Jump To

Top Caption [Lead Opinion

                  by Leavitt](https://www.courtlistener.com/opinion/10831931/a-prieto-v-police-officer-d-mammula/#o1)

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 2, 2026 Get Citation Alerts Download PDF Add Note

A. Prieto v. Police Officer D. Mammula

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 1517 C.D. 2024
• Precedential Status: Non-Precedential

• Judges: Leavitt

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.4K)

• PDF

Lead Opinion

                        by [Mary Hannah Leavitt](https://www.courtlistener.com/person/8210/mary-hannah-leavitt/)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andres Prieto, :
Appellant :
:
v. : No. 1517 C.D. 2024
: Argued: February 4, 2026
Police Officer Daniel Mammula, :
Police Officer Dedos, Police Officer :
Douglas Miller, Police Officer :
Michael Pezzeca, Police Sgt. Vincent :
Perone, Police Sgt. James Graber, :
and the City of Philadelphia :

BEFORE: HONORABLE MICHAEL H. WOJCIK Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: April 2, 2026

Andres Prieto (Prieto) has appealed orders of the Court of Common
Pleas of Philadelphia County (trial court) that granted summary judgment to police
officers Daniel Mammula, Dedos, Douglas Miller, Michael Pezzeca, Vincent
Perone, and James Graber (collectively, Officers). The trial court also denied
Prieto’s petition for leave to amend complaint. On appeal, Prieto argues that the trial
court erred in these two rulings. Upon review, we affirm.
Background
On March 28, 2023, Prieto filed a complaint against Officer Daniel
Mammula (Mammula), several John Doe defendants, and the City of Philadelphia
(City)1 (Complaint). In Count One, the Complaint alleged that on February 1, 2022,

1
The City filed preliminary objections. The trial court sustained the preliminary objections and
dismissed the City from suit with prejudice.
at approximately 9:00 p.m., at or near the intersection of 34th Street and Haverford
Avenue in the City, Mammula and the John Doe defendants stopped Prieto to arrest
him. “After stopping and handcuffing [Prieto],” Mammula and the John Doe
defendants “beat [Prieto], kicking him and punching him several times and causing
him to have [] injuries[]” including “facial lacerations and a fractured sternum which
required surgery.” Complaint, ¶¶7, 9; Reproduced Record at 6a-7a (R.R. __). The
Complaint alleged that at the time of the incident, Prieto “did not resist the police
officers in any way nor did he do anything that justified the beating described
above.” Complaint, ¶8, R.R. 7a. The Complaint asserted that Mammula and the
John Doe defendants committed assault and battery. Complaint, ¶10, R.R. 7a. Count
I sought compensatory damages. Count II sought punitive damages.
On April 25, 2023, Prieto served Mammula with interrogatories and
requests for production of documents including, but not limited to, “[a]ny and all
photographs or diagrams in any way related to this incident(s) described in [the
C]omplaint[,]” and “[a]ny and all records concerning the arrest or detention of
[Prieto] on or about February 1, 2022 to February 2, 2022 which arrest/detention is
the subject of the instant lawsuit.” R.R. 49a-50a. The request defined “document,”
in relevant part, as “any means by which information is recorded or retained,
including, without limitation, originals, non-identical copies, drafts, or electronic or
computer data storage.” R.R. 49a.
Upon not receiving answers, Prieto filed a motion to compel discovery,
which was granted by the trial court on July 17, 2023. Still, Mammula did not
answer the discovery. On August 21, 2023, Prieto filed a motion for sanctions for
failure to abide by discovery orders. The trial court granted the motion on September
7, 2023.

