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Balshy v. Pennsylvania State Police and Office of General Counsel

February 8, 2010

JOHN C. BALSHY, PETITIONER
v.
PENNSYLVANIA STATE POLICE AND OFFICE OF GENERAL COUNSEL, RESPONDENTS
JANICE ROADCAP, PETITIONER
v.
OFFICE OF GENERAL COUNSEL AND PENNSYLVANIA STATE POLICE, RESPONDENTS



The opinion of the court was delivered by: Judge Simpson

Argued: December 9, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

In these consolidated appeals, former Pennsylvania State Police (PSP) Corporal John C. Balshy (Balshy) and former PSP Chemist Janice Roadcap (Roadcap) petition for review from an order of the Office of General Counsel (OGC) that denied their requests for indemnification and reimbursement of legal fees and costs associated with their defense in an underlying federal suit filed against them by Steven Crawford (Crawford). OGC denied the requests based on its determinations that Balshy and Roadcap acted maliciously, outside the scope of their employment and in bad faith. In particular, OGC determined Balshy and Roadcap, individually or while acting in concert, misrepresented the results of Roadcap's analysis of palm print evidence collected in connection with the murder investigation and criminal prosecution of Crawford; failed to fully disclose the results of Roadcap's palm print analysis to the prosecution and the defense in the criminal proceedings against Crawford; and, provided misleading testimony during three separate criminal trials of Crawford.

On appeal, Balshy and Roadcap contend OGC's determinations that they acted maliciously, outside the scope of their employment, and in bad faith, are not supported by substantial evidence. In addition, a threshold issue exists as to whether OGC enjoyed jurisdiction over Balshy and Roadcap's reimbursement requests. Upon review, we conclude OGC properly exercised jurisdiction over the requests for reimbursement and properly denied those requests on the merits. Therefore, we affirm OGC's decision.

I. Procedural Background

Through the complaint filed in the underlying federal civil rights action, Plaintiff Crawford advanced claims against Balshy and Roadcap pursuant to 42 U.S.C. §§1983 ("Civil action for deprivation of rights"), 1985 ("Conspiracy to interfere with civil rights) and 1986 ("Action for neglect to prevent"). Crawford alleged, among other things, Balshy and Roadcap engaged in conduct violative of Crawford's Fourth and Fourteenth Amendment rights. Specifically Crawford alleged Balshy and Roadcap "maliciously conspired" to commit acts of fraud, deceit, falsification of testimony, fabrication, alteration, adulteration and/or concealment of exculpatory evidence in order to wrongfully convict Crawford of criminal homicide. The complaint includes separate counts of "fraud," "false imprisonment," "intentional infliction of emotional distress," and "conspiracy." Reproduced Record (R.R.) at 226a-231a. Crawford alleged these acts were committed on the basis of Crawford's race and Balshy and Roadcap acted with "wanton" and "reckless disregard." R.R. at 230a.

Shortly after service of the complaint in the underlying action, PSP Chief Counsel Barbara L. Christie notified Roadcap and Balshy the Commonwealth would not be providing them with defense counsel in the federal suit, and the Commonwealth would not indemnify them for any judgment entered against them or pay or indemnify them for the expense of settlement of the suit. At that time, both Balshy and Roadcap retained separate, private counsel.

Upon settlement of the underlying action for $1.2 million, Balshy, through counsel, formally made his demand of the Commonwealth for reimbursement of legal fees totaling $107,385.85. In addition, Roadcap, through counsel, sought reimbursement of $178,156.40 in legal fees and costs. PSP Chief Counsel Christie denied these requests.

Shortly thereafter, Balshy and Roadcap filed separate appeals from Chief Counsel Christie's denials. OGC's Deputy General Counsel Linda C. Barrett denied these appeals on the grounds Balshy and Roadcap acted maliciously, in bad faith or outside the scope of their employment. Balshy and Roadcap again appealed, and the appeals were consolidated for hearing before Hearing Officer Jackie Lutz, Esq. on the issue of whether Balshy and Roadcap's conduct was a bad faith exercise of their authority, malicious or outside the scope of their employment such that they were not entitled to reimbursement of reasonable attorney's fees and expenses. Hearing Officer Lutz conducted a hearing in these matters in April 2007. The record was subsequently certified and submitted to OGC.

