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Whitley v. Allegheny County

March 9, 2010

DREW WHITLEY, PLAINTIFF,
v.
ALLEGHENY COUNTY; THOMAS M. FITZGERALD, INDIVIDUALLY AS A DETECTIVE FOR ALLEGHENY COUNTY; ROBERT LAZARRO, INDIVIDUALLY AND AS A DETECTIVE FOR ALLEGHENY COUNTY; HERB FOOTE, INDIVIDUALLY AND AS A DETECTIVE FOR ALLEGHENY COUNTY; LEE TORBIN, INDIVIDUALLY AND AS A DETECTIVE FOR ALLEGHENY COUNTY; JOHN MARKLE, INDIVIDUALLY AND AS A DETECTIVE FOR ALLEGHENY COUNTY; ROBERT PAYNE, INDIVIDUALLY AND AS A DETECTIVE FOR ALLEGHENY COUNTY AND SANFORD A. MIDDLEMAN, ESQ., DEFENDANTS.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION

CONTI, District Judge

Introduction

Pending before this court is a motion for summary judgment (Docket No. 67) filed by defendants Allegheny County, Robert Payne ("Payne"), Thomas M. Fitzgerald ("Fitzgerald"), Robert Lazarro ("Lazarro"), Herb Foote ("Foote"), Lee Torbin ("Torbin"), and John Markle ("Markle," together with Payne, Fitzgerald, Lazarro, Foote, and Torbin, "individual defendants," and individual defendants together with Allegheny County, "defendants"), seeking summary judgment in their favor with respect to all the claims asserted by Drew Whitley ("Whitley" or "plaintiff"). Whitley in the complaint filed in this case alleged defendants violated his civil rights and asserted claims against defendants (1) under 42 U.S.C. § 1983 (count I) for deprivation of liberty without due process of law, malicious prosecution, and denial of the right to a fair trial, (2) under state law for malicious prosecution (count II), and (3) for professional negligence (count III) against Sanford A. Middleman. On March 24, 2009, the court granted summary judgment with respect to count III (Docket No. 46). For the reasons that follow, the court will grant the motion for summary judgment with respect to the claims at count I and count II.

Background

On March 26, 2007, plaintiff commenced this lawsuit. (Compl. (Docket No. 1).) Plaintiff‟s claims arise from plaintiff‟s alleged unlawful conviction and incarceration for the August 17, 1988 murder of Noreen Malloy ("Malloy"). On May 1, 2006, plaintiff was exonerated of the murder by the Allegheny County Court of Common Pleas. (Pl.‟s Responsive Concise Counterstatement of Material Facts (Docket No. 79) ("Pl.‟s facts") ¶¶ 65-66.)

On August 17, 1988, at approximately 2:30 a.m., Noreen Malloy ("Malloy") finished her shift as manager at the McDonald‟s restaurant located at 101 Hoffman Boulevard, Duquesne, Pennsylvania. (Defs.‟ Concise Statement of Material Facts (Docket No. 69) ("Defs.‟ facts") ¶¶ 2, 3; Pl.‟s facts ¶ 1.) A black male accosted Malloy in the parking lot of the restaurant. (Defs.‟ facts ¶ 4.) This individual was described as 6‟0" to 6‟3" with a thin build. (Id.; Pl.‟s facts ¶ 5.) He was wearing a yellow or beige colored trench coat with a belt secured around the waist, a stocking mask, a white or beige hat with a brim all the way around the hat, dark pants, and white tennis shoes. (Defs.‟ facts ¶ 4; Pl.‟s facts ¶ 6.) The attacker had a small handgun in his right hand, and grabbed Malloy around her neck with one arm while he pointed the gun to her head with the other arm. (Defs.‟ facts ¶ 4.) He demanded, "Give me the bag. Give me the bag." (Id.) Malloy responded that she did not have any bag, and the actor responded that he would shoot her if she did not turn over the bag. Malloy was able to escape the grasp of the actor, and he fired a shot into the air. The actor then pulled back on the top of the pistol, which ejected a shell casing. The casing was recovered from the scene. It was a .25 caliber casing, which indicates that actor possessed a .25 caliber semiautomatic pistol. Malloy fled and while chasing her, the attacker fired a second shot. This shot struck Malloy in her back, which ultimately caused her death. After shooting Malloy, he grabbed her and struck her in the face with the handgun. He grabbed a purse she was carrying and fled on foot across Hoffman Boulevard into the Kennywood Park parking lot. (Id.)

The Duquesne Emergency Medical Squad arrived at the scene shortly after the shooting. Malloy was pronounced dead at the scene. (Defs.‟ facts ¶ 3.) At approximately 3:15 a.m. on August 17, 1988, the Allegheny County Police Homicide Division was requested to assist Duquesne Police in the investigation of the homicide. (Id.) Among others, Fitzgerald, Foote, Lazzaro, Markel, Payne, and Torbin, detectives for the Allegheny County Police, responded. (Pl.‟s facts ¶ 2.) Lazzaro and Foote were the lead detectives. (Id.)