2
When Mammula still had not responded to discovery, Prieto filed a
motion for further sanctions. On October 4, 2023, Mammula, through counsel, sent
discovery materials to Prieto. However, these discovery materials did not include
body camera videos.
On October 18, 2023, Prieto filed an amended complaint (Amended
Complaint), identifying the John Doe defendants by their correct names, including
James Graber (Graber). The counts and allegations remained the same.
On February 22, 2024, Officers’ counsel sent Prieto Graber’s body
camera videos of the incident covered in the Amended Complaint. On August 30,
2024, Graber and the other Officers filed motions for summary judgment. The
record showed that on February 1, 2022, Officers responded to a 911 call reporting
a “person with a gun” at an apartment building located at 3416 Haverford Avenue.
Graber Motion for Summary Judgment, ¶7; R.R. 103a. The video footage showed
that, upon entering the premises, Graber observed Prieto “yelling, screaming[,]”
“banging on numerous apartment doors[,]” and holding an unidentified object in his
hand. Id., ¶¶8, 11; R.R. 103-04a. Graber announced himself as a police officer and
asked Prieto to calm down and stop moving, but Prieto continued to run down the
apartment hallway, yelling “unintelligible” words. Id., ¶¶10, 12; R.R. 104a. Graber
drew his taser and followed Prieto, who exited the apartment building.
The Amended Complaint alleged that the Officers kicked and punched
Prieto several times, thereby injuring him. Amended Complaint, ¶9; R.R. 80a.
However, the video footage showed that Graber used his taser, causing Prieto to fall
“into the snow on the sidewalk[.]” Graber Motion for Summary Judgment, ¶21;
R.R. 105a. Prieto continued to resist after the backup officers arrived, and Graber
tased him a second time. Id., ¶26; R.R. 106a. The officers then “rolled [Prieto] over

3
on his stomach and handcuffed him.” Id., ¶27; R.R. 106a. Graber’s motion asserted
that summary judgment was appropriate because the body camera showed that the
police did not kick or punch Prieto, “which is the only claim for excessive force
asserted in the complaint.” Id., ¶35; R.R. 107a. Because there was no genuine issue
of material fact with respect to the alleged use of excessive force, Graber asked that
Prieto’s claims against him be dismissed with prejudice. Id.
On September 26, 2024, Prieto filed a petition for leave to amend
complaint. In the petition, Prieto alleged that he was “under the influence at the time
of the incident and believed he had been punched and kicked because of the severity
of his injuries[.]” Petition to Amend, ¶3; R.R. 253a. After viewing the police body
camera videos, Prieto learned that Graber “tased him several times without
reasonable basis, thereby causing [Prieto] to be thrown to the ground and striking
hard ice causing the fracture.” Id. The amendment to the Amended Complaint
would provide “accurate allegations of the unlawful acts of [the Officers] which
caused [Prieto’s] injuries.” Petition to Amend, ¶4; R.R. 253a.
On October 21, 2024, the trial court denied Prieto’s petition for leave
to amend complaint. On the same date, the trial court granted Graber’s and the other
Officers’ motions for summary judgment and dismissed all claims against the
defendants with prejudice.
Prieto appeals to this Court.
Trial Court Opinion
In its Pa.R.A.P. 1925(a) opinion, the trial court explained its rationale
as follows. Motions to amend pleadings are to be granted liberally, but this does not
mean that litigants have free rein to alter their theories of the case at any point in the
litigation. “Only if the proposed amendment merely amplifies, as opposed to

4
altering, the cause of action already averred, will it be allowed if the statute of
limitations has run.” Trial Court Pa.R.A.P. 1925(a) Op. at 2; R.R. 548a (quoting
Chaney v. Meadville Medical Center, 912 A.2d 300, 304 (Pa. Super. 2006)). Here,
the statute of limitations had run on February 1, 2024. However, Prieto’s proposed
amendment did not amplify but, rather, “attempted to alter the claim from an alleged
beating comprised of punches and kicks (which admittedly did not occur) to, for the
first time alleging that [Prieto] was excessively and unlawfully tased[.]” Trial Court
Pa.R.A.P. 1925(a) Op. at 2; R.R. 548a. The trial court also took issue with Prieto’s
argument that Officers’ counsel did not provide him with Graber’s body camera
video footage until February 15, 2024, after the statute of limitations had run. The
trial court found it critical that Prieto waited more than six months after viewing the
video to seek leave to file a second amended complaint to include new allegations
related to the taser. Even so, Prieto was not hindered in his ability to ascertain the
facts about the incident in a timely fashion.
As to the grant of Graber’s and the other Officers’ motion for summary
judgment, the trial court found that the record demonstrated no genuine issue of
material fact. Prieto alleged that he was punched and kicked; by his own admission
and the video footage, this did not happen. The video footage showed that at the
time of Graber’s arrival at the scene, Prieto was shouting incoherently and banging
on apartment doors; ran away from Graber; and even after fleeing and being tased
once, continued to flail, shout, and prevent Officers from handcuffing him. This
behavior, in the trial court’s view, “prompted minimal additional uses of the taser,
and [was] no[t] treatment that can fairly be deemed excessive or illegal.” Trial Court
Pa.R.A.P. 1925(a) Op. at 4; R.R. 550a. As a matter of law, therefore, Graber was

