.”
In addition, Melton appended to his brief a set of printed emails, apparently reflecting a
dispute with his counsel about whether Melton should be required to bear the expense of
expert witness fees. We presume that, as a result of this dispute, the expert witnesses did

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The District Court did not issue a written order concerning the exclusion of any4
proposed witnesses.
4
not testify on Melton’s behalf at trial.
Melton’s claims of ineffective assistance of counsel do not provide grounds for
disturbing the jury’s verdict. There is no right to the effective assistance of counsel in a
civil case. Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980).
B.
Melton next argues that the District Court “[d]idn’t let my witnesses testify, on my
behalf to the jury.” Liberally construing his pleading, see Dluhos v. Strasberg, 321 F.3d
365, 369 (3d Cir. 2003), we conclude that Melton has raised a claim that the District
Court abused its discretion by wrongfully excluding witnesses from testifying on his
behalf. See Renda v. King, 347 F.3d 550, 553 (3d Cir. 2003) (rulings to admit or exclude
evidence are reviewed for an abuse of discretion).
This appears to be the first time Melton has raised such a claim. Generally, only
arguments made first to the District Court may be heard on appeal. See Flick v.
Borg-Warner Corp., 892 F.2d 285, 288 (3d Cir. 1990). Moreover, Melton does not
identify which witnesses were improperly excluded, what substantive testimony the
witnesses would have provided, or how he suffered any prejudice as a result of their
exclusion. Melton has not set forth the District Court ruling he disputes, and no such
ruling appears in the record. Appellees argue that Melton’s failure to provide the4

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We recognize that Melton’s failure to provide a copy of the transcript is in part due to5
our denial of his request for provision of the transcripts at the government’s expense.
However, we declined his request because he did not demonstrate that the appeal presents
a substantial question. See 28 U.S.C. § 753(f). Although we afforded him the
opportunity to do so, Melton has not remedied this shortcoming.
5
transcript prevents meaningful review of his claim. See Fed. R. App. P. 10(b); Third
Circuit L.A.R. 11.1; see also Fed. R. App. P. 3(a)(2) (failure to abide by the appellate
rules permits “the court of appeals to act as it considers appropriate,” including
dismissal). We agree. The vague statements in Melton’s briefs are insufficient. We lack5
any basis to conclude that the District Court abused its discretion.
C.
Next, Melton argues that he was denied a fair trial because the District Court did
not permit him to present evidence of prior police department internal affairs
investigations concerning Defendant Murphy.
During the trial proceedings, Defendant Murphy filed a motion in limine, seeking
to exclude such evidence as irrelevant and unduly prejudicial. In a memorandum and
order entered on July 10, 2008, the District Court granted the motion pursuant to Federal
Rules of Evidence 404(b). The District Court concluded that Melton failed to show that
evidence of prior investigations would be relevant for any valid purpose relating to the
issue of whether Murphy employed excessive force during Melton’s arrest. We review
the District Court’s evidentiary ruling for abuse of discretion. United States v. Williams,
458 F.3d 312, 315 (3d Cir. 2006).

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6
For admission under Rule 404(b), the evidence must be relevant and its probative
value must outweigh its potential for unfair prejudice. See United States v. Cruz, 326
F.3d 392, 395 (3d Cir. 2003) (citing Huddleston v. United States, 485 U.S. 681, 691-92
(1988)). Melton argues only that “I want it to be included not excluded.” We perceive no
error in the conclusion that evidence of prior misconduct was not relevant to or probative
of the issue at trial. Melton offers nothing to persuade us that the decision to exclude the
evidence was arbitrary or irrational. We conclude that the District Court did not abuse its
discretion in granting the motion in limine.
D.
Melton next contends that the District Court improperly admitted hearsay
evidence, which Melton would “like . . . excluded.” Whether evidence is hearsay is a
question of law subject to plenary review. See United States v. Sallins, 993 F.3d 344, 346
(3d Cir. 1993).
Melton has not described the alleged hearsay evidence or the disputed District
Court ruling, and, as previously discussed, has failed to provide the transcript as required
by Federal Rules of Appellate Procedure 10(b) and Third Circuit Local Appellate Rule
11.1. In addition, Melton’s brief gives such cursory treatment to this claim that we cannot
discern his “contentions and the reasons for them” as required by Fed. R. App. P.
28(a)(9). See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993); see also Fed. R. App. P.
3(a)(2). In sum, Melton has failed to provide any basis for disturbing the jury verdict and

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the District Court’s judgment.
E.
Finally, Melton has submitted a motion seeking to stay his appeal pending a
decision in his Pennsylvania state court post-conviction proceedings. However, the
outcome of the post-conviction proceedings is not relevant to the issues Melton has raised
on appeal. We therefore deny Melton’s stay motion. In addition, Melton has renewed his
requests for appointment of counsel and for transcripts. We again deny the requests.
Appellees Murphy, Hudecki, and the City of Philadelphia have moved to strike the
documents appended to Melton’s reply brief, which they describe as a supplemental
appendix. The motion to strike is granted.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.

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