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Domenech v. City of Philadelphia

April 23, 2009


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Defendants Leon Lubiejewski and the City of Philadelphia's Motion for Summary Judgment. (Doc. No. 23.) For the following reasons, the Motion will be granted.


Alfredo Domenech and Ivan Serrano ("Plaintiffs") brought this action alleging that they spent 18 years in prison for a murder that they did not commit. They allege that Philadelphia County, its prosecutors, and its detectives withheld exculpatory evidence that would have proved their innocence at a 1988 murder trial in which a jury found them guilty. In October 2005, a Pennsylvania state court granted Plaintiffs a new trial following the discovery of new evidence. Plaintiffs were released from prison in 2005 after the Philadelphia District Attorney's office decided not to prosecute the case. (Stipulation, Dec. 10, 2007, ¶ VI.)

On March 28, 2006, Plaintiffs brought the instant action claiming that their convictions were obtained in violation of state and federal law. This case hinges on what the police and the prosecutors knew in arresting Plaintiffs and in prosecuting them for murder.*fn2

A. The Murder of Juan Martinez

On May 27, 1987, Juan Martinez ("Martinez") was fatally shot near the corner of Front and Diamond Streets in Philadelphia. (Doc. No. 23-2 ¶ 1.) In the immediate aftermath of the shooting, Philadelphia Police identified two eyewitnesses who became the focus of the investigation. The first eyewitness was Renee Thompson ("Thompson"), a prostitute who routinely observed vehicles in the area to determine if there were men inside. (Doc. No. 23, Ex. 19 at 18.) Thompson told police that she was standing at the corner of Front and Diamond Streets when she heard a car pull up on Front Street. (Id., Ex. 3.) She walked onto the sidewalk and saw Martinez jump out of a brown Ford Pinto.*fn3 (Id.) A blue car with a white roof then approached the Pinto. (Id.) Thompson told police that Martinez began to argue with a person in the blue car with the white roof.*fn4 (Id.) A passenger in the car reached out and fired a single shot at Martinez, who fell to the ground. (Id.) Thompson told police that the car sped away down Front Street towards Girard Avenue, bringing it directly in front of her and providing her with a view of the occupants. (Id., Exs. 3, 5.) She reported seeing two Hispanic male occupants, one of whom had curly hair. (Id., Exs. 3, 5, 19.) Thompson ran for help and found Police Officer Sonia Neris ("Officer Neris") at the intersection of Front and Susquehanna Streets. (Id., Ex. 3.) Thompson described the foregoing events to Officer Neris and to another Police Officer, Joseph Carolan. (Id., Exs. 3, 5, 6.)

The second eyewitness was Anthony Pescatore ("Pescatore"), a bystander who was at the corner of Front and Berks Streets when he heard a noise that he believed was a vehicle backfiring. (Id., Ex. 4.) Pescatore saw a blue vehicle with two male passengers drive past him down Front Street. (Id.) While he was near the crime scene reporting his observation to Officer Neris, Plaintiffs were approaching the scene in a 1974 Plymouth Scamp. (Id., Exs. 3, 4, 5.) The Plymouth Scamp was white over blue. (Id.) Thompson saw the Plymouth from the back of Officer Neris's patrol car, pointed at it, and exclaimed "that's the guys, they're the ones that shot him." (Id., Ex. 5.) At the same moment, Pescatore yelled to the police "there goes the car." (Id., Ex. 4.)

Officer Neris radioed for backup and the Plymouth was promptly stopped nearby. (Id., Ex. 5.) Officers Neris, Carolan, and James Kirk approached the Plymouth and ordered Plaintiffs to exit. (Id.) Plaintiff Domenech was seated in the driver's seat and Plaintiff Serano was seated in the passenger seat. (Id.) Thompson told the police that Plaintiffs had switched positions in the vehicle from the time that she saw them shoot Martinez. (Id., Ex. 3.) Thompson identified Plaintiff Domenech as the shooter based on his curly hair. (Id.)

Plaintiffs were taken into custody at approximately 3:25 a.m. on May 29, 1987, and Defendant Lubiejewski was assigned to investigate the murder. (Id., Ex. 6; id., Ex. 22 at 71.) At approximately 6:00 a.m., Defendant Lubiejewski spoke with Assistant District Attorney Charles Gallagher, who instructed Defendant Lubiejewski to charge Plaintiffs with murder, conspiracy, and possession of an instrument of crime. (Id., Ex. 12.) Defendant Lubiejewski prepared a document known as a Complaint Fact Record that contained, among other things, the eyewitness statements from Thompson and Pescatore. (Id., Exs. 33, 34; id., Ex. 22 at 73-75.) The Complaint Fact Record was sent to the District Attorney's Office for review and approval of the charges. (Doc. No. 23, Ex. 22 at 71-77.)

Defendant Lubiejewski was assigned to the murder investigation for seven days, from May 29 to June 5, 1987. During this time, he and a team of detectives interviewed at least 13 people including Martinez's sister, Hilda Maran ("Maran"), and his brother, Raymond Martinez ("Raymond"). (Id. ¶ 40 n.3; id., Exs. 9-10, 13, 31, 32.) Maran told the detectives that Martinez used to deal drugs for two individuals known as "Placedo" and "Jesuico." (Doc. No. 23, Ex. 9.) Maran did not know their real names. (Id.) She told police that several years earlier Martinez had a disagreement with Placedo and Jesuico and they threatened to kill him. (Id.) Maran stated that because of this threat, Martinez left Philadelphia for Puerto Rico in November 1984. (Id.) She stated that Martinez returned to Philadelphia in October 1986 and had since re-established contact with Placedo and Jesuico. (Id.) She further stated that the week before the murder, Martinez purchased a car from Jesuico, who told Martinez that he could resume dealing drugs for him. (Id.) Maran was not aware of any threats made against Martinez since he returned to Philadelphia in October 1986. (Id.) The detectives showed Maran photographs of Plaintiffs, and she stated that the individuals in the photographs were too young to be Placedo and Jesuico. (Id. ("Placedo and Jesuico are both older guys. They are just young boys that you have."))

Raymond told the detectives that he was aware that Martinez had fled to Puerto Rico several years earlier because of a dispute over drugs but did not know that Martinez had any current problems with anyone. (Id., Ex. 10.) Raymond said that he knew Placedo and Jesuico, although he did not know their real names, and said that Martinez was not afraid of them. (Id.) He said that Placedo drove a red, four-door Chevrolet Chevette and Jesuico drove a burgundy Toyota SR5. (Id.) At a follow-up interview on May 30, 1987, Raymond told Defendant Lubiejewski and Detective Dougherty that Martinez's cousin, Cesario Sanchez ("Sanchez"), told him that he was with Martinez at a bar, the Playpen Lounge, on the night of the murder. (Id., Ex.

13.) Raymond reported that Sanchez told him that Martinez was arguing with two men over a game of pool while at the Playpen Lounge.*fn5 (Id.) Raymond provided the detectives with Sanchez's home address. (Id.)

On June 2, 1987, Defendant Lubiejewski and Detective Dougherty met with Sanchez. (Doc. No. 23, Exs. 13-15.) Sanchez stated that on the night of the murder, he was with Martinez at the Playpen Lounge along with Antonio Ortiz ("Ortiz") and a man named "Tito." (Id., Ex. 7.) When the bar closed, all four men went to the home of Enrique Vicente, known as "Mayaguez," at 2128 North Front Street. (Id.) Sanchez stated that he went inside the house to find Mayaguez while Martinez, Ortiz, and Tito waited outside. (Id.) He further stated that when he reached the second floor, he heard a gun shot outside, ran to the window, and saw Martinez wounded on the sidewalk. (Id.) Sanchez indicated that he fled the scene.*fn6 (Id.)

Detectives located Tito, whose actual name is Edwin Rohena. (Id., Ex.'s 7-11.) Rohena denied being present at the murder scene on the night in question. (Id., Ex. 11.) He said that he had no information about Martinez's murder. (Id.) Detectives then tried to speak with Ortiz. On June 2, 1987, detectives went with Sanchez to Ortiz's residence. (Id., Ex. 15.) When they knocked on the door, a man who Detective Lubiejewski believed to be Ortiz looked out the third floor window and said that he would come down.*fn7 (Id.) Instead, the man fled from the back of the house.*fn8 (Id.) Defendant Lubiejewski ran a background check on Ortiz after the incident and discovered that he had an outstanding bench warrant in an unrelated matter. (Id., Ex. 22 at 97-98.) On June 5, 1987, Detective Lubiejewski was assigned to a different unit and was no longer responsible for investigating the murder.*fn9 (Id., Ex. 22 at 69-71; id., Ex. 35; id., Ex. 26 at 15-16.)*fn10

On June 25, 1987, a preliminary hearing was held in the Municipal Court of Philadelphia. (Doc. No. 23, Ex. 16 at 26.) The court found a prima facie case and ordered Defendants held for trial. (Id.) Defense counsel was provided with discovery documents including witness statements and police statements.*fn11 (Id., Ex. 24 at 27.) Included in these documents was the witness statement of Sanchez. (Id., Ex. 24 at 32.) Trial was held between March 23 and March 28, 1988. (Id., Exs. 17, 21.)