5
entitled to judgment on Prieto’s claim that Graber used excessive force to apprehend
Prieto.
Appeal
On appeal,2 Prieto raises two issues for our review. First, Prieto argues
that the trial court erred in denying his petition for leave to amend complaint.
Second, Prieto argues that the trial court erred in granting Graber’s motion for
summary judgment.3 We address these two issues seriatim.4
I. Petition to Amend Complaint
First, Prieto argues that the trial court erred in denying his petition for
leave to amend complaint. The amendment should have been permitted because
Officers, through their counsel, concealed the facts until the statute of limitations
had passed, thereby making it impossible for Prieto to amend his complaint before
the running of the statute. Officers’ counsel certainly knew that the incident did not
occur as alleged in the Amended Complaint but, rather, involved tasings by Graber.
Officers’ counsel also would have learned that Officers’ body cameras were activated
during the incident. The video footages were accessible to Officers but unknown to

2
“An order of a trial court granting summary judgment may be disturbed by an appellate court
only if the court committed an error of law [ ]; thus, [an appellate court’s] standard of review is de
novo, and [the] scope of review is plenary.” LJL Transportation, Inc. v. Pilot Air Freight
Corporation, 962 A.2d 639, 647 (Pa. 2009) (internal citations omitted).
3
Prieto does not challenge the summary judgment granted to the other Officers, but only to Graber.
Prieto Brief at 20. Thus, the issues on appeal concern only Graber.
4
Graber filed an application to strike two news articles from the reproduced record that were
attached to Prieto’s statement of matters complained of on appeal. Graber contends that these
news articles were not before the trial court at the time it ruled on the motion for summary
judgment or Prieto’s motion for leave to amend his complaint. “[A]n appellate court may not
consider documents that are not part of the certified record.” Township of Neshannock v. Kirila
Contractors, Inc., 181 A.3d 467, 472 (Pa. Cmwlth. 2018). The certified record includes these news
articles as attachments, Exhibit A, to Prieto’s statement of matters complained of on appeal.
Accordingly, we deny the motion to strike these documents.
6
Prieto. Officers’ counsel also should have known, from the interrogatories and
request for production of documents served on April 25, 2023, that body camera
videos, which showed the entire incident, were a vital part of the discovery request.
However, Officers’ counsel did not turn the video footage over to Prieto until
February 22, 2024, four months after sending the other discovery materials and after
the statute of limitations had run. Prieto was under the influence at the time of the
incident and did not remember being tased. He was unaware of the facts until he
viewed the body camera video. Prieto asserts that because Officers intentionally
concealed the video, they are “estopped from invoking the bar of the statute of
limitations.” Prieto Brief at 21 (citing Schaffer v. Larzelere, 189 A.2d 267, 269 (Pa.
1963)).
Prieto also argues that amending the complaint would not cause undue
prejudice because the Officers knew from the outset of litigation that Prieto had not
been punched or kicked but was tased. Although the trial court asserted that the
amendment should have been filed sooner, it was impossible for Prieto to file it
before the running of the statute of limitations because he did not know that the video
existed. Prieto argues that the appropriate way to handle his petition to amend is to
allow the Officers more time to respond to the amended allegations. Prieto Brief at
29. Instead, the trial court dismissed the entire case.
Graber counters that the trial court properly denied Prieto’s petition for
leave to amend complaint as “[p]rejudicially [l]ate” because Prieto waited until after
the close of discovery; after the expert report deadline; and after the filing of motions
for summary judgment in an “attempt to present an entirely new theory of liability.”
Graber Brief at 21. This was prejudicial to Graber because he had premised his

