The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARK WHITAKER,
Plaintiff, Case No. 5:20-cv-03413-JDW
v.
CITY OF PHILADELPHIA, et. al.,
Defendants.
MEMORANDUM
Mark Whitaker spent 17 years in prison, but a jury exonerated him after he won
a retrial. Having lost 17 years of his life, Mr. Whitaker understandably wants to hold
someone responsible, and he has focused on the two Philadelphia Police Detectives
who investigated him: Steven Vivarina and John McDermott. But while Mr. Whitaker
has made a number of allegations about the investigation that led to his conviction, he
has not developed evidence to support those allegations. In fact, Mr. Whitaker admits
every fact that the Defendants posit as a basis for their summary judgment motion. On
the record before it, the Court concludes that Mr. Whitaker has not established a triable
issue of fact to support his claim that Detectives Vivarina and McDermott violated his
civil rights, so the Court must grant Defendants’ summary judgment motion.
I. FACTUAL BACKGROUND
A. The Robbery of Happy Days Bar And Ensuing Investigation
On January 26, 1999, Abdul Lee Stewart, Stephen Shakuur, and a third
individual entered the Happy Days bar with the intention of robbing it at gunpoint.
During the robbery, Mr. Stewart fatally shot a bartender named Mario Lim, and Mr.
Shakuur fired a shot that permanently injured a patron named Thomas Zingani. The
men then left the bar with $600 in cash from the register behind the bar.
Immediately following the robbery, police interviewed two witnesses. One, a
bartender named Donna Mestichelli, told police there were three participants in the
robbery and provided descriptions of each. The other, a patron named Thomas
Ceneviva, told police two men fired weapons, but he was never asked if there was a
third participant, nor did he mention seeing anyone at the bar other than Ms.
Mestichelli, the victims, and two dancers. Three weeks later, on February 17, 1999,
Philadelphia Police detectives interviewed Malikah Hardy, one of the dancers who was
at the bar the night of the robbery. She said that she saw three men participate.
On August 19, 1999, the FBI arrested Mr. Stewart in connection with multiple
robberies in the City of Philadelphia. Mr. Stewart confessed to being involved in
several, but the incident at Happy Days Bar was not one of them. On March 15, 2000,
as part of a cooperation agreement, Mr. Stewart indicated awareness of the Happy
Days Bar incident, but he did not claim involvement. Over the next several months,
however, detectives compiled evidence linking both Mr. Stewart and Mr. Shakuur to
that incident, including fingerprints and witness identifications. This evidence formed
the basis of arrest warrants for both Mr. Stewart and Mr. Shakuur.
On June 20, 2000, Mr. Stewart and Mr. Shakuur were in police custody in
connection with the robbery at Happy Days Bar. In post-arrest statements to detectives
that day, both men identified a third participant as “Mark” from the 1200 block of N.
29th Street, and both identified Mr. Whitaker in photo lineups. Philadelphia Police
Department homicide detectives then conducted a records check that revealed Mr.
Whitaker’s mother lived at 1238 N. 29th Street, that he used 1238 N. 29th Street as an
address, and that he was registered to vote at 1257 N. 29th Street.
B. Arrest And Conviction Of Mr. Whitaker
On April 2, 2002, Mr. Stewart agreed to provide testimony in cases against
Messrs. Shakuur and Whitaker. That same day, Detective Vivarina prepared an Affidavit
of Probable Cause for an Arrest Warrant for Mark Whitaker. The affidavit included Mr.
Stewart’s confession and identification of Mr. Whitaker, as well as Mr. Whitaker’s
address information. A judge approved the arrest warrant within a day. Two days later,
Detective McDermott re-interviewed Mr. Ceneviva. In that interview, Mr. Ceneviva
identified Mr. Whitaker as the third participant in the robbery. On April 10, 2002,
Philadelphia Police officers arrested Mr. Whitaker pursuant to an arrest warrant that
Detective Vivarina prepared.
Mr. Whitaker preliminary hearing took place on April 17, 2002. At this
preliminary hearing, Mr. Ceneviva again testified as to Mr. Whitaker’s involvement in
the murder and robbery at Happy Days Bar. Mr. Stewart also took the stand, but he
refused to offer testimony against Mr. Whitaker. No other witnesses provided
testimony against Mr. Whitaker at the preliminary hearing. The Court of Common Pleas
held the case over for trial.
At trial, Mr. Ceneviva and Ms. Mestichelli identified Mr. Whitaker as one of the
participants in the robbery. Mr. Whitaker did not present an alibi, nor did he, Mr.
Shakuur, or Mr. Stewart testify. On October 29, 2003, the jury found Mr. Whitaker guilty
of second-degree murder, robbery, criminal conspiracy, possessing instruments of a
crime, and aggravated assault, and the court imposed a mandatory sentence of life
imprisonment.
C. Mr. Whitaker’s Post-Sentence Motions And Eventual Exoneration
For more than a decade after his conviction, Mr. Whitaker pursued post-
conviction relief in Pennsylvania state courts. In April 2014, he filed a Petition seeking
a writ of habeas corpus. The district court denied the petition, but the Third Circuit
reversed in part. See Whitaker v. Superintendent Coal Township SCI, 721 F. Appx. 196
(3d Cir. 2018). On remand, the district court conditionally granted the Petition and
ordered the Commonwealth either to release Mr. Whitaker from custody or to retry him
within 120 days.
The Commonwealth retried Mr. Whitaker. According to Mr. Whitaker, Mr.
Stewart testified during the second trial that police provided him with the name “Mark”
when they first interrogated him, presumably to get him to implicate Mr. Whitaker. But
Mr. Whitaker does not have a transcript or notes of Mr. Stewart’s testimony. At the end
of the trial, the jury acquitted Mr. Whitaker.
D. Procedural History
On July 7, 2020, Mr. Whitaker sued the City of Philadelphia and Detectives
McDermott and Vivarina. He filed an Amended Complaint on October 9, 2020,
asserting claims against Detectives McDermott and Vivarina under 42 U.S.C. § 1983 for
malicious prosecution (Count I), deprivation of liberty without due process and denial
of a fair trial (Count II), conspiracy to violate civil rights (Count III), and failure to
intervene (Count IV). He also asserts a claim against the detectives for malicious
prosecution under Pennsylvania law (Count VI) and a claim of municipal liability against
the City of Philadelphia (Count V). Defendants moved to dismiss the Amended
Complaint, and the Court granted that motion in part. The Court dismissed some parts
of Count II with prejudice and other parts without prejudice. Mr. Whitaker has not
sought to amend the complaint since that ruling.
On July 30, 2021, Defendants filed a motion for summary judgment on each of
those claims. They supported the Motion with a 94-paragraph statement of undisputed
material facts. Mr. Whitaker admits that every one of those facts is correct. (ECF No. 33-
2.)
II. Legal Standard
Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court to
enter, summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[T]he plain language of Rule 56[(a)] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quotations omitted).
In ruling on a summary judgment motion, a court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (quotation omitted).
However, “[t]he non-moving party may not merely deny the allegations in the moving
party’s pleadings; instead he must show where in the record there exists a genuine
dispute over a material fact.” Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir.
2007) (citation omitted).
III. Analysis
A. Scope Of Admissible Evidence
Mr. Whitaker bases much of his argument on Mr. Stewart’s testimony at Mr.
Whitaker’s second trial. That testimony is hearsay. It is a statement that Mr. Stewart
made in a setting other than this trial or hearing and that Mr. Whitaker offers for its
truth. See Fed. R. Evid. 801(c). No exception applies to avoid the rule against hearsay,
and Mr. Whitaker has not invoked any particular exception. In any event, none of the
exceptions for available witnesses applies. See Fed. R. Evid. 803. And Mr. Whitaker has
not shown that he cannot obtain Mr. Stewart’s attendance at trial. See Fed. R. Evid.
804(a)(5). Therefore, because Mr. Whitaker’s testimony about Mr. Stewart’s testimony
is hearsay outside of any exception, the Court will not consider Mr. Stewart’s testimony
at the second trial.
B. Merits Of Claims
1. Malicious prosecution
To prove a claim of malicious prosecution under either the Fourth Amendment
or Pennsylvania law, a plaintiff must prove (1) the defendant initiated a criminal
proceeding, (2) the criminal proceeding terminated in favor of the plaintiff, (3) the
defendant initiated the proceeding without probable cause, and (4) the defendant
acted with malice or for a purpose other than bringing the plaintiff to justice. See Estate
of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003); Corrigan v. Central Tax Bureau
of Pa., Inc., 828 A.2d 502, 505 (Pa. Cmwlth. Ct. 2003). Probable cause exists when “the
facts and circumstances within the arresting officer's knowledge are sufficient in
themselves to warrant a reasonable person to believe that an offense has been or is
being committed by the person to be arrested.” Wilson v. Russo, 212 F.3d 781, 789 (3d
Cir. 2000) (quote omitted). A police officer may only be liable for damages for an arrest
if no reasonable, competent officer would conclude that probable cause existed at the
time of the arrest. See Malley v. Briggs, 475 U.S. 335, 341 (1986).
When Detectives McDermott and Vivarina arrested Mr. Whitaker, they knew
several facts that gave them probable cause to arrest Mr. Whitaker, none of which Mr.
Whitaker disputes:
• Mr. Stewart said that he had committed the robbery with two other men,
one of whom was named “Mark” who lived on 29th Street between Stiles
and Thompson Streets;
• Mr. Stewart had identified Mr. Whitaker from a photo lineup;
• In a separate interview with police, Mr. Shakuur told police that he, Mr.
Stewart, and a third man named “Mark” had committed the robbery, and
that he knew Mark from the area of 29th Street and Girard Avenue;
• Mr. Whitaker used two addresses on the 1200 block of N. 29th Street,
both of which were between Stiles and Thompson Streets, near Girard
Avenue; and
• Mr. Ceneviva identified a photograph of Mr. Whitaker as the third person
involved in the robbery (this happened after the Detectives obtained an
arrest warrant for Mr. Whitaker but before they arrested him).
Taken together, these facts provide enough for a reasonable person to conclude that
Mr. Whitaker was involved in the robbery.
Even though he admits all of these facts, Mr. Whitaker argues that the Court
should not credit them, but none of his arguments gives the Court a basis to discount
them or to find a factual dispute. First, Mr. Whitaker points to his testimony about the
substance of Mr. Stewart’s testimony at the second trial. But, as the Court has already
explained, Mr. Whitaker has no admissible evidence to establish what Mr. Stewart said
on the stand. Second, Mr. Whitaker complains that the application for the arrest warrant
did not mention earlier, inconsistent statements of witnesses. While it is true that the
initial statements that the Detectives obtained from Mr. Ceneviva did not mention Mr.
Whitaker, or a third person more generally, that does not make them inconsistent.
From the start, Ms. Mestichelli referenced three people involved in the robbery. So did
Ms. Hardy. And, there is nothing in the record to suggest that either of them was wrong
or coerced. Third, Mr. Whitaker references an “unconstitutionally suggestive photo
array.” (ECF No. 33-1 at 11-12.) Nothing in the record even hints at that. The Court
cannot credit an unsupported line of attorney argument as a basis to deny summary
judgment. Fourth, Mr. Whitaker references “fabricated and coerced statements” from
witnesses. (Id. at 11.) But there is no evidence that Detectives McDermott and Vivarina
coerced any witness’s statement, or even that they knew that someone else had done
so. In his Amended Complaint, Mr. Whitaker alleges that the Detectives fed information
to Mr. Ceneviva for Mr. Ceneviva to relate back to them, but there is no evidence of
that in the record. Nor is there evidence that either Detective coerced Mr. Stewart or
Mr. Shakuur to identify Mr. Whitaker as their co-conspirator.
2. Due process
The Parties debate whether a plaintiff can pursue a procedural due process
claim under the 14th Amendment in light of the Supreme Court’s decision in Albright
v. Oliver, 510 U.S. 266, 273 (1994). The Court doesn’t have to resolve that question,
though. Even assuming Albright leaves room for such a claim, Mr. Whitaker lacks the
evidence to support one.
A plaintiff pursuing a procedural due process claim must prove two elements:
(a) “that he has a liberty or property interest which has been interfered with by the
State;” and (2) the procedures that the State employed to deprive him of liberty or
property were constitutionally insufficient. Ky. Dept. of Corr. v. Thompson, 490 U.S. 454,
460 (1989). Mr. Whitaker spent 17 years in prison, so someone interfered with his
liberty interest. But for the same reason that his malicious prosecution claim fails, he
cannot demonstrate that Detective McDermott or Detective Vivarina used
constitutionally insufficient procedures to cause that deprivation. Because the Court
will not consider Mr. Whitaker’s hearsay statements about the substance of Mr.
Stewart’s testimony at the second trial, the record before the Court does not reveal any
improper conduct by Detectives McDermott and Vivarina. And, given the uncertainty
of the law in this area, it seems likely that qualified immunity would protect Detectives
McDermott and Vivarina even if there were a cognizable claim.
3. Fabrication of evidence
A fabrication of evidence claim requires a plaintiff to prove that (a) officers
offered testimony or evidence that they knew was false but offered the evidence in bad
faith, and (b) that the fabricated evidence was “so significant that it could have affected
the outcome of the criminal case.” Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014);
see also Black v. Montgomery County, 835 F.3d 358, 368-72 (3d Cir. 2016). Mr.
Whitaker has not offered any evidence of either element, as the Court has already
detailed. In his Opposition, Mr. Whitaker points to 13 paragraphs in his Amended
Complaint as a basis to establish these elements and argues that it is “clear, at the
pleading stage that plaintiff has set forth a legitimate claim for fabrication of evidence
on behalf of the named defendants.” (ECF No. 33-1 at 15 (emphasis added).) But this
is not the pleading stage of the case; it is summary judgment. And it is black-letter law
that a party resisting a summary judgment motion “may not merely deny the allegations
in the moving party’s pleadings; instead he must show where in the record there exists
a genuine dispute over a material fact.” Doe, 480 F.3d at 256. Mr. Whitaker has not
done that.
4. Conceded Claims
Mr. Whitaker says that he “has no objection” to the Court granting summary
judgment on the conspiracy and failure-to-intervene claims. The Court will do so.
5. Municipal liability
To maintain a claim for municipal liability, a plaintiff must first establish a
constitutional violation by a municipal actor. See City of Los Angeles v. Heller, 475 U.S.
796, 798-99 (1986); Mulholland v. Got’t Cnty . of Berks, 706 F.3d 227, 238 n.15 (3d Cir.
2013). The Court has concluded that Mr. Whitaker cannot prove that any employee of
the City of Philadelphia violated his constitutional rights, so his municipal liability claim
also fails.
IV. CONCLUSION
Mr. Whitaker might have suspicions about the process that led the Detectives to
arrest him, but he has not backed those suspicions with admissible evidence. Without
such evidence, the Court cannot consider his suspicions or allegations. Instead, the
Court must grant Defendants’ summary judgment motion. An appropriate Order
follows.
BY THE COURT:
/s/ Joshua D. Wolson
JOSHUA D. WOLSON, J.
December 6, 2021