A number of McDonald‟s employees who were working that night were interviewed. (Pl.‟s facts ¶ 4-8.) These employees included Bill Weinberg, Shawn Divan, Karen Queenan, Barbara Rice, Thomas Pitts, Shelley Slater, and Jerome Wilson ("Wilson"). (Pl.‟s facts ¶ 4.) The only other individual in the area of the shooting was James Queenan, who was waiting in a car in the parking lot for his daughter to finish work. That evening, no witness was able to identify the assailant beyond generalities. (Id.)

Detectives Payne and Fitzgerald of the Allegheny County Police Homicide Division interviewed Wilson at approximately 4:10 a.m. on August 17, 1988. (Pl.‟s facts ¶ 8.) During that interview, Wilson did not identify the shooter. (Id.) He stated that: he arrived early [for his 3 a.m. to 1 p.m. shift] and was told that he had to wait outside until the 3:00 A.M. shift supervisor came in.

The subject stated that he went over to the corner of the restaurant and sat down on the curb. The subject stated that while he was sitting there, people started to come out of the McDonald‟s which would have been the 2:00 A.M. shift quitting. The subject stated that he heard something walking towards him from behind the building from where the staircase leads to McDonalds [sic] leading to the basement. The subject stated that this black male placed a gun in his face and told him not to move. The subject stated that he sat still while the black male then moved towards Noreen who was still at the door, shutting the door to McDonalds [sic]. The subject then stated that four other employees, one named Tom LNU, were at the driveway and standing in different areas in the parking lot when this happened. The subject stated that Tom was standing there at the sign which says "McDonalds" and the others were standing in various areas of the parking lot getting into their vehicles. The subject stated that as the suspect headed towards Noreen, he said to her "Give me the money bag." She replied that she didn‟t have one. The subject then stated "Give me your purse", [sic] which she had under her arm. The subject stated that the suspect then grabbed her from behind, putting his right arm around her neck and holding the gun in his left hand and pointed it towards her head. The subject stated that after a brief moment or so she broke loose and headed towards the cars which were parked directly from the door. The suspect ran after the victim, chasing her towards the cars, grabbed her, and hit her in the face with the gun. The victim falls and the suspect fires on shot in the air. The suspect then walked over to the victim and fired one shot directly at her. The subject stated that they all started to run at this time.

The subject was asked how far the suspect was from the victim when he fired and the subject stated that he was less than a foot away from her when he fired a shot at her. The suspect then took her purse and ran across the street into the opening between the weeds and the fence of the Kennywood parking lot, ran into the parking lot and down towards Kennywood Blvd. . . . The subject was asked if her could describe this black male and the subject stated that he was very thin built, had a tan hat like a fishing hat, panty hose stocking over his face, dark in color, trenchcoat (tan in color which came down past his knees), with white tennis shoes.

The stocking cap was pulled down all the way down past the neck.

The suspect had no gloves and the subject could see that the suspect was a black male because the of the hands and forearms which showed through. The subject stated that the suspect had to be 6‟2" or taller and that the weapon was an automatic because there were casings on the ground and it sounded like a .22 caliber. (Pl.‟s facts, Ex. B-1 to B-2.) Other witnesses confirmed that the assailant‟s voice sounded young. (Pl.‟s facts ¶ 12.) During this interview, Wilson did not identify the shooter as Whitley. (Pl.‟s facts ¶ 13.)

On August 18, 1988, detectives interviewed Gary Covington ("Covington"), who resided in the Mon View Heights Housing Projects. (Id. ¶ 14.) Covington reportedly had information with respect to the murder. During the interview, Covington stated he had a conversation with Wilson, in which Wilson stated he "thinks [the murderer] was Drew from up the street." (Id.)

Shortly after learning of Wilson‟s alleged statement from Covington, Fitzgerald and Payne interviewed Wilson a second time. Wilson reiterated the his recollection of the events that occurred, including his observation that the assailant grabbed and held Malloy with his right arm and held the firearm with his left arm. (Id. ¶ 15.) The officers at this point pressed him for more information; Wilson was hesitant to provide more information, but eventually identified the assailant:

