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October 6, 2005.


The opinion of the court was delivered by: YVETTE KANE, District Judge


This case involves the criminal prosecution and 28 year incarceration of Plaintiff Steven Crawford for the murder of John Eddie Mitchell in 1970, for which Plaintiff has always maintained his innocence. Upon discovery of certain evidence that called the Commonwealth's case against him into question, Plaintiff was released from prison on nominal bail on June 24, 2002. Thereafter, the District Attorney of Dauphin County, Pennsylvania, nol prossed all charges against Plaintiff. Plaintiff brings this action for damages for violation of his civil rights under color of law along with state law and tort claims. The case is now before the Court on motions for summary judgment filed by all Defendants. The motions have been fully briefed and are ripe for disposition. For the reasons discussed below, the motions of Dauphin County and the individual defendants will be denied and the City of Harrisburg's motion will be granted.


  In September 1970, Plaintiff was a fourteen year child. On September 12, 1970, Plaintiff's friend, thirteen year old John Eddie Mitchell was bludgeoned to death and his body left in a garage owned by Plaintiff's father, William Banks. Police discovered the body when they searched the garages on Atlas Street after a sledgehammer containing blood and hair was found nearby. It appeared that Mitchell was murdered for approximately $30.00 in paper route money he had collected that morning. Although not noted in any police reports,*fn1 two of the victim's sisters, Kathy Mitchell and Vanessa Mitchell, testified at trial that Steven Crawford came to the Mitchell residence twice during the morning of September 12, 1970, and the second time left with John Mitchell, the last time he was seen alive. (Doc. No. 115, Defendants' Joint Appendix of Exhibits in Support of Defendants' motions for Summary Judgment,*fn2 Ex. 3, N.T. at 401-02; 433-34.) Crawford disputed this, and provided evidence at his trials that he was working on a go-cart with his neighbor, Roy Lewis, all day, leaving only for 5-10 minute periods to get gas.

  Other circumstantial evidence loosely connected Crawford to the crime, such as testimony that a sledgehammer that looked like the murder weapon was previously seen under the porch at the Crawford/Banks residence, and that Crawford said to police investigators that they did not need to search his garage because there were just old cars in there.*fn3 Park Bollinger testified that he saw Crawford and another boy about the same size as Crawford (whom he could not identify as the victim)*fn4 while he was painting the adjoining garage (belonging to him, which he rented to LeRoy Brown) at around the time of the murder. (J.A., Ex. 3, N.T. at 480; 496.) An autopsy report revealed that Mitchell was killed by the delivery of three blows to the back of the head with a blunt instrument, shattering his skull and leading to brain bruising and laceration. The injury was consistent with a blow by the sledge-hammer recovered. (Id. at 345-53.) Mitchell also suffered non-fatal wounds to his chest inflicted by a crow bar or other sharp object. (Id. at 349-51.) After discovering the body and removing one of the cars from the garage, police dusted the cars for prints. Eighteen prints were recovered from the two cars, eight of which were deemed capable of identification, and five of which were ultimately identified.

  In September of 1972, Detective Walton Simpson identified one of the partial palm prints lifted from the two cars as belonging to Plaintiff.*fn5 Simpson went to the office of Corporal John Balshy of the Pennsylvania State Police, who confirmed the identification. Because Crawford had access to the car where the print was recovered, it was important for the police to date the print for it to have any significance to the case. To this end, Simpson and Balshy traveled to Washington, D.C. to the Bureau of Alcohol, Tobacco and Firearms ("ATF") in order to learn whether they could analyze the print to determine whether the print was left at or near the time of the murder. (J.A., Ex. 3, N.T., at 606-08.) ATF was not able to assist them, explaining that there was no way to date the prints. See Commonwealth v. Crawford, 364 A.2d 660, 663 (Pa. 1976) (granting a new trial because Simpson testified at the first trial beyond his expertise that the prints were placed on the car at the time of the killing, despite what he was told by ATF). It was at this time, when he viewed the print under a powerful microscope at ATF, that Simpson first observed brownish-red particles on the print. (Id.) Simpson and Balshy then took the print to Janice Roadcap, a chemist for the Pennsylvania State Police, who reported that small particles of blood may be present on the ridges of at least one of the prints.