7
defense on Prieto’s contention that he was punched or kicked. He did not retain an
expert to opine on the proper use of a taser.
Graber contends that Prieto’s proposed amendment was barred by the
statute of limitations because it “put forward entirely new facts on which to premise
liability.” Graber Brief at 25. Graber and the other Officers did not conceal the facts
of the incident, of which Prieto has firsthand knowledge. That he misremembered
the incident due to his voluntary, self-intoxication on illegal drugs cannot toll the
statute of limitations. Schaffer, 189 A.2d 267, is inapposite because that case
involved a wrongful death suit against several doctors and the hospital; the plaintiff
was not present when the alleged medical malpractice occurred and, thus, lacked
knowledge of the decedent’s care. By contrast, here, Prieto was present at his own
arrest. The discovery rule turns on whether a person “reasonably should have
discovered” the injury. Graber Brief at 33 (quoting Pocono International Raceway,
Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)). “A reasonable person
is not an intoxicated person,” and Prieto should not be allowed to use his own
intoxication to invoke the discovery rule. Graber Brief at 33-34 (citing Dalrymple
v. Brown, 701 A.2d 164, 167 (Pa. 1997) (discovery rule did not toll running of statute
of limitations during 20 years of the plaintiff’s repressed memory)) (emphasis in
original).
Graber asserts that he did not conceal the video footage. The discovery
requests were directed at Mammula, not him, and he was no longer employed by the
City when he was joined to the suit as a defendant. He had no access to the video
footage at that time.
In the alternative, Graber argues that Prieto’s amendment is futile
because the video footage reveals that the force used was not excessive. Graber had

8
reasonable suspicion to stop Prieto because, as shown in the video, the latter was
screaming, running down the apartment complex hallway, and refusing to comply
with his commands. The video also showed that Prieto was holding an unidentified
object in his hand. Based on the police call and Prieto’s behavior, and not knowing
what Prieto was holding, Graber deployed his taser. The trial court found the force
used by Graber was reasonable as a matter of law. A motion for leave to amend “is
properly refused where it appears to be a reasonable possibility that the amendment
will be futile.” Graber Brief at 20 (quoting Stempler v. Frankford Trust Co., 529
A.2d 521, 524 (Pa. Super. 1987)). In Stempler, homeowners brought a negligence
action against a mortgagee lender, to whom the common pleas court granted a
demurrer. On appeal, the Superior Court affirmed and held that no cause of action
in negligence existed where the homeowners alleged no duty of the mortgagee lender
to inspect their home. Because a cause of action did not exist, the common pleas
court acted within its discretion in denying a pleading amendment that would be
futile.
“Amendments to pleadings are permitted at any time, including before,
during, and after trial,” and they are to be liberally granted. Chaney, 912 A.2d at 9
303 (citing Pa.R.Civ.P. 10335).6 Leave to amend pleadings should be allowed where
it will not “unduly prejudice or surprise the adverse party.” Id. It has further been
explained as follows:
Undue prejudice in this analysis has been defined as something
more than a detriment to the other party, as any amendment
would likely have the effect of harming the adverse party’s
interests. The policy underlying this rule of liberal leave to
amend is to ensure that parties get to have their cases decided on
the substantive case presented, and not on legal formalities.

Id. (citations omitted). However, “[a]n amendment introducing a new cause of
action will not be permitted after the Statute of Limitations has run in favor of a
defendant.” Id. (quoting Stalsitz v. Allentown Hospital, 814 A.2d 766, 778 (Pa.
Super. 2002)). “Only if the proposed amendment merely amplifies, as opposed to