At this point these dets. directly asked Mr. Wilson if he was able to recognize the actor who committed the murder in the McDonald's parking lot that morning. At this question, Wilson became extremely nervous and somewhat evasive in his response. These dets. explained to Wilson that in an investigation of this importance it is the duty of all citizens to come forward with pertinent information. These dets. explained that an innocent girl had been killed and Wilson himself, could have been killed. It was explained that with this type of act being committed, many people become concerned and many people have already been spoken to even in this short period of time. Wilson was told he may not know all who these dets. have talked to and what information we have received, and he was told the only thing we are looking for is the truth. Based on these statements to Wilson, he explained his fears to us. He stated he did in fact recognize the actor who committed the murder, and he was extremely frightened for the lives of himself and his family. He explained that the individual he recognized who committed the murder and robbery lives in the same area he lives. He stated he, himself, lives in a building in MonView [sic] Heights projects and the actor who committed the murder lives in the building directly in front of him. Wilson stated he is married, his wife is pregnant and he is fearful if any information leaks out that he can identify this person, his wife‟s life and his would be threatened. He stated the only reason he did not tell these dets. on the right of the incident that he recognized the individual was due to fear of being killed himself, or of his wife being killed.

At this point Wilson identified the actor as Drew Whitley who lives in Bldg. 19, MonView [sic] Heights projects. The reason he identified him is because he recognized Whitley‟s facial features. When asked to explain, Wilson stated he has been in Whitley‟s company on several occasions and knows him to speak to. He stated Whitley has a unique facial structure, that being extremely long, almost to the point of being abnormal. He stated Whitley is very tall and extremely thin due to his drug addict activities. He stated he had the opportunity to see the actor at close range when first confronted by him when the gun was placed in his face. Wilson stated he had been sitting down at the time he first heard the actor come up behind him, and as he turned he saw the actor point the gun at him, telling him not to move. He stated he got a fairly good look at the actor‟s face even though the actor had on a stocking mask. He stated that even with the mask on, he could detect the abnormality of the facial features, the extreme length of the face, the large flat nose that Whitley has and the heavy mustache which he could detect through the mask. Wilson stated he saw the actor go over to the victim, place his arm around her and heard his voice as he gave commands. Wilson stated he saw the actor go over to the victim, place his arm around her and heard his voice as he gave commands. Wilson then stated he saw the victim run to the car, the actor chase her, beat her and at this time Wilson ran up Hoffman Rd. toward the Giant Eagle. As he ran up the road, Wilson turned and observed the actor running directly behind him. He saw the actor‟s entire face through the mask. When this occurred, he was directly under the streetlight at the McDonald‟s entranceway off Hoffman Rd. Wilson stated it was at this time he got a good look at the actor‟s face through the mask, along with the abnormal shape of the head through the mask and that, coupled with his initial confrontation with the actor, seeing his face, his tall extremely thin stature, hearing his voice which he recognized, convinced him of the actor‟s identification.

Wilson further stated he was well awarae [sic] of Whitley‟s reputation in the community as being a drug user, con-artist and troublemaker. Wilson stated Whitley is an individual he did not want to be around because of his reputation and he would try to avoid him. Wilson was asked how sure he was that the actor was Drew Whitley. Wilson stated he was certain the individual who committed the murder/robbery was Drew Whitley. Wilson elaborated on the fact he could recall the first time he met Whitley, he remembers saying to himself, "Wow, does this man have a big head and face." Again Wilson elaborated on the fact that when he talks about a big face, he means the individual has an extremely long face from the top of the forehead to the chin. (Pl.‟s facts, Ex. B-8 to B-9.) Wilson also explained what happened the night of the shooting after he was interviewed:

Wilson stted [sic] he went home at 6:00 AM because he was upset about what happened, and at this point the truck they were supposed to unload at 3:00 AM had been cancelled. Wilson stated he came back at 6:30 AM because he had received a call from the manager of McDonald‟s saying the police wanted to question him again. Wilson stated when he got there, the police were gone, so he continued to work and stayed until 5:00 PM. The truck they were supposed to unload came in about 2:30 PM. The subject stated when he got home, he told his wife what happened but did not tell her at this time he thought it was Drew. The subject stated he didn‟t want to worry her and get her involved, knowing that Drew lived in the building in front of them. The subject stated that about 8:30 PM he left the house and went down to Whitaker, and was talking to some friends and saw a friend of his, Gary Covington. Wilson said he was talking to a B/M named Billy, who he knows from hanging around Whitaker and he was telling him what had happened at McDonald‟s. Wilson said Gary overheard this speaking about McDonald‟s and asked him what happened. Wilson said he told them what happened, then told Gary he thought it was Drew. Wilson said he Gary told him it sounded like something Drew would do. Wilson was asked why he would speak to Gary about this, and he said he considers Gary like a big brother and he and Gary have always been close. Gary has always been his friend. Wilson was asked if he told anyone else about this and he said he had told no one he thought it was Drew but Gary. Wilson was asked when, prior to last evening, he had last seen Drew and he stated about a month ago. Subject stated he knows Drew as a junkie and thief and Drew always wears a hat. Subject statead [sic] he and Gary discussed the fact Drew always wears a hat, although he never saw that particular hat on Drew. Wilson was asked what he was going to do with this information and he stated on this date he was going to his manager, Linda, tell her what his feelings were and what he should do. Wilson could add nothing further and the interview was terminated. (Pl.‟s facts, Ex. B-9 to B-10.) None of the eight other witnesses to the murder described any discernible facial features of the shooter, because he was wearing a stocking mask. (Pl.‟s facts ¶ 20.) One other witness testified that the assailant‟s face "looked all black." (Pl.‟s facts, Ex. A-9.) Although Wilson was consistent in testifying that the assailant held Malloy with his right arm and pointed his weapon at her with his left, all other witnesses observed the assailant use his left arm to hold Malloy and use the right to hold the gun. (Pl.‟s facts ¶ 20.)