  Simpson, Roadcap, and Balshy were present for the initial testing of the microscopic red-brown particles on November 29, 1972. (J.A., Ex.1, N.T. at 419; Ex. 3, N.T. at 663 & 666.) Roadcap tested the particles from three small strips of the palmprint using the reagent Benzidine to screen for the presence of blood. In her lab notes, she noted a positive reaction from the reagent and fingerprint powder. The original note stated at paragraph seven that the reaction "was greater along the ridges of the fingerprint, however, numerous particles in the valleys also gave [positive] reactions." (Ex. 5, at 1.) In the remarks section of this lab note, Roadcap wrote, "A positive reaction was obtained with Benzidine reagent. This indicated the presence of blood in the fingerprint impression. deposited by the donor of the fingerprint impression." (Id.) (stricken out in original). This lab note was not utilized in the criminal prosecution of Crawford; rather, a lab report produced by Roadcap based on an altered lab note formed the basis of the expert opinion testimony offered at trial. (J.A., Ex. 7.) The lab note was altered at paragraph seven, quoted above, to read: "This reaction was only along the ridges of the finger print pattern." (J.A., Ex. 6) (stricken out in original). The word "greater" had been blacked out with an opaque marker with "only" written above the mark, and the words "however numerous particles in the valleys also gave [positive] reactions" were likewise obliterated. (Id.) These lab notes were not provided to defense counsel during Plaintiff's criminal proceedings, and the prosecuting attorneys had not seen the original note.*fn6

  Plaintiff was arrested for the crime in February of 1974. On September 6, 1974, shortly before the trial and nearly two years after the initial testing of the print, Simpson . . . accompanied by James Morgan, the Assistant District Attorney prosecuting the case . . . had Roadcap perform additional analysis of the palmprint, this time without placing any limitations on preserving the print.*fn7 (J.A., Ex. 3, N.T. at 610.) Prior to this, in March of 1973, Simpson and Balshy visited Beverly Frison of the Royal Canadian Mounted Police and provided the print for her to do additional testing. Frison did a haemochromagen test on some particles that she removed from the print and found blood. (J.A., Ex. 1, N.T. at 288-91.) She was unable to determine that it was human blood, and she received a negative test result for blood on two of the prints. (J.A., Ex. 1, N.T. at 290-92, 428.) Roadcap, however, testified that she was able to confirm that the particles were in fact blood of human origin by performing the Takayama test and the human anti-serum test on the remaining particles. (J.A., Ex. 1, N.T. at 4232-4.) After using the Takayama reagent on the particles and waiting for several hours, she observed pink-colored crystals, which she claimed indicated a positive reaction for hemoglobin. (Id. at 423; Ex. 3 at 672-73.)*fn8

  A jury found Plaintiff guilty of first-degree murder on September 18, 1974. On appeal, the Pennsylvania Supreme Court reversed the conviction, finding that Simpson testified beyond his expertise when he opined that the palmprint was left at the scene of the crime at the time of the murder. Commonwealth v. Crawford, 364 A.2d 660, 664 (Pa. 1976). A second jury found Plaintiff guilty of first-degree murder in February of 1977. Following the verdict, Judge Dowling granted Crawford's motion for a new trial because the Commonwealth failed to disclose potentially exculpatory evidence; namely, a confession by Richard Lee Zieders which was known by the District Attorney's Office as early as 1975 but not investigated. (J.A., Ex. 17 at 4-6.)*fn9 Before the third trial in February of 1978, prosecutors offered Plaintiff a plea bargain for third-degree murder, which he declined against his attorney's advice. (J.A., Ex. 26, Costopolous Dep. at 14, 38.)*fn10 Judge Dowling presided over a third trial of Plaintiff, who was again convicted of first degree murder and sentenced to life imprisonment.