5
It states, in pertinent part, as follows:
(a) General Rule. A party, either by filed consent of the adverse party or by leave
of court, may at any time change the form of action, add a person as a party, correct
the name of a party, or otherwise amend the pleading. The amended pleading may
aver transactions or occurrences which have happened before or after the filing of
the original pleading, even though they give rise to a new cause of action or defense.
An amendment may be made to conform the pleading to the evidence offered or
admitted.
....
(c) John Doe Defendants. An amendment substituting the actual name of a
defendant for a Doe designation as provided in Rule 2005 relates back to the date
of the commencement of the action if, within the time provided by Rule 401 for
service, the defendant named by the amendment has received actual or constructive
notice of the commencement of the action such that it will not be prejudiced in
maintaining a defense on the merits and the defendant knew or should have known
that the action would have been brought against it but for lack of knowledge of the
defendant’s actual name.
Pa.R.Civ.P. 1033(a), (c).
6
“Superior Court decisions are generally not binding on this Court, and they offer persuasive
precedent only when they address analogous issues.” Pioneer Construction Company, Inc. v.
Insight Pharmaceuticals, 338 A.3d 234, 252 n.28 (Pa. Cmwlth. 2025).
10
altering, the cause of action averred, will it be allowed after the statute of limitations
has run.” Chaney, 912 A.2d at 304. Finally, “[t]he decision of the trial court to deny
a motion to amend a complaint “will not be disturbed absent an abuse of that
discretion.” Ferraro v. McCarthy–Pascuzzo, 777 A.2d 1128, 1132 (Pa. Super. 2001).
Here, the proposed amendment addressed the causation of Prieto’s
injuries, which did not result from punching and kicking. Rather, Graber’s tasing
caused him to fall on hard ice. This does not alter the cause of action asserted in the
Amended Complaint. In Kuisis v. Baldwin-Lima-Hamilton Corporation, 319 A.2d
914 (Pa. 1974), the Supreme Court held that the plaintiff’s strict liability claim was
timely filed even though the allegations about the defectively manufactured crane
were added by amendment after the statute of limitations had run. The Supreme
Court found that the original complaint contained allegations sufficient to state an
implicit strict liability claim. Here, regardless of whether Graber punched and
kicked Prieto, or tased him, the Amended Complaint still asserts a battery or assault
claim. The cause of action remains the same.
Chaney, 912 A.2d 300, on which the trial court relied, is
distinguishable. In that case, the decedent’s estate brought a medical malpractice
action against the emergency care physician for a misdiagnosis and against the
medical center for its treatment of the decedent. After the defendants moved for
summary judgment, the estate petitioned to amend the pleading to include a new
theory of liability against the physician and for the cause of death. The common
pleas court denied the petition, and the Superior Court reversed in part and affirmed
in part. The amended complaint
only explicitly identifies Dr. Bollard in conjunction with his
March 13, 2000 misdiagnosis. No averment in the amended
complaint identifies Dr. Bollard as being involved with [the
decedent’s] care during the March 15-17, 2000 time period.
11
Id. at 304. Because the proposed amendments “constitute[d] an entirely new
allegation of negligence against Dr. Bollard personally, and not just an amplification
of the theory contained in the amended complaint[,]” the Superior Court held those
amendments were properly denied. Id. On the other hand, the Superior Court
allowed the proposed amendments to specify the cause of death because “the
underlying averments of malpractice were unchanged.” Id. at 305.
Here, unlike Chaney, the Amended Complaint contained allegations of
battery against Graber personally. Prieto’s proposed amendment merely clarifies
that the injuries resulted from tasing, not from punching or kicking; it does not
change the nature of the underlying claim. The trial court erred in denying Prieto’s
petition for leave to amend the Amended Complaint. However, for the reasons that
follow, we conclude that this error does not warrant reversal.
II. Summary Judgment
Prieto argues, next, that the trial court erred in granting summary
judgment to Graber. The trial court concluded that Prieto could not prove Graber
punched and kicked Prieto and, further, Graber’s use of force was justified because
the video footage shows that Prieto “was shouting incoherently and banging on
apartment doors[.]” Trial Court Pa.R.A.P. 1925(a) Op. at 3. Prieto disputes banging
on apartment doors. Further, Graber reported to the assigned detective that he tased
Prieto because the latter “became hostile and combative and rushed toward him[.]”
Prieto Brief at 31 (citation omitted). At his deposition, however, Graber denied that
Prieto rushed toward him. Prieto argues that the facts are in dispute and require
resolution by a jury.
In response, Graber argues that Prieto’s characterization of the facts
does not create a genuine dispute of material facts. The video footage shows the

12
events of the arrest, and Prieto cannot offer contradictory testimony about what it
shows. Graber’s statement to the detective is irrelevant. The video footage shows
that the force used by Graber during the arrest was reasonable and prompted by
Prieto’s resistance to arrest.
“[S]ummary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.” Atcovitz v. Gulph Mills
Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); see also Pa.R.Civ.P. 1035.2(1).
When considering a motion for summary judgment, the trial court must take all facts
of record and reasonable inferences therefrom in a light most favorable to the non-
moving party. Toy v. Metropolitan Life Insurance Company, 928 A.2d 186, 195 (Pa.
2007). In so doing, the trial court must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party, and, thus, may only grant
summary judgment “where the right to such judgment is clear and free from doubt.”
Id. On appellate review, then,
an appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion. [] But
the issue as to whether there are no genuine issues as to any
material fact presents a question of law, and therefore, on that
question our standard of review is de novo. [] This means we
need not defer to the determinations made by the lower tribunals.

Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal
citations omitted). In summary judgment appeals, this Court reviews the entire
record. Id. at 903.
The question of whether an officer used excessive force requires a
determination of whether the force used was objectively reasonable in light of the
surrounding facts and circumstances. Moody v. Philadelphia Housing Authority, 673

13
A.2d 14, 19 (Pa. Cmwlth. 1996). Relevant considerations include “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting or attempting to evade arrest
by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989) (emphasis added). Other
factors include “the duration of the [officer’s] action, whether the action takes place
in the context of effecting an arrest, the possibility that the suspect may be armed,
and the number of persons with whom the police officers must contend at one time.”
Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006) (quoting Sharrar v. Felsing, 128
F.3d 810, 822 (3d Cir. 1997)) (emphasis added). In addition, the use of force “must
be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. If a police officer uses
reasonable force in making a lawful arrest, he cannot be liable for assault and battery.
Renk v. City of Pittsburgh, 641 A.2d 289, 293-94 (Pa. 1994).
Here, the record, on which Graber and the other Officers filed their
summary judgment motions, included Graber’s body camera footage. The trial court
could not disregard that video or credit witnesses who might offer a competing
version of the event. Scott v. Harris, 550 U.S. 372, 379-81 (2007). When video
recordings of the event at issue “blatantly contradict” the non-movant’s version of
the facts, the court need not adopt the non-movant’s version of the facts for purposes
of ruling on a summary judgment motion. Sellers v. Township of Abington, 106 A.3d
679, 690 (Pa. 2014) (citing Scott, 550 U.S. at 380).
State and federal court decisions are instructive. In Sellers, 106 A.3d
679, a passenger in a vehicle fleeing from a police officer was killed. His estate
brought a wrongful death and survival action against the township and the police
department. The common pleas court granted summary judgment in favor of the

14
police department, and this Court affirmed. The Supreme Court, in affirming this
Court, noted that the estate’s version of events differed greatly from that of the police
officer. The estate claimed that the police officer was driving in the opposite
direction as the driver and therefore likely saw decedent and the driver in the vehicle.
However, the in-car camera recording contradicted this assertion, revealing that the
officer was driving behind and in the same direction when he initiated the pursuit.
The Supreme Court held that the trial court properly granted summary judgment
based on the camera recording.
By contrast, in White v. City of Vineland, 500 F.Supp. 3d 295 (D. N.J.
2020), the estate brought, inter alia, claims under 42 U.S.C. §1983 against the city,
police chief, and individual officers, for excessive force and false arrest, which
allegedly resulted in the death of the arrestee. The defendants moved for summary
judgment. The record included both witness testimony and a police body camera
recording. The witnesses disputed the events that led to the decedent’s arrest;
whether the decedent resisted the arrest; whether the decedent, once on the ground,
was reaching for the police officer’s gun; and whether the decedent resisted the
officer’s efforts to place him in the police car. The United States District Court for
the District of New Jersey held that these disputes precluded summary judgment
because the video recording was inconclusive. It explained, as follows:
Contrary to Defendants’ claims, the videos do not offer a
conclusive version of events. The videos begin with Mr. White
on the ground, Officer Platania on Mr. White’s back, and Officer
Janasiak in the area. One video begins as the officers release the
K-9 unit, the other begins after the dog has been restrained.
Neither video reveals anything about how Mr. White wound up
on the ground with two officers and a K-9 using force to restrain
him. The videos end with Mr. White on his back, with additional
officers arriving on the scene. They therefore do not show what
happened after Mr. White was restrained. They do not reveal
15
whether Mr. White resisted the officers’ efforts to place him in a
police car, whether he sat upright on the curb after the officers
handcuffed him, or how he acted when the EMTs placed him in
an ambulance.
Even the footage on the videos is not conclusive. It shows the
officers restraining Mr. White and the K-9 unit engaging Mr.
White. Mr. White does not appear to be violent, but it is unclear
whether he is resisting. His arm raises at one point, apparently
in the dog’s jaw, but it is not clear whether the arm is limp.
Nothing in the video shows whether Mr. White reached for
Officer Platania’s weapon.

