SIEHL v. CITY OF JOHNSTOWN et al

Filing 51

MEMORANDUM OPINION denying Motion to Dismiss [ECF No. 24] filed by Defendants Cambria County, Tulowitzki, and Lovette and denying Motion to Dismiss [ECF No. 28] filed by Defendants Brant and Ermlick. All Motions to Dismiss on the grounds of absolute or qualified immunity will be denied without prejudice to raising the issue after the close of discovery on summary judgment. The Court acknowledges Plaintiff's voluntary dismissal of the supplemental state law claim at Count VIII against Defendants Brant and Ermlick. An appropriate Order follows. Signed by Magistrate Judge Lisa Pupo Lenihan on 2/13/2019. (vad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEVIN SIEHL,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF JOHNSTOWN, CAMBRIA
)
COUNTY, DAVID TULOWITZKI,
)
DANIEL LOVETTE, MERRILL BRANT, )
SCOTT ERMLICK, ANGELO
)
CANCELLIERE, and LAWRENCE
)
WAGNER,
)
)
Defendants.
)

Civil Action No. 18-77J

Magistrate Judge Lenihan

Re: ECF Nos. 24 & 28

MEMORANDUM OPINION
Presently before the Court in this civil rights action filed pursuant to 42 U.S.C. § 1983 are
motions to dismiss. The underlying facts and circumstances concern the alleged misconduct of
law enforcement officers from multiple agencies—Defendant City of Johnstown Police
Department (“Defendant Johnstown”) and its police officers Angelo Cancelliere (“Cancelliere”)
and Lawrence Wagner (“Wagner”); Pennsylvania State Police Trooper Merrill Brant (“Brant”)
and Pennsylvania State Police forensic scientist supervisor Scott Ermlick (“Ermlick”)1; Cambria
County’s District Attorney’s Office (“Defendant Cambria County”) and its Assistant District
Attorneys David Tulowitzki (“Tulowitzki”) and Daniel Lovette (“Lovette”). These named
Defendants allegedly caused the wrongful conviction and incarceration of Plaintiff Kevin Siehl
(“Plaintiff” or “Siehl”) for the murder of his wife in 1991 for which he spent 25 years in prison.
On July 14, 2016, Plaintiff’s conviction was vacated and the criminal charges against him were
dismissed. For the reasons discussed below, the Motion to Dismiss filed by Defendants Cambria
County, Tulowitzki, and Lovette (ECF No. 24) will be denied. The Motion to Dismiss filed by
1

Defendants Brant and Ermlick are sued in their individual capacities only. (Complaint, ECF No. 1 ¶¶ 12 & 13.)

Defendants Brant and Ermlick (ECF No. 28) will be denied. All Motions to Dismiss on the
grounds of absolute or qualified immunity will be denied without prejudice to raising the issue
again after the close of discovery on summary judgment. The Court also acknowledges
Plaintiff’s voluntary dismissal of the supplemental state law claim at Count VIII against
Defendants Brant and Ermlick.
I.

RELEVANT FACTUAL ALLEGATIONS
In his responsive briefs to the Motions to Dismiss (ECF Nos. 30 & 36), Plaintiff

summarizes the allegations of the Complaint (ECF No. 1) as follows:
A.

The Murder, Forensic Evidence, and alleged Fabricated Connection to
Plaintiff

Christine Siehl was found dead in her bathtub on July 14, 1991. Complaint at ¶¶ 18-19.
Two Johnstown police officers, Defendant Sergeant Angelo Cancelliere and Defendant
Investigator Lawrence Wagner, were assigned to investigate the case. On arrival at Christine
Siehl’s apartment, they found signs of a violent struggle. Id. ¶¶ 20-22. In the bathroom, they
located glass from a broken mirror and kitty litter strewn about the floor and in the bathtub. Id. ¶
22. There was a large amount of blood on the floor, smeared on the wall, and spattered in other
areas, including the bathroom doorframe. Id. Based on her position, investigators believed
Christine Siehl had been placed in the bathtub after she was killed and that the showerhead had
been adjusted to spray water onto her body. Id. ¶ 23.
Defendants Cancelliere and Wagner expected they would be able to locate important
forensic evidence in the bathroom so they requested assistance from the Pennsylvania State
Police. Id. ¶ 24. The next day, Defendant Brant, a Pennsylvania State Police trooper, went to the
apartment to process the scene. Id. ¶ 25. He recovered a single latent fingerprint on the

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showerhead, a number of blood samples from the bathroom, and other items that appeared to
have blood on them, including a towel. Id. ¶¶ 26-27.
Defendants Cancelliere and Wagner decided to focus their investigation on Siehl. Id. ¶¶
28-30. They made this decision despite the fact they were aware of at least two other people who
had motives to harm Christine Siehl: Frank Willis, a man who had been in a relationship with
Christine Siehl while she was married to Plaintiff; and Robert “Bobby” Prebahalla, Plaintiff’s
nephew, who was known to have stated that he would kill Christine Siehl if she ever did
anything to hurt Plaintiff. Id. ¶ 31. Cancelliere and Wagner considered Siehl their prime
suspect and informed every other law enforcement officer working on the investigation of their
belief that Siehl was the murderer. Id. ¶¶ 30-32. Based on this belief, the Defendants jointly
agreed to seek out evidence they could use to buttress the case against Siehl. Id. ¶ 33.
In the weeks that followed the murder, Defendants Brant and Ermlick produced reports
asserting that forensic evidence pointed to Siehl’s guilt. They relied on three pieces of evidence.
First, Defendant Brant issued a report stating that the latent print found on the showerhead
belonged to Siehl, and later, Brant informed the other Defendants that because the fingerprint
had not deteriorated it must have been left within the 24 to 36 hours before it was found. Id. ¶¶
35-36. This assertion concerning the timing as to when the fingerprint was left was critical to the
investigating officers as they believed Christine Siehl was killed at approximately 1:30 a.m. on
July 13, a time closely approximating Defendant Brant’s conclusion. Id. ¶¶ 68-70. Defendant
Brant’s assertions regarding the print, however, were false. Id. ¶ 37. Expert analysis conducted
during Siehl’s post-conviction proceedings confirmed that there is no scientific support for the
proposition that a non-deteriorated latent print must be of recent origin, and in any event, the
print found on the showerhead was not a match to Siehl. Id. ¶¶ 37, 39.

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Second, Defendant Ermlick, a forensic scientist supervisor in the Pennsylvania State
Police Greensburg Regional Laboratory, issued a report stating that one of the blood samples
found on the bathroom door frame matched Siehl’s blood. Id. ¶¶ 42-46. This assertion supported
the investigating officers’ theory that the killer had been wounded while repeatedly stabbing
Christine Siehl and had left blood at the scene. Id. ¶ 47. Ermlick’s assertion, however, was false.
Similar to the latent print left on the showerhead, expert analysis during Siehl’s post-conviction
proceedings showed that, given the orientation of the blood spatter, found in a nearly perfect
parallel left-to-right configuration on the doorframe next to a blood stain attributed to Christine
Siehl, the stain could not have come from Siehl. Id. ¶ 48.
The third piece of forensic evidence was Siehl’s L.A. Gear tennis shoes, which
investigating officers claimed were stained with blood. Id. ¶¶ 50-51. After the shoes were
obtained pursuant to a search warrant, Id. ¶¶ 52-53, Ermlick conducted testing on them and
issued a report stating that the “shoes” were “presumptively positive” for blood, an assertion
supporting the investigating officers’ theory that Siehl had stained his shoes while in the bloodsoaked bathroom. Id. ¶¶ 56-57. The assertion in the report was false, as evidenced by Ermlick’s
contemporaneous lab notes (never produced to Siehl until more than twenty years later in postconviction litigation). Id. ¶¶ 58-59. The notes confirmed that there was no evidence of any blood
on both shoes, as the right shoe was “unremarkable.” Id. 58. Further, though the notes reference
a “very light smear in the heal area” of the left shoe, the notes show that Defendant Ermlick
could not confirm that the “smear” was human blood. Id.
Each of Brant’s and Ermlick’s false and misleading assertions in these reports was
provided in an effort to support the investigating officers’ position that Siehl had murdered
Christine Siehl. Id. ¶¶ 38-39, 41, 49, 60. Based on this information, as well as fabricated reports

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of witness interviews prepared by Defendants Cancelliere and Wagner, Id. ¶¶ 68-81, on August
30, 1991, an arrest warrant was issued for Siehl, and he was charged with the murder. Id. ¶¶ 8791. On October 1, 1991, Defendants Tulowitzki and Lovette informed Siehl’s defense counsel
they would seek the death penalty. Id. ¶ 92.
B.

Violation of the Trial Court’s Orders

Defendants Tulowitzki and Lovette, prosecutors employed by the Cambria County
District Attorney’s Office, were involved with the investigation from the earliest stages, and they
too sought out evidence to support their claim that Siehl was the murderer. Id. ¶¶ 36, 49,
60.
1.

Alleged Interference with the Defense Camp

Once Siehl was charged with capital murder, his attorneys recognized that the
prosecution would be based on forensic evidence and sought permission from the trial court to
retain a forensic scientist to consult with them about the case. Id. ¶ 93. The court authorized
retention of an expert as part of the defense team. Id. ¶ 94. Defense counsel asked the
prosecution to turn over evidence so that the expert could conduct an independent investigation,
and the court granted that request. Id. ¶¶ 95-96. The court directed that the prosecution could
have a representative present during the defense expert’s investigation for the limited purpose of
preserving the chain of custody, but the court specifically ordered that the prosecution’s
representative must not be “looking over the [expert’s] shoulder” in any manner that would
interfere with the expert’s independent investigation for the defense. Id. ¶ 96. Despite the order,
Tulowitzki and Lovette viewed the examination as an opportunity to learn about Siehl’s planned
trial defense, and they directed Defendant Brant to observe the examination. Id. ¶¶ 97-98.

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Tulowitzki and Lovette conspired with Brant to seek out privileged and confidential information
from the examination. Id. ¶ 98.2
The defense expert conducted a three-day examination of the forensic evidence in March
1992. Id. ¶ 100. Throughout that examination, Brant violated the trial court’s order—as he was
instructed to do by Tulowitzki and Lovette—and closely observed the defense expert’s
investigation. Id. Brant paid especially close attention to the expert’s examination of Siehl’s
tennis shoes. Id. Following the expert’s evaluation, Brant prepared typewritten notes for
Tulowitzki and Lovette stating that he was certain the defense expert would “answer honestly
that he found some incriminating evidence on the tennis shoe.” Id. ¶ 104. He only acquired this
information due to his interference with the expert’s privileged and confidential evaluation of the
evidence, all in violation of the trial court’s order. Id.
The defense expert had, in fact, informed Siehl’s defense counsel that the shoes showed
evidence supporting the prosecution’s belief that Siehl committed the murder. Id. ¶ 101. The
expert’s conclusions in this regard were erroneous and were later proven groundless in postconviction litigation. Id. ¶ 102. At the time of trial, Tulowitzki and Lovette used the defense
expert’s faulty conclusions to promote the prosecution’s strategic advantage. Despite the
defense team’s indication that they would only present their expert to address limited topics,
Tulowitzki and Lovette informed the trial court (without acknowledging their violation of the
court’s order precluding interference with the defense expert’s evaluation) that they intended to
conduct a thorough cross examination of the expert on all of his findings. Id. ¶¶ 105-06. As a
result, Siehl’s defense counsel decided not to present the expert for any purpose. Id. ¶ 107. Thus,
the actions of Tulowitzki, Lovette and Brant in violating the trial court’s order and improperly

Alternatively, at a minimum, Tulowitzki and Lovette violated the trial court’s order by failing to instruct Brant not
to observe the expert’s investigation. Complaint at ¶ 99.
2

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invading the defense team’s confidential work resulted in Siehl’s inability to defend himself with
any expert testimony on the forensic evidence in the case. Id. ¶ 108.
2.

Failure to Disclose Mid-Trial Testing and Its
Exculpatory Results

On May 11, 1992, the first day of testimony in Siehl’s trial, Defendants Tulowitzki and
Lovette directed Defendant Ermlick to conduct additional testing on the L.A. Gear tennis shoes
taken from Siehl. Id. ¶ 111. Ermlick did so the same day and prepared detailed lab notes of his
evaluation. Id. ¶ 111. In those notes, he made no mention of any blood on the left tennis shoe;
instead, the notes stated only that there was a presumptive bloodstain on the right shoe, which
appeared to be “from the inside out.” Id. ¶ 112. These findings were highly significant for at least
two reasons. First, a bloodstain “from the inside out” corroborated statements Siehl had made to
investigating officers at the outset of the case, that he had injured his right ankle in the week
before Christine Siehl’s murder and that the wound bled in his shoe. Id. ¶ 113(a). Second, the
finding that there was presumptive blood on the right shoe, but not on the left shoe, was directly
inconsistent with Ermlick’s lab notes from his initial testing that the left shoe had a “very light
smear” and that the right shoe was “unremarkable.” Id. ¶ 113(b). Such inconsistencies provided
good reason to question Ermlick’s qualifications as a forensic examiner and the credibility of his
findings as to all forensic evidence in the case. Id. Tulowitzki and Lovette learned of Ermlick’s
findings immediately after Ermlick completed his evaluation. Id. ¶ 114. They knew Ermlick’s
findings corroborated Siehl’s exculpatory statement to police, undermined the prosecution’s
theory of the case, and raised serious questions about the quality and credibility of the entire
investigation preceding Siehl’s arrest—facts that were all highly exculpatory for the defense. Id.
¶ 115. Despite this knowledge, Tulowitzki and Lovette ordered Ermlick not to prepare a formal

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report of his findings, a direction Ermlick memorialized in his file. Id. ¶¶ 116-17. None of the
information from the testing was provided to the defense. Id. ¶ 118.
Tulowitzki and Lovette gave Ermlick these instructions knowing they were violating the
trial court’s order earlier in the case directing them to provide the defense with all reports and
results from forensic testing performed on evidence related to the prosecution. Id. ¶¶ 109, 118.
They continued to willfully violate the trial court’s order as the trial progressed. When Ermlick
was called to the stand, he testified consistently with his earlier formal report (which had been
disclosed to the defense) that there was a stain on the shoes presumptively positive for blood. Id.
¶ 120. During the testimony, the trial judge asked Tulowitzki and Lovette whether any additional
testing had been conducted on the shoes. Id. ¶ 122. Knowing that the trial judge had earlier
ordered them to disclose the results of all forensic testing and that the trial judge would order
them to turn over the results of Ermlick’s mid-trial testing, Tulowitzki lied to the trial judge and
stated that no additional testing had been conducted. Lovette failed to correct Tulowitzki’s false
statement to the court. Id. ¶ 123. Due to Tulowitzki’s and Lovette’s violation of the trial court’s
order, Siehl’s defense counsel was prevented from obtaining the significant exculpatory
information which undermined the prosecution’s theory of the case and supported Siehl’s
defense. Id. ¶¶ 119, 121.
C.

Ermlick’s Consumption of the Biological Evidence

The evidence recovered in Christine Siehl’s apartment included an abundance of
biological material which the investigating officers believed contained the murderer’s blood and
which could have been submitted for DNA testing. Id. ¶ 63. On August 1, 1991, Ermlick,
before he issued his final report, told Defendant Wagner that he believed Siehl’s blood was in a

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sample taken from the bathroom doorframe and on a towel. Id. He suggested to Wagner that
some of the samples should be sent to a DNA laboratory, at a cost of about $2,250.00. Id.
Despite the obvious benefit of DNA testing—to the prosecution and to Siehl—and the
availability of DNA analysis, the investigating officers failed to ensure that DNA testing was
done. Id. ¶ 64. While law enforcement officials were debating whether and how to pay for
testing, Ermlick consumed all of the blood samples in the non-DNA testing he was conducting
for the prosecution. Id. ¶¶ 65-66. Accordingly, there was no material left for testing. Id. ¶ 66.
D.

The County’s Failure to Issue Protocols for DNA Testing

When Christine Siehl was murdered in 1991, law enforcement agencies throughout the
United States were aware that DNA testing of biological material found in criminal
investigations could provide conclusive evidence of guilt or innocence in a criminal case. Id. ¶
61. Despite this knowledge, Defendant Cambria County, which had policymaking authority
regarding investigative techniques in criminal cases arising in the County, failed to establish any
policies, practice, or protocols concerning DNA testing of biological evidence. Id. ¶¶ 9, 62. In
particular, the County failed to put into place any guidelines concerning payment for DNA
testing in the event it was deemed necessary or helpful in a criminal investigation. Id. The
County failed to do so knowing that persons suspected of criminal offenses could be
conclusively exonerated (or inculpated) through DNA testing. Id.
Evidence recovered in Christine Siehl’s apartment included an abundance of biological
material which investigating officers believed contained the murderer’s blood and which could
have been submitted for DNA testing. Id. ¶ 63. On August 1, 1991, Defendant Ermlick, before he
issued his final report, told Defendant Wagner he believed Siehl’s blood was in a sample taken

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from the bathroom doorframe and on a towel. Id. He told Defendant Wagner that some of the
samples should be sent to a laboratory for DNA testing, at a cost of about $2,250.00. Id.
Rather than conducting the testing, representatives of the Johnstown Police Department,
the Cambria County District Attorney’s Office, and the Cambria County Coroner’s Office
engaged in multiple and time-consuming conversations about who would pay for such testing.
Id. ¶ 65. During that time, Defendant Ermlick consumed all of the blood samples in the nonDNA testing he was conducting for the prosecution. Id. ¶ 66. Accordingly, there was no material
left for testing. Id. ¶ 66. The inability to conduct critical DNA testing, which could have
exonerated Siehl and inculpated the real killer, was the direct result of Cambria County’s failure
to adopt necessary policies and protocols concerning such testing. Id. ¶¶ 66-67.
E.

Siehl’s Post-Conviction Litigation and Exoneration

Following closing arguments emphasizing the forensic evidence falsely connecting Siehl
to the crime, on May 16, 1992, Siehl was convicted of first-degree murder. Id. ¶¶ 125-26. Siehl
pursued post-trial, appellate and post-conviction relief. Twenty years after his conviction, in
November 2012, post-conviction litigation led to discovery which resulted in the production for
the first time in the history of the case Defendant Ermlick’s notes from his midtrial testing of the
L.A. Gear tennis shoes. Id. ¶ 131. Thereafter, additional investigative work resulted in
production of Defendant Ermlick’s lab notes from his original testing in July and August 1991.
Id. ¶ 132. These notes provided conclusive evidence that Defendant Ermlick’s report to
prosecutors concerning the presumptive presence of blood on Siehl’s shoes was false, and
further, supported the conclusion that all forensic testing in the investigation was misleading and
unreliable. Id. ¶¶ 133-34.

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Based on this newly discovered evidence, and following the filing of an additional
postconviction petition, a trial judge vacated Siehl’s conviction. Id. ¶ 136. On October 13, 2016,
the Pennsylvania Attorney General’s office, following an investigation, announced it would not
prosecute Siehl, and the charges against him were dismissed. Id. ¶ 137. In the wake of that
announcement, the District Attorney of Cambria County assured the public that her office, which
had previously employed Defendants Tulowitzki and Lovette, no longer employed anyone
associated with Siehl’s prosecution. Id. ¶ 4.
II.

LEGAL STANDARD
The United States Court of Appeals for the Third Circuit summarized the standard to be

applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must come forward
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), a claimant must state a “plausible” claim for
relief, and “[a] claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Although
“[f]actual allegations must be enough to raise a right to relief
above the speculative level,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth allegations
that raise a reasonable expectation that discovery will reveal
evidence of the necessary element.” Fowler, 578 F.3d at 213
(quotation marks and citations omitted); see also Covington v. Int'l
Ass'n of Approved Basketball Officials, 710 F.3d 114, 117–18 (3d
Cir. 2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other
matters of which a court may take judicial notice, court orders, and exhibits attached to the
complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and
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Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v.
Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider
indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension
Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v.
Cook, 293 F. Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of
which they may take judicial notice, including records and reports of administrative bodies, and
publicly available records and transcripts from judicial proceedings ‘in related or underlying
cases which have a direct relation to the matters at issue.’”) (citations omitted).
III.

LEGAL ANALYSIS
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or any other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .

42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate
that the conduct in the complaint was committed by a person or entity acting under color of state
law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the
Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36
F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a
remedy for violations of those rights created by the United States Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
A.

MOTION TO DISMISS FILED BY DEFENDANTS CAMBRIA COUNTY,
TULOWITZKI AND LOVETTE (ECF NO. 24)

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Plaintiff’s § 1983 claims against these moving Defendants are as follows:
Count III—Violation of Brady v. Maryland against Defendants Tulowitzki and
Lovette;
Count IV—Violation of Right to Counsel and Right to a Fair Trial against
Defendants Tulowitzki and Lovette; and
Count VII—Failure to Implement DNA Policies, Practices, and Procedures
against Defendant Cambria County.
In support of their Motion to Dismiss, Defendants Tulowitzki and Lovette argue that they
are entitled to absolute prosecutorial immunity for Plaintiff’s assertions that they (1) failed to
disclose exculpatory evidence in violation of court orders; and (2) interfered with Plaintiff’s
attorney-client relationship in violation of court orders. Defendant Cambria County argues that
Plaintiff’s allegations that it failed to implement policies and procedures regarding the testing of
DNA evidence fails to state a claim under the municipal liability theory of failure to train.
Plaintiff responds that the actions of these prosecutors in violation of court orders were
non-discretionary and properly classified as administrative in nature, and therefore not protected
by immunity. Plaintiff further responds that because in 1991 it was widely known across the
country that DNA testing could exonerate or inculpate criminal suspects in cases involving
biological evidence, Cambria County’s failure to train its officials on these policies and protocols
evidenced its deliberate indifference to the constitutional rights of its criminal suspects.
1.

Prosecutorial Immunity

Prosecutors are entitled to absolute immunity from suit for actions taken in their role as
advocates for the state. Odd v. Malone, 538 F.3d 202, 207-08 (3d Cir. 2008). Although that
immunity is absolute within its scope, it is not all-encompassing. That is, prosecutors are not
absolutely immune from suit based on investigative or administrative actions or for other

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activities that fall entirely outside their role as advocates. Id. 208, 211. Therefore, challenged
prosecutorial actions must be evaluated individually.
Siehl challenges the following actions of defendant prosecutors: 1) that Defendants
Tulowitzki and Lovette interfered with Siehl’s attorney-client relationship in violation of court
orders and 2) that Defendants Tulowitzki and Lovette failed to disclose exculpatory evidence in
violation of court orders. (ECF No. 1 ¶¶ 146-49.)
a.

Interference with the Attorney-Client Relationship in Violation of Court Orders

Relevant to this challenge to prosecutorial conduct, Plaintiff alleges that the trial court
made clear in its findings and orders that the examination by the defense forensic expert was to
be done with full protection for the privileged and confidential nature of that process. That is,
the trial court permitted the prosecution to have a representative present at the location of the
examination solely for “chain of custody” purposes, and that the prosecution representative
(Defendant Brant), was not permitted to interfere with “the expert’s independent investigation
for the defense.” (ECF No. 1 ¶ 96.) Plaintiff further alleges, as set out above, that as a result of
violating the court order, the prosecutors were given Brant’s type-written notes concluding that
this defense expert (Bennet) would “answer honestly that he found some incriminating evidence
on the tennis shoe.”3 (ECF No. 1 ¶ 104.) The prosecutors informed the court that they intended
to conduct a thorough cross examination of the defense expert. As a result, Siehl’s defense
counsel decided not to present the expert for any purpose, and Siehl was unable to present any
expert testimony on forensic evidence in his defense. (ECF No. 1 ¶¶ 105-08.)
When a court order, by its terms, severely limits a prosecutor’s discretion, the
prosecutor’s duty in the face of such an order is not to advocate, but to comply. The prosecutor’s
duties, at that point, become ministerial or administrative, rather than advocative. Munchinski v.
3

The expert’s conclusions in this regard were proven groundless in post-conviction litigation. (ECF No. 1 ¶ 102.)

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Solomon, No. 17-2633, 2018 WL 4090881, at *4 (Aug. 28, 2018) (citing Munchinski v. Solomon,
618 F. App’x 150, 155-56 (3d Cir. 2015) (“Insofar as the PCRA court’s order did not require
Warman to exercise any discretion to determine if any item was covered by the order, the order
did not require the exercise of a prosecutorial function.”); Odd, 538 F.3d at 214 (“We can
imagine few circumstances under which we would consider the act of disobeying a court order or
directive to be advocative, and we are loath to grant a prosecutor absolute immunity for such
disobedience.”); cf. Reid v. New Hampshire, 56 F.3d 332, 337 (1st Cir. 1995) (holding than an
order requiring the police to turn over “exculpatory” evidence left discretion to the prosecutors).
Taking all of Plaintiff’s allegations as true, as it must at this stage of the proceedings, the Court
finds at the pleading stage that these Defendant prosecutors are not protected by absolute
immunity regarding their alleged interference with the attorney-client relationship in violation of
court orders.
b.

Failure to Disclose Exculpatory Evidence in Violation of Court Orders

Here, the Plaintiff alleges that Defendant prosecutors failed to comply with the court’s
order that Defendant prosecutors provide to the defense all forensic evidence secured in the case.
Plaintiff alleges that during trial, Defendant prosecutors directed Defendant Ermlick to conduct
further testing of the L.A. Gear tennis shoes. Ermlick followed their directive and his findings
would have been very helpful to the defense. Yet, in direct violation of the court’s order,
Defendant prosecutors failed to turn over these new forensic testing results to the defense, nor
did they alert the court or the defense that this additional testing had been conducted. In
addition, the prosecutors further directed Ermlick not to write a formal report regarding the new
findings. Moreover, when asked by the court whether Ermlick had conducted additional testing,

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the Defendant prosecutors denied that the testing had been done, knowing that the disclosure of
Ermlick’s latest findings would seriously undermine their theory of the case.
As discussed above, the Defendant prosecutors’ failure to provide the results of all
forensic testing to the defense was done in violation of a court order. The court order left no
room for the Defendant prosecutors to exercise prosecutorial judgment or evaluation. Instead,
the allegations of the Complaint suggest that they had a non-discretionary duty to abide by the
court’s order and to truthfully answer the court’s inquiry relating to that order. At this point,
their duties became administrative, rather than advocative. Taking all of Plaintiff’s allegations as
true, as it must at this stage of the proceedings, the Court finds at the pleading stage that these
Defendant prosecutors are not protected by absolute immunity regarding their alleged violation
of a court order to turn over all results relating to forensic testing in the case.
2.

Municipal Liability

Finally, Defendant Cambria County moves to dismiss the claim of municipal liability
arguing that Plaintiff is unable to allege that the County had notice that its failure to implement
policies and protocols concerning DNA testing of biological evidence would result in the
violation of the constitutional rights of its criminal suspects.
In Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 (1978), the United States
Supreme Court held that municipalities and other local governmental units are “persons” subject
to liability under 42 U.S.C. § 1983. In so ruling, however, the Court declared that municipal
liability may not be premised on the mere fact that the governmental unit employed the
offending official, that is, through application of the doctrine of respondeat superior. Instead, the
Court concluded that a governmental unit may be liable under § 1983 only when its “policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury.” Monell, 436 U.S. at 694. The “official policy”
requirement distinguishes acts of the municipality from acts of employees of the municipality,
thereby limiting liability to action for which the municipality is actually responsible. Id.
In finding municipal liability pursuant to § 1983, the plaintiff must identify the policy,
custom or practice of the municipal defendant that results in the constitutional violation. Id. at
690-91. A municipal policy is made when a decision-maker issues an official proclamation or
decision. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986), quoted in, Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A custom or practice, however, may consist
of a course of conduct so permanent and widespread that it has the force of law. Andrews, 895
F.2d at 1480. To establish municipal liability based upon a custom or practice, the plaintiff must
demonstrate that the decision-maker had notice that a constitutional violation could occur and
that the decision-maker acted with deliberate indifference to this risk. Berg v. County of
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Finally, Plaintiff must show a causal connection
between the custom or policy and the violation of the constitutional right. Bielevicz v. Dubinon,
915 F.2d 845, 850-51 (3d Cir. 1990). That is, a plaintiff must demonstrate an “affirmative link”
or “plausible nexus” between the custom or practice and the alleged constitutional deprivation.
Bielevicz, 915 F.2d at 850-51.
Where a pattern of constitutionally cognizable injury is not alleged, a Plaintiff may still
make out a claim of § 1983 liability. That is, there may be cases where “the risk of
constitutionally cognizable harm is so great and so obvious that the risk and the failure of
supervisory officials to respond will alone support findings of the existence of an unreasonable
risk, of knowledge of that unreasonable risk, and of indifference to it.” Sample v. Diecks, 885
F.2d 1099, 1118 (3d Cir. 1989). In this instance, it is important for the court to discuss whether

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the Plaintiff has alleged the inference on all three issues. Id.
Here, Plaintiff has sufficiently alleged that the County caused the deprivation of his rights
by its failure to employ policies and protocols regarding the DNA testing of biological evidence
at a time when law enforcement agencies throughout the United States knew that such testing
could provide conclusive evidence of guilt or innocence in a criminal case. Plaintiff further
alleges that the County’s failure to establish guidelines as to who would pay for the testing after
it was determined that such testing was necessary, delayed the DNA testing until all blood
samples were consumed in non-DNA testing. (ECF No. 1 ¶¶ 61-66.) Plaintiff avers as follows:
Had investigating officers conducted or arranged for DNA testing,
that testing could have exonerated Mr. Siehl as none of his blood
or other biological material was present in an area that would show
that he was the murderer. Further, that testing could have provided
evidence as to the identity of the real killer.
(ECF No. 1 ¶ 67.)
Taking all of Plaintiff’s allegations as true, as it must at this stage of the proceedings, the
Court finds at the pleading stage that Plaintiff has sufficiently alleged a claim for municipal
liability against Cambria County.
B.

MOTION TO DISMISS BY DEFENDANTS BRANT AND ERMLICK (ECF
NO. 28)

Plaintiff’s claims against these moving Defendants are as follows:
Count I—Malicious Prosecution
Count II—Fabrication of Evidence
Count III—Violation of Brady v. Maryland
Count IV—Violation of Right to Counsel and Right to a Fair Trial
Count V—Brant only—Right to a Fair Trial for the intentional/reckless use of all forensic
evidence

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Count VIII—State Claim for Malicious Prosecution—the Court recognizes that Plaintiff
voluntarily dismisses the supplemental state law claim for malicious prosecution against
Defendants Brant and Ermlick. (ECF No. 36 at 3 n.1.)
1.

Absolute Immunity Relating to Testimony at Trial

Defendants Brant and Ermlick first argue that they are protected by absolute immunity
for any claims relating to their testimony at Plaintiff’s criminal trial. Plaintiff acknowledges that
they are protected for any false trial testimony, but emphasizes that Plaintiff’s claims are directed
to Defendants’ conduct occurring before and/or outside the context of trial testimony, and
therefore, Defendants’ Motion to Dismiss on this point must be denied. The Court agrees. Most,
if not all, of Plaintiff’s allegations directed towards these Defendants concern facts and
circumstances outside the context of criminal trial testimony. Therefore, general principles of
witness immunity are inapplicable here.
2.

Qualified Immunity

Next, Defendants Brant and Ermlick argue that they are protected by qualified immunity.
The doctrine of qualified immunity provides that “government officials performing discretionary
functions . . . are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person should
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Therefore, government officials
are protected by immunity in their individual capacities unless, “taken in the light most favorable
to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a
constitutional right” and “the right was clearly established” at the time of the alleged
constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). In its discretion, a court may

19

decide which of the two-pronged analysis it will initially undertake in light of the circumstances
presented by the case. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Saucier,
533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he
relevant dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006). “If the officer’s mistake as to
what the law requires is reasonable,” the officer is entitled to qualified immunity. Id. at 492
(internal citations omitted). Further, “[i]f officers of reasonable competence could disagree on
this issue, immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986). See
also Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (“Objective reasonableness is
measured by the amount of knowledge available to the officer at the time of the alleged
violation.”). The burden of establishing the affirmative defense of qualified immunity is on the
defendant. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001).
Importantly, qualified immunity issues, such as whether there was a constitutional
violation, may require the kind of factual context that is available only on summary judgment or
at trial. But when the defense of qualified immunity is raised on a motion to dismiss, the court
must address the issue and accept all allegations of the complaint as true in applying the analysis.
See Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (“[Q]ualified immunity will
be upheld on a 12(b)(6) motion only when the immunity is established on the face of the
complaint.”); Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir.
2014) (focus of qualified immunity analysis is whether facts alleged fall within elements of claim

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and whether it would be clear to a reasonable officer that his conduct was unlawful under
circumstances presented).
a.

Counts I and II—Malicious Prosecution and Fabricated Evidence

Defendants argue that they are entitled to qualified immunity relating to Plaintiff’s claims
for malicious prosecution and fabricated evidence because Plaintiff only complains of
“unreasonable or incorrect forensic conclusions, with which [Plaintiff’s] experts disagree.”
(Defendants’ Brief in Support of Motion to Dismiss, ECF No. 29 at 12.) Defendants continue
that “[f]reedom from wrong opinions is not a right at all,” and that no reasonable officer under
the circumstances “would have understood or realized that making a mistake in testing evidence,
or issuing a conclusion that was questionable or wrong . . . would amount to a constitutional
violation.” (ECF No. 29 at 12-13.) Defendants reiterate these arguments in attempting to
establish that Plaintiff has failed to state a prima facie case of malicious prosecution and
fabricated evidence.
As noted by Plaintiff in his Response, the allegations of the Complaint go much further
than suggested by Defendants. Plaintiff alleges that Defendants acted intentionally, or at a
minimum, recklessly, in reporting false forensic conclusions to support the prosecution’s theory
of the case. Specifically, Plaintiff alleges with sufficient specificity why Brant’s report on
thumbprint deterioration was intentionally or recklessly false (ECF No. 1 ¶¶ 37-41). Plaintiff
further details why Ermlick’s report on blood spatter evidence was intentionally or recklessly
false (ECF No. 1 ¶¶ 44-49). Likewise, Plaintiff sufficiently alleges why Ermlick’s report that the
presumptive blood stain on Plaintiff’s tennis shoes was intentionally or recklessly false (ECF No.
1 ¶¶ 56-60). Moreover, Plaintiff’s allegation that Brant knowingly violated a court order and
Ermlick’s silence when prosecutors lied to the trial judge as to whether any additional testing

21

was done, support Plaintiff’s contentions that both Defendants acted knowingly, intentionally
and maliciously and in bad faith in providing prosecutors with false forensic conclusions.
Taking all of Plaintiff’s allegations as true, and granting Plaintiff every favorable inference
therefrom, Plaintiff has alleged plausible claims for malicious prosecution and fabrication of
evidence pursuant to Twombly.4
Defendants advance no argument as to the second prong of the qualified immunity
analysis- was there clearly established law- in light of their argument that there was no
constitutional violation. In evaluating the second prong of the analysis, the Court must deny
qualified immunity at this stage of the proceedings. In support of his claims for malicious
prosecution and fabrication of evidence, Plaintiff describes Defendants’ conduct that supported
the initiation of charges against him: 1) Brant’s communication of the statement, knowing it was
false, that the latent print on the showerhead was left 24-36 hours before it was located, and the
subsequent report that the print was left by Plaintiff; 2) Ermlick’s false report that the blood stain
on the doorframe was left by Plaintiff; and 3) Ermlick’s false report that there was a
“presumptive” blood stain on Plaintiff’s shoes. If Plaintiff’s allegations are proved to be true
through discovery or at trial, Defendants’ conduct would constitute the violation of clearly
established law that would have been apparent to reasonable police forensic investigators and
scientists in 1991: the right to be free from arrest except on probable cause. See, e.g., Orsatti v.
New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995) (as of 1989, “the right to be free from
arrest except on probable cause was clearly established.”). See generally Wilson v. Russo, 212
F.3d 781, 786-87 (3d Cir. 2000) (Probable cause may be subverted where an officer “knowingly
and deliberately, or with a reckless disregard for the truth, made false statements or omissions

4

Defendants make no further arguments as to why Plaintiff has failed to allege these claims pursuant to Federal
Rule of Civil Procedure 12(b)(6).

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that create a falsehood” and “[s]uch statements or omissions are material, or necessary, to the
finding of probable cause.”) Consequently, the Motion to Dismiss these claims on the grounds
of qualified immunity must be denied at this time.
b.

Counts III and IV—Brady and Fair Trial Violations

In support of their Motion to Dismiss Counts III and IV (Brady and fair trial violations),
Defendants argue that they are protected by qualified immunity because police officers were not
subject to Brady5 at the time of Plaintiff’s trial and conviction in 1991 and 1992. In addition,
Defendants argue that they have been unable to locate a decision that would put Defendant Brant
on notice that his alleged observations during the criminal defense expert’s (Bennett) forensic
evaluation violated the Constitution.
Plaintiff responds that both of Defendants’ arguments are incorrect. Plaintiff concedes
that Brady did not apply to police officers at the time of Plaintiff’s trial and conviction. Plaintiff
contends, however, that Brady is not the source of Plaintiff’s claims against Brant and Ermlick.
Instead, Plaintiff argues that he relies on long established precedent establishing that the Due
Process Clause prohibits officers from engaging in deliberate deception and suppression of
evidence, citing Mooney v. Holohan, 294 U.S. 103, 112 (1935) and Pyle v. Kansas, 317 U.S.
213, 216 (1942).
Plaintiff then directs the Court to Haley v. City of Boston, where the First Circuit Court of
Appeals acknowledged the proscription originating from Mooney and Pyle, stating that
“[d]eliberate concealment of material evidence by the police, designed to grease the skids for
false testimony and encourage wrongful conviction, unarguably implicates a defendant’s due
process rights.” Haley, 657 F.3d 39, 49 (2011). The Haley court concluded that the context of
In Brady v. Maryland, the United States Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process.” 373 U.S. 83, 87 (1963). This duty to disclose applies
“irrespective of the good faith or bad faith of the prosecution.” Id.
5

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Pyle “makes it apparent that this holding encompasses the misconduct of police officers[,]” and
that further progeny clearly established the law regarding concealment by 1972. Id. at 49-52
(citing Napue v. Illinois, 360 U.S. 264, 269 (1959) (Mooney and Pyle extended when “the State,
although not soliciting false evidence, allows it to go uncorrected when it appears.”); Miller v.
Pate, 386 U.S. 1, 7 (1967) (United States Supreme Court “reaffirmed that it would countenance
‘no deviation from th[e] established principle’ developed” in Mooney and Pyle)).
The Court must again deny qualified immunity at this stage of the proceedings.
According to the Complaint, Brant knew that his conclusion regarding the showerhead
fingerprint was false. Ermlick knew that his conclusions regarding the blood splatter and
presumptive bloodstains on Plaintiff’s shoes were false, along with his mid-trial testing showing
that the tennis shoes actually corroborated Plaintiff’s statement to police. Although Plaintiff
invokes Brady in Count III, he also invokes his due process protections under the Fourteenth
Amendment which is sufficient to state a claim pursuant to Mooney and its progeny. Therefore,
Plaintiff’s allegations, if true, would constitute a violation of clearly established law that would
have been apparent to a reasonable officer in 1991.
With regard to Defendants’ statement that they could uncover no precedent that would
have put Defendant Brant on notice that his alleged observations during the Bennett forensic
examination violated the Constitution, Plaintiff directs the Court to Third Circuit caselaw
holding that the government may not interfere with confidential communications between
members of the defense team, citing United States v. Rispo, 460 F.2d 965, 976-78 (1972) and
United States v. Levy, 577 F.2d 200, 207-210 (3d Cir. 1978). In Rispo, the Third Circuit held
that intrusion by the government into the attorney-client relationship violated due process where
a paid government informant participated in a joint trial as a “sham” defendant, and the

24

informer’s court-appointed counsel (who was not aware of the deception) conferred with the codefendants’ counsel concerning trial strategy. Id. at 977-78. In Levy, the United States Court of
Appeals held that the criminal defendant’s Sixth Amendment right to counsel was violated when
a government informant codefendant disclosed defense strategy to the government. See also
United States v. Crow Dog, 532 F.2d 1182, 1197-98 (8th Cir. 1976) (quoting and adopting United
States v. Cooper, 397 F. Supp. 227 (D. Neb. 1975) (violation of Sixth Amendment right to
counsel where government informant gains information relating to charge against criminal
defendant by intruding into attorney-client relationship)).
Therefore, the Court must deny qualified immunity at this stage of the proceedings on
Plaintiff’s claim that these Defendants interfered with the defense team by closely observing the
criminal defense expert’s forensic evaluation and providing confidential information about that
evaluation to the prosecution. In light of this third Circuit precedent, these allegations, if true,
would constitute a violation of clearly established law that would have been apparent to a
reasonable officer in 1991.
c.

Count V—Fair Trial Right under the Fifth and Fourteenth Amendments

Finally, Defendants move to dismiss Count V directed to Defendant Ermlick. Count V
concerns Ermlick’s consumption of all forensic evidence before it could be submitted for DNA
testing “knowing that doing so would preclude Mr. Siehl from obtaining evidence which would
have exonerated him.” (ECF No. 1 ¶150.) Again, Defendants contend that they could uncover
no caselaw dealing with facts where a forensic examiner working with small blood samplings
violated a criminal defendant’s constitutional rights when he used up the evidence in the course
of other biological testing. (ECF No. 29 at 16.) Plaintiff responds that as early as 1988, the
United States Supreme Court addressed this issue holding that due process is violated when a

25

law enforcement officer fails to preserve biological evidence in “bad faith” citing Arizona v.
Youngblood, 488 U.S. 51, 57 (1988). Plaintiff’s averments describe Ermlick’s understanding of
the importance of DNA testing when he suggested to Wagner that some of the samples should
undergo DNA testing. (Complaint ¶ 63.) Yet, Ermlick “deliberately and recklessly consumed all
of the blood samples in his non-DNA testing.” (Id. ¶ 65.)
Here, taking all of Plaintiff’s allegations as true, a reasonable officer in 1991 would have
known that failing to preserve biological evidence in “bad faith” violated a criminal defendant’s
constitutional rights. At this stage of the proceedings, the Court must deny qualified immunity.
IV.

CONCLUSION
For the reasons discussed above, the Motion to Dismiss filed by Defendants Cambria

County, Tulowitzki, and Lovette (ECF No. 24) will be denied. The Motion to Dismiss filed by
Defendants Brant and Ermlick (ECF No. 28) will be denied. All Motions to Dismiss on the
grounds of absolute or qualified immunity will be denied without prejudice to raising the issue
after the close of discovery on summary judgment. The Court also acknowledges Plaintiff’s
voluntary dismissal of the supplemental state law claim at Count VIII against Defendants Brant
and Ermlick.
An appropriate Order will follow.
Dated: February 13, 2019

BY THE COURT

________________
LISA PUPO LENIHAN
United States Magistrate Judge

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