IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN D. CRAWFORD, :
Plaintiff : NO. 1:CV-03-0693
:
v. : JUDGE CAPUTO
:
JANICE ROADCAP, et al, :
Defendants :

DEFENDANT JOHN C. BALSHY’S TRIAL BRIEF

I. Procedural History

Plaintiff commenced this action in the Dauphin County Court of Common

Pleas by filing a Complaint alleging violations of state and federal Constitutional

rights. Specifically, the Plaintiff’s Complaint set forth actions under 42 U.S.C. §§

1983, 1985, and 1986, alleging that the Defendants had maliciously conspired

against Plaintiff in a racially-motivated prosecution by their alteration and

concealment of exculpatory evidence. In addition, the Plaintiff’s Complaint set

forth counts for fraud and false imprisonment. The case was subsequently

removed to federal court.

At the close of discovery, the Defendants each filed Motions for Summary

Judgment. In his Brief in Response to Defendants’ Motions for Summary

Judgment, Plaintiff voluntarily dismissed his claims under 42 U.S.C. §§ 1985 and

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1986, and his claims for fraud and false imprisonment. The claims against Balshy

remaining for disposition at trial are (1) a §1983 claim based upon malicious

prosecution and Brady1 violations, (2) a state law conspiracy claim, and (3) a state

law intentional infliction of emotional distress claim (Judge McClure’s Order,

February 3, 2006).

II. Statement of Facts

This case results from the September 13, 1970 murder of thirteen year old

Johnny Mitchell, whose body was found in a garage owned by Steven Crawford’s

father. His head had been smashed with a hammer. The police investigation

revealed a latent palm print on the driver’s side of one of the vehicles in the garage.

The blood type of the spatter found on the vehicle matched Johnny Mitchell’s

blood type. Witness interviews were conducted and Steven Crawford (“Plaintiff”)

became a suspect. Plaintiff submitted an inked palm print which was later

positively matched to three palm prints lifted from the crime scene, including the

one on the car in the garage.

On November 29, 1972, before Plaintiff was charged with Mitchell’s

murder, Balshy accompanied Simpson to the State Police Crime Lab. Balshy was

not a prosecuting officer, and the State Police were not directly involved, in the

Mitchell homicide investigation. Balshy was along simply to “open doors” for

1
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)

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Simpson and the Harrisburg police, who did not have their own crime lab. The

purpose of the visit was to see if small reddish-brown specks seen on the ridges of

the bloody palm print were blood and, if so, human blood. Following standard

State Police procedure, Balshy submitted a carbonized “Request for Laboratory

Analysis” form, and signed it as “Requestor”. Simpson could not directly make

such a request because he was not a member of the State Police. The request was

assigned to Roadcap, who Balshy had never met previously. She performed a

Benzedine test which was positive for blood. Roadcap wrote her original Roadcap

notes on the top copy of the “Request for Laboratory Analysis” form.

Plaintiff was later arrested and charged with Johnny Mitchell’s murder.

Between 1974 and 1978, Plaintiff was prosecuted in three successive murder trials

and was convicted by each jury for the first degree murder of Johnny Mitchell. He

was sentenced to life imprisonment. In each trial, the crucial piece of evidence that

placed Plaintiff at the crime scene at the time of the murder was the bloody palm

print discovered on the car inside the garage. Testing of the lifted palm print

confirmed the presence of human blood on the ridges, thereby permitting the

experts to conclude, at all three trials, that Plaintiff’s left palm was covered with

the Decedent’s blood at the time he touched the vehicle and was not, as Plaintiff

asserted, an old print that had been spattered with the Decedent’s blood.

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 Thereafter, Plaintiff served 28 years of imprisonment before being released

for reasons described below.

After the filing of a PCRA petition in October 1993, Plaintiff’s appointed

counsel and the Dauphin County District Attorney’s Office agreed to further

testing of the bloody palm print. The parties agreed to have DNA tests conducted

on the print at Cellmark Diagnostics in 1995, but the print turned out to contain

insufficient blood for testing. It was apparently lost in transit by Federal Express

while being returned from Cellmark to the District Attorney’s Office. To this date,

it has never been found.

In the meantime, Detective Walter Simpson died in 1994. Simpson had

been the prosecuting officer on the Mitchell homicide. At the time of the murder,

he was a detective with the Harrisburg Police. In 1974, he accepted a position as a

detective with the Dauphin County District Attorney’s Office. After his death, his

family discarded his briefcase, which contained documents relating to Plaintiff’s

criminal cases.

In 2001, the discarded Simpson briefcase was discovered by neighborhood

children and turned over to the police. It contained original laboratory notes

created by Janice Roadcap (“original Roadcap notes”), a State Police chemist.

Roadcap had performed a Benzedine test on the bloody palm print on November

29, 1972. A comparison of the original Roadcap notes from the briefcase to a set

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that had been filed in the PSP archives (“revised Roadcap notes”) revealed that

certain portions of the revised Roadcap notes had been crossed out by black marker

and that the results appeared to be different from the original Roadcap notes found

in Defendant Simpson’s briefcase.

The discovery of the original Roadcap notes in Simpson’s briefcase and their

difference from the revised Roadcap notes triggered a chain of events that led to

Plaintiff being granted a new trial in June, 2002. The following month, the

Dauphin County District Attorney’s Office filed and was granted permission to

enter a nolle prosequi. The application indicated, among other reasons, that the

passage of thirty-two years, the death of witnesses, and the reluctance of Johnny

Mitchell’s family to endure the trauma of another murder trial so burdened the

prosecution that a fourth murder trial was not desirable.

This action followed. The crux of Plaintiff’s accusations against Defendant

Balshy is that he engaged in a conspiracy with Defendant Roadcap and the late

Walter Simpson to adulterate and conceal the initial lab notes concerning the palm

print evidence that was used to convict Plaintiff of the Decedent’s murder.

III. Statement of Questions Involved

A. DID PLAINTIFF PROVE A CONSTITUTIONAL VIOLATION

SUFFICIENT TO SUSTAIN A CLAIM UNDER 42 U.S.C §1983?

Suggested Answer: No

B. DID BALSHY VIOLATE A BRADY DUTY?

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 Suggested Answer: No

C. IS BALSHY SHIELDED FROM LIABILITY BECAUSE OF

SOVEREIGN, QUALIFIED, AND WITNESS IMMUNITIES?

Suggested Answer: Yes

D. DID PLAINTIFF PROVE A CONSPIRACY?

Suggested Answer: No

E. DID PLAINTIFF PROVE INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS?

Suggested Answer: No

F. WERE THE CRIMINAL PROCEEDINGS AGAINST PLAINTIFF

TERMINATED IN HIS FAVOR?

Suggested Answer: No

IV. Argument for Balshy

A. PLAINTIFF HAS NOT PROVEN A CONSTITUTIONAL VIOLATION

SUFFICIENT TO SUSTAIN A CLAIM UNDER 42 U.S.C §1983.

There is no evidence to show that anyone other than Roadcap revised her

lab notes, or that anyone else had any part in the revisions. Revisions or not,

the crucial fact at all three trials remains unchanged: the bloody palm print was

a positive print. Even if Balshy had a duty to disclose Roadcap’s notes at the

relevant times, which is denied, the failure of the prosecution to disclose

evidence that might help the defense does not automatically violate the

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 Constitution. A failure to disclose must undermine confidence in the outcome

of the trial. “The question is not whether the defendant would have received a

different verdict with the [undisclosed] evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419,434,436-437, 115 S.Ct. 1555

(1995). The overwhelming evidence at the criminal trials, including the

positive print, is consistent with Roadcap’s original and revised notes, and the

guilty verdicts against Plaintiff are worthy of confidence.

B. BALSHY DID NOT COMMIT A BRADY VIOLATION

Even if Balshy was aware of Roadcap’s lab notes, original or redacted, at the

time of Plaintiff’s three homicide trials, he had no clearly established duty to

disclose them. Accordingly, he did not commit a constitutional violation.

The United States Supreme Court has never extended a Brady duty to

individual law enforcement officers. It was not until 1991 in United States v.

Perdomo, 929 F.2d 967 (3rd Cir., 1991), that the Third Circuit arguably extended

Brady to individual members of the prosecution team. This was thirteen (13) years

after Plaintiff’s third and last homicide trial. At the time of Plaintiff’s homicide

trials, 1974 through 1978, Brady disclosure requirements clearly did not extend to

individual law enforcement officers such as Balshy. Accordingly, any non-

disclosure by Balshy of Roadcap’s notes, which is denied, was consistent with then

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prevailing law, and Balshy had no Brady duty to disclose them. Balshy is

therefore entitled to qualified immunity, as discussed below.

C. BALSHY IS ENTITLED TO SOVEREIGN, QUALIFIED AND WITNESS

IMMUNITY.

I. Sovereign Immunity

At all relevant times to Plaintiff’s claim, Balshy was an employee of the

Pennsylvania State Police and acted within the scope of his duties.

Pursuant to Section 11 of Article 1 of the Constitution of

Pennsylvania, it is hereby declared to be the intent of the General
Assembly that the Commonwealth, and its officials and employees
acting within the scope of their duties, shall continue to enjoy
sovereign immunity and official immunity and remain immune from
suit except as the General Assembly shall specifically waive the
immunity.

1 Pa.C.S. § 2310.

The waivers to sovereign immunity are set forth in nine areas codified at 42

Pa.C.S. § 8522. Earlier in these proceedings, Plaintiff argued that his injuries arose

out of the “personal property” exception set forth in 42 Pa.C.S. § 8522(b)(3), but

this Honorable Court, in finding that the Commonwealth was entitled to sovereign

immunity, held that the property exceptions only apply where the personal

property itself caused the injury. Crawford v. Commonwealth of Pennsylvania,

2003 WL 22169372 (M.D.Pa., J. Kane, 09/12/2003).

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 Similarly, since the Commonwealth was entitled to sovereign immunity, it

follows that its employee, Balshy, is likewise entitled. It is clear that, during the

times of Plaintiff’s allegations, Balshy was a corporal with the Pennsylvania State

Police, a Commonwealth agency.

Consequently, like the Commonwealth, all state claims against Balshy

should be dismissed based upon sovereign immunity.

II. Qualified Immunity

Defendant Balshy is also entitled to qualified immunity. When resolving

issues of qualified immunity, the Court must determine whether the constitutional

right alleged to have been violated was clearly established at the time of events in

question. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d

277 (1991).

In Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed.

1019 (1951), the United States Supreme Court held that Congress did not intend §

1983 actions to abrogate immunities “well grounded in history and reason.” See,

also, Buckley v. Fitzimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 2612-13, 125

L.Ed.2d 209 (1993), citing Tenney. Police officers are entitled to qualified

immunity. Kulwicki v. Dawson, 969 F.2d 1454, 1467-68 (3rd Cir., 1992), citing

Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523

(1987).

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 Under qualified immunity, government officials are not subject to liability in

rendering performance of their discretionary functions when such conduct “does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Buckley, 509 U.S. at 268, 113 S.Ct. at

2613, 125 L.Ed.2d 209. Qualified or “good faith” immunity has both an objective

and subjective component. Harlow, 457 U.S. at 815, 102 S.Ct. at 2736, 73

L.Ed.2d 396. “(Q)ualified immunity would be defeated if an official “ knew or

reasonably should have known that the action he took within his sphere of official

responsibility would violate the constitutional rights of the [plaintiff], or if he took

the action with the malicious intention to cause a deprivation of constitutional

rights or other injury”. Harlow, 457 U.S. at 815, 102 S.Ct. at 2737, 73 L.Ed.2d

396, citing Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d

214 (1975). Objective reasonableness is measured by the amount of knowledge

available to the officer at the time of the alleged violation. Kulwicki, 969 F.2d at

1463, citing Brown v. Grabowski, 922 F.2d 1097, 1111 (3rd Cir., 1990).

Under the “objective reasonable” test for qualified immunity, and as

discussed above, Balshy had no duty, since Brady requirements had not been

extended to individual law enforcement officers at the time of Plaintiff’s three

murder trials.

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 Under the subjective component of the qualified immunity, it cannot be said

that Defendant Balshy acted with malice. He did not edit the Roadcap notes or

conceal them, nor did he instruct anyone else to do so. The evidence will show

that the Roadcap notes, both the initial notes and the revised notes, were available

to the Plaintiff at his three prosecutions.

III. Witness Immunity

Balshy personally viewed the palm print under a microscope and testified at

the criminal trials about his direct observation of the print. Plaintiff has previously

conceded that Defendant Balshy, a police officer, like other witnesses, is entitled to

witness immunity afforded by common law. See, e.g., Briscoe v. Lahue, 460 U.S.

325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Hughes v. Long, 242 F.3d 121 (3rd

Cir., 2001).

D. PLAINTIFF CANNOT ESTABLISH A CLAIM FOR CONSPIRACY.

The evidence will show that Defendant Balshy did not act alone or with

anyone else to conceal or adulterate the bloody palm print evidence.

In order to prove a conspiracy, a Plaintiff must prove: (1) a combination of

two or more persons acting with malice and a common purpose to do an unlawful

act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt

act done in pursuance of the common purpose; and (3) actual legal damage.

Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa.Super. 2004). Proof of

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malice is an essential part of a cause of action for conspiracy. Goldstein, 854 A.2d

at 590. “The mere fact that two or more persons, each with the right to do a thing,

happen to do that thing at the same time is not by itself an actionable conspiracy.”

Id.

The evidence will show that Balshy took no active role in the investigation

into the murder of Johnnie Mitchell other than to open doors to other investigative

agencies for Simpson that typically were not available to city police. In particular,

Defendant Balshy and Simpson traveled to the ATF Bureau in Washington, D.C.,

for a more detailed analysis of the bloody palm prints. After the ATF analysis

revealed foreign substance on the fingerprint powder, possibly suggestive of blood,

Balshy and Simpson took the bloody palm prints to the Pennsylvania State

Laboratory where Balshy – and only Balshy, not Simpson – had the authority to

submit evidence for analysis. Balshy’s request on pre-printed form was assigned

to Defendant Roadcap for analysis. Until then, Defendant Balshy did not know

Defendant Roadcap. It is presumed that PSP policy required Defendant Roadcap

to release the results to Balshy who, in turn, turned them over to Simpson, the

investigating officer.

Balshy and Roadcap had only those two points of interaction: the initial

submission and return of the bloody palm prints.

E. PLAINTIFF CANNOT ESTABLISH A CLAIM FOR INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS.

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 For the same reasons that Plaintiff’s conspiracy claim must fail, Plaintiff’s

claim for intentional infliction of emotional distress must meet the same fate.

There is simply no evidence that Defendant Balshy acted intentionally in the

purported concealment and adulteration of Defendant Roadcap’s analysis.

“One who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for such emotional

distress, and if bodily harm to the other results from it, for such bodily harm.” The

Restatement (Second) of Torts, § 46(1); Taylor v. Albert Einstein Medical Center,

754 A.2d 650, 652 (Pa. 2000).

F. THE HOMICIDE PROSECUTION AGAINST PLAINTIFF WAS NOT

TERMINATED IN HIS FAVOR.

“One element that must be alleged and proved in a malicious

prosecution action is the termination of the prior criminal proceeding in favor of

the accused.” Heck v. Humphrey, 512 U.S. 477, 484 (1994). While “a grant of

nolle prosequi can be sufficient to satisfy the favorable termination requirement for

malicious prosecution, not all cases where the prosecutor abandons criminal

charges are considered to have terminated favorably.” Donahue v. Gavin, et al.,

280 F.3d 371, 383 (3rd Cir., 2002) (quoting Hilfirty v. Shipman, 91 F.3d 573, 579-

80 (3rd Cir., 1996)). “A nolle pros signifies termination of charges in favor of the

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accused ‘only when their final disposition is such as to indicate the innocence of

the accused[.]’” Id. Therefore, the Third Circuit has made it abundantly clear that

for a Plaintiff to proceed with a § 1983 action for malicious prosecution, the

plaintiff “‘must be innocent of the crime charged in the underlying prosecution.’”

Id. (quoting Hector v. Watt, 235 F.3d 154, 156 (3rd Cir., 2000)) (Emphasis added).

In Donahue v. Gavin, the prosecutor dismissed the charges against the

Plaintiff pursuant to a nolle prosequi petition in part because of a change in the

law. Id. at 384. When the prosecutor dismissed the charges, the state had the

option of retrying the Plaintiff but opted not to do so. Id. In the motion seeking

the nolle pros, the prosecutor stated that “if convicted, the defendant would most

likely not receive any additional jail time[,]” and that “in the interest of judicial

economy and to preserve scarce judicial resources, the Commonwealth of

Pennsylvania, in exercising its prosecutorial discretion, request entry of a Nolle

Prosequi Order.” Id. The Court stated that “[i]t is clear from even a cursory

reading of the request for a nolle pros that the resulting dismissal can hardly be

described as ‘indicating the innocence of the accused.’” Id.

In the instant action, the Prosecutor’s petition seeking a Nolle Prosequi

Order stated the following reasons for dismissal: 1) The instant prosecution is

substantially handicapped by the passage of time due to the death of witnesses and

the fading of memories; 2) Ethical considerations may restrain the attorney for the

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Commonwealth from adducing certain evidence previously presented; 3) The

Defendant has served 28 years in a State Correctional Institution for this offense;

4) By all accounts the Defendant was a model prisoner; 5) The Commonwealth’s

interest in the prosecution of this matter has been substantially vindicated by the

service of 28 years in the penitentiary; 6) After consultation with the Mitchell

family, we have determined that a fourth trial would be extremely traumatic to the

family. The prosecutor further indicated that retrial of the matter was not in the

public interest. The Commonwealth had the option of retrying the Plaintiff but

chose not to do so.

Plaintiff cannot establish that the criminal charges against him were

terminated in his favor or in any way is indicative of his innocence. Moreover, the

evidence indicates that Plaintiff attempted unsuccessfully to challenge the Nolle

Prosequi order. The record is clear that the criminal case was not terminated in

Plaintiff’s favor.

HENRY & BEAVER LLP

By: /s/ Christopher J. Coyle

CHRISTOPHER J. COYLE
I.D. #30686
937 Willow St., P.O. Box 1140
Lebanon, PA 17042-1140
(717) 274-3644
Attorney for Defendant

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