Id. at 302-03 (emphasis added). In sum, the video recordings in the record were
incomplete and, thus, inconclusive.
In his petition for leave to amend, Prieto stated that he could not
remember what happened on February 1, 2022, because he was under the influence
of a controlled substance. His amendment was based on Graber’s body camera video
footage. In other words, both Prieto and Graber agree that the video footage depicted
what actually happened at the time of Prieto’s arrest on February 1, 2022. To
challenge the grant of summary judgment to Graber, Prieto asserts there are two
disputed facts. First, he did not bang on apartment doors when Graber arrived at the
scene, contrary to the assertion in the trial court’s Pa.R.A.P. 1925(a) opinion and in
Graber’s motion for summary judgment. Second, Graber made two different
statements on whether Prieto rushed towards him before he deployed his taser.
However, Prieto does not dispute the assertions in Graber’s motion for summary
judgment that Prieto was seen on the video footage “yelling, screaming,” holding an
unidentified object in his hand, running down the apartment complex hallway, and
refusing to comply with Graber’s commands to stop moving. Graber’s Motion for
Summary Judgment, ¶¶8-12; R.R. 103-04a. The video footage showed, and Prieto
does not dispute, that Graber tased him when he was running away, and that he

16
continued to resist after the backup officers arrived. This continued resistance
prompted the second tasing.
Because Graber’s video footage is complete, it had to be considered by
the trial court in deciding whether, as a matter of law, Graber used more force than
was necessary to apprehend Prieto. See Graham, 490 U.S. at 396 (relevant
considerations in determining whether police used reasonable force include
“whether [the arrestee] is actively resisting arrest or attempting to evade arrest by
flight”). It is undisputed that Prieto was resisting arrest. Further, the question of
whether police used excessive force is a legal, not factual, question. This Court has
explained as follows:
The material facts alleged in a suit claiming excessive force are
for a jury to determine; whether, based on those facts, a police
officer’s actions were objectively reasonable is a question of law.

Lucas v. City of Philadelphia (Pa. Cmwlth., No. 1778 C.D. 2011, filed June 6, 2012)
(unreported),7 slip op. at 7 (citing Carswell v. Borough of Homestead, 381 F.3d 235
(3d Cir. 2004)).
We reject Prieto’s contention that issues of material fact remain in
dispute. The trial court’s holding that Graber did not use excessive force in
apprehending Prieto fully comports with the law and is consistent with the video
recording. Accordingly, we reject Prieto’s challenge to the grant of summary
judgment to Graber.
Conclusion
The trial court erred in denying Prieto’s petition to amend complaint
because the proposed amendment would not alter the cause of action asserted in the

7
Under Section 414(a) of this Court’s Internal Operating Procedures, an unreported opinion issued
after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414 (a).
17
Amended Complaint, which remains a claim in trespass for assault or battery. This,
however, is not a reversible error because the proposed amendments “will be futile.”
Stempler, 529 A.2d at 524. Based on the video footage, the accuracy of which is not
disputed, the trial court properly found that Graber’s use of force to apprehend Prieto
was reasonable as a matter of law.
For these reasons, we affirm the trial court’s October 21, 2024, orders
granting summary judgment to Graber and the other Officers and dismissing Prieto’s
claims against them with prejudice.

---

MARY HANNAH LEAVITT, President Judge Emerita

18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andres Prieto, :
Appellant :
:
v. : No. 1517 C.D. 2024
:
Police Officer Daniel Mammula, :
Police Officer Dedos, Police Officer :
Douglas Miller, Police Officer :
Michael Pezzeca, Police Sgt. Vincent :
Perone, Police Sgt. James Graber, :
and the City of Philadelphia :

ORDER

AND NOW, this 2nd day of April, 2026, the orders of the Court of
Common Pleas of Philadelphia County, in the above-captioned matter, dated October
21, 2024, granting the Motions for Summary Judgment filed by Officers Mammula,
Dedos, Miller, Pezzeca, Perone, and Graber are hereby AFFIRMED.
The Application to Strike filed by Police Sgt. James Graber is DENIED.

---

MARY HANNAH LEAVITT, President Judge Emerita