Plaintiffs' trial counsel testified at depositions in this case that they do not believe they were provided with Maran's statement. (Doc. No. 25, Ex. A at 22; id., Ex. B at 10.) The record does not indicate whether Maran's statement was provided to Plaintiffs' trial counsel before trial. (See Doc. No 23, Ex. 22 at 32-40; Doc. No. 25, Ex. 24 at 29; id., Ex. 23 at 41-42.) The record is similarly unclear as to whether any police Activity Sheets were provided to Plaintiffs' trial counsel in discovery. (Doc. No. 25, Ex. 24 at 22; id., Ex. 23 at 10.) It is evident from the record, however, that Plaintiffs' trial counsel were aware of Ortiz and that he was a potentially important witness for their clients. Plaintiffs' trial counsel had access to Sanchez's witness statement, which contained Ortiz's name and address. (Doc. No. 23, Ex. 7; id., Ex. 24 at 32.)*fn12 Plaintiffs' trial counsel also retained a private investigator who attempted to locate Ortiz. (Doc. No 23, Ex. 24 at 32.) During trial, Ortiz was apprehended on charges unrelated to Plaintiffs' criminal trial and the District Attorney was made aware of his being in custody. (Doc. No. 23, Ex. 24 at 4; id., Ex. 36 at 66-84.) Given this new development, court was adjourned while the District Attorney investigated the potentially exculpatory information that Ortiz possessed. (Id.) Ortiz's statement, which was taken by Detective Lubiejewski, was exculpatory and suggested that the murder was committed by an unidentified man who was accompanying the person known as Mayaguez. (Doc. No. 23, Ex. 8.)

Trial resumed once Detective Lubiejewski obtained the statement from Ortiz. Plaintiffs' trial counsel were provided with a copy of Ortiz's statement and were informed that he would be made available as a witness for the defense. (Doc. No. 23, Ex. 20 at 1-18.) The court recessed to allow Plaintiffs' trial counsel time to review Ortiz's statement and to determine a strategy for its use. (Id.) Ultimately, Plaintiffs' trial counsel decided not to call Ortiz as a defense witness. (Id.) Trial counsel offered several reasons for this decision, including their belief that Ortiz was not credible, that his testimony was unnecessary to gain an acquittal, and that offering Ortiz risked bolstering the testimony of Thompson, the prosecution's main witness. (Id.) Plaintiffs' trial counsel also made the decision not to call Sanchez at trial because Ortiz would have been called to impeach Sanchez's testimony. (Doc. No. 23, Ex. 21 at 21-26.)

On March 29, 1988, Plaintiffs were convicted of murder and conspiracy to commit murder. (Id., Ex. 21 at 28; id. ¶ 160; Doc. No. 25 ¶ 160.) They were sentenced to life in prison.

The Superior Court of Pennsylvania affirmed the convictions on March 1, 1990. (Doc. No. 23, Ex. 29 at 14-18; id., Ex. 30.) In October 2005, after Ortiz made a new statement exculpating Plaintiffs and after lie-detector tests were administered to Plaintiffs, the Court of Common Pleas of Philadelphia granted Plaintiffs a new trial. The Philadelphia District Attorney decided not to prosecute the charges. (Stipulation, Dec. 10, 2007, ¶¶ II-VI.) Plaintiffs thereafter brought this action claiming that their constitutional rights were violated and that their arrest, trial, conviction, and incarceration violated state and federal law.

On January 18, 2007, we granted Defendants' motion to dismiss claims against the Philadelphia District Attorney's Office and Assistant District Attorney Rubino.*fn13 (Doc. No. 13). The remaining causes of action are a § 1983 claim against Detective Lubiejewski for malicious prosecution, a § 1983 claim against the Defendant City of Philadelphia alleging failure to train its detectives, and a Pennsylvania state law claim for malicious prosecution. Defendants filed the instant Motion seeking summary judgment on all remaining claims.


Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Celotex, 477 U.S. at 322-24. Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (explaining that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). When deciding a motion for summary judgment, the court must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). However, courts may not resolve factual disputes or make credibility determinations. Siegel Transfer, 54 F.3d at 1127.

Considering the way in which Plaintiffs' counsel responded to the motion for summary judgment, we will reiterate the duty of a non-moving party opposing a summary judgment motion. When a defendant moves for summary judgment, "the opponent may not rest on allegations in pleadings, but must counter with specific facts which demonstrate that there exists a genuine issue for trial." Orson, Inc., v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d. Cir. 1996) (citing Celotex, 477 U.S. at 323) (emphasis added). A nonmoving party "cannot rely merely upon bare assertions, conclusory allegations or suspicions" to sustain its case. Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982). "[A] nonmoving party must adduce more than a mere scintilla of evidence in its favor . . . and cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249).

When the burden shifts to the nonmoving party, it imposes an affirmative obligation to identify the relevant evidence it has adduced. See Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) ("A party seeking to defeat a motion for summary judgment is required to wheel out all its artillery to defeat it.") (internal citation and quotation omitted). A non-moving party may not merely submit a voluminous record in the hopes that a court will sift through the details in an effort to deduce some material dispute of fact. See Herman v. City of Chi., 870 F.2d 400, 404 (7th Cir. 1989) ("A district court need not scour the record to make the case of a party who does nothing."); Carmen v. San Fran. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (noting that a "district court is not required to comb the record to find some reason to deny a motion for summary judgment"); Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 618 (S.D.N.Y. 2008) ("Where a non-moving party defaults on a ...

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