(3d Cir.), cert. denied, 510 U.S. 865, 114 S. Ct. 186, 126 L. Ed. 2d 145 (1993); Kelley v. General Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (Pa. 1988).
Defendants contend that Torres cannot make out the common law elements of a malicious prosecution claim because (a) Officer McLaughlin did not initiate Torres's prosecution; (b) the jury's finding of guilt against Torres, on September 29, 1995, conclusively establishes that the prosecution did not lack probable cause; and (c) the proceedings against Torres did not terminate in his favor. We shall discuss each contention seriatim.
a. Initiation of the Prosecution
Our Court of Appeals has instructed that one's responsibility for the initiation of criminal proceedings element of a malicious prosecution claim is determined by reference to § 653, comment g, of the Restatement (Second) of Torts. The Restatement distinguishes between cases where someone files a complaint or demands a prosecution, and scenarios in which someone merely provides information to the police.
In the first category, one is liable for malicious prosecution if one "fail[s] to disclose exculpatory evidence to prosecutors, make[s] false or misleading reports to the prosecutor, omit[s] material information from the reports, or otherwise interfere[s] with the prosecutor's ability to exercise independent judgment." Rhodes v. Smithers, 939 F. Supp. 1256, 1273 (S.D. W.Va. 1995) (citing many cases), aff'd, 91 F.3d 132 (4th Cir. 1996); Restatement (Second) of Torts § 653 cmt. g ("If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.").
By contrast, a police officer or private citizen "who does not knowingly provide false information is not responsible for the institution of proceedings, and thus cannot be held liable for malicious prosecution as he need not have had a reasonable basis for making the accusation." Griffiths, 988 F.2d at 464; see Rhodes, 939 F. Supp. at 1274 ("Where an officer presents all relevant probable cause evidence to an intermediary, such as a prosecutor, a grand jury, or a magistrate, the intermediary's independent decision to seek a warrant, issue a warrant, or return an indictment breaks the causal chain and insulates the officer from a section 1983 [malicious prosecution] claim . . . ." (citing many cases)); Restatement (Second) of Torts § 653 cmt. g ("A private person who gives to a public official information of another's supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving the information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not. When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable . . . even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings."); see also Smith v. Gonzales, 459 U.S. 1005, 74 L. Ed. 2d 397, 103 S. Ct. 361 (1982) (White, J., dissenting), denying cert. to 670 F.2d 522 (5th Cir.).
We find that, drawing all reasonable inferences in Torres's favor, plaintiff has sufficient evidence to permit a reasonable jury to conclude that Officer McLaughlin may have made false statements to the prosecutor in Torres's criminal case, such that Officer McLaughlin may be charged with the initiation of the criminal proceeding.
It is a fact that the Commonwealth agreed to release Torres from prison on May 13, 1996, where after his conviction he had served only seven and a half months of his thirty-six to seventy-two month sentence. John Gorman, Torres's defense counsel in the criminal case, stated in his deposition in this case that he had information that a Mr. Gross, from the District Attorney's Office, informed the Philadelphia Defender's Association that "We should go see Judge Brinkley as soon as possible. If there is a possibility that this man [referring to Torres] is being unjustly incarcerated he should not spend another day in jail." Deposition of John Gorman, Esquire, at 9 (attached to McLaughlin's Mem. of Law at Exh. 4).
As result, Mr. Gorman on May 10, 1996, appeared before Judge Genece E. Brinkley and moved for a new trial and Torres's immediate release. See May 10, 1996 Hrg. Tr. at 3-4 (attached to Pl.'s Response to McLaughlin's Mot. for Summ. J. at Exh. C). Mr. Gross, representing the Commonwealth, readily agreed:
MR. GROSS: Your Honor, the Commonwealth does not oppose the defendant's motion, insofar as it requests a Motion for New Trial. The motion is titled, at least as it was originally filed, 'Post Sentence Motion for Judgment of Acquittal, Motion in Arrest of Judgment, or, in the alternative, Motion for New Trial, In the Interests of Justice.'
If Your Honor grants the motion for a new trial, we would immediately move to nolle pros the charges, and it would be appropriate for your Honor to order the defendant be released today.