Covington owned a .25 caliber automatic handgun that was missing a pin. (Pl.‟s facts, Ex. C-2.) Two spent .25 caliber shells were found at the murder scene, but the "cartridge cases found at the scene lack[ed] sufficient detail in the firing pin impression and breech face impression for comparison purposes." (Pl.‟s facts ¶ 50; Pl.‟s facts, Ex. C-3.) At the time of the shooting, the assailant manually ejected the casing from the semi-automatic handgun, which is a trait consistent with the type of gun Covington owned. Defendants did not follow up on the whereabouts of Covington‟s gun. Covington and Wilson were good friends. Covington and Wilson spoke about the murder shortly before Wilson identified Whitley as the murderer. (Pl.‟s facts ¶ 50.)

In August 1988 within days of the murder, seven local residents reported that an individual was searching hedges along Inland Avenue; Inland Avenue was a street that encompassed at least a part of the route of the assailant‟s flight. (Pl.‟s facts ¶ 33.) The individual was described as a "suspicious black male" by at least two people, (Pl.‟s facts, Ex. F-1), and another reported that the person was "approx. early 20‟s, dark skinned, approx. 6‟--6‟3" tall, thin build," (Pl.‟s facts, Ex. F-8). One resident specifically told a police officer that the individual was "searching for the weapon used in the murder." (Pl.‟s facts, Ex. F-8). The residents who reported this incident were not shown photos of Whitley or any other suspect, and did not participate in a line-up procedure. (Pl.‟s facts ¶¶ 34, 37.) Torbin admitted that he did not arrange a line-up because Whitley was already in custody. (Id.)

On November 18, 1988, defendants interviewed Nicole Bufkin ("Bufkin"), the live-in girlfriend of Kevin Tench ("Tench"). (Pl.‟s facts ¶ 36.) Bufkin stated that Tench was incarcerated since August 24, 1988, and that Tench and Whitley were friends. Bufkin stated that one week earlier, she visited Tench in prison and Tench explained that Whitley admitted to the murder. (Id.) Bufkin was shown a photograph array and successfully identified Whitley. (Pl.‟s facts ¶ 37.)

On November 21, 1988, defendants interviewed Tench. Tench asserted that he did not have any information regarding the murder of Malloy, and he did not know Whitley by name. (Pl.‟s facts ¶ 38.) Tench was subjected to a polygraph examination; he failed with respect to several questions, including questions about whether he was in the area of Kennywood Park at the time of the murder, knew who killed Malloy, and knew Whitley. (Id.)

On December 23, 1988, Lazzaro and Foote interviewed Bryan Mayes ("Mayes"). Around the time of the murder, Mayes visited his mother who resided in the Mon View Heights Housing Project. Mayes reported seeing Tench about an hour before the murder walking toward Kennywood Park. Mayes knew Tench previously stole Newport cigarettes from a beer store by placing the cigarettes in his trench coat, and described Tench‟s physical characteristics and clothing on the night of the murder:

Mr. Mayes was asked how he knew Kevin Tench. He stated that he knows Kevin to see him around and approx. one month before the shooting Mayes stated that he jitnied Kevin and another individual known as "Booty" to Beer World in East Land Shopping Center. When Kevin and Booty came out of Beer World for the ride back to Monview [sic] Heights Kevin had stolen three cartons of cigarettes ( two Kools, One [sic] Newport) and they were inside the trench coat Kevin was wearing. Mayes told Kevin that he wasn‟t getting in the car with the stolen cigarettes and Mayes along with Booty drove off. Mayes referred to Tench as the cigarette man.

Mayes was asked what Kevin was wearing when he seen him walking down Outlook Dr. He stated that Kevin was wearing a trench coat, beige in color, below the knees. Mayes stated that he and Kevin waived at each other and Mayes asked Kevin what he was doing wearing a trench coat, its warm out, are you going to steal more cigarettes. Kevin stated, "No man, you know how it is." Kevin was also wearing a pair of tennis shoes, no hat and he was eating something like candy or peanuts. Kevin was not carrying anything.

