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Toribio v. Spece

United States District Court, Third Circuit

June 4, 2013

RADDY NOEL TORIBIO, Plaintiff,
v.
BERNARD SPECE, et al., Defendants.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Pending before the court are defendants' motions for summary judgment, (Doc. No. 36; Doc. No. 52), requesting dismissal of plaintiff's false arrest, false imprisonment, and malicious prosecution claims. (Doc. No. 47.) Because the court has determined that defendants Bernard Spece, Michael Sadusky, and Bernard Walasavage had probable cause to arrest plaintiff, were not motivated by malice, and were cloaked in the protection of qualified immunity, defendants' second motion for summary judgment will be GRANTED IN ITS ENTIRETY, defendants' first motion will be DENIED as MOOT, and plaintiff's complaint will be DISMISSED WITH PREJUDICE.

BACKGROUND

This case arises from a series of bank robberies in which plaintiff claims that police officers arrested and prosecuted him without probable cause and refused to withdraw charges after obtaining exculpatory evidence from the Mannheim Township Police Department. (Doc. No. 12.) Defendants Bernard Spece, Michael Sadusky, and Bernard Walasavage were all Pennsylvania State police officers who participated in the investigation of the bank robberies and plaintiff's arrest. (Doc. No. 53, at 2.)

On August 6, 2010, the Susquehanna Bank in Orwigsburg, Pennsylvania, was robbed after a string of similar crimes in the area. (Doc. No. 12, at 2.) Defendant Spece was assigned to the investigation and arrived at the bank, interviewed witnesses, and examined the bank surveillance videos. (Doc. No. 12, at 2.) In his police report, he noted:

This incident occurred when the actor arrived at the scene in the vehicle listed on page 1 of this report. The actor entered the bank and when he was helped by a teller he handed the teller a note demanding money and instructing the teller to return the note. The teller complied and handed over money from her drawer, including bait money, but no dye pack or other devices. The actor then stuffed the money into the pockets of the cargo shorts he was wearing and exited the bank, entered his vehicle, and fled the scene....
Other evidence consisted of still pictures of the actor which were captured by the banks [sic] security video system (ref attached copies). Those pictures show the actor wearing black Nike Shox sneakers, dark colored cargo shorts, a long sleeve flannel pattern shirt, and a black baseball cap. The security pictures shows what appears to possibly be a Hispanic male with short hair, medium/muscular build, with facial hair. (Doc. No. 53, Attach. 3.)

In an attempt to identify the suspect, the police publicly released still pictures of the perpetrator's image in hopes of getting a tip. (Doc. No. 53, at 3.) Defendant Spece's supervisor, defendant Corporal Michael Sadusky, was subsequently informed by another officer that plaintiff's former girlfriend called and said Raddy Toribio was the man in the photos. (Doc. No. 53, Attach. 3.) Defendant Sadusky called the woman and learned that her 5-year-old son saw a picture of the suspect on the news and said, "That's Daddy." (Doc. No. 53, Attach. 3.) When asked if she thought the picture resembled her ex-boyfriend, she said that "she cannot be 100 percent certain that a man - that the man was her ex-boyfriend due to the quality of the photos, " but that "she was 95 percent sure that the male in the pictures were [sic] her ex-boyfriend." (Doc. No. 53, Attach. 3.)

Following this lead, defendant Walasavage prepared a photo lineup, (Doc. No. 53, Attach. 2), and showed it to two bank tellers and the bank manager on duty at the time of the robbery. (Doc. No. 53, at 3-4.) The parties agree that the lineup consisted of eight photographs shown to the witnesses simultaneously, but they disagree as to whether the witnesses were shown surveillance pictures of the robbery first. (Doc. No. 53, at 3-4; Doc. No. 55, at 2-3.) Defendants argue that the eyewitnesses were simply shown the lineup and asked to compare the photos with their recollection of the perpetrator from the day of the robbery. (Doc. No. 53, at 3-4.) Plaintiff contends that defendant Walasavage first showed the witnesses a surveillance picture of the perpetrator before asking them to identify him in the lineup. (Doc. No. 55, at 2-3.) In defendant Walasavage's deposition, (Doc. No. 53. Attach. 4), however, he acknowledges that the witnesses were first shown the surveillance pictures and, because defendants do not point to anything in the record to support their version of the story, the court must accept plaintiff's version of the facts, i.e. that the witnesses were first shown the surveillance picture.

After viewing the photos, the two tellers identified plaintiff in the photo lineup, but the manager could not, having only seen the robber from the side. (Doc. No. 53, at 4.) Defendant Spece completed an affidavit of probable cause on August 2010, stating:

On 08/06/10 at approx. 0950 hrs., a white male entered into the Susquehanna Bank, located on SR 61, West Brunswick Twp and proceeded to walk to a small table top desk area and penned a note on a piece of paper. The individual then waited in line for an available teller. Once the individual approached the teller he passed the handwritten note to the teller which related that, "this is a robbery, give me all your money." At the end of the note it was written, "give me the note back." Once the teller provided the individual with the money from the drawer he placed the money in his pocket and exited the bank through the front door. The individual then entered into a black vehicle, reportedly a Mazda RX7 and fled the scene in a southern direction. PSP Schuylkill Haven members arrived on the scene and conducted the interviews of the bank personnel as well as viewing the surveillance video. The above incident was observed on the surveillance video. Still pictures from that video were disseminated to the media in an attempt to identify the person involved in the robbery.
On 08/06/10 at approx. 1800 hrs. Cpl. Michael SADUSKY, PSP Schuylkill Haven Criminal Investigation Unit Supervisor was notified by Lt. Thomas MCDANIEL, Troop "L" Reading Criminal Investigation Commander that there had been information from a police officer in Allentown that the actor had been made known to him. Cpl. SADUSKY arrived at PSP Schuylkill Haven and spoke with Officer Josh BRUBAKER. BRUBAKER related that he was informed by a source who wished to remain anonymous that the person in the surveillance video was Raddy Toribio.
Three of the employees of the bank who were present during the robbery were contacted and requested to come to PSP Schuylkill Haven to view a photo lineup which included Raddy Toribio. At approx. 2000 hrs., Tara PANDHER, Deborah STEFFIE and Christy REBEHN arrived at PSP Schuylkill Haven. PANDHER and STEFFIE were independently shown the photo lineup and both positively identified Toribio in the eight person lineup as the person who had committed the robbery in the bank earlier on this day. (Doc. No. 53, Attach. 3.)

On August 10, 2010, defendants used the affidavit to obtain a warrant, and plaintiff was arrested and transported to PSP Schuylkill Haven. (Doc. No. 53, at 5.) According to his deposition testimony, defendant Sadusky had immediate reservations as to whether plaintiff was the same man that robbed the bank because "his height seemed to be shorter than reported by the bank tellers." (Doc. No. 53, Attach. 3.) To double check that plaintiff matched the suspect's description, defendant Sadusky asked the Susquehanna Bank manager and one of the tellers to come to the station, told them that they had a suspect in custody, and asked them if they would identify him as the robber. (Doc. No. 53, Attach. 2; Doc. No. 53, Attach. 3.) Plaintiff was not placed in a lineup; instead, defendant Sadusky took the witnesses to the interview room and had them view plaintiff, who was standing alone, through the one-way glass. (Doc. No. 53, Attach. 2.) Defendant Sadusky also had plaintiff stand up to verify his height, and both tellers said they were certain he was the right man. (Doc. No. 53, Attach. 2.)

Plaintiff was arraigned on $100, 000 bail and was remanded to the Schuylkill County Prison in lieu of bail, where he remained from August 10, 2013 until his release on August 13, 2010. (Doc. No. 53, at 7.) On August 13, defendant Spece learned of another bank robbery that occurred the day before, August 12, 2013, in Mannheim Township, Lancaster County. (Doc. No. 53, at 7.) He called the officer in charge of the investigation and learned that the suspect in that robbery fit the description of the suspect in the Susquehanna Bank robbery. (Doc. No. 53, at 7.) Furthermore, images of the two robberies showed a resemblance between the suspects, and the license plates of the getaway cars were identical. (Doc. No. 53, at 7.) With this information in hand, defendant Spece contacted the district attorney's office, and plaintiff was released on bail the same day. (Doc. No. 53, at 7.) On August 16, 2010, three days after his release, the state withdrew all charges related to the robbery. (Doc. No. 53, at 7.)

On November 24, 2010, plaintiff filed a complaint, (Doc. No. 1.), and, on April 4, 2011, an amended complaint. (Doc. No. 12.) The state, representing Bernard Spece, filed a motion for summary judgment on June 15, 2012, seeking dismissal of the complaint in its entirety. (Doc. No. 36.) It then filed a superseding motion on behalf of Bernard Spece, Michael Sadusky, and Bernard Walasavage on March 28, 2013. (Doc. No. 52.) The substance of the second motion is the same as the first except that it names Michael Sadusky and ...


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