SWAINSON v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREW SWAINSON : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA, ET AL. : NO. 22-2163

MEMORANDUM

Padova, J. July 2, 2025

Plaintiff Andrew Swainson brought this action pursuant to 42 U.S.C. § 1983 and state

common law against the City of Philadelphia and certain police officers arising from his wrongful

conviction for the 1988 murder of Stanley Opher. Plaintiff was convicted in 1989 and imprisoned

for more than 30 years.1 The City, Defendant Detective Joseph D. Fischer, and Defendant

Detective James Alexander have brought a Motion for Summary Judgment with respect to all of

Plaintiff’s claims against them. Defendant Manuel Santiago has filed a Motion for Summary

Judgment adopting the Motion for Summary Judgment brought by the other Defendants.2 For the

following reasons, we deny the Motions in part and grant them in part as follows.

1 Plaintiff maintains that he is innocent of the murder of Mr. Opher and that Defendants

admitted his innocence by failing to respond his November 1, 2023 Request for Admission, which

states: “[Plaintiff] is factually innocent of the January 17, 1988 shooting of Stanley Opher.’”

(Reply at 2-3 (citing Resp. at 26 n.4).) Defendants have nonetheless taken the position that

Plaintiff is guilty and they “reserve the right to prove his guilt by a preponderance of the evidence

at trial of this matter.” (Id. at 3 (quotation omitted).) We have not been asked to decide this issue

in the context of the instant Motions for Summary Judgment and do not address it further.

2 The Motion for Summary Judgment brought by the City and Detectives Fischer and

Alexander asks us to enter summary judgment on behalf of the City and Detectives Fischer and

Alexander. The Motion for Summary Judgment brought by Detective Santiago merely adopts the

Motion for Summary Judgment brought by the City and Detectives Fischer and Alexander. (See

Docket No. 80 at 2 of 3.) We conclude, accordingly, that no party has asked us to enter summary

judgment with respect to the claims against Detective Santiago.

I. FACTUAL BACKGROUND

A. The Murder of Stanley Opher

Mr. Swainson, who was originally from Jamaica, moved from New York City to

Philadelphia, where he met Mr. Opher, in September 1987. (Defs. Ex. 3 at D000133; Swainson

Dep. (Defs. Ex. 2) at 41, 64-66.) Mr. Opher and Mr. Swainson sold drugs out of a house located

at 5413 Sansom Street that was run by a man known as “Uncle.” (3/16/89 N.T. (Defs. Ex. 4) at

87-89.)

At 3:40 a.m. on January 17, 1988, Mr. Opher was shot in the back by a shotgun at the 5413

Sansom Street house and he died later that day. (Pl. Ex. 1.) Plaintiff maintains that he was not at

that location at the time of the Opher murder, rather, he was at a friend’s house with his girlfriend.

(Swainson Dep. (Pl. Ex. 3) at 267-75; Defs. Ex. 3 at D000134-35.) Philadelphia Police Officer

John Kay was in the area at the time of the shooting and saw a man named Paul Presley run from

the scene. (Pl. Ex. 2 at D000204, D000208.) Officer Kay followed Mr. Presley and found him

around the corner, crouched under a bush. (Id. at D000204-05; Santiago Dep. Vol. 1 (Pl. Ex. 7) at

219.) Mr. Presley’s hand was bleeding and he had blood on his coat. (Pl. Ex. 2 at D000206.) Mr.

Presley told Officer Kay that his hand injury was caused by a shotgun pellet. (Id. at D000208.)

Officer Kay also saw another man, Jeffrey Green, running from the area of the shooting. (Id. at

D000205, D000208.) Officer Kay stopped Mr. Presley and Mr. Green at 55th and Sansom Streets.

(Id. at D000205-06.) Another man, Ashley Hines, who was driving a blue Toyota, pulled up at

55th and Sansom Streets, got out of his car, pointed towards Mr. Green and said: “he’s with me

he has nothing to do with this.” (Id. at D000206, D000208 (emphasis omitted).) Presley, Green

and Hines were all arrested in connection with the shooting of Mr. Opher. (Pl. Ex. 18.) Mr. Presley

gave a statement to the police on January 17, 1988, in which he stated that he had gone to 5413

Sansom Street to purchase “A Bag” when Opher was shot, but that he had no knowledge of the

shooter. (Pl. Ex. 23 at D000262-63.)

B. The Early Police Investigation

On January 18, 1988, Detective Santiago was assigned to lead the investigation into the

shooting, supervised by Lieutenant Arthur Durrant. (Pl. Ex. 12.) On January 21, 1988, Vernon

Montague, a friend of Mr. Opher, told Detective Francis Miller that “the word being passed around

the streets is that the deceased was shot during a hold-up attempt.” (Pl. Ex. 14.) When the police

initially investigated the murder, one of the theories they considered was that the murder was the

result of a robbery of the drug house. (Santiago Dep. Vol. 2 (Pl. Ex. 15) at 106, 148-49.)

The police interviewed Jacqueline Morsell on January 18, 1988. (Pl. Ex. 19.) She told the

police that Mr. Opher was her godbrother and that they grew up together. (Id. at D000274.) Ms.

Morsell also told the police about “Dred,” one of the men that worked in the drug house with Mr.

Opher. (Id. at D000277.) Ms. Morsell said that Dred told her that he had killed plenty of people.

(Id.) Ms. Morsell also told the police that Dred had shotguns, rifles, a .45 automatic, an UZI, and

a “snub nose” in the house at 5413 Sansom Street. (Id. at D000280.) The police tried to interview

Ms. Morsell again in March 1988, but there is no record that a second interview ever took place.

(Harris Decl. (Pl. Ex. 21) ¶ 3.l., Pl. Exs. 71-73.)

Mr. Swainson was first interviewed by Detective Santiago in connection with the Opher

murder on January 22, 1988. (See Pl. Ex. 5 at D000133.) He maintains that he was not told by

the police officers who took his statement that he was a suspect in Mr. Opher’s murder. (Id. at

305-06.) In his statement, Mr. Swainson discussed the drug house where he worked with Mr.

Opher. (Pl. Ex. 5 at D000137-38.) He also provided Detective Santiago with a detailed alibi for

the time of the Opher murder. (Id. at D000134-35.) Mr. Swainson gave Detective Santiago two

addresses where he could be reached in Philadelphia, his mother’s address in New York, and his

employer’s address in New York. (Id. at D000133.) Detective Santiago has admitted that Mr.

Swainson did not say anything in this interview that would implicate him in Mr. Opher’s murder.

(Santiago Dep. Vol. 2 at 200-01.) Mr. Swainson was fingerprinted, photographed, and released

after he gave his statement. (Swainson Dep. at 299, 305.)

On the same day that Mr. Swainson gave his statement to Detective Santiago, Crystal

Justice gave a statement to Detective Fischer. (Pl. Ex. 24.) Ms. Justice told Detective Fischer that

she was a friend of Mr. Opher, and that Mr. Opher had recently moved to 5413 Sansom Street,

where he sold drugs. (Id. at D000325.) Ms. Justice drove to 5413 Sansom Street around 2:30 or

2:45 on January 17, 1988. (Id. at D000326.) Mr. Opher let Ms. Justice into the house while he

sold drugs to people who rang the doorbell. (Id.) Ms. Justice also told Detective Fischer that the

last person she saw come to the door didn’t buy anything. (Id.) This man was about 6’ 1” inch

tall and wore a tan-colored, knee-length puffy coat. (Id.) Ms. Justice “had a real bad feeling about

that guy” and left the house after he did. (Id.) Lieutenant Durrant showed Ms. Justice a coat that

had been confiscated from Mr. Presley on January 17, 1988. (Pl. Ex. 26.) Ms. Justice reported

that it “looked like the coat the guy had on, it had the same design and the same size the same

leng[th]. It looked tan to me . . . I know the design and it was just like that coat.” (Id. at D000327.)

Ms. Justice also told Detective Fischer that she would recognize the man who came to the door if

she saw him again. (Id.) There is a notation on Mr. Presley’s police photo that he was six feet

tall. (Pl. Ex. 25.) Nonetheless, the District Attorney withdrew the charges against Mr. Presley,

Mr. Hines, and Mr. Green at their Preliminary Hearing. (Pl. Ex. 28 at D000171.)

By early February 1988, Detective Santiago was out of leads in connection with the Opher

murder. (Santiago Dep. Vol. 3 (Pl. Ex. 17) at 57.) On February 6, 1988, Ms. Justice had a second

interview with the police. (See Pl. Ex. 27.) Ms. Justice told Detective Blackburn that she learned

about Opher’s shooting from Latanya Furman, her cousin. (Id. at D000333.) She and Ms. Furman

drove to the hospital to check on Mr. Opher, who was in surgery, and briefly spoke to a police

officer who had been in the emergency room. (Id. at D000334-35.) Ms. Justice told the police

officer that Ms. Furman had been at the scene of the shooting and had seen Mr. Opher lying on the

ground. (Id. at D000335.) The police officer asked Ms. Furman her name and she responded that

her name was Sandra White. (Id.) Detective Blackburn told Ms. Justice during her February 6,

1988 interview that the police had learned during their investigation of Mr. Opher’s murder that

Ms. Furman had said “something about setting up the drug dealers on 54th St[.] and Samson St.”

(Id. at D000336.) Ms. Justice told Detective Blackburn that, a week or two before Mr. Opher was

shot, she spoke on the phone with Ms. Furman’s friend, Darren Brown, who asked her to set up

the Jamaicans on 54th Street, but she refused. (Id. at D000336-37.) Two days after this

conversation, Ms. Justice told Blood (Mr. Swainson) about what Mr. Brown said. (Id. at

D000337.) Ms. Justice also told Detective Blackburn that Ms. Furman believed that Blood

murdered Mr. Opher. (Id. at D000339.)

C. Mr. Presley’s Identification of Mr. Swainson as the Shooter

On February 12, 1988, six days after Ms. Justice’s second interview with police, Detective

Santiago brought Mr. Presley in for a second interview. (Santiago Dep. Vol. 3 at 64065.)

Detective Santiago was aware, at the time of this interview, of Mr. Presley’s criminal history, that

Mr. Presley was incarcerated at the time of the interview, that Mr. Presley had a drug problem, and

that Mr. Presley had been high throughout the night of Mr. Opher’s shooting. (Santiago Dep. Vol.

1 at 211-13, 219-20.) Detective Santiago was also aware that Police Officer Kay had reported that,

when he found Mr. Presley crouching under a bush after Mr. Opher’s shooting, Mr. Presley told

him “‘I didn’t shoot anybody.’” (Id. at 219.) The written statement that Detective Santiago

prepared after his February 12, 1988 interview with Mr. Presley differed significantly from Mr.

Presley’s original statement. In Mr. Presley’s first statement, he told police officers that, when he

was going up the steps at 5413 Sansom Street, he heard a shot and was knocked down by two men,

one wearing an orange-brown coat and a big hat and the other wearing a dark hooded coat. (Pl.

Ex. 23 at D000262.) Mr. Presley also denied shooting Mr. Opher and denied knowing who had

shot Mr. Opher. (Id. at D000262-63.) Detective Santiago recorded Mr. Presley’s description of

the Opher shooting in Mr. Presley’s second statement as follows:

When I walk up to the house there is no one on the porch. I had my money out,

about 30.00 dollars. [B]efore I rang the bell the door just openned [sic] up. I saw

the guy that was shot run out the door. I side stepped and he went by me. He got

to the steps of the porch, and this brown skin dude came out the door behind him.

[H]e stepped out the door. I don’t think he saw me, because I was to the side about

two feet. He just steps on the porch from inside the house, and he had the sawed-

off shotgun . . . in his hand and he shot it. I actually saw the guy get hit in the back

and either fall off the steps or run off. I was looking at the guy that was shot and

then I look at the guy that did the shooting and he hollered at me – Yo. I put up my

hands and said something like hold up brother. I then see another guy come to the

door from inside the house. This guy has a rifle in his hands. He turns the rifle on

me and I grabbed the rifle and pushed it up, and then I grabbed him. When he

pointed the rifle at me he said – get the fuck out of here. But I [sic] afraid of getting

shot and that’s when I grabbed the rifle. I tussled with him and turned him around

and I was pushing him into the guy with the sawed-off. I had [them] pushed up

against the wall on the porch, and the guy with the sawed-off was pulling at me. I

[sic] surprised he didn’t shot [sic] me in the back, but I wasn’t about to let go of the

rifle. The other guy pulled me and I’m near the top of the steps and I lose my

balance and I fall down the steps. I’m down on the street and I see the guy with the

sawed-off runs toward 54th street . . . . The other guy, the one with the rifle ran

towards 55th st. . . .

(Pl. Ex. 33 at D000267-68.)

Mr. Presley’s second statement also differed from Police Officer Kay’s description of what

he saw and heard on January 17, 1988. As detailed above, Police Officer Kay stated that he heard

a shotgun blast and then saw Mr. Presley and Jeffrey Green running from the area of the drug

house. (Id. at D000204-05.) Officer Kay did not include anything in his statement about

witnessing Mr. Presley struggle over a rifle with two other men on the porch of 5413 Sansom

Street. Detective Santiago never asked Officer Kay about the inconsistences between his statement

and Mr. Presley’s second statement. (Santiago Dep. Vol. 3 at 102-04.),

Detective Santiago’s written record of Mr. Presley’s second statement also includes Mr.

Presley’s identification of Mr. Swainson as the person who shot Mr. Opher:

Q. I am showing you a series of photos . . . do you recognize anyone?

A. Yes, this photo—is the guy that did the shooting, he had a leather apple hat on

the big ones (Picking out photo of Andrew Swinson [sic]).

(Pl. Ex. 33 at D000269.) In the Affidavit of Probable Cause that Detective Santiago prepared to

obtain an arrest warrant for Mr. Swainson, he described Mr. Presley’s February 12, 1988

identification of Mr. Swainson as follows: “Presley states that he would be able to recognize both

of the males that were involved in shooting the decedent. Presley was then shown an array of

photos, and he picks out the photo of Andrew Swinson [sic] (Blood), as the male with the sawed-

off shotgun that shot and killed Stanley Opher.” (Pl. Ex. 28 at D000173.) Prior to his trial, Mr.

Swainson filed a Motion to Suppress Identification, which was heard on March 8, 1989. (See Pl.

Ex. 35.) During the Hearing, Detective Santiago testified that he showed Mr. Presley seven

photographs of black males in their mid-twenties, one of which was a photograph of Mr. Swainson.

(Id. at 20-21.) Detective Santiago understood that it was important to keep a record of the photo

array shown to the witness, whether the original or a photocopy of the photographs the witness

had seen, in the homicide file. (Santiago Dep. Vol. 1 at 80-81.) Nonetheless, the 1,343 page

Stanley Opher murder investigation file produced by the Defendants did not contain a copy of the

photo array that Detective Santiago reported having shown to Mr. Presley. (Harris Decl. ¶ 3.e.)

The file did, however, contain copies of seven photographs of Mr. Swainson. (Santiago Dep. Vol.

1 at 297-98.)

Judith Rubino, the Assistant District Attorney (“ADA”) who prosecuted Mr. Swainson,

asked Detective Santiago for a copy of the photo array. (Rubino Dep. (Pl. Ex. 9) at 130.) He gave

her photos on seven different sheets, which, in her opinion, was “not what a photo spread looks

like.” (Id. at 134.) A photo spread should have been all seven photos displayed side-by-side

simultaneously. (Id. at 134-35.) The District Attorney’s Office (“DAO”) file contains an envelope

with the identifying information for six individuals whose Philadelphia Police Department

(“PPD”) numbers correspond to the filler photographs in the photo array that Detective Santiago

claims he showed to Mr. Presley. (Santiago Dep. Vol. 1 at 292.) One of those photographs has

the number 645554 written on the back. (Pl. Ex. 49 at NSB Swainson 057372.) The identification

box corresponding to number 645554 contains the name Evans Daniels and is dated 2/27/88, two

weeks after Detective Santiago showed Mr. Presley the photo array. (Pl. Ex. 33 at D000269; Pl.

Ex. 50.) During his deposition in this case, Detective Santiago was asked why the information

box for Mr. Daniels’ photo is dated after the date on which Detective Santiago showed the photo

array to Mr. Presley. (Santiago Dep. Vol. 1 at 293.) Detective Santiago suggested that it was

likely that someone had tampered with the envelope that contained the information box. (Id. at

293-94.)

Ms. Rubino relied on Mr. Presley’s photographic identification of Mr. Swainson as her

basis for probable cause in this case. (Rubino Dep. at 58-59.) She also relied on Detective

Santiago’s representation “that he had obtained an immediate, unequivocal, positive photographic

identification from Paul Presley out of a fair array with no suggestion.” (Id. at 59.) She would not

have proceeded with the case against Mr. Swainson if she had “learned that Detective Santiago

had misrepresented . . . anything about the circumstances of that photographic identification.” (Id.

at 60.)

Mr. Presley appeared as a witness during Mr. Swainson’s April 14, 1988 Preliminary

Hearing, and was asked to identify the individual who shot Mr. Opher. (See 4/14/88 N.T. (Pl. Ex.

37) at 16.) Mr. Presley initially responded that he did not see that person in court. (Id.) However,

he also testified that he saw a man who “looks closely familiar to the guy that shot him” but with

shorter hair. (Id. at 15-16, 35.) Mr. Presley also looked in the direction of Mr. Swainson at some

point during his testimony on this subject, but did not specifically identify Mr. Swainson as the

person who shot Mr. Opher. (See id. at 16-17.) On June 10, 1988, Mr. Presley signed a statement

in which he said that the man he saw in the courtroom, Mr. Swainson, was not present at the

shooting of Mr. Opher. (Pl. Ex. 38 at D015704.) Mr. Presley said in his June 10, 1988 statement

that he could say that Mr. Swainson was not there “because I’ve seen him, even though I picked

his photo out. At the time I thought it was him, but since I seen him at court . . . I realized that

[Mr. Swainson’s] not the guy. The guy was much darker than [Mr. Swainson] is.” (Id.)

D. Mr. Swainson’s Arrest for Mr. Opher’s Murder

A warrant for Mr. Swainson’s arrest for the murder of Mr. Opher was approved on

February 15, 1988. (Pl. Ex. 64.) On that date, police officers, including Detective Santiago and

Lieutenant Durrant, went to a Philadelphia address provided by Mr. Swainson to arrest him for the

murder of Stanley Opher. (Id.; Pl. Ex. 5.) When they arrived, two individuals, Donny Eubanks

and Isiah Thomas, told them that Mr. Swainson had gone to Jamaica for vacation and would be

back soon. (Pl. Ex. 64.) Since Mr. Swainson was not there, Detective James Alexander and his

partner Detective Michael Cohen of the PPD fugitive squad were assigned to find and arrest Mr.

Swainson. (Santiago Dep. Vol. 2 at 134; Alexander Dep. (Pl. Ex. 53) at 12-14, 18, 21.) Detectives

Santiago, Alexander, and Cohen frequently communicated about their efforts to arrest Mr.

Swainson. (Id. at 36-37.) On February 18, 1988, Detectives Alexander and Cohen learned that

Mr. Swainson had gone to Jamaica to get married and would be returning to the United States. (Id.

at 57, Pl. Ex. 65.) The next day, they learned from Mr. Swainson’s sister that he left for Jamaica

on February 11, 1988 and was expected to return to Philadelphia during the first week of March.

(Pl. Ex. 66.)

On February 19, 1988, Detectives Alexander and Cohen “prepared [an] application for

issuance of [an] Unlawful Flight to Avoid Prosecution Warrant.” (Id.) On February 20, 1988,

Robert Wolfinger, the Chief Inspector of the PPD’s Detective Bureau, sent a letter to Philadelphia

Deputy District Attorney Raymond Harley, asking Mr. Harley to “request[] the United States

Attorney to issue a warrant charging Andrew Francis Swinson [sic] with Unlawful Flight to Avoid

Prosecution on the charge of Murder.” (Pl. Ex. 67.) Mr. Wolfinger stated in this letter that

“[i]nvestigation by the Homicide Division revealed that Andrew Swinson [sic] informed persons

close to him that after the murder, he was going to flee to Jamaica.” (Id.) The homicide file for

Mr. Opher does not contain any information that would indicate that a federal Unlawful Flight to

Avoid Prosecution Warrant was issued for Mr. Swainson. (Harris Decl. ¶ 3.k.) Nonetheless, Ms.

Rubino believed at the time of Mr. Swainson’s trial, based on conversations with Detectives Cohen

and Santiago, that the detectives had such a warrant. (Rubino Dep. at 66.)

Mr. Swainson returned to the United States during the first week of March, 1988 and

received a message that Detective Santiago had left for him, asking him to call when he returned

from Jamaica. (Santiago Dep. Vol. 3 at 75.) On March 8, 1988, Mr. Swainson called as instructed

and told Detective Santiago that he had returned from Jamaica and was in New York at his parents’

house. (Pl. Ex. 69.) Detective Santiago wrote, in an Activity Sheet documenting this telephone

conversation, that Mr. Swainson “does not know that he []is currently wanted for murder, and the

information was not given to [him].” (Id.) Mr. Swainson was subsequently arrested by New York

Police Department officers at his parents’ home, which was one of the addresses that Mr. Swainson

had given to Detective Santiago during his January 22, 1988 interview. (Santiago Dep. Vol. 3 at

80-81; Pl. Ex. 5 at D000133.)

Ms. Rubino argued, during Mr. Swainson’s trial and in closing, that the jury “should

consider Mr. Swainson’s fleeing to Jamaica after he was interviewed by police in connection with

this case as evidence of consciousness of guilt.” (Rubino Dep. at 65.) Ms. Rubino believed that

this was true based on the representations made to her by Detectives Santiago and Cohen. (Id. at

66, 68.) Ms. Rubino also obtained a jury instruction regarding flight. (Id. at 68-69.) However,

Ms. Rubino was not aware during Mr. Swainson’s trial of the Activity Sheet indicating that Mr.

Swainson had called Detective Santiago when he returned to New York and told Detective

Santiago that he was in New York at his parents’ house. (Id. at 71.) If she had been aware of this

information, she would have provided it to the defense and would not have argued flight as

consciousness of guilt at Mr. Swainson’s trial. (Id. at 71-72.)

E. Activity Sheets

Activity sheets, like the one on which Detective Santiago recorded his telephone

conversation with Mr. Swainson, were “informal document[s] [Philadelphia police officers] used

in the homicide division that [were] meant to apprise [their] supervisors and fellow detectives of

important things going on in an investigation.” (Santiago Dep. Vol. 1 at 95.) “Activity sheets

were generally done at the end of each tour.” (Id. at 98.) They were also completed at the end of

an interview, or after a crime scene was processed. (Id.) “[T]he purpose of the activity sheets was

to have a record of . . . the significant investigative steps” being taken by detectives. (Id. at 99.)

“[A]ctivity sheets were done on a case by case basis,” meaning that they were associated with

cases and would only contain information from that case. (Id. at 99-100.) Detectives did not give

Activity Sheets to ADAs at the time of Mr. Opher’s homicide. (Id. at 102-05.) That changed later,

possibly in the mid-1990s. (Id. at 102.) When Detective Santiago prepared binders to be sent to

the DAO, he followed the PPD’s policy to omit Activity Sheets unless the district attorney asked

to see a particular activity sheet. (Id. at 104-05.) The PPD’s policy was to separate the binder

given to the DAO into different categories, none of which included a section for Activity Sheets.

(Id. at 105-06.) Detectives maintained Activity Sheets in the PPD’s file. (Id. at 106.)

Detective Santiago prepared the binder for Ms. Rubino to use in her prosecution of Mr.

Swainson. (Id.) He did not include any Activity Sheets in the binder. (Id.; Rubino Dep. at 168-

69.) Detective Santiago also omitted Attempt to Apprehend Logs prepared by Detectives

Alexander and Cohen from the binder that he gave to Ms. Rubino. (Rubino Dep. at 77-78.)

F. Mr. Swainson’s Conviction and Post-Conviction Relief

On March 21, 1989, a jury convicted Mr. Swainson of first-degree murder, criminal

conspiracy, and possession of an instrument of crime in the death of Mr. Opher. (Concise

Statement of Material Facts (“SMF”) ¶ 113.) He was sentenced to life imprisonment without the

possibility of parole. (Id. ¶ 114.) On October 13, 2008, a private detective that worked for Mr.

Swainson’s post-conviction attorneys took a statement from Mr. Presley in which Mr. Presley

stated that Mr. Swainson was not the man that shot Mr. Opher.3 (Id. ¶ 115; Defs. Ex. 50 at

D002116.) Mr. Presley also admitted in this statement that he committed perjury when he

3 Defendants argue that we cannot rely on this Declaration in connection with the instant

Motion because it is inadmissible hearsay. We need not address Defendants’ argument in the

context of these Motions because we mention this statement solely as part of the background of

the instant litigation and do not consider this statement for the truth of the information included

therein.

identified Mr. Swainson as the shooter during Mr. Swainson’s 1989 trial. (Defs. Ex. 50 at

D002116.) Mr. Presley died on November 13, 2009. (SMF ¶ 116.)

Between 1993 and 2012, Mr. Swainson filed numerous petitions for post-conviction relief

in the state and federal courts. (Pl. Ex. 43 ¶¶ 62-67.) On August 18, 2014, Mr. Swainson filed his

third Post-Conviction Relief Act petition in state court, based, in part, on a July 22, 2014 statement

given by Ms. Morsell recanting her trial testimony, which implicated Mr. Swainson in Mr. Opher’s

murder. (Id. ¶ 68; 3/16/89 N.T. (Pl. Ex. 76) at 119-23, 156; Morsell Decl. (Pl. Ex. 74).) He

amended that petition on July 13, 2017 to include claims pursuant to Brady v. Maryland, 373 U.S.

83 (1963), after learning that evidence from the Opher homicide file had been suppressed. (Pl. Ex.

43 ¶ 68.) On November 18, 2019, he again amended his third petition, to raise claims regarding

Mr. Presley’s testimony and evidence admitted at trial regarding his alleged flight. (Id. ¶ 70.)

While the state court was considering Mr. Swainson’s third PCRA petition, his attorneys

submitted a request that the DAO’s Conviction Integrity Unit (“CIU”) review and investigate his

case and his claim of innocence. (Id. ¶ 71.) The CIU reviewed the prosecution file, all of the

transcripts in the case, and a partial copy of the homicide file that had been provided to Mr.

Swainson by the City in 2017. (Id. ¶ 73 & n.4.) In March 2019, the CIU also obtained a copy of

the PPD’s complete Opher homicide file and, on March 21, 2019, provided it to Mr. Swainson’s

attorneys. (Id. ¶¶ 74-76.) There were several pieces of evidence in the partial copy of the Opher

homicide file that was provided to Mr. Swainson’s attorneys in 2017 and in the complete copy of

the homicide file that was provided to Mr. Swainson’s attorneys in 2019 that had not previously

been disclosed to Mr. Swainson or his trial counsel. (Id. ¶ 77.)

Andrew Wellbrock, an ADA with the CIU, investigated Mr. Swainson’s case. (Wellbrock

Dep. (Pl. Ex. 8) at 9-11.) At the conclusion of his investigation, Mr. Wellbrock did not believe

that he “could prove beyond a reasonable doubt that Mr. Swainson was guilty.” (Id. at 55.) On

February 12, 2020, Mr. Wellbrock filed the Commonwealth’s Answer to Mr. Swainson’s third

Post-Conviction Relief Act petition. (See Pl. Ex. 44.) The Commonwealth’s Answer concluded

as follows:

After careful consideration of the individual facts of this case, the relevant law, and

the role of the prosecutor as a “minister of justice,” see Pa. R. Prof. Resp. 3.8

comment 1 (Special Responsibilities of a Prosecutor), the Commonwealth agrees

that Swainson’s conviction resulted from a violation of his right to due process as

described by Brady and its progeny, i.e., the suppression of evidence that would

have changed the outcome of his trial, as well as the Commonwealth’s reliance on

false testimony in violation of Napue [v. Illinois, 360 U.S. 264 (1959)]. Swainson

is entitled to post-conviction relief in the form of a new trial under 42 Pa. C.S. §

9543.

(Id. ¶ 141.) The Commonwealth asked the state court to vacate Mr. Swainson’s sentence and

order a new trial. (Id. at 30.) On June 12, 2020, Judge Shelley Robins New granted Mr. Swainson

a new trial and he was released from prison. (SMF ¶¶ 120-21.) On June 18, 2020, the DAO nolle

prossed its case against Mr. Swainson. (Id. ¶ 122.)

Mr. Swainson filed the instant lawsuit against the City of Philadelphia, Detective Santiago,

Detective Cohen, Detective Alexander, Lieutenant Durrant, Detective Miller, Detective Fischer,

Detective Raymond Barlow, and John Doe on June 2, 2022. On August 26, 2022, Mr. Swainson

filed an Amended Complaint that did not name Detective Barlow as a defendant. Mr. Swainson

filed a Second Amended Complaint on May 24, 2023. (See Docket No. 58.) The Second Amended

Complaint asserted claims against John Della Rocca as personal representative of the estates of

Lieutenant Durrant, Detective Miller, and Detective Cohen, all of whom are deceased. (Id.) Mr.

Swainson has informed the Court that he has agreed to dismiss those claims. (See Resp. at 3 n.1.)

We dismissed Mr. Swainson’s claim against John Doe by agreement of the parties on June 4, 2024.

(See Docket No. 76.)

The Second Amended Complaint asserts six claims for relief against the City of

Philadelphia and Detectives Manuel Santiago, James Alexander, and Joseph D. Fischer:4

Count I: a claim brought pursuant to 42 U.S.C. § 1983 for deprivation of

liberty without due process of law and denial of a fair trial by fabricating evidence

against Detectives Santiago and Alexander.

Count II: a claim brought pursuant to 42 U.S.C. § 1983 for deprivation of

liberty without due process of law and denial of a fair trial by intentionally

concealing and deliberately suppressing material exculpatory and impeachment

evidence against Detectives Santiago, Fischer and Alexander.

Count III: a claim brought pursuant to 42 U.S.C. § 1983 for malicious

prosecution in violation of the Fourth and Fourteenth Amendments against

Detectives Santiago and Fischer.

Count IV: a claim brought pursuant to 42 U.S.C. § 1983 for civil rights

conspiracy against Detectives Santiago, Fischer and Alexander.

Count V: a municipal liability claim brought pursuant to 42 U.S.C. § 1983

against the City of Philadelphia.

Count VI: a claim of malicious prosecution brought under Pennsylvania law

against Detectives Santiago and Fischer.

II. LEGAL STANDARD

Summary judgment is appropriate “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). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual

dispute is “material” if it “might affect the outcome of the suit under the governing law.” Id. In

ruling on a summary judgment motion, the Court “must construe the evidence and draw all

reasonable inferences in the light most favorable to the party opposing the motion.” Jacobs v.

4 Mr. Swainson initially brought Counts I through IV and VI against all of the individual

Defendants. However, in his Response to the instant Motions, he has agreed to dismiss Count I as

against Detective Fischer and Counts III and VI as against Detective Alexander. (Resp. at 3 n.2.)

Cumberland Cnty., 8 F.4th 187, 192 (3d Cir. 2021) (citing Bland v. City of Newark, 900 F.3d 77,

83 (3d Cir. 2018)).

“[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular

issue at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the district

court[] that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

After the moving party has met its initial burden, the adverse party’s response “must support the

assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the

record . . . or (B) showing that the materials [that the moving party has cited] do not establish the

absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). The court will grant summary

judgment if the nonmoving party fails to respond with a factual 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, 477 U.S. at 322. “‘While the evidence that the non-moving

party presents may be either direct or circumstantial, and need not be as great as a preponderance,

the evidence must be more than a scintilla.’” Galli v. New Jersey Meadowlands Comm’n, 490

F.3d 265, 270 (3d Cir. 2007) (quoting Hugh v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d

Cir. 2005)). However, “[u]nsupported assertions, conclusory allegations, or mere suspicions are

insufficient to overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr.,

621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460

(3d Cir. 1989)).

III. DISCUSSION

A. Claims Against Detectives Alexander and Fischer

Defendants ask us to grant summary judgment on behalf of Detectives Fischer and

Alexander as to the remaining claims against them (Counts II, III, IV, and VI against Detective

Fischer and Counts I, II, and IV against Detective Alexander) on the ground that Mr. Swainson

can point to no evidence that Detectives Fischer and Alexander were personally involved in

fabricating or concealing evidence against him or maliciously prosecuting him. “To state a claim

under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws

of the United States, and must show that the alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). In addition,

“[a] defendant in a civil rights action must have personal involvement in the alleged wrongs” to

be liable. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). Thus,

“in the face of [a] motion for summary judgment, a § 1983 plaintiff must produce evidence

supporting each individual defendant’s personal involvement in the alleged violation to bring that

defendant to trial.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 291 (3d Cir. 2018).

1. Count I – Fabrication of Evidence

Count I of the Second Amended Complaint asserts a claim against Detectives Santiago and

Alexander pursuant to 42 U.S.C. § 1983 for the violation of Mr. Swainson’s 14th Amendment due

process rights through the fabrication of evidence. (See 2d Am. Compl. ¶ 168.) Mr. Swainson

asserts that Detective Alexander was involved in the fabrication of evidence that Mr. Swainson

fled to Jamaica to avoid prosecution and in the procurement of false testimony from

Commonwealth witness Jacqueline Morsell. It is “axiomatic that ‘those charged with upholding

the law are prohibited from deliberately fabricating evidence and framing individuals for crimes

they did not commit.’” Dennis v. City of Philadelphia, 19 F.4th 279, 289 (3d Cir. 2021) (quoting

Halsey v. Pfeiffer, 750 F.3d 273, 296 (3d Cir. 2014)). Thus, “if a defendant has been convicted at

a trial at which the prosecution has used fabricated evidence, the defendant has a stand-alone claim

under section 1983 based on the Fourteenth Amendment if there is a reasonable likelihood that,

without the use of that evidence, the defendant would not have been convicted.” Halsey, 750 F.3d

at 294.

In order to survive a motion for summary judgment, a plaintiff “must bring ‘persuasive

evidence supporting a conclusion that [the police officer was] aware that evidence [was] incorrect

or that [it was] offered in bad faith.’” Mervilus v. Union Cnty., 73 F.4th 185, 194 (3d Cir. 2023)

(third alteration in original) (quoting Black v. Montgomery Cnty., 835 F.3d 358, 372 (3d Cir.

2016)). In addition, the evidence must “support[] a conclusion that the allegedly fabricated

evidence was so significant that it could have affected the outcome of the criminal case.” Halsey,

750 F.3d at 295. “[T]estimony that is incorrect or simply disputed should not be treated as

fabricated merely because it turns out to have been wrong.” Id. In order to establish that a police

officer acted in bad faith, a plaintiff must point to “persuasive evidence [that the police officer]

formulated or submitted false evidence willfully, knowingly, or with a reckless disregard for its

truth.” Mervilus, 73 F.4th at 194-95. Defendants argue that Detective Alexander is entitled to

summary judgment as to Count I because Mr. Swainson cannot point to evidence that Detective

Alexander fabricated evidence of flight to avoid prosecution or that he procured false testimony

from Ms. Morsell.

a) Fabrication of Evidence of Flight

Mr. Swainson argues that fabricated evidence introduced during his trial that he fled

Philadelphia for Jamaica to avoid prosecution for Mr. Opher’s murder was critical to his

conviction. He relies on the deposition testimony of ADA Judith Rubino that she both obtained a

jury instruction regarding flight and argued in closing that the jury “should consider Mr.

Swainson’s fleeing to Jamaica after he was interviewed by police in connection with this case as

evidence of consciousness of guilt.” (Rubino Dep. at 65, 68-69.) She testified that she did so in

reliance on the representations of Detectives Santiago and Cohen that detectives “had applied for

and obtained . . . a Federal Flight to Avoid Prosecution Warrant.” (Id. at 66.) Moreover, Ms.

Rubino also testified that she was not aware of the Activity Sheet documenting Mr. Swainson’s

call to Detective Santiago upon his return from Jamaica, and would not have argued “flight as

consciousness of guilty at trial” or requested a jury instruction regarding flight if she had been.

(Id. at 71-72.) We conclude that the record contains evidence that could establish that “the

allegedly fabricated evidence was so significant that it could have affected the outcome of the

criminal case.” Halsey, 750 F.3d at 295.

Detectives Alexander and Cohen, who were assigned to the PPD’s fugitive squad, were

responsible for locating Mr. Swainson after the police obtained a warrant for his arrest. (Alexander

Dep. at 12, 14.) Their role was limited to locating Mr. Swainson so that he could be arrested for

Mr. Opher’s homicide. (Id. at 13.) Detectives Alexander and Cohen freely shared information

about their attempts to apprehend Mr. Swainson with Detective Santiago. (Id. at 36-37.)

On February 18, 1988, Detective Alexander prepared an Attempt to Apprehend Log

regarding Mr. Swainson. (Id. at 38-40.) Detective Alexander wrote that “[i]nformation shows that

[Mr. Swainson] went [to Jamaica] to get married and will be returning to the United States.” (Pl.

Ex. 65; see also Alexander Dep. at 57.) Detective Alexanders and Cohen recorded on another

Attempt to Apprehend Log dated February 19, 1988, that they had received information that Mr.

Swainson “went to Jamaica to get married and is supposed to return to Phila[delphia] in the 1st

week of March.” (Pl. Ex. 66.) Detective Alexander remembers that several individuals told police

officers that Mr. Swainson “was going to Jamaica to get married or he already had a planned

vacation.” (Alexander Dep. at 47)

Detective Cohen testified at Plaintiff’s trial that on February 19, 1988, Detective Santiago

applied for an Unlawful Flight to Avoid Prosecution Warrant. (3/17/89 N.T. (Pl. Ex. 30) at 205;

Pl. Ex. 66.) Detective Alexander testified at his deposition that they applied for this warrant even

though they knew that Plaintiff had a planned trip to Jamaica and was going to Jamacia to get

married. (Alexander Dep. at 120; Pl. Ex. 66.) On February 20, 1988, Robert A. Wolfinger, Chief

Inspector for the PPD’s Detective Bureau, wrote to Deputy District Attorney Raymond Harley,

asking Mr. Harley to ask the United States Attorney “to issue a warrant charging Andrew Francis

Swinson [sic] with Unlawful Flight to Avoid Prosecution on the charge of Murder.” (Pl. Ex. 67.)

The letter states that Mr. Swainson had been charged with the murder of Mr. Opher and that

“[i]nvestigation by the Homicide Division revealed that Andrew Swinson [sic] informed persons

close to him that after the murder, he was going to flee to Jamaica.” (Id.)

This statement, however, is inconsistent with the information that Detectives Alexander

and Cohen had received from witnesses and is not information that Detective Santiago had

received from any interview. (Alexander Dep.. at 156-57; Santiago Dep. Vol 3 at 91.) In fact,

there is no documentation of any kind in the Opher homicide file that “detectives received

information from any source suggesting that Swainson informed anyone that he planned to flee to

Jamaica after Opher’s murder.” (Harris Decl. ¶ 3.i.) There is also no documentation in the Opher

homicide file “that detectives obtained a federal unlawful flight to avoid prosecution warrant for

Swainson.” (Id. ¶ 3.k.) We conclude that Plaintiff has pointed to record evidence showing that

the representations about evidence of flight made in the letter requesting the federal warrant, as

well as the representations made to ADA Rubino that detectives “had applied for and obtained . .

. a Federal Flight to Avoid Prosecution Warrant” (Rubino Dep. at 66), were false.

Mr. Swainson maintains that, even though Detective Alexander did not directly make these

false representations, we should deny the Motions for Summary Judgment as to this claim because

Detective Alexander had an instrumental part in communicating to ADA Rubino that Mr.

Swainson had fled to Jamaica to avoid prosecution. We find that there is record evidence that

Detective Alexander instigated the process of obtaining an Unlawful Flight to Avoid Prosecution

Warrant, even though he was aware that Mr. Swainson had gone to Jamaica for a short pre-planned

trip rather than to avoid prosecution for the murder of Mr. Opher. (See Alexander Dep. at 47, 57,

120.) We thus conclude that Mr. Swainson has pointed to record evidence that Detective

Alexander was aware that evidence used to instigate the process of obtaining an Unlawful Flight

to Avoid Prosecution Warrant was false. See Mervilus, 73 F.4th at 194 (quoting Black, 835 F.3d

at 372). As we have concluded that this evidence could have affected the outcome of Mr.

Swainson’s trial, we deny the Motions for Summary Judgment with respect Mr. Swainson’s claim

against Detective Alexander based on the fabrication of evidence that Mr. Swainson fled to

Jamaica to avoid prosecution for the murder of Mr. Opher.

b) Fabrication of Ms. Morsell’s trial testimony

As we described above, on January 18, 1988, Jacqueline Morsell told police about hearing

Mr. Opher argue with “Dred,” one of the men that worked in the drug house, and also stated that

Dred told her that he had killed plenty of people and kept multiple guns, including shotguns, in the

house located at 5413 Sansom Street. (Pl. Ex. 19 at D000274, D000277, D000280.) Ms. Morsell

testified differently at trial. Ms. Morsell testified at trial, stating that she had often seen Blood

with a sawed-off shotgun. (3/16/89 N.T. at 121.) She also testified that Mr. Opher called Mr.

Swainson “pistol happy” and that Mr. Swainson was called Blood because of stories he told “about

other bodies and stuff he is supposed to have.” (Id. at 122,-23, 156.) Ms. Morsell further testified

that Mr. Swainson called her from jail during the summer of 1988, said that Mr. Opher’s shooting

“wasn’t supposed to happen like that,” and told her not testify and that she would be taken care of

if she didn’t testify. (Id. at 119-120.)

Mr. Swainson contends that Morsell’s trial testimony was fabricated and that Detective

Alexander procured this false testimony in an interview with Ms. Morsell that took place in March

1988. Defendants argue that we should grant summary judgment in favor of Detective Alexander

with respect to this aspect of Plaintiff’s fabrication of evidence claim because there is no

admissible evidence in the record that Detective Alexander interviewed Ms. Morsell in March

1988. The record before us contains an Activity Sheet and Attempt to Apprehend Logs that

document repeated efforts by Detective Alexander in March 1988 to locate Ms. Morsell for a

second interview. (See Pl. Exs. 71-73.) However, Mr. Opher’s homicide file does not contain any

records indicating that police officers actually conducted a second interview with Ms. Morsell.

(Harris Decl. ¶ 3.l.).

The only evidence before us regarding Ms. Morsell’s second interview is Ms. Morsell’s

July 22, 2014 Declaration. (Pl. Ex. 74.) In fact, Mr. Swainson relies entirely on this Declaration

to “establish that Morsell’s false testimony at trial was procured by Detective Alexander in an

interview that occurred before trial.”5 (Resp. at 37.) Defendants argue that this Declaration is

5 Mr. Swainson argues in his response to the Motions for Summary Judgment that there are

“two independent evidentiary sources” that “establish that Morsell’s false testimony at trial was

procured by Detective Alexander in an interview that occurred before trial.” (Resp. at 37.) Mr.

Swainson identifies the first of these sources as Ms. Morsell’s 2014 Declaration. (Id.) Mr.

Swainson does not identify or discuss the second independent evidentiary source. If this second

source refers to the Attempt to Apprehend Logs and Activity Sheets showing Detective

inadmissible hearsay, and the parties disagree about whether it can be considered in the context of

a motion for summary judgment. See Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir.

2009) (“Hearsay statements that would be inadmissible at trial may not be considered for purposes

of summary judgment.”). For purposes of the instant Motions, we assume arguendo that we may

consider the Declaration.

Ms. Morsell stated in her 2014 Declaration that she testified falsely at Mr. Swainson’s trial

regarding Mr. Swainson’s calls to her from prison, his use of guns, and his violent reputation.

(Morsell Decl. ¶¶ 7-8.) Additionally, she states that she gave a second statement to police after

Mr. Swainson’s arrest and before his trial, however, her Declaration does not identify the officers

present or make any mention of Detective Alexander. (Id. ¶ 10.f.) Ms. Morsell further states that

she made this second statement at the home of Tina Dennis, Mr. Opher’s mother, where she was

living after having a falling out with her own mother. (Id. ¶¶ 10.a., f.) Ms. Morsel specifically

states that she “knowingly testified falsely at [Mr. Swainson’s] trial” because she “feared for [her]

life from Stanley’s family, particularly his mother, Tina Dennis” due to physical and sexual abuse

that she suffered in Ms. Dennis’s home and because “Tina prostituted [Ms. Morsell] out when

[she] was 19 years old.” (Id. ¶ 10.) Ms. Morsell also states that “[a]fter Stanley’s murder, but

before [Ms. Swainson’s] trial, Tina and Stanley’s family members repeatedly told [her] how [she]

needed to testify if [Mr. Swainson] was to be convicted of Stanley’s murder.” (Id. ¶ 10.d.) Ms.

Morsell expressly states in her Declaration that she testified falsely at trial because of the pressure

placed on her by Ms. Dennis:

Simply put, I testified falsely against [Mr. Swainson] because: (1) Tina placed

tremendous pressure on me to implicate him in Stanley’s murder; (2) I feared

physical retribution from Tina if I didn’t implicate him; (3) I feared Tina would

Alexander’s attempts to locate and interview Ms. Morsell, we note that there are no Attempt to

Apprehend Logs or Activity Sheets indicating that such an interview ever took place.

kick me and my son out if I didn’t falsely implicate Andrew and my son and I didn’t

have a place to live; and (4) I felt a moral obligation to implicate him because I was

so close to Stanley and his mother was putting a roof over my son’s head.

(Id. ¶ 10.m.)

Mr. Swainson argues that we can infer from the evidence of attempts made by Detectives

Alexander and Cohen to interview Ms. Morsell in March 1988, and the evidence that a second

interview with Ms. Morsell took place sometime between Mr. Swainson’s arrest and trial, that

Detective Alexander procured false trial testimony from Ms. Morsell. We conclude, however,

based on the absence of evidence that Detective Alexander participated in this second interview of

Ms. Morsell, and based on Ms. Morsell’s statements in her Declaration that she testified falsely

against Mr. Swainson as a result of the pressure put on her by Ms. Dennis and her fear of Ms.

Dennis, that this is not a reasonable inference. We further conclude, accordingly, that Mr.

Swainson has failed to point to “persuasive evidence [that Detective Alexander] formulated or

submitted false evidence [with respect to Ms. Morsell’s trial testimony] willfully, knowingly, or

with a reckless disregard for its truth.” Mervilus, 73 F.4th at 194-95. We therefore grant the

Motions for Summary Judgment with respect to Mr. Swainson’s claim in Count I that Detective

Alexander procured Ms. Morsell’s false trial testimony.

2. Count II - Deliberate Deception

Count II of the Second Amended Complaint asserts a claim against Detectives Santiago,

Alexander, and Fischer pursuant to 42 U.S.C. § 1983 for the violation of Mr. Swainson’s

Fourteenth Amendment due process rights through the intentional concealment and deliberate

suppression of exculpatory evidence and/or by violating their duties under Brady v. Maryland, 373

U.S. 83 (1963). (See 2d Am. Compl. ¶ 169.) The Third Circuit has explained that a § 1983

deliberate deception claim “must go beyond the failure to disclose evidence and arises when

imprisonment results from the knowing use of false testimony or other fabricated evidence or from

concealing evidence to create false testimony to secure a conviction.” Dennis, 19 F.4th at 291

(citation omitted). Thus, police officers engaged in deliberate deception where they “withheld

exculpatory and impeachment evidence that would have supported [the defendant’s] alibi and

defense [and] also failed to correct testimony they knew was false and concealed from the defense

the evidence that revealed that trial testimony as false.” Id. at 291-92. In order to succeed on his

deliberate deception claim, Mr. Swainson must “show he would not have been convicted of [Mr.

Opher’s murder] in the absence of the deliberate deception.” Gladden v. City of Philadelphia, Civ.

A. No. 21-4986, 2022 WL 605445, at *6 (E.D. Pa. Feb. 28, 2022) (quotation omitted); see also

Dennis v. City of Philadelphia, Civ. A. No. 18-2689, 2024 WL 3904046, at *3 (E.D. Pa. Aug. 22,

2024) (stating that to succeed on a claim of deliberate deception, the plaintiff “was required to

prove by a preponderance of the evidence that he would not have been convicted [of the crime] in

the absence of the deliberate deception” (quotation omitted)).

Defendants argue that Detectives Alexander and Fischer are entitled to summary judgment

with respect to this claim because Mr. Swainson can point to no evidence that they knowingly

concealed evidence from him or from ADA Rubino. Mr. Swainson points, in response, to evidence

that he claims shows that Detective Alexander knowingly concealed that he fabricated evidence

of flight to avoid prosecution and that Detective Fischer knowingly concealed exculpatory

information from the prosecutor and from his attorneys. Specifically, Mr. Swainson contends that

Detectives Alexander and Fischer intentionally concealed the following Activity Sheets and

Attempt to Apprehend logs from ADA Rubino and from his trial counsel:

1. A 1/19/88 Activity Sheet that describes an interview that Detective Fischer

conducted with Crystal Justice. (Pl. Ex. 60 at D000033.) The Activity Sheet documents

statements made by Ms. Furman to Ms. Justice about what she saw the night of Mr. Opher’s

murder, as well as Ms. Furman’s attempts to elude police and avoid getting involved in the

subsequent investigation. (Id.) At the time of the interview, Detective Fischer was aware

that Ms. Furman was present at the scene of Mr. Opher’s murder and had been “named by

witnesses as having discussed trying to set up the drug house for a robbery.” (Fischer Dep.

(Pl. Ex. 13) at 73-74.) In addition, the information that Ms. Justice gave Detective Fischer

about why Ms. Furman was at the drug house at the time of Mr. Opher’s murder is different

from the information that Ms. Furman herself told police. (Id. at 74.) Mr. Swainson argues

that the information in the January 19, 1988 Activity Sheet regarding Detective Fischer’s

conversation with Ms. Justice could have been used to impeach the trial testimony of Ms.

Furman, who appeared as a witness for the Commonwealth, because it shows that she was

a suspect and had a motive to hide information regarding Mr. Opher’s murder.

2. A 1/21/88 Activity Sheet that describes Detectives Miller’s and Fischer’s attempts

to pick up Ms. Furman for a polygraph examination and an interview that Detective Miller

held with Vernon Montague, a friend of Mr. Opher. (Pl. Ex. 14 at D000037.) The Activity

Sheet reports that Mr. Montague told Detective Miller “that since the shooting the word

being passed around the streets is that the deceased was shot during a hold-up attempt.”

(Id.) Mr. Swainson argues that the information in this Activity Sheet tends to impeach the

police investigation into Mr. Opher’s murder because it shows that the police had

information that the murder could have been part of an attempted robbery. He relies on

ADA Rubino’s deposition testimony that, if she had been aware of Mr. Montague’s

statement, she would have turned it over to the defense as Brady information, particularly

because Mr. Swainson’s counsel was pursuing an alternate perpetrator defense at trial.

(Rubino Dep. at 141-42.) Mr. Swainson also contends that this Activity Sheet is material

because it shows that Detectives Fischer and Miller made additional attempts to locate,

interview, and polygraph Ms. Furman.

3. A 1/22/88 Activity Sheet that describes an interview that Detective Fischer held

with Ms. Justice on January 22, 1988. (Pl. Ex. 26.) The Activity Sheet states that Detective

Fischer showed Ms. Justice the coat confiscated from Mr. Presley on January 17, 1988 and

Ms. Justice stated that she recognized the coat as looking like the one worn by the man she

saw at 5413 Sansom Street prior to Mr. Opher’s murder. (Id. at D000040.) Mr. Swainson

argues that this Activity Sheet could have been used to impeach Mr. Presley’s credibility

at trial, as well as the credibility of the Opher murder investigation as a whole, because the

charges against Mr. Presley were dropped despite this evidence of his guilt.

4. A 1/26/88 Activity Sheet stating that Detective Fischer spoke with the attorney

representing Jeffrey Green at the preliminary hearing for Mr. Green, Mr. Hines, and Mr.

Presley. (Pl. Ex. 29 at D000044.) Mr. Green’s attorney told Detective Fischer that his law

partner had information “that the word on the street was a George was involved [in the

Opher shooting] and [that George] was from the area of 53rd and Spruce [Streets].” (Id.)

Detective Fischer also spoke with the law partner, who “told him that a [J]amaican with

the name of George was involved.” (Id.) Mr. Swainson argues that the January 26, 1988

Activity Sheet impeaches the credibility of the investigation and could have led his trial

counsel to investigate George as part of an alternative perpetrator defense.

5 and 6. A 2/18/88 Attempt to Apprehend Log stating that Detectives Alexander and Cohen

learned that Mr. Swainson went to Jamaica to get married and would return to the United

States (Pl. Ex. 65) and a 2/19/88 Attempt to Apprehend Log stating that Detectives

Alexander and Cohen learned that Mr. Swainson left for Jamaica on February 11, 1988 to

get married and would be returning to the United States the first week of March 1988 (Pl.

Ex. 66). Mr. Swainson argues that these Attempt to Apprehend Logs could have been used

to impeach trial testimony that Mr. Swainson fled to Jamaica to avoid prosecution and to

oppose ADA Rubino’s request for a jury instruction on flight as well as any argument at

trial that Mr. Swainson’s travel was evidence of his consciousness of guilt.

7, 8, and 9. Attempt to Apprehend Logs dated 3/1/88 and 3/3/88 and a 3/4/88 Activity

Sheet documenting plans made by Detectives Alexander and Cohen to interview Ms.

Morsell at the suggestion of members of Mr. Opher’s family. (Pl. Exs. 71-73.) Mr.

Swainson argues that these documents impeach Ms. Morsell’s trial testimony and also

impeach the credibility of the police investigation because they could have led his trial

counsel to investigate whether Mr. Opher’s family pressured Ms. Morsell to testify.

We find that Mr. Swainson has submitted evidence that Activity Sheets and Attempt to

Apprehend Logs prepared by Detectives Alexander and Fischer contain information that could

have been used by Mr. Swainson’s trial counsel to impeach prosecution witnesses, attack the police

investigation, or identify alternate perpetrators. Mr. Swainson has also pointed to evidence that

these documents were intentionally concealed and that it was the policy of the PPD that such

documents were not given to prosecutors and, therefore, not turned over to defense attorneys. (See

Santiago Dep. Vol. 1 at 102, 104-05; Rubino Dep. at 56, 168-69.) We conclude, accordingly, that

Mr. Swainson has pointed to record evidence that creates a genuine issue of material fact regarding

whether Detectives Fischer and Alexander engaged in deliberate deception by withholding

exculpatory and impeachment evidence from Defendant and whether this deception affected the

outcome of his trial. See Dennis, 19 F.4th at 291-92; Gladden, 2022 WL 605445, at *6.

Accordingly, we deny the Motions for Summary Judgment with respect to Mr. Swainson’s claim

of deliberate deception in Count II of the Second Amended Complaint.

3. Counts III and VI –Malicious Prosecution

Count III of the Second Amended Complaint alleges a claim of malicious prosecution in

violation of the Fourth Amendment pursuant to 42 USC § 1983 against Detective Santiago and

Detective Fischer. To prove a § 1983 malicious prosecution claim, a Plaintiff must show the

following:

“(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding

ended in [plaintiff's] favor; (3) the defendant initiated the proceeding without

probable cause; (4) the defendant acted maliciously or for a purpose other than

bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty

consistent with the concept of seizure as a consequence of a legal proceeding.”

Rodgers v. Pennsylvania State Police, No. 24-1759, 2025 WL 729497, at *2 (3d Cir. Mar. 7, 2025)

(quoting Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)). While malicious prosecution claims

are most commonly associated with prosecutors, police officers who influence or participate in a

decision to institute criminal proceedings by concealing or misrepresenting material facts to

prosecutors may also be liable for malicious prosecution. Halsey, 750 F.3d at 297 (citation

omitted); Brooks v. Dooley, Civ. A. No. 16-6136, 2017 WL 2480734, at *3 (E.D. Pa. June 7, 2017)

(recognizing that police officers may be liable for malicious prosecution where they “knowingly

provided false information to the prosecutor or otherwise interfered with the prosecutor’s informed

discretion” (citations omitted)).

Count VI asserts a claim of malicious prosecution pursuant to state law. The elements of

a malicious prosecution claim under Pennsylvania law are: “(1) institution of proceedings against

the plaintiff without probable cause and with malice, and (2) the proceedings were terminated in

favor of the plaintiff.” Alleyne v. Pirrone, 180 A.3d 524, 528 n.3 (Pa. Commw. Ct. 2018) (citing

Turano v. Hunt, 631 A.2d 822, 825 (Pa. Commw. Ct. 1993)).

Defendants concede that Plaintiff’s criminal proceeding ended in his favor. (Defs. Mem.

at 16.) They also concede that Plaintiff suffered a deprivation of liberty, since he was incarcerated

for years. (Id.) However, Defendants argue that Detective Fischer is entitled to summary judgment

as to Counts III and VI because Mr. Swainson cannot point to record evidence that would establish

that he acted maliciously or participated in the prosecutorial decision to institute criminal

proceedings against Mr. Swainson by concealing or misrepresenting material facts.

We have concluded that Mr. Swainson has pointed to sufficient record evidence to establish

a genuine issue of material fact regarding whether Detective Fischer engaged in deliberate

deception by concealing exculpatory and impeachment evidence from the prosecution. (See supra

at 26-28.) We further conclude, accordingly, that Mr. Swainson has pointed to sufficient record

evidence to establish a genuine issue of material fact regarding whether, by concealing this

evidence, Detective Fischer maliciously participated in the initiation of criminal proceedings

against him. See Halsey, 750 F.3d at 297.

Defendants also argue that Detective Fischer is entitled to summary judgment as to Counts

III and VI because the police had probable cause to initiate criminal proceedings against Mr.

Swainson. (Id.) “‘[A] finding of probable cause is . . . a complete defense’ to a claim of malicious

prosecution.” Rodgers, 2025 WL 729497, at *2 (second alteration in original) (quoting Goodwin

v. Conway, 836 F.3d 321, 327 (3d Cir. 2016)). “An arrest was made with probable cause if ‘at the

moment the arrest was made . . . the facts and circumstances within [the officers’] knowledge and

of which they had reasonably trustworthy information were sufficient to warrant a prudent man in

believing that [the suspect] had committed or was committing an offense.’” Wright v. City of

Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (alterations in original) (quoting Beck v. Ohio, 379

U.S. 89, 91 (1964)). Defendants argue that the record evidence shows that the police had probable

cause to bring charges against Mr. Swainson based on Mr. Presley’s identification of Mr. Swainson

as the shooter.

The Affidavit of Probable Cause that Detective Santiago prepared to obtain the arrest

warrant for Mr. Swainson includes Detective Santiago’s description of Mr. Presley’s February 12,

1988 identification of Mr. Swainson as the individual who shot Mr. Opher. (Pl. Ex. 28 at D000172-

73.) The Affidavit of Probable Cause states as follows:

Presley states that he would be able to recognize both of the males that were

involved in shooting the decedent. Presley was then shown an array of photos, and

he picks out the photo of Andrew Swinson [sic] (Blood), as the male with the

sawed-off shotgun that shot and killed Stanley Opher.

(Id. at D000173.) ADA Rubino testified at her deposition that she relied on Mr. Presley’s

photographic identification of Mr. Swainson as her basis for probable cause. (Rubino Dep. at 58-

59.) “We give an eyewitness identification significant weight. It satisfies probable cause unless

it is unreliable or undermined by exculpatory evidence.” Pinkney v. Meadville, Pennsylvania, 95

F.4th 743, 749 (3d Cir. 2024) (citing Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000)).

However, when the “witness is the sole source of information, we ‘cast a brighter light’ on his

account to ensure that it is reliable enough.” Id. (quoting Andrews v. Scuilli, 853 F.3d 690, 704

(3d Cir. 2017)). Mr. Swainson has pointed to evidence that Mr. Presley did not identify Mr.

Swainson from an array of photos, as stated in the Affidavit of Probable Cause. (See Harris Decl.

¶ 3.e., Santiago Dep. Vol. 1 at 297-98, Rubino Dep. at 58-60, 130, 134-35; Pl. Ex. 50.) We

conclude, accordingly, that Plaintiff has come forward with record evidence showing that there is

a genuine issue of material fact regarding whether there was probable cause for Mr. Swainson’s

arrest for the murder of Mr. Opher. Consequently, we deny the Motions for Summary Judgment

with respect to Mr. Swainson’s § 1983 claim of malicious prosecution in violation of the Fourth

Amendment in Count III and his state law claim of malicious prosecution in Count VI.

4. Count IV – Civil Rights Conspiracy

Count IV of the Second Amended Complaint asserts a claim pursuant to 42 U.S.C. § 1983

that Detectives Alexander, Fischer, and Santiago conspired to deprive Mr. Swainson of his civil

rights. “To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting

under color of state law ‘reached an understanding’ to deprive him of his constitutional rights.”

Jutrowski, 904 F.3d at 293-94 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52

(1970)). The Third Circuit has explained the elements of a claim of conspiracy to deprive a person

of their civil rights as follows:

“(1) two or more persons conspire to deprive any person of [constitutional rights];

(2) one or more of the conspirators performs . . . any overt act in furtherance of the

conspiracy; and (3) that overt act injures the plaintiff in his person or property or

deprives the plaintiff of any right or privilege of a citizen of the United States,”

with the added gloss under § 1983 that “the conspirators act ‘under the color of

state law.’”

Id. at 294 n.15 (alterations in original) (quoting Barnes Foundation v. Twp. of Lower Merion, 242

F.3d 151, 162 (3d Cir. 2001)). “After a plaintiff establishes that the object of the conspiracy was

the deprivation of a federally protected right, ‘the rule is clear that’ the plaintiff ‘must provide

some factual basis to support the existence of the elements of a conspiracy: agreement and

concerted action.’” Id. at 295 (quoting Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 184-

85 (3d Cir. 2009)). “To show agreement, he must demonstrate that ‘the state actors named as

defendants in the[] complaint somehow reached an understanding to deny [the plaintiff] his

rights[.]’” Id. (first and second alterations in original) (quoting Kost v. Kozakiewicz, 1 F.3d 176,

185 (3d Cir. 1993)). “[I]n the absence of direct proof, that ‘meeting of the minds’ or

‘understanding or agreement to conspire’ can be ‘infer[red]’ from circumstantial evidence[.]” Id.

(second alteration in original) (quoting Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir.

2008)). “Such circumstantial evidence may include that the alleged conspirators ‘did or said

something . . . to create an understanding,’ ‘the approximate time when the agreement was made,

the specific parties to the agreement[,] the period of the conspiracy, or the object of the

conspiracy.’” Id. (alterations in original) (quoting Great W. Mining & Mineral Co. v. Fox

Rothschild LLP, 615 F.3d 159, 178-79 (3d Cir. 2010)). “[I]n the context of an alleged conspiracy

among police officers, [the agreement] may manifest as ‘conversations’ between officers about the

incident, ‘allegedly distorted’ stories that ‘emerged,’ an ‘awareness of conflicting stories’ and

‘irregularities in the series of official investigations’ into the incident.” Id. (quoting Hampton v.

Hanrahan, 600 F.2d 600, 627-28 (7th Cir. 1979), rev’d in part on other grounds by Hanrahan v.

Hampton, 446 U.S. 754 (1980)).

Defendants argue that we should grant summary judgment in favor of Defendants

Alexander and Fischer with respect to Count IV because Mr. Swainson can point to no record

evidence that they entered into an agreement to violate his civil rights or that they took concerted

action in furtherance of such agreement. Mr. Swainson argues that the jury could infer, from

evidence that Detectives Alexander, Cohen, and Santiago coordinated their efforts to falsely show

that Mr. Swainson fled to Jamaica to avoid prosecution, that they entered into the requisite

agreement to violate his civil rights and took concerted action in furtherance of that agreement.

Plaintiff points to record evidence that Detectives Alexander, Cohen, Fischer and Santiago shared

information about their investigative activities in connection with the Opher homicide. (See

Alexander Dep. at 36-37; Fischer Dep. at 51-52.) Specifically, Detective Alexander testified at

his deposition regarding the manner in which he, Detective Cohen, and Detective Santiago shared

information regarding their attempts to apprehend Mr. Swainson:

Q. [T]he way things worked once the fugitive squad got involved is that you and

Detective Cohen and Detective Santiago would be sharing information freely back

and forth about your efforts to apprehend Mr. Swainson and what you learned.

A. Yes.

Q. And likewise, Detective Santiago would be keeping you apprised of any

information he learned relevant to your efforts to locate Andrew Swainson; correct?

A. Yes. It was – probably got information from Manny [Santiago] about anything

that came up as to where Swainson might be.

Q. Right. You were relying on him to freely convey that information to you so

that you could do your job, right?

A. Correct.

Q. All three of you were frequently and freely and openly exchanging information

with one another, correct?

A. Yes, I guess.

Q. That is the way it worked; right?

A. Yes.

(Alexander Dep. at 36-37.) Detective Fischer testified at his deposition that he shared the

information he learned about the Opher murder investigation with Detective Santiago and that

Detective Santiago directed whether Detective Fischer documented his investigative efforts

formally, or in Activity Sheets and Attempt to Apprehend Logs:

Q. . . . when it came to the investigative activities you conducted in this case, you

relayed what you had done and what you had learned to Detective Santiago.

A. That is correct.

Q. Okay. And . . . it was up to Santiago or Santiago and the supervisor, if he chose

to consult with the supervisor, to determine whether you conducted any further

follow-up investigation; correct?

A. That’s correct.

Q. And whether you created official documentation of what you had done; correct?

A. Correct.

(Fischer Dep. at 57-58.)

We find that Mr. Swainson has pointed to record evidence that Detective Alexander took

concerted action with Detective Santiago to violate Mr. Swainson’s civil rights by fabricating

evidence that Mr. Swainson fled to Jamaica to avoid prosecution for Mr. Opher’s murder. We

further find that Mr. Swainson has pointed to record evidence that Detective Fischer took concerted

action with Detective Santiago to violate Mr. Swainson’s civil rights by recording his efforts in

the Opher murder investigation on Activity Sheets, rather than as official documentation that

would be provided to ADA Rubino. We conclude that Mr. Swainson has thus pointed to record

evidence that establishes a genuine issue of material fact regarding whether Detectives Santiago,

Fischer and Alexander entered into an agreement to violate Mr. Swainson’s civil rights and we

deny the Motions for Summary Judgment as to Count IV of the Complaint.

B. The Monell Claim Against the City

Count V of the Second Amended Complaint asserts a § 1983 municipal liability claim

against the City. A municipality “may not be sued under § 1983 for an injury inflicted solely by

its employees or agents.” Monell v Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Rather, to

prove a § 1983 claim against a municipality, a plaintiff must demonstrate that his constitutional

deprivations were caused by (1) an official policy or custom of the municipality or (2) a failure by

the municipality that reflects a deliberate or conscious choice. Id.; see also City of Canton v.

Harris, 489 U.S. 378, 388 (1989); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

403 (1997), Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citing Estate of Roman v. City of

Newark, 914 F.3d 789, 798 (3d Cir. 2019)). “The latter avenue arose in the failure-to-train context,

but applies to other failures and inadequacies by municipalities, including those related to

supervision and discipline of its police officers.” Forrest, 914 F.3d at 798 (citing Estate of Roman,

914 F.3d at 798-99). Mr. Swainson seeks to proceed on his municipal liability claim against the

City under both theories.

The Third Circuit has explained that “[p]laintiffs that proceed under a municipal policy or

custom theory must make showings that are not required of those who proceed under a failure or

inadequacy theory, and vice versa.” Id. “Notably, an unconstitutional municipal policy or custom

is necessary for the former theory, but not for the latter, failure or inadequacy theory.” Id. (citing

Estate of Roman, 914 F.3d at 798). Consequently, a plaintiff asserting that his constitutional

deprivation arose from “an unconstitutional policy must point to an official proclamation, policy

or edict by a decisionmaker possessing final authority to establish municipal policy on the relevant

subject.” Id. A plaintiff challenging a municipal custom “must evince a given course of conduct

so well-settled and permanent as to virtually constitute law.” Id. at 106 (citing Estate of Roman,

914 F.3d at 798). “On the other hand, one whose claim is predicated on a failure or inadequacy

has the separate, but equally demanding requirement of demonstrating a failure or inadequacy

amounting to deliberate indifference on the part of the municipality.” Id. (citing Estate of Roman,

914 F.3d at 798). A plaintiff may show deliberate indifference through evidence that “(1)

municipal policymakers know that employees will confront a particular situation, (2) the situation

involves a difficult choice or a history of employees mishandling, and (3) the wrong choice by an

employee will frequently cause deprivation of constitutional rights.” Id. (citing Carter v. City of

Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)).

1. Municipal Policies and Customs

Mr. Swainson contends that the PPD had an established policy and practice of withholding

Activity Sheets and Attempt to Apprehend Logs from prosecutors and defendants, which resulted

in the unconstitutional suppression of exculpatory information in his case and in turn led to his

arrest, prosecution, and conviction for the Opher murder. As we mentioned above, a plaintiff

relying on a policy or custom to establish municipal liability must identify a policy issued by a

decisionmaker with final authority or a custom or practice that is “so well-settled and permanent

as to virtually constitute law.” Id. at 105-06 (citation omitted). “Once the policy or custom has

been identified, a plaintiff must show a ‘plausible nexus’ or ‘affirmative link’ between the policy

or custom and plaintiff’s specific injury.” Moses-Farrare v. City of Philadelphia, Civ. A. No. 24-

540, 2024 WL 3522192, at *4 (E.D. Pa. July 24, 2024) (quoting Bielevicz v. Dubinon, 915 F.2d

845, 850-51 (3d Cir. 1990)).

Defendants argue that the City is entitled to summary judgment as to this claim because

Mr. Swainson has no evidence that the City had a policy or custom of withholding Activity Sheets

or Attempt to Apprehend Logs from prosecutors and defendants. In response, Mr. Swainson points

to Detective Santiago’s deposition, in which he testified that Activity Sheets were not given to

prosecutors or provided to defendants at the time of Mr. Swainson’s prosecution. (See Santiago

Dep. Vol. 1 at 102-05.) As we discussed above, Detective Santiago further testified that when he

prepared homicide binders to be sent to prosecutors, he did not include Activity Sheets unless the

district attorney made a specific request because the PPD’s policy was to separate the binder given

to the DAO into different categories, none of which included a section for Activity Sheets. (Id. at

104-06.)

ADA Rubino testified during her deposition that Detective Santiago did not include any

Activity Sheets or Attempt to Apprehend Logs in the binder he prepared for the Opher murder

trial. (Rubino Dep. at 56, 77-78, 168-69.) In fact, Ms. Rubino does not believe that she ever saw

any Activity Sheets connected to the Opher murder investigation. (Id. at 141, 169.) Ms. Rubino

also testified during her deposition that she was not aware during Mr. Swainson’s trial of the

Activity Sheet stating that Mr. Swainson had called Detective Santiago upon returning from

Jamaica and stating that Mr. Santiago was not aware that he was wanted for the Opher murder.

(Id. at 71.) She further testified that, if she had been aware of this information, she would have

provided it to the defense and would not have argued flight as consciousness of guilt at Mr.

Swainson’s trial. (Id. at 71-72.)

We conclude, based on this evidence, that Mr. Swainson has not identified an official PPD

policy issued by a decisionmaker with final authority instructing that Activity Sheets and Attempt

to Apprehend Logs should not be provided to prosecutors and defendants. However, he has

pointed to record evidence that it was the PPD’s custom during the relevant time period that

Activity Sheets and Attempt to Apprehend Logs would not be given to ADAs except upon request

and that this custom was followed during the Opher murder investigation.

Defendants also argue that the City is entitled to summary judgment with respect to this

claim because there is no evidence that the withheld documents contained exculpatory information

or that there was an affirmative link between the City’s custom of withholding such documents

and Mr. Swainson’s injuries. We have previously discussed the materiality of nine Activity Sheets

and Attempt to Apprehend Logs that were not provided to Ms. Rubino, which discuss steps that

Detectives Fischer and Alexander took in their investigation of the Opher murder and their attempt

to arrest Mr. Swainson. (See supra Section III.A.2.) We concluded that each of these documents

contains information that Mr. Swainson’s trial counsel could have used for impeachment of the

Commonwealth’s witnesses at trial and/or to further Mr. Swainson’s alternate perpetrator defense,

and that, if ADA Rubino had been aware of some of these documents, she would not have argued

at trial that Mr. Swainson fled to Jamaica to avoid prosecution for Mr. Opher’s murder and would

not have sought a flight to avoid prosecution jury instruction.

Mr. Swainson has also identified additional Activity Sheets prepared in connection with

the Opher murder investigation that were not provided to Ms. Rubino and that he claims contain

exculpatory or impeaching material. Mr. Swainson points to the following:

1. A January 21, 1988 Activity Sheet that describes an interview that Detective

Santiago conducted with Ashley Hines, one of the men arrested on the night of the murder.

(Pl. Ex. 58) The Activity Sheet states that Mr. Hines was given a polygraph examination

on January 21, 1988 and asked whether he knew who shot Mr. Opher, whether he saw who

shot Mr. Opher, and whether he was involved in the shooting of Mr. Opher. (Id.) Detective

Santiago recorded on the Activity Sheet that Mr. Hines responded no to all three questions

and that the polygraph indicated deception in connection with those responses. (Id.) Mr.

Swainson asserts that this Activity Sheet could have been used for impeachment of the

police detectives who conducted the investigation because the charges against Mr. Hines

were dropped even though there was evidence that he had lied to the police.

2. A January 23, 1988 Activity Sheet designated “Dec. Opher, Stanley” that describes

the arrest of Allen Proctor for murder. (Pl. Ex. 34) This Activity Sheet also includes

information regarding Detective Santiago’s interview with Valerie Smith regarding the

Opher murder. (Id.) Mr. Swainson argues that this description of Mr. Proctor’s arrest on

an Activity Sheet that was identified as being part of the Opher investigation, and which

also describes Detective Santiago’s interview of another individual in connection with that

investigation, indicates that Detective Santiago was considering Mr. Proctor in connection

with the murder of Mr. Opher. Mr. Swainson further argues that this Activity Sheet could

have been used to impeach the credibility of Detective Santiago and his investigation of

the Opher murder and could also have been used by Mr. Swainson’s trial counsel in an

investigation of Mr. Proctor in connection with an alternative perpetrator defense.

3. A February 6, 1988 Activity Sheet stating that Lieutenant Durrant contacted New

Jersey State Police to learn whether there was a connection between Brian Brown and Mr.

Presley, who were both on parole from New Jersey State Prison. (Pl. Ex. 63.) Crystal

Justice had previously informed police that she had seen Mr. Brown the night Mr. Opher

was shot, near the location of the shooting, and that Mr. Brown had told her that one of her

friends had been shot or stabbed on 54th and Sansom Streets. (Pl. Ex. 27 at D000333-34.)

Mr. Swainson argues that this Activity Sheet could have been used to impeach the

investigation of the Opher murder because Mr. Brown was cleared as a suspect and also

contends that this Activity Sheet could have led his trial counsel to investigate Mr. Brown

in support of an alternative perpetrator defense.

4. A February 15, 1988 Activity Sheet that describes Detective Santiago’s attempt to

serve Mr. Swainson with an arrest warrant in the murder of Stanley Opher. (Pl. Ex. 64.)

This Activity Sheet states that Mr. Swainson was not present at the address where Detective

Santiago attempted to serve the warrant and that two men at the location told Detective

Santiago that Mr. Swainson was in Jamaica for a holiday and would return soon. (Id.) Mr.

Swainson argues that this Activity Sheet could have been used to impeach Detective

Santiago’s trial testimony and ADA Rubino’s argument and request for a jury instruction

on flight to avoid prosecution.

5. A March 8, 1988 Activity Sheet that describes the phone call that Detective

Santiago received from Mr. Swainson after Mr. Swainson returned from Jamaica. (Pl. Ex.

69) The Activity Sheet states that Mr. Swainson “does not know that he []is currently

wanted for murder, and the information was not given to [him].” (Id.) Mr. Swainson

argues that this Activity Sheet could have been used by his trial counsel to impeach

Detective Santiago’s trial testimony, to oppose ADA Rubino’s request for a jury instruction

on flight to avoid prosecution, and to oppose any trial argument that Mr. Swainson fled to

Jamaica to avoid prosecution.

We conclude that these Activity Sheets and Attempt to Apprehend Logs contain

information that could have been exculpatory to Mr. Swainson or could have been used by his trial

counsel to impeach the Commonwealth’s witnesses at trial. We further conclude, accordingly,

that Mr. Swainson has pointed to record evidence that creates a genuine issue of material fact

regarding whether there was an affirmative link between the City’s custom of failing to provide

prosecutors with Activity Sheets and Attempt to Apprehend Logs and the falsified and suppressed

evidence that led to his conviction. Accordingly, we deny the Motions for Summary Judgment

with respect to this argument.

2. Failure to Supervise or Discipline

Mr. Swainson also claims that the violations of his constitutional rights occurred because

the City failed to supervise and discipline detectives in the PPD’s homicide division regarding

proper investigative practices and allowed detectives to engage in misconduct, including the

fabrication of evidence, the coercion of witness testimony, and the suppression of exculpatory

evidence.6 Defendants argue that the City is entitled to summary judgment as to this aspect of Mr.

6 Defendants move for summary judgment with respect to any failure to train claim because

Mr. Swainson has not pointed to evidence of any necessary training that the City failed to provide

for its police officers. We agree that Mr. Swainson has not pointed to such evidence, but note that

it does not appear that his Monell claim relies on a failure to train. Nonetheless, we grant the

Swainson’s Monell claim because Plaintiff has no evidence that would establish that the City failed

to supervise or discipline its detectives with deliberate indifference to Mr. Swainson’s

constitutional rights.

Mr. Swainson relies on the report prepared by his police practices expert, Michael K.

Lynch.7 (Pl. Ex. 81.) Mr. Lynch, who has 32 years of experience in law enforcement, currently

serves as the Chief of Staff of the Camden County Police Department. (See Lynch Rpt. Ex. B. at

1.) In his previous position, as Senior Policy Advisor at the Camden County Police Department,

he advised the Chief of Police on investigative practices and operational protocols. (Id.) Mr.

Lynch reviewed the following documents, among others, in the preparation of his report in this

case: deposition transcripts of Detective Santiago, Detective Fischer, and Judith Rubino; the

PPD’s homicide file for Stanley Opher; newspaper articles about police misconduct and corruption

in Philadelphia published by the Philadelphia Inquirer, the New York Times, and the Washington

Post; pleadings, opinions, and consent decrees in lawsuits brought against the City of Philadelphia

for police misconduct; as well as documents related to 25 other cases involving claims of wrongful

conviction caused by PPD misconduct, including newspaper articles, pleadings, interviews, court

opinions, and homicide files. (Id. Ex. A.) Mr. Lynch opined, based on the documents he reviewed,

as follows:

since the late 1970s, PPD leadership has been on notice that its officers, especially

the detectives in its Homicide Division, have routinely violated the most basic legal

limitations on law enforcement officer conduct. They have engaged in the outright

fabrication of evidence, the coercion of witness testimony while recklessly

Motions for Summary Judgment with respect to Count V to the extent this claim relies on the

City’s failure to train its police officers.

7 Defendants’ argument that we should grant summary judgment in their favor with respect

to this claim largely repeats their Motion to Preclude Mr. Lynch’s testimony and report. (Docket

No. 82.) We denied that Motion in a Memorandum and Order filed simultaneously with this

Memorandum and do not repeat our analysis of Defendants’ arguments herein.

disregarding the falsity of such testimony, and the suppression and concealment of

material evidence. They have also routinely ignored leads pointing to the true

perpetrators of criminal offenses. Through repeated publicity about notorious

scandals, PPD leadership have learned of this conduct and, in response, have paid

lip service to the need for reform. In each instance, however, PPD leadership has

failed to implement meaningful changes in practice that remedy and prevent

instances of misconduct.

This is most apparent in the longstanding failures of PPD’s disciplinary system.

Law enforcement agencies cannot secure their employee officers’ compliance with

legal obligations without the promise of accountability for misconduct.

Investigations that give officers the benefit of the doubt and mete out minimal, if

any, discipline even in cases of gross misconduct, provide officers with the clear

message that they can violate established legal and departmental rules with

impunity. As such, the lack of effective discipline fosters a culture of misconduct

that leads to the routine violations of civilians’ rights under the U.S. Constitution.

(Id. at 27-28.)

Mr. Lynch also specifically addressed evidence that he reviewed with respect to wrongful

conviction lawsuits brought against Detective Santiago and the City of Philadelphia by the

following: (1) Anthony Wright, who was convicted of the 1991 rape and murder of an elderly

woman based on a coerced confession obtained by Detective Santiago and spent nearly 25 years

in prison before his conviction was overturned based on DNA evidence that excluded him as the

perpetrator (id. at 15-16); (2) Percy St. George, who was charged with murder and spent 13 months

in jail based on a photo identification that Detective Santiago pressured a teenager to make, even

though the teenager had not been a witness to the murder (id. at 16-17); and (3) James Dennis,

who was convicted of the 1991 murder of a teenage girl in Philadelphia based on eyewitness

identifications and was released from prison after 25 years based on evidence that the

identifications were based on improper conduct by Detective Santiago, including the compilation

of suggestive photo arrays and the suppression of information regarding other suspects who

confessed to the crime (id. at 17). Mr. Lynch opined, based on this evidence, that Detective

Santiago:

may have engaged in egregious and sometimes illegal activity for years while

investigating the PPD’s most serious cases, [and] there should be a complete

investigation into him and an audit of homicide cases that led to convictions that

remain undisturbed. Such an investigation should address whether Santiago has

committed perjury in other cases. Given the similarity, numerosity, and gravity of

the allegations of misconduct in the homicide division during the time periods

described[,] the failure to fully investigate the similar allegations of investigative

misconduct by detectives within that unit falls short of minimally accepted practices

for supervision and discipline and raises serious concerns about PPD’s commitment

to preventing and disciplining investigative misconduct and protecting the

constitutional rights of individuals.

(Id. at 28.) Mr. Lynch also specifically opined regarding the evidence that he has reviewed of 25

other wrongful convictions:

[t]he multiple wrongful convictions outlined above illustrate the clear and

foreseeable results of such lack of discipline and, further, confirm[] the absence of

effective training and supervision. In the years before the 1988 Opher murder

investigation, PPD leadership had notice of multiple homicide arrests and

prosecutions that were the result of improper investigative practices, yet they failed

to address those practices. The absence of action set the stage for the conduct that

caused Andrew Swainson’s arrest and prosecution for a crime he did not commit.

The persistent failure to address misconduct . . . continued through the time and

after the Opher murder investigation and into the 1990s and 2000s . . . .

(Id. at 28-29.)

We find that Mr. Swainson has pointed to evidence, specifically Mr. Lynch’s Report, upon

which a jury could determine that the City’s policymakers were aware, prior to Mr. Opher’s

murder, that detectives in the PPD’s homicide division needed supervision and discipline because

the detectives had “engaged in the outright fabrication of evidence, the coercion of witness

testimony while recklessly disregarding the falsity of such testimony, and the suppression and

concealment of material evidence.” (Id. at 27.) Mr. Lynch’s Report also constitutes evidence

upon which a jury could determine that the City was or should have been aware of a history of

officer supervision and discipline being mishandled, specifically Mr. Lynch’s opinion that “[i]n

the years before the 1988 Opher murder investigation, PPD leadership had notice of multiple

homicide arrests and prosecutions that were the result of improper investigative practices, yet they

failed to address those practices.” (Id. at 28-29.) Mr. Lynch’s Report also constitutes evidence

that constitutional violations were likely to occur in the absence of sufficient supervision and

discipline, specifically his opinion that “the longstanding failures of PPD’s disciplinary system . .

. foster[ed] a culture of misconduct that [led] to the routine violations of civilians’ rights under the

U.S. Constitution.” (Id. at 27-28.) We conclude that Mr. Swainson has pointed to record evidence

that creates a genuine issue of material fact regarding whether the City’s failure to supervise and

discipline the detectives in the homicide division of the PPD “amounted to deliberate indifference

to the rights of individuals with whom those officers would come into contact.” Forrest, 930 F.3d

at 108. Accordingly, we deny Defendants’ Motion for Summary Judgment as to Mr. Swainson’s

Monell claim that the City failed to discipline and supervise its police officers in deliberate

indifference to his constitutional rights.

IV. CONCLUSION

For the reasons stated above, we deny the Motions for Summary Judgment with respect to

Counts I-VI of the Second Amended Complaint except as follows: (1) the Motions for Summary

Judgment are granted as unopposed with respect to Mr. Swainson’s fabrication of evidence claim

against Detective Fischer in Count I; (2) the Motions are granted with respect to Mr. Swainson’s

claim in Count I that Detective Alexander procured Ms. Morsell’s false trial testimony; (3) the

Motions are granted as unopposed as to Mr. Swainson’s malicious prosecution claims against

Detective Alexander in Counts III and VI; (4) the Motions are granted as to Mr. Swainson’s

municipal liability claim against the City in Count V to the extent that the claim is based on a

failure to train the City’s police officers. In addition, all claims asserted against John Della Rocca

as the personal representative of Detectives Cohen and Miller and Lieutenant Durrant are

dismissed by agreement of the parties. An order follows.

BY THE COURT:

/s/ John R. Padova

____________________________

John R. Padova, J.