  Plaintiff's direct appeals were denied, as were his post-conviction relief petitions. After exhausting all of his state court remedies with respect to his 1978 conviction, in 2000, Plaintiff filed a petition for writ of habeas corpus in the Middle District of Pennsylvania (Civil Action No. 3:00-CV1-739, Kosik, J.), challenging his conviction on twenty-six grounds. The habeas court appointed counsel, who petitioned the court for permission to inspect and perform DNA testing on the physical evidence recovered from the crime scene, including three "Caucasian hairs" taken from the victim's right hand.*fn11 Sometime in 2001, a copy of Roadcap's original lab notes were found among other case documents in a discarded briefcase belonging to the late Walton Simpson. The Dauphin County District Attorney's Office came into possession of the contents of the briefcase on May 20, 2001. (J.A., Ex. 34, PCRA Hearing N.T., at 55.) Crawford's habeas attorney became aware of the briefcase through Crawford's mother, who reported receiving an anonymous phone call. The attorney immediately contacted the D.A. assigned to the case, and shortly thereafter sent an investigator to review and make copies of the file, at which time the lab notes were discovered. On the basis of newly discovered evidence, Plaintiff withdrew his pending federal habeas petition and filed for post-conviction relief in the Commonwealth Court. (Civil Action No. 00-1739, Doc. Nos. 41 & 44.) After the Commonwealth conceded that he was entitled to a new trial, Plaintiff was released from prison, and, pursuant to an Order of the Commonwealth Court of Pennsylvania, the Dauphin County District Attorney entered a nolle prosequi. (Doc. No. 140, Ex. A.) The nol pros application did not state that Plaintiff was innocent of the crime; rather, the Commonwealth expressed concerns over the ability to prosecute the case due to the passage of time, death of witnesses, the potential trauma to the victim's family, and concluded that its interests were vindicated by Plaintiff's twenty-eight year incarceration such that retrial was not in the public interest. (Id.) Plaintiff contested the nol pros, asking the court to amend its order so as to grant the District Attorney permission to dismiss the charges with prejudice so that Plaintiff would not be subject to future arrest and trial for this crime. (J.A., Ex. 16.) Crawford's motion for reconsideration was denied by Judge Kleinfelter on August 14, 2002. (Id.)

  Plaintiff subsequently brought this civil action pursuant to the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, 1986, and state tort law. This Court previously dismissed the Commonwealth as a Defendant and dismissed Plaintiff's state law claims and punitive damage request as to Defendants Harrisburg and Dauphin County. (Doc. No. 38.) Plaintiff has voluntarily dismissed his federal conspiracy claims and his state law claims for fraud and false imprisonment. (Doc. No. 140 at 8.) Remaining are Plaintiff's claim brought pursuant to 42 U.S.C. § 1983 against Simpson, Roadcap, Balshy, the City of Harrisburg, and Dauphin County (Count I); Plaintiff's claim of civil conspiracy against the individual Defendants (Count V); and Plaintiff's state law claim for Intentional Infliction of Emotional Distress against the individual Defendants (Count VI). Defendants have each filed motions for summary judgment, arguing that they are entitled to judgment in their favor on all remaining claims as a matter of law.


  Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. A factual dispute is material if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if there is a sufficient evidentiary basis which would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The nonmoving party receives the benefit of all reasonable inferences. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1995).

  Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in the complaint. Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Id. at 322.


  A. Plaintiff's § 1983 Claim

  To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Gibson v. Superintendent of N.J. Dep't of Law & Public Safety Div. of State Police, 411 F.3d 427 (3d Cir. 2005). In his complaint, Plaintiff alleges violations of the Fourth and Fourteenth Amendments by the individual Defendants acting under color of law and the government bodies for which they worked. Defendants have not challenged the "under color of law" element; rather, Defendants argue that Plaintiff has failed to show a Constitutional violation.

  Plaintiff argues that he was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution when the results of the tests on the physical evidence in the criminal case against him were materially altered and the potentially exculpatory evidence of the alterations was concealed. Defendants also characterize Plaintiff's ...

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