IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joyce Combs :
:
:
v. : No. 1561 C.D. 2013
: Argued: May 12, 2014
Det. Linda Blowes, Badge No. 9107, :
:
Appellant :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: February 17, 2015
This is an appeal from an August 1, 2013 order of the Philadelphia
County Court of Common Pleas (Trial Court) denying the motion of Detective
Linda Blowes (Appellant) for judgment notwithstanding the jury’s verdict finding
her liable for civil damages for malicious prosecution of Joyce Combs (Ms.
Combs) and concluding that Appellant was not immune under the Tort Claims Act1
1
The act for which the “Political Subdivision Tort Claims Act” is the formal title has been
repealed. Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P.S. §§ 5311.101-
5311.803, repealed by the Act of October 5, 1980, P.L. 693. However, the “Tort Claims Act,”
has remained as the “unofficial” title for the successor provisions in the Judicial Code, 42 Pa.
C.S. §§ 8541-8564. The Tort Claims Act shall not shield a local agency employee if it is
judicially determined that the act of the employee caused an injury and that such act constituted
willful misconduct. 42 Pa. C.S. § 8550.
because her conduct amounted to willful misconduct. For the reasons that follow,
we affirm the order of the Trial Court.
Appellant filed an affidavit in support of probable cause and obtained
a warrant for the arrest of Ms. Combs on kidnapping and related charges for the
alleged abduction of Ms. Combs’ four-month old twin granddaughters. All
charges were subsequently dropped and Ms. Combs commenced a civil action
against Appellant for malicious prosecution. The jury returned a verdict in Ms.
Combs’ favor, awarding Ms. Combs one hundred fifty thousand dollars
($150,000.00) in compensatory damages and one thousand dollars ($1,000.00) in
punitive damages. Appellant filed a motion for judgment notwithstanding the
verdict, which the Trial Court denied. Appellant appealed to this Court. The Trial
Court issued a 1925(a) opinion in November 2013 in support of its denial of
Appellant’s Motion for Post-Trial Relief, in which the Trial Court concluded that
the jury could reasonably have found that Appellant’s testimony was not credible,
that Appellant lacked probable cause to arrest Ms. Combs, that Appellant had
recklessly disregarded Ms. Combs’ rights, and that Appellant was liable for
malicious prosecution.
Before this Court, Appellant argues that she relied upon the credible
statement of a single witness, which was sufficient to establish the probable cause
necessary to arrest Ms. Combs. Appellant argues that she had no duty to continue
to investigate or to disprove a complainant that appeared credible and that the Trial
Court erred by equating a negligent or inadequate investigation with a lack of
probable cause. Appellant further argues that even if she lacked probable cause to
arrest Ms. Combs she is immune under the Tort Claims Act because a reasonable
2
jury could not conclude that she knew she was disregarding Ms. Combs’ rights and
acted despite that knowledge.
Ms. Combs argues that the evidence supports the jury’s verdict. Ms.
Combs contends that Appellant made knowing misrepresentations in obtaining the
arrest warrant, fabricated documents and information in order to make it appear to
her supervisors as though she was conducting an investigation, failed to follow
basic police directives, and disregarded exculpatory evidence. Ms. Combs also
argues that the evidence was more than sufficient to satisfy the heightened standard
necessary to overcome Tort Claims Act immunity and that the jury did not err in
concluding that Appellant’s conduct was willful and outrageous rather than merely
negligent.
Overturning a jury’s verdict is an extreme remedy that should not be
done casually. Burkholz v. Department of Transportation, 667 A.2d 513, 516 (Pa.
Cmwlth. 1995). Judgment notwithstanding the verdict is appropriate where a
movant is entitled to judgment as a matter of law, and where the evidence is such
that no two reasonable minds could disagree that the verdict should have been
rendered in favor of the movant. Rohm and Hass Co. v. Continental Casualty Co.,
781 A.2d 1172, 1176 (Pa. 2001). To grant judgment notwithstanding the verdict
because a movant is entitled to judgment as a matter of law, we must review the
record and conclude that “even with all the factual inferences decided adverse to
the movant the law nonetheless requires a verdict” in her favor. Id. (internal
citations omitted). To grant judgment notwithstanding the verdict because no two
reasonable minds could disagree that the verdict should have been entered in favor
of the movant, our review of the evidence must lead inextricably to the conclusion
that a verdict for the movant was beyond peradventure. Id.
3
In each instance, the evidence must be considered in the light most
favorable to the verdict winner, the verdict winner must be given every reasonable
inference of fact arising from the evidence, and any conflicts in the evidence must
be resolved in favor of the verdict winner. Moure v. Raeuchle, 604 A.2d 1003,
1007 (Pa. 1992). Judgment notwithstanding the verdict must only be entered in a
clear case that is free from doubt. Id. Appellate review of the evidence may not be
based on how the court would have voted if it had been the jury, but “on the facts
as they come through the sieve of the jury’s deliberations.” Brown v. Shirks Motor
Express, 143 A.2d 374 (Pa. 1958). It is axiomatic that “in our system of justice,
the jury is sacrosanct and its importance is unquestioned.” Boscia v. Massaro, 529
A.2d 504 (Pa. Super. 1987). Our review must be mindful that the “members of the
jury see and hear witnesses as they testify. They watch them as they sweat, stutter,
or swagger under the pressure of cross-examination. This enables the jury to
develop a feel for the case and its personal dynamics which cannot be conveyed by
the cold printed page of a record reproduced for appellate review.” Id. However,
despite our trust in the jury, its wisdom cannot go unchecked, and where our
review demands it, we will reverse a verdict that runs contrary to the evidence and
the law.
Malicious prosecution is a tort disfavored by the courts; the law favors
encouraging proceedings where there is a good faith belief that an accused may be
guilty and allowing the criminal justice system to stand as the final arbiter of the
question. Miller v. Pennsylvania Railroad Co., 89 A.2d 809, 810 (Pa. 1952);
Corrigan v. Central Tax Bureau of Pennsylvania, Inc., 828 A.2d 502, 506 (Pa.
Cmwlth. 2003). For this reason, the plaintiff bears a heavy burden when bringing a
claim for malicious prosecution and must demonstrate: (i) that the defendant
4
initiated the prosecution without probable cause; (ii) with malice; and (iii) that the
proceedings terminated in the plaintiff’s favor. Simpson v. Montgomery Ward &
Co., 46 A.2d 674, 678-679 (Pa. 1946); Manley v. Fitzgerald, 997 A.2d 1235, 1241
(Pa. Cmwlth. 2010); La Frankie v. Miklich, 618 A.2d 1145, 1148 (Pa. Cmwlth.
1992).
Probable cause does not require an actual showing of criminal
activity; rather, probable cause requires only a substantial chance of criminal
activity or “a reasonable ground of suspicion supported by circumstances sufficient
to warrant that an ordinary prudent person in the same situation could believe a
party is guilty of the offense charged.” Turano v. Hunt, 631 A.2d 822, 825 (Pa.
Cmwlth. 1993); see also Illinois v. Gates, 462 U.S. 213, 233 & 244 n.13 (1983);
Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994); Commonwealth v. Gray,
503 A.2d 921, 926 (Pa. 1985) (adopting the “totality of the circumstances”
standard used in Illinois v. Gates for determining the validity of a warrant).2 The
existence of probable cause is a complete defense to a claim of malicious
prosecution. Turano, 631 A.2d at 824; La Frankie, 618 A.2d at 1148. The want of
probable cause is traditionally a question for the court; however, where facts
material to the issue of probable cause are in controversy, the question is for the
jury to resolve. Kelley v. General Teamsters, Chauffeurs and Helpers, Local
Union 249, 544 A.2d 940 at 941 (Pa. 1988); Miller, 89 A.2d at 809; Turano, 631
2
Philadelphia Police Department Directive No. 139, Section II. Definitions, A. “Probable Cause
– The existence of facts and circumstances that would justify a person of reasonable caution to
believe [i] that an offense has been or is being committed; [ii] that the particular person or item
to be seized is reasonably connected to the crime; and [iii] that the person can be found at a
particular place or the item can be found in the possession of a particular person or at a particular
place.” (Plaintiff’s Exhibit (P Ex.) 41, Directive 139, Reproduced Record (R.R.) at 496a.)
5
A.2d at 825; Wainauskis v. Howard Johnson Co., 488 A.2d 1117, 1122 (Pa. Super.
1985).
In order to demonstrate malice, a plaintiff must demonstrate that “the
primary purpose for which the proceedings were initiated was not to bring an
offender to justice.” Neczypor v. Jacobs, 169 A.2d 528, 531 (Pa. 1961) (quoting
Simpson, 46 A.2d at 678). “Legal malice is not limited to motives of hatred or ill
will, but may consist of defendant’s reckless and oppressive disregard of plaintiff’s
rights.” Hugee v. Pennsylvania R. Co., 101 A.2d 740, 743 (Pa. 1954). The
existence of malice is always a question for the jury and “may be inferred from the
absence of probable cause.” Kelley, 544 A.2d at 941; Hugee, 101 A.2d at 743.
This case presents two issues for our review: the first is whether
Appellant lacked probable cause for the warrant she sought for Ms. Combs’ arrest;
and the second issue is whether Appellant is immune from liability under the Tort
Claims Act.
The circumstances giving rise to the instant matter began on April 14,
2008, when Danielle Morales (Ms. Morales)3 and Lamar Beamer (Mr. Beamer)4
reported to Philadelphia Police Department Officers Lee and Harper that their four-
month old twin daughters, Imani and Izhane Beamer, were taken without
permission by Ms. Morales’ mother, Ms. Combs. (Plaintiff’s Exhibits (P Ex.) 2
and 3, Initial Police Reports, Reproduced Record (R.R.) at 355a, 357a.) The police
3
Danielle Morales has a number of aliases and during the course of the jury trial different
witnesses referred to her by different names. (Beamer Video Deposition, February 22, 2012
(Beamer Dep.) at 18, R.R. at 281a; Jury Trial Transcript August 27, 2012 (N.T. 8/27/12) at 75;
Jury Trial Transcript August 29, 2012 (N.T. 8/29/12) at 63.) For consistency, “Ms. Morales”
will be used to refer to the person known as Danielle Morales.
4
Since the events that are at issue here, Lamar Beamer has adopted the name Shakyil Berry.
(Beamer Dep. at 8, R.R. at 271a.) For consistency, Shakyil Berry will be referred to as “Mr.
Beamer.”
6
reports described both Imani and Izhane as female, 6 pounds 3 ounces, and 21
inches long. (Id.) Imani was reported as having a mole on her right foot between
her toes and a doughnut-shaped birthmark on her right inner thigh; Izhane was
reported as having a mole on her left foot between her toes and a doughnut-shaped
birthmark on her right inner thigh. (Id.) The reports state that the twin babies were
born at Crozer-Chester Medical Center on February 10, 2008, and that there was
no custody dispute with Ms. Combs. (Id.) The reports state that both parents
reported that the twins were “last seen with grandmother who stated that she was
taking [them] to Delaware.” (Id.) Ms. Combs was identified in the reports as
“Joyce Marable” with an address of 5960 L-w Street and a Philadelphia area
telephone number ