The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARCUS PEREZ, Case No. 2:21-cv-05020-JDW
,
v.
JEROME J. TERESINSKI, ESQUIRE,
.
MEMORANDUM
Lawyers advocate for their clients. Sometimes that happens in a courtroom. But
other times, it happens outside the courtroom, either with an eye towards improving the
client’s position in court or avoiding court altogether. In 1994, Assistant District Attorney
Joseph Teresinski was representing his client, the Commonwealth of Pennsylvania, in
response to Marcus Perez’s petition for postconviction relief. Mr. Teresinski thought an
error in a transcript was causing problems for his case, so he contacted the court reporter
to find out whether a transcription error had occurred. The reporter determined there was
an error and corrected the transcript. The trial judge has confirmed that an error occurred.
Now, having been paroled, Mr. Perez has sued Mr. Teresinski, claiming that his contact
with the court reporter violated Mr. Perez’s constitutional rights. But Mr. Teresinski is
immune from suit under the doctrines of absolute prosecutorial immunity and qualified
immunity. The Court will therefore grant his motion to dismiss this case.
I. BACKGROUND
A. Mr. Perez’s Guilty Plea
In 1989, Marcus Perez shot and killed Carnell Cosby. On July 11, 1990, he pled guilty
to murder generally in the Court of Common Pleas for Philadelphia. That plea hearing
included a lengthy colloquy with Judge Theodore A. McKee about the maximum possible
sentence that Mr. Perez could receive. For example, Judge McKee explained that if the
Commonwealth secured a conviction on a firearm charge, Mr. Perez could receive two-
and-a-half to five years in prison which “could be in addition to any sentenced you would
receive on the other charges, including in addition to life ….” (ECF No. 8-6 at 5.) Judge
McKee then explained to Mr. Perez, “So, the most you could receive could be life
imprisonment for murder.” ( ) After noting the possibility that a jury could impose the
death penalty, he explained that if the jury did not impose a capital sentence, then “you
could receive a sentence of life imprisonment, plus five to 10 for conspiracy, plus ten to
20 for the robbery, plus two and a half to five for the firearms’ violation, whatever that
adds up to.” ( at 5-6.) He then summarized, “Life implies 17 ½ to 35 years. I’m not
saying you would receive that, but I’m saying that is the most you could receive if you
were to go to trial.” ( at 6 (emphasis added).) Judge McKee then confirmed Mr. Perez’s
understanding of that possible sentence.
Judge McKee conducted a degree-of-guilt hearing on September 18, 1990. He
found Mr. Perez guilty of first-degree murder, conspiracy, robbery, and a firearms
violation. Based on a change made to Pennsylvania law in 1988, this verdict required a
life sentence without the possibility of parole, and that’s what Judge McKee imposed.
After his sentencing, Mr. Perez filed a series of post-verdict motions in which he stated
he did not understand the implications of his guilty plea. In those motions, he asked the
court to reduce his conviction to third degree murder, a crime that has a sentence
allowing for the possibility of parole. The court denied those motions, and his conviction
became final on April 16, 1993.
B. Mr. Perez’s PCRA Petitions
On May 14, 1993, Mr. Perez sought relief from his conviction pursuant to
Pennsylvania’s Post Conviction Relief Act. In his petition, he claimed that because Judge
McKee said that life implied a sentence 17 ½ to 35 years, Mr. Perez thought he would
be eligible for parole if he pled guilty. When Mr. Perez filed this first motion for relief
under the PCRA, Mr. Teresinski was a member of the Motions Unit in the Philadelphia
District Attorney’s Office, and he worked on the response to Mr. Perez’s petition. Mr.
Teresinski suspected that the transcript’s attribution to Judge McKee of the word
“implies” was in error, both because it was contrary to the law and because it did not
make sense in the context of the colloquy, in which Judge McKee repeatedly explained
that Mr. Perez faced life for murder plus additional sentences for other charges.
Given his suspicion, Mr. Teresinski contacted the court reporter who transcribed
the guilty plea hearing, Kenneth Brown. Mr. Brown told Mr. Teresinski that the transcript
was incorrect. Mr. Brown explained that he took notes of the proceeding, a different
person working as a “note reader” prepared the transcript, and the note reader
“inadvertently substituted the word ‘implies’ for the word “plus.” (ECF No. 8-3 at 2, ¶ 3.)
After receiving the corrected transcription, the PCRA court denied Mr. Perez’s petition
for relief. The PCRA court concluded, “[t]his attempt to benefit from a transcription error
will not be allowed.” (ECF No. 8-1 at 9.)
Mr. Perez filed six more unsuccessful PCRA petitions between April 1997 and
February 2016. He sought clarification from Judge McKee about what Judge McKee said
during the guilty plea colloquy. On February 9, 2006, Judge McKee responded to Mr.
Perez’s counsel and confirmed that he said, “life 17 to 35 years,” not “life
17 ½ to 35 years,” but he also noted that he made at least one incorrect statement of
law elsewhere in the colloquy. (ECF No. 15-2 at 40 (emphasis added).)
On December 10, 2019, Mr. Perez filed his eighth PCRA petition. This petition
included a note that Mr. Teresinski wrote prior to contacting Mr. Brown, a note that was
only made available to Mr. Perez due to a change in the policies of the Office of the
Philadelphia District Attorney. The handwritten note stated Mr. Teresinski “need[ed]” to
obtain a “new and improved version” of the transcript from Mr. Brown. Upon
consideration of this note, a reading of the initial transcript, the transcript from the
sentencing hearing, Judge McKee’s admissions that he “likely … misinformed Perez,” and
a declaration by Mr. Perez’s plea counsel that he inadvertently misled Perez into
believing that he would eventually become eligible for parole, the Commonwealth
concluded Mr. Perez entered an “unknowing, unintelligent, and involuntary guilty plea.”
(ECF No. 15-2 at 18-20.) Accordingly, the Commonwealth agreed that Mr. Perez was
entitled to post-conviction relief as a result of ineffective assistance of plea counsel. The
Commonwealth also stated that it did not believe any “fraud” took place with respect to
the change of the transcript. (ECF No. 15-2 at 14.)
On January 7, 2021, Judge Glenn B. Bronson of the Philadelphia Court of
Common Pleas granted Mr. Perez post-conviction relief. That same day, Mr. Perez
pleaded guilty to charges of robbery and murder in the third degree, and he was
immediately eligible for parole. On June 17, 2021, he was paroled.
C. Procedural History
Mr. Perez filed this lawsuit in November of 2021. In his Complaint, Mr. Perez
asserts claims against Mr. Teresinski under 42 U.S.C. § 1983. He claims that Mr.
Teresinski violated his rights to due process and a jury trial under the Fifth, Sixth, and
Fourteenth Amendments. On February 25, 2022, Mr. Teresinski moved to dismiss,
arguing that he was immune to a civil suit for damages under § 1983. The motion is ripe.
II. LEGAL STANDARD
A district court may dismiss a plaintiff’s complaint for failure to state a claim upon
which relief can be granted. Fed. R. Civ. P. 12(b)(6). Rather than require detailed
pleadings, the “[r]ules demand only a short and plain statement of the claim showing
that the pleader is entitled to relief[.]” , 809 F.3d 780, 786
(3d Cir. 2016). Under that standard, the Court must determine whether the Complaint
contains “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” , 556 U.S. 662, 678 (2009) (quotations omitted).
Conclusory allegations do not suffice. .
In making its determination, the court must “draw on its judicial experience and
common sense.” . First, the court must identify the elements needed to set forth a
particular claim. . at 787. Second, the court should identify conclusory allegations, such
as legal conclusions, that are not entitled to the presumption of truth. . Third, with
respect to well-pleaded factual allegations, the court should accept those allegations as
true and “determine whether they plausibly give rise to an entitlement to relief.” . The
court must “construe those truths in the light most favorable to the plaintiff, and then
draw all reasonable inferences from them.” . at 790.
As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings. However, an exception to the general rule is that a
document integral to or explicitly relied upon in the complaint may be considered
without converting the motion [to dismiss] into one for summary judgment.
, 114 F.3d 1410, 1426 (3d Cir. 1997) (internal quotations
and citations omitted). In addition, if the exhibits to a complaint “contradict [the]
allegations in the complaint, the exhibits control.”
, 903 F.3d 100, 112 (3d Cir. 2018).
III. DISCUSSION
Mr. Teresinski contends that he has absolute immunity from suit under the
doctrine of prosecutorial immunity and immunity under the doctrine of qualified
immunity. The Court concludes that both doctrines apply and protect him from suit.
A. Absolute Immunity
State prosecutors are immune from suits for civil damages under Section 1983 for
their work in presenting the state’s case. , 424 U.S. 409, 425
(1976). In the Third Circuit, “absolute immunity applies to the adversarial acts of
prosecutors during post-conviction proceedings where the prosecutor is personally
involved and continues his roles as an advocate.” , 465 F.3d 129,
137 (3d Cir. 2006). The absolute immunity determination relies on “the nature of the
function performed, not the identity of the actor who performed it.” , 472
F.3d 74, 78 (3d Cir. 2007).
In light of the Supreme Court's “quite sparing” recognition of absolute immunity
to § 1983 liability, the Court begins with the presumption that qualified immunity, rather
than absolute immunity, is appropriate. , 538 F.3d 202, 207–08 (3d Cir.
2008). To overcome this presumption, a prosecutor must show that he was functioning
as the state's advocate when performing the actions in question. The
“preparation necessary to present a case” and the “obtaining, reviewing, and evaluation
of evidence” are prosecutorial acts that fall within the scope of prosecutorial immunity.
, 969 F.2d 1454, 1465 (3d Cir. 1992).
When Mr. Teresinski contacted Mr. Brown about the transcript, he was acting in
his capacity as an advocate for the Commonwealth. He reviewed the transcript on which
Mr. Perez relied in his PCRA petition and suspected it was incorrect. So he contacted Mr.
Brown to ensure the Commonwealth had or could obtain an accurate transcript, which
would permit the Commonwealth to rebut Mr. Perez’s PCRA petition. After Mr. Brown
confirmed Mr. Teresinski’s suspicions of inaccuracies, Mr. Teresinski informed the Court
that the corrected transcript supported the Commonwealth’s position. At each step, Mr.
Teresinski was engaged in preparation necessary to present the Commonwealth’s case.
Mr. Perez contends that Mr. Teresinski “effectively assumed the role of the court
reporter himself ….” (ECF No. 15-1 at 4.) But the exhibits before the Court, all of which
the Court may consider on a motion to dismiss because they are public records and
because Mr. Perez relies on them in his Complaint, establish only that Mr. Teresinski
contacted Mr. Brown and Mr. Brown decided to correct the transcript. Nothing suggests
that Mr. Teresinski compelled Mr. Brown to make that change or that Mr. Teresinski had
the power to compel that change.
Because Mr. Teresinski did not change the transcript himself, Mr. Perez’s
argument that the “transcription of a court record is by definition devoid of discretion”
does not matter. ( ) Mr. Teresinski did not engage in the ministerial task of changing
the transcript. He acted as an advocate in suggesting that the transcript was wrong, and
he persuaded Mr. Brown to correct the transcript.
B. Qualified Immunity
“Prosecutors who are not entitled to absolute immunity from a plaintiff's claims
may nonetheless be entitled to qualified immunity from those same claims.” , 465
F.3d at 139. Qualified immunity shields a state officer from a suit for monetary damages
under § 1983 unless “the official violated a ... constitutional right” and “the right was
clearly established at the time of the challenged conduct.” , 563 U.S.
731, 735 (2011) (cleaned up). “[A] defendant cannot be said to have violated a clearly
established right unless the right's contours were sufficiently definite that any
reasonable official in the defendant's shoes would have understood that [s]he was
violating it.” , 572 U.S. 765, 778–79 (2014). A court need not identify a
case directly on point for a right to be clearly established, but “existing precedent must
have placed the … constitutional question beyond debate.” , 137 S. CT.
448, 551 (2017).
The doctrine of qualified immunity protects government officials from “liability
for the performance of their discretionary functions when ‘their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known.’” , 957 F.3d at 158 (quoting , 509 U.S. at 268). As the defense
provides “immunity from suit rather than a mere defense to liability,” a claim of qualified
immunity must be resolved “at the earliest possible stage of the litigation.”
, 738 F.3d 562, 571 (3d Cir. 2013) (quoting , 544 F.3d 542,
547 (3d Cir. 2008)). Accordingly, a court must ask: (1) “whether the plaintiff sufficiently
alleged the violation of a constitutional right[;]” and (2) “whether the right was ‘clearly
established’ at the time of the official’s conduct.” ,
991 F.3d 180, 190 (3d Cir. 2021) (internal citation omitted). Courts must define the
constitutional rights with specificity, not at a “high level of generality.”
, 139 S. Ct. 500, 503 (2019) (quote omitted).
Mr. Perez’s complaint focuses on Mr. Teresinski’s communication with Mr. Brown
to obtain a corrected transcript. He does not point to any case that establishes that a
prosecutor could not engage in conduct like what Mr. Teresinski did, even if he did so in
bad faith. Nor has the Court found any. It does not appear that any case decided prior
to 1995 (or since) holds that prosecutors violate due process rights when they ask
stenographers to change a transcript. To the contrary, when Mr. Teresinski contacted
Mr. Brown, the Third Circuit had held that prosecutors had prosecutorial immunity even
if they solicited and used false evidence in connection with a prosecution.
, 969 F.2d 1454, 1467 (3d Cir. 1992). That holding would have led a reasonable
prosecutor to think that he had leeway to solicit a change to a transcript that he
suspected was wrong. Mr. Teresinski is therefore entitled to qualified immunity.
Mr. Perez’s arguments do not change that conclusion. He suggests that his
“rights to due process and a jury trial” have “long been clearly established.” (ECF No. 15-
1 at 6.) Mr. Perez could not define his rights at a higher level of generality, and his
approach is at odds with the Supreme Court’s directive about how to define the right at
issue. When the Court defines the right with more specificity, as it must do, the notion
that it is clearly established drops away.
In addition, without pointing to any cases, Mr. Perez argues that it is “frankly
incomprehensible that an assistant district attorney would not realize that an
undisclosed alteration of a transcript … would comprise a due process violation.” ( at
7.) There are several problems with that argument. First, there was no “undisclosed”
alteration of a transcript. Mr. Perez attached to his PCRA petition a letter from Mr.
Teresinski to Mr. Brown dated February 8, 1994, disclosing the communication between
Mr. Teresinski and Mr. Brown about the transcript, and the changes that resulted. (
ECF No. 8-6.) And Mr. Perez knew that Mr. Brown had changed the transcript. The recent
disclosure of a note in which Mr. Teresinski discussed his reason for contacting Mr.
Brown does not change the fact that their communication has been public record for
three decades. In any event, whether Mr. Teresinski disclosed his communication with
Mr. Brown to Mr. Perez does not bear on the question of whether the law in 1994 clearly
established that Mr. Teresinski could contact the court reporter to suggest changes to
the transcript. It did not, so qualified immunity applies.
IV. CONCLUSION
Mr. Teresinski acted as an advocate when he contacted Mr. Brown, and no case
suggested it was improper for him to do so at the time. He is therefore entitled to
absolute and qualified immunity. The Court will grant his motion and dismiss the claims
against him. Because nothing Mr. Perez could allege would change this outcome, the
Court’s dismissal will be with prejudice.
BY THE COURT:
JOSHUA D. WOLSON, J.
April 22, 2022