Mayes went on to say that he was told by Booty that a friend of Kevin's (name unknown) who lives in Mckeesport has a .25 automatic. Mayes was asked if he knew anyone who would know Kevins [sic] friend. He stated that Kevin had rapped [sic] a thirteen year old girl whose last name in [sic] Lewis and who lives in Monview Heights. It was supposedly reported to the West Mifflin Police. Mayes stated that the girl or her mother would know the friend in McKeesport.

Mayes was asked if ever seen [sic] Kevin and Drew Whitley together. He stated that he hadn't. Mayes was asked to describe Kevin Tench. He stated that he was approx. 5'9", thin, brown skin. (Pl.‟s facts, Ex. H-10 to H-11.) Tench was 21 years old at the time of the murder. (Pl.‟s facts ¶ 39.) Defendants responded that they did not further investigate Tench because he was only 5‟9". (Pl.‟s facts ¶ 40.)

On the night of the murder, Ki Mihaly ("Mihaly"), a food services manager at Three Rivers Stadium, drove some of his younger workers to the Braddock and Duquesne neighborhoods after a baseball game. Mihaly was not aware of the murder, but noted police activity as he drove past the McDonald‟s where Malloy was murdered. Sometime between approximately 3:00 a.m. and 3:15 a.m., Mihaly picked up Nathan Meador ("Meador"), who was hitchhiking, near the Rankin Bridge about two miles from the murder scene. (Pl.‟s facts ¶ 42.) Mihaly described Meador as "about 6‟1" tall, thin, late teens, perhaps early 20‟s, pretty dark skinned, close cropped hair." (Pl.‟s facts, Ex. G-2.) Mihaly shook Meador‟s hand, and believed it was "sweaty; very clammy." (Pl.‟s facts, Ex. G-1.) Mihaly thought Meador generally appeared sweaty, "as if from jogging or from being scared." (Id.) Mihaly asked Meador if he was coming from Kennywood, and Meador replied "Oh, Yeh [sic], the park." (Id.) Mihaly thought the "answer did not strike him as being truthful." (Id.) Mihaly was always looking for employees to work at Three Rivers Stadium, and handed Meador his gold-colored business card case and told him to take a card, which Meador did. Mihaly dropped Meador off in Forest Hills. (Pl.‟s facts ¶ 43.)

Meador called Mihaly on August 19, 1988 at approximately 1:30 p.m., seeking an employment opportunity. At 5:40 p.m. on August 19, 1988, Mihaly reported Meador to the police. Mihaly also turned over his business card case to be tested for fingerprints, because Meador held the case. (Pl.‟s facts ¶ 43.)

Mihaly‟s testimony was corroborated by Stephen Kovacich ("Kovacich"), a gas station attendant. Kovacich worked at Bob‟s Autotorium and Gas Station, which was located adjacent to the Rankin Bridge. On the night of the murder, Kovacich saw a black male who was approximately 18 years of age sitting on a step owned by the gas station; the young man was approximately 140 pounds with a thin build. The individual told Kovacich he was waiting for a ride, and Kovacich told him to leave. (Pl.‟s facts ¶ 44.)

On September 1, 1988, defendants interviewed Meador. Meador repeatedly denied being in the area the night of the murder and stated he did not hitchhike. He acknowledged that he normally stayed with his mother in the Mon View Heights Housing Project. Meador claimed, however, that on the night of the murder he was staying with his girlfriend who lived in Wilkinsburg. His girlfriend was pulled over as she was driving during the early hours of August 17, 1988, and the car was impounded by the Swissvale Police. Meador was a passenger in the vehicle. His girlfriend‟s uncle, Earnest Bowden ("Bowden"), picked them up at the Swissvale Police Department. Meador stated that Bowden dropped them off at his girlfriend‟s Wilkinsburg residence at approximately 2:00 a.m. on August 17, 1988, and Meador claims he stayed at that residence the rest of the evening. Meador stated that he got the card from Mihaly two days later, on August 19, 1988, when Mihaly approached him in Wilkinsburg. (Pl.‟s facts ¶ 45.)

Defendants conducted a seconded interview of Mihaly on September 2, 1998, in which Mihaly refuted Meador‟s comments. Mihaly stated he had not been in Wilkinsburg all year, had only given one card out within the preceding several weeks, and was working a baseball game on August 19, 1988. (Pl.‟s facts ¶ 46.) Mihaly stated that Meador‟s version of the events was a "lie." (Pl.‟s facts, Ex. G-12.)

Bowden‟s statements also refute Meador‟s version of events. Bowden testified that he drove Meador and his girlfriend to Midway Drive in the Mon View Heights Projects. Between 2:00 a.m. and 2:30 a.m., just prior to the murder, Meador entered the residence of his mother. Meador got into an argument, and Bowden alleged he waited an hour to an hour and a half. He thereafter drove his niece home to Wilkinsburg. (Pl.‟s facts ¶ 47.)

The government did not investigate Meador any further. He was not subjected to a polygraph examination or made part of a line-up, and his photo was not shown to any witness in a photo array. The fingerprint lifted from Mihaly‟s card case was never compared with those of other potential suspects besides Whitley. Foote admitted that they should have been. (Pl.‟s facts ¶ 48.) Lazzaro was asked why no further investigation was performed with respect to Meador, to which he replied "I just assumed that we thought we had him alibied, and I just don‟t know what else happened to him." (Pl.‟s facts, Ex. J-37.)

Whitley‟s prints were tested with those lifted from the card case, and did not match. (Pl.‟s facts, Ex. E-116.) Defendants had two latent fingerprints from the crime scene which did not match prints gathered from either Whitley or Malloy. (Pl.‟s facts, Ex. E-119.) Although the fingerprints were "available for any future comparisons you desire," the prints from the crime scene were not tested with Meador or Tench. (Pl.‟s facts, Ex. E-119; Pl.‟s facts, Ex. J-37.)

Whitley‟s mother, Hati Whitley, provided an alibi for Whitley. She stated that Whitley told her he saw his girlfriend, Barbara Brown ("Brown"), with an alcoholic beverage at 2:30 a.m. on August 17, 1988, in the Mon View Heights Housing Projects as she was coming home from a local bar. (Pl.‟s facts ¶ 52.) Brown confirmed that she left the bar at approximately 2:15 a.m., and with a group of friends walked to a friend‟s house in the Mon View Heights Housing Projects. Brown stated she arrived at her friend‟s house between 2:30 a.m. and 2:45 a.m. She stated one of her friends carried a beer. (Pl.‟s facts ¶ 53.)

Although charges were brought against Whitley with respect to the Malloy‟s homicide, Lazzaro admitted there was no physical evidence linking Whitley to the crime. (Pl.‟s facts ¶ 22.) Two latent fingerprints recovered from the murder scene did not match Whitley‟s fingerprints. The hat worn by the assailant measured 22 and 1/8 inches in circumference, but Whitley‟s head measured 23 inches. (Pl.‟s facts ¶ 24.) Shoeprints from the scene did not match Whitley‟s shoes. (Pl.‟s facts ¶ 25.) Newport cigarette butts were found in the stairwell near the scene of the murder, but Whitley did not smoke Newport cigarettes. (Pl.‟s facts ¶ 26.) Dried blood was discovered underneath Whitley‟s fingernails; Whitley voluntarily provided genetic samples to the police, but the dried blood was not tested with Whitley‟s or with anyone else‟s genetic material. (Pl.‟s facts ¶ 27.) Witnesses testified that Malloy struggled with the assailant and had dried blood under her fingernails, and a physical examination of Whitley the day after the murder revealed no scratch marks or any other marks indicating a struggle. (Id.) Whitley requested a lie detector test, but was not subjected to one. (Pl.‟s facts ¶ 38.)

Drew Whitley was arrested on February 10, 1989. (Pl.‟s facts, Ex. D-75.) An affidavit of probable cause was prepared in order to obtain an arrest warrant; the affidavit reads:

The following information was gathered at the scene by your affiants, or by other investigators and told to your affiants: Miss Malloy was a manager at the McDonald's Restaurant. Her work shift had finished at approx. 2:30 am, Aug. 17, 1988. As Miss Malloy and other employees were leaving the restaurant, Miss Malloy was accosted by a B/M described by witnesses as being 6'1" to 6'2" or taller with a very thin build, wearing a yellow/beige trenchcoat, belted securely around the waist, a stocking mask, a white or beige hat with a brim all the way around, white tennis shoes, and brandishing a small handgun in his right hand. The assailant grabbed Miss Malloy around her neck using one arm, while he pointed the gun to her head, and held the gun with his other hand. The actor demanded "the bag", and while the actor was holding the victim and pointing the gun at her head, he was yelling, "Give me the bag. Give me the bag." The victim was responding that she did not have any bag to which the actor responded that he would shoot her if she would not give him the bag. Subsequently the victim broke free from the grasp of the actor, and the actor fired a shot into the air. The actor then pulled back on the top of the pistol, which caused a spent casing to be ejected from the pistol. The casing was recovered from the scene and was a .25 caliber casing which would have been ejected from a .25 caliber semi-automatic pistol. As the victim was running away, she was being chased by the actor who then fired a second shot which struck the victim in her back, thus ultimately caused her death. After he shot the victim, the actor again grabbed the victim and beat her about the face with the handgun, and at that time he grabbed the purse from her and fled on foot across Hoffman Blvd. into the Kennywood Park Parking Lot.

Dets. Payne and Fitzgerald of the Allegheny County Polide Homicide Division interviewed Jerome Wilson, a McDonald's Restaurant employee and a witness to the shooting. Mr. Wilson told dets. that he was sitting on a corner of the sidewalk at the restaurant as the victim and other employees were exiting the restaurant. At that time he became aware of an individual (the actor) coming up from a basement stairwell located on the exterior west wall of the building. At that time the actor came toward Mr. Wilson, pointed a firearm at him and told him "Don't move." Mr. Wilson then observed the subsequent shooting, robbery and flight of the actor. Mr. Wilson told Dets. Payne and Fitzgerald that he recognized the actor and identified him as Drew Whitley of Bldg. 19 in the Mon View Heights Housing Projects in West Mifflin. Mr. Wilson stated that Whitley has been a nearby neighbor of his for three years.

On Aug. 17, 1988 a post-mortem examination on the body of the victim was performed at the Allegheny County Morgue by Coroner Dr. Joshua Perper and pathologist Dr. Katherine Jasnosz. Following the examination it was the conclusion of Dr. Perper and Dr, Jasnosz that the victim died as the result of a gunshot wound to the back, and the manner of death was deemed to be homicide.

Based on the information contained herein, your affiants believe and aver that probable cause exists to believe that Drew Whitley shot Noreen Malloy in the back shortly after 2:30 am, Aug. 17, 1988, and Noreen Malloy died as a result of the gunshot wound she received. Your affiants therefore request that an arrest warrant be issued charging Drew Whitley with violation of PCC 2501 Criminal Homicide. (Def‟s Ex. D.)

Two days before the issuance of the arrest warrant for Whitley, Gary Starr ("Starr"), a convicted murderer on death row, wrote to authorities explaining that six months earlier Whitley confessed to the murder while he was incarcerated in a cell adjacent to Whitley. (Pl.‟s facts ¶ 28; Defs.‟ Mot. for Summ. J., Ex. F-10 at 884-85.) Whitley was housed in a cell adjacent to Starr for five days. (Pl.‟s facts ¶ 29.) Whitley‟s cellmate for ninety days, Kenneth Willmer ("Willmer"), stated that Whitley always maintained his innocence. (Id.)

Starr later asserted that Bob Bricker ("Bricker") and Arty Gorley ("Gorley") would allege that he was lying about Whitley‟s confession. (Pl.‟s facts ¶ 30.) Plaintiff was not made aware of this assertion. Defendants did not interview either Bricker or Gorley, even though Foote admitted that such a follow-up investigation should have been conducted. (Id.)

Starr stated that Whitley admitted he threw the murder weapon over a hillside across the street from the McDonald‟s Restaurant. At least nine detectives conducted a search of the hillside at the end of Inland Avenue in April 1989. The detectives did not find the weapon. (Pl.‟s facts ¶ 31.)

At Whitley‟s trial, Starr was questioned with respect to his reason for bringing this information to the attention of the authorities, and Starr denied receiving an inducement for his testimony at trial:

Q: . . . And you wrote to the District Attorney on February 6?

A: Yes, sir. The reason I did this, when I seen Mr. Chris Conrad was questioning him, and I knew about it, and I came forward because it was on my conscience.

Q: On your conscience?

A: Yes, sir.

Q: It wasn't on your conscience in March.

A: When?

Q: March.

A: That is when I wrote the letter. I wrote the letter in February.

Q: I'm sorry. It wasn't on your conscience in September.

A: No, because I had forgot about it.

Q: It wasn't on your conscience in October?

A: I forgot about it.

Q: It wasn't on your conscience in November?

A: Like I said, I forgot about it until I seen he was being questioned.

Q: How do you know he was being questioned?

A: I seen his name in the paper. I know it was him.

Q: It didn't have anything to do with the fact you are on court supervision as you told the District Attorney, and "maybe if I come up with something real good, I'll be off of that court supervision." That never entered your conscience?

A: No, sir.

Q: Never? Not even to this day?

A: No, sir.

Q: You are just doing this because you are the law abiding citizen that Gary Starr is?

A: I was doing it because it was on my conscience, and I wanted to get it out. (Defs.‟ Mot. for Summ. J., Ex. F-10 at 884-86.)

Plaintiff alleges that defendants concealed the existence of a plea bargain between Starr and the government, "essentially falsifying Starr‟s testimony against Whitley." (Pl.‟s facts ¶ 35.) A letter dated May 1, 2006, from James Daniel Hardin II to Stephen A. Zappala, Jr., of the Allegheny County District Attorney‟s Office, reads:

As you're aware, today former wrongfully convicted inmate Drew Whitley was released from prison after DNA tests proved conclusively that he was not the man that murdered Noreen Malloy, 22, outside a Duquesne fast-food restaurant in 1988. While I'm certainly very happy for Mr. Whitley, his wrongful conviction was due in large part because an over zealous prosecutor chose to use the false testimony of a lying jail-house-informant named Gary Lee Starr who was on Death Row. . . . .

Instead of paying the ultimate price for the second life he premeditatedly took he cuts a deal with the Allegheny County District Attorney's Office to offer favorable government testimony against Drew Whitley in exchange for having his Death Sentence reduced to Life. What a sweet deal for him, huh? Now that DNA tests have proved conclusively, 18 years later, that Gary Lee Starr's testimony against Drew Whitley was deliberately concocted perjury he, Starr, cannot be charged with perjury because the 5 year statue [sic] of limitations has expired. However, since his plea bargain was contingent on the fact that his testimony be truthful, and now it's been proven to be untruthful, you can now petition the court to vacate the former plea bargain and to reinstate his Death Penalty. I had 2 separate lying jail-house informants give false testimony against me at my trial and I ended up wrongfully convicted as a result so I feel very deeply about this subject. You were not the D.A. at the time so you're not to fault but you owe it to Drew Whitley and his family to have Gary Lee Starr's plea bargain revoked. Please do the right thing! (Pl.‟s facts, Ex. I-23.) An article in the Pittsburgh Tribune Review reporting on Whitley‟s release from jail following the results of the DNA tests summarized the evidence introduced at the trial, and noted that "death row inmate Gary Lee Starr testified that Whitley confessed to the murder during a jailhouse conversation. Starr was taken off death row in exchange for his testimony." (Pl.‟s facts, Ex. I-26.) Similarly, an article in the Pittsburgh Post-Gazette reads: "Gary Starr, a twice-convicted murderer on death row, had his sentence reduced to life in prison after testifying that Mr. Whitley had confessed killing to him while both were in prison." (Pl.‟s facts, Ex. I-27 to I-28.)

Whitley‟s counsel in the state court homicide case filed an omnibus pre-trial motion, which the state court addressed at a hearing prior to trial. (Def‟s Ex. F-1 at 4.) The omnibus pre-trial motion included a motion to suppress that challenged a search warrant issued for the August 18, 1988 search. Whitley‟s counsel alleged "that in securing the search warrant that the police failed to inform the magistrate of some inconsistent statements, and that in doing so, failing to inform the magistrate, violated the defendant's Fourteenth Amendment rights, and also having ex parte search warrant issued withholding pertinent facts from the magistrate." (Id. at 7-8.) Whitley also filed a pro se motion to suppress. The motion had two parts. The court read the first part as concerning the "prima facie case proved at the point of inquest." (Id. at 8.) The court did not understand the second part, but read it as concerning "the Motion to Suppress the identification." (Id.)

At the hearing, the Commonwealth called Foote as a witness. Foote explained that the affidavit of probable cause for the search warrant relied upon Wilson‟s identification of Whitley as the shooter. (Id. at 10-15.) On cross-examination, Whitley‟s counsel questioned Foote about Wilson‟s failure to identify Whitley during the first interview. (Id. at 16-22.) No other witnesses were called, and the parties did not offer any additional evidence. (Id. at 22.) The state court asked if the parties wished to make an argument; Whitley‟s counsel contended:

Judge, I think under Frank versus Delaware and Illinois versus Gates, I think when you have a search warrant and it is obviously taken before a neutral and detached magistrate that the police have the burden -- I'm sorry -- the duty of informing the magistrate of the facts that they have to establish probable cause. In this particular case, you have an eyewitness to the crime who is interviewed immediately thereafter and who apparently does not -- apparently does not tell the police who the assailant is. The next day after being contacted by the police through an informant, he tells the police that he recognizes the defendant. That is the end of reading the whole affidavit. That is the only testimony whatsoever that connects Mr. Whitley to this crime. I think that the police have an affirmative duty at that point to provide some other evidence to the magistrate to support and corroborate the testimony of the purported witness. In other words I think that the Fourth Amendment requires that the police go to the magistrate and say in a written form, Your Honor -- in their affidavit they describe what occurred, which they did in this particular case. I think at that point they have a right to say, "A witness who we say tells us who the assailant was gave a prior inconsistent statement the night of the crime, but the next day he adds to or changes his testimony and tells us that he knows the assailant, and further that his second statement is supported by this evidence which we believe establishes probable cause to believe that what we are looking for is in that apartment." The reason I asked the question about the gun, we have Jerome Wilson who says initially, "I don't recognize anybody." However, he says it is a .22 caliber pistol. The police in the affidavit of search warrant are looking for a .25 caliber pistol, that being supported by the physical evidence which is found at the scene, that is, that Ms. Malloy was killed with a .25 caliber.

Maybe if the witness says it was a .22, maybe they don't have probable cause to go look for a .25. That is the whole issue. That is the whole point. . . . .

[T]heir witness who is supplying all of the information says it was a .22. Based upon that, Your Honor, I would ask you suppress the fruits of ...


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