II. Factual Background

Ultimately, General Counsel Barbara Adams issued a thoughtful and thorough opinion, containing a 20-page discussion of the complex factual background as well as 14 pages of "Findings of Fact, Conclusions of Law and Analysis." OGC's opinion is summarized below.

A. Investigation of the Murder of John Eddie Mitchell

In September 1970, Harrisburg Police discovered the body of 13 year-old John Eddie Mitchell in a detached garage owned by the family of 14 year-old Steven Crawford. It was determined the cause of the Mitchell's death was blunt force trauma to his head.

Parked inside the garage and adjacent to Mitchell's body was a Pontiac Station Wagon owned by the Crawford family. During the course of the investigation, police discovered what appeared to be blood spatter on the left rear door of the Pontiac. Police investigators processed this portion of the vehicle and were able to lift seven latent finger prints and/or palm prints, of which three partial palm prints matched impressions obtained from Crawford. At least one print had a substance on it that police suspected might be Mitchell's blood.

Then-Corporal Balshy and Walton Simpson,*fn1 who at all times during the investigation served as either a City of Harrisburg police sergeant or a Dauphin County Detective, were two of the officers assigned to investigate the Mitchell case. Balshy and Simpson delivered the partial print to the PSP Laboratory for analysis.

At the time of the investigation, which occurred between 1972 and 1974, PSP chemists engaged in a practice that typically included conducting three separate tests to verify whether a substance detected on evidence constituted human blood. When the evidence was located on a print, i.e., finger, palm or foot, the chemist typically documented precisely where on the print the substance was located. Prints include two separate surfaces: the "ridges" of the print where the skin is raised and the "valleys," or depressed skin between the ridges of the print.

The first test involved dropping a benzidine reagent onto the substance. If the reagent yielded negative results for peroxidase activity, the chemist would conclude no blood was present and no further tests would be conducted. However, if the benzidine caused positive peroxidase activity, a reaction noted by a bright blue hue, the particles could fall within a set of possible substances, including chemicals such as potassium dichromate and potassium permanganate, vegetable juices like carrot juice or potato juice, dried vegetable extracts, leather or blood. Thus, further testing would be required to confirm whether the substance was in fact blood.

The second test, the "Takayama test," involved more advanced chemical testing to confirm whether the substance was in fact blood. However, this test did not distinguish between human blood and the blood of an animal. If the substance was determined to be blood, a third test was then performed to establish whether the blood originated from a human source.

On November 29, 1972, Roadcap, a chemist and serologist employed by the PSP, analyzed the palm print taken from the Mitchell crime scene at the request of Balshy. Roadcap was not a fingerprint expert. Roadcap "also emphasize[d] that this may have been one of the very few times she ever received print evidence." OGC Op. at 9.

Balshy presented Roadcap with a tri-sheet carbon copy form reflecting certain typewritten information such as the victim's name, the date, the location, the incident number, Balshy's signature as the requester of the analysis, what type of test Balshy requested and other general information identifying and describing the item of evidence. The following descriptor was also typewritten onto the form "Blood Analysis of a Latent Fingerprint Lift." OGC Op. at 10.

On November 29, 1972, Roadcap conducted the first test while Balshy and Simpson were in the laboratory room. Roadcap asked Balshy how much of the print she could use for testing purposes as the print would be destroyed once subject to testing. Balshy instructed Roadcap to refrain from using the entire print, so Roadcap cut three small strips from the print for her use. Further, [Roadcap] allowed Balshy and Simpson to remain in the testing room as she performed the preliminary benzidine test on all three of the strips. Roadcap permitted Balshy to view the results of the benzidine test under the microscope. (Vol. II, Ex. D, p. 49) She states that Balshy would have seen precisely what she viewed under the microscope. (Vol. IV, Tab d, p. 69) Roadcap concluded that the print tested positive for benzidine, which could represent the presence of blood. She recalls viewing a "very intense blue color" under the microscope. (Vol. II, Tab 9, Ex. G, pp. 667) Balshy admits having viewed this same reaction under the microscope. (Vol. IV, Tab g, pp. 712 & 716) OGC Op. at 10.

Roadcap explained that as each event occurred during her analysis, she recorded handwritten notes. After concluding the benzidine test, she handwrote the following observations on the carbon copy paper:

6. [Positive] reaction was obtained from the reaction of reagents and the fingerprint powder.

7. This reaction was greater along the ridges of the fingerprint, however, numerous particles in the valleys also gave positive reactions.

OGC Op. at 11 (emphasis in original).

Further, in the "remarks" section of the report, Roadcap appears to have originally written: "A positive reaction was obtained with Benzidine reagent. This indicates the presence of blood in the fingerprint impression." OGC Op. at 11. However, Roadcap modified the report by crossing out the words "in the fingerprint impression" and adding additional language so that the second sentence ultimately reads: "This indicates the presence of blood deposited by the donor of the fingerprint impression." Id.

Thus, while the original language seems to render a conclusion very narrowly limited to whether blood exists in the impression, the revised second sentence alters this conclusion and adds the very distinct and very specific conclusion that the donor actually deposited the blood onto the surface from which the print was lifted. Roadcap insists she was expected to give the latter opinion despite the fact that no one asked her to do so and that she has no recollection of ever rendering such an opinion before or since.

Further, sometime during the testing and initial reporting process, Roadcap again altered her original notes by using a different editing technique of completely crossing out with a black magic marker the following language: "greater," "finger," and "however, numerous particles in the valleys also gave positive results." She then inserted new remarks which read in significant part: "This reaction was only along the ridges of the print pattern." OGC Op. at 12 (emphasis in original).

Of critical note, any reference to Roadcap's original observation that "numerous particles in the valleys also gave positive reactions," was completely obliterated from the report.

The official typewritten report reflecting the conclusions of the benzidine test reads as follows:

When the palm print impression was treated with benzidine reagent a positive impression was obtained.

This indicates the presence of blood deposited by the donor of the palm print.

OGC Op. at 12. The report is dated November 29, 1972. Roadcap admits no further tests were conducted on the print in 1972; thus, the above conclusions were based exclusively on the results of the benzidine test.

A second report dated September 6, 1974, reflects that it was not until two years later that Roadcap performed the more precise Takayama test to confirm the substance was blood. However, long before she conducted the Takayama test, Roadcap modified her lab notes.

The copy that was made available by Roadcap for use at trial by all parties, the court and experts, was the obliterated copy. The original, un-obliterated copy was not made available. In fact, Roadcap claims she never shared the un-obliterated version with anyone and she never discussed its contents with anyone. All three carbon copies of Roadcap's original, un-obliterated notes were reportedly "lost" at some point during the investigation. OGC Op. at 13.

B. Criminal Prosecutions of Crawford

Two years later, Crawford was arrested and charged with murder. OGC's opinion details the substance of the testimony presented by Roadcap and Balshy during the course of the initial homicide trial and the two subsequent re-trials of Crawford. As stated by OGC, "Balshy's fingerprint expertise and Roadcap's laboratory findings were crucial to the Commonwealth's placement of . Crawford at the scene of the crime when Mitchell was murdered." OGC Op. at 13.

Specifically, the medium of transfer was the key piece of information in the case because, as the prosecution argued, the finding of blood originating on the palm print and then being deposited onto the vehicle could place the depositor (Crawford) at the crime scene during or immediately after the murder occurred. The Commonwealth had evidence in its possession that would have placed Crawford in his family garage on any given day; however, palm print evidence revealing Crawford deposited the victim's blood on the Crawford vehicle would place Crawford in the garage at the time of the murder. If the blood had been transferred onto the print in a different manner, for instance, if Crawford's print was deposited onto the vehicle at an earlier date and then the victim's blood transferred onto the print at a later date, or if Crawford put his hand on blood already on the car, Crawford could have been present either before or after the murder, but not necessarily during the murder.

Based on expert testimony, the presence of blood exclusively on the ridges supports the conclusion that Crawford was at the scene at the time of the murder. On the other hand, the presence of blood in both the ridges and valleys could support the conclusion the blood was transferred onto the print in another fashion and Crawford's print was not necessarily applied during the course of the murder.

C. Criminal Trial #1

At Crawford's first criminal trial, on direct-examination Roadcap testified she observed "brownish-red particles" on the ridges of the print, the location of which "indicated that if the particles were blood, they would have had to be deposited there when the [palm print] was deposited." When asked how she was able to make that conclusion, Roadcap testified, under oath, "I came to that conclusion because of the fact there were no[] . suspected blood particles in the valleys of the print. It followed only the ridges." OGC Op. at 14 (emphasis in original).

In his testimony, Balshy admitted to having looked through the microscope during initial analysis of the fingerprint evidence in 1972. Balshy testified he looked through a microscope at the bloody partial palm print and saw "a reddish-brown" substance along "the papillary ridges" of the print. When asked whether he saw any reddish-brown substance along the valleys of the print, Balshy responded, under oath, "No, sir, I did not." OGC Op. at 14 (emphasis in original). Balshy also testified: "Because the blood as a result of my examination the reddish-brown particles appeared to be in the -- all in the ridge areas." Id. Of note, over the course of his career, Balshy had been qualified as an expert in lifting and identifying fingerprints. In addition, Balshy was specifically offered by the prosecution to provide testimony on the method by which the print was transferred onto the car.

In the Complaint in the underlying civil action, Crawford emphasizes the significance of this evidence:

65. The extent to which the suppressed evidence undermined the truth determining process is apparent from a review of the Supreme Court opinion reversing Mr. Crawford's first conviction in which the Court said:

The prosecution's expert witness testified that this blood was on the hand when it left the print on the car. This witness also testified that, in his opinion, the three partial palmprints identified as belonging to [Crawford] were placed on the car at the time of the killing. No other evidence was produced to establish that [Crawford] was inside the garage at the time of the killing.

OGC Op. at 15 (citation omitted).

Ultimately, Crawford was found guilty of homicide and sentenced to serve life in prison. Crawford's conviction was later overturned and he was granted a new trial, which commenced in February 1977.

D. Criminal Trial #2

At Crawford's second trial, Roadcap testified she performed the benzidine test on November 29, 1972, at which time she observed "along the ridge area . there were . reddish particles which resembled blood in appearance .." OGC Op. at 15. She went on to testify that Sgt. Simpson and an assistant district attorney brought her a new sample of the palm print on September 4, 1974, at which time she performed additional tests and confirmed the substance was blood.

Once again, Roadcap made no mention of her initial discovery of blood in the valleys of the print.

At the time of the second trial, Balshy was the supervisor of the PSP's latent print section in Harrisburg. Balshy again admitted to having personally viewed the print under Roadcap's microscope and testified under oath blood particles were found "only in the ridge area, not in the valley area of the particular print." OGC Op. at 16 (emphasis added). OGC explained:

Again, Balshy was fully aware of the significance of this conclusion, "The significance then would be that these particles must have been on the ridges of the finger when the print was transferred from the finger to the surface that was touched." (Vol. IV, Ex. F, pp. 379) When asked what impact a discovery of blood in the valleys would have on his opinion of the medium of transfer, he answered, "Then it is possible that the blood could have been on the car."

OGC Op. at 16. Of note, Balshy further testified he viewed the prints under a microscope before he delivered them and viewed them a second time with Roadcap. Balshy ultimately concluded, based on his representations as to the location of blood on the print: "It is my opinion that there was blood on the hand when it came into contact with the car." Id.

Ultimately, Crawford was again convicted of murder and sentenced to life in prison; however, his conviction was again overturned and a third trial occurred in February 1978.

E. Criminal Trial #3

The third trial followed the general path of the previous two trials; Roadcap testified she found blood-like particles only along the ridges of the fingerprint:

Q: Did you observe any of these red particles in the valleys of the Exhibit?

A: No, I didn't. At all times, it followed along where the fingerprint powder was which was on the ridges of the fingerprint.

OGC Op. at 16 (emphasis in original).

Balshy again testified when he viewed the print under a microscope, he "didn't observe any [red particles] in the valleys." OGC Op. at 17 (emphasis in original). Balshy provided what amounted to expert testimony in the third trial concerning the medium of transfer. Notably, the most critical conclusions reached by Balshy were based on his own analysis of what he himself observed under the microscope, i.e., he did not emphasize conclusions reached by Roadcap.

The third trial resulted in a third conviction for murder and a sentence of life in prison.

F. Discovery of Roadcap's Original, Un-Obliterated Notes

In 2001, approximately 23 years after Crawford's third conviction, while out playing, some children randomly came across a briefcase placed out in front of the home of the late Sgt. Simpson for garbage collection. Inside the briefcase was a photocopy of the original, un-obliterated version of Roadcap's lab notes. The document was turned into the Dauphin County Public Defender's Office, and that office began to raise questions surrounding Roadcap's motive for amending her laboratory notes to the extent they appeared to conflict with her in-court testimony. An inquiry into Roadcap's actions yielded concerns that she and Balshy may have conspired to alter Roadcap's November 1972 notes so the potentially exculpatory evidence would be hidden. The new evidence regarding Roadcap's altered notes resulted in Crawford's filing of a petition for post-conviction relief in December 2001.

G. Investigation by the Dauphin County District Attorney

As a result of the discovery of the copy of Roadcap's original, un-obliterated notes, the Dauphin County District Attorney's Office sought further clarification on the nature of the two apparently inconsistent documents. This investigation revealed several new facts that were not revealed during the underlying criminal investigations or trials. Roadcap was deposed in June 2002. She generally reiterated her testimony offered in the three previous criminal trials. While she had no recollection of having any conversation with Balshy regarding her conclusions, she testified she recorded her notes while Balshy was present in the lab room with her. Roadcap testified her job duties as a PSP chemist included not only testing for the presence of blood, but also making a determination as to the medium of transfer, or how the blood got onto the print. Notably, however, Roadcap testified, in her entire 23-year career with the PSP, she only testified as an expert witness in the areas of chemistry and serology; she acknowledged the Crawford case was the only case in which she presented expert testimony concerning "fingerprint analysis or identification or anything else related to fingerprints . [including,] how the blood [in the Crawford case] got in the various portions of the print .." OGC Op. at 19.

Through her testimony, which was given for the express purpose of explaining the discrepancies between the obliterated and un-obliterated version of the notes, Roadcap again admitted having detected blood in the valleys of the print. She also admitted to having obliterated her notes and stated she did so because her original notes were "incomplete." Id. Roadcap further admitted the obliterated notes reflect something "[d]ifferent than what I saw under the microscope, but I had already crossed this off because I had already arrived at the opinion that those small particles came from the ridges." OGC Op. at 20. Nevertheless, Roadcap insisted her notes and testimony were not false representations. According to Roadcap, the findings she recorded in her original notes were incomplete and thus inaccurate, leading her to cross-out the inaccurate portions and replace them with more precise findings.

Based on Roadcap's deposition testimony, the Dauphin County District Attorney's Office, determined Crawford would be entitled to relief in the form of a new trial in connection with his petition for post-conviction relief. Additionally, the District Attorney's Office decided to enter a nolleprosequi and discharge Crawford for the stated reasons of stale evidence, deceased witnesses, an unwillingness of the victim's family to engage in a fourth trial and general interests of justice. The Commonwealth did not represent that the withdrawal of the charges was due to Crawford's innocence in the Mitchell murder.

H. Crawford's Federal Suit

In 2003, Crawford filed a civil suit against Roadcap, Balshy, the Estate of Sgt. Simpson, the Commonwealth, the County of Dauphin and the City of Harrisburg. Through his complaint, Crawford averred Roadcap "altered [her] original lab notes by obliterating the reference to blood being found in the valleys" and that this action was "intentionally carried out to materially alter the record and conceal information which was exculpatory to Mr. Crawford." OGC Op. at 21. Crawford further alleged Roadcap's conduct in failing to disclose her original notes amounted to a "failure of the Commonwealth to conform to its obligations under the Constitution of the United States and the Constitution and laws of Pennsylvania[,]" an act which "undermined the truth-determining process and jeopardized the integrity of the judicial system." Id. The complaint also averred Balshy and Roadcap "provided false testimony as part of a conspiracy to wrongfully convict Mr. Crawford" and ultimately committed fraud, perjury, false imprisonment, conspiracy and intentional infliction of emotional distress. Id.

During discovery in the civil suit, Herbert MacDonell, a forensic scientist and fingerprint specialist who testified for the Commonwealth in the second and third Crawford criminal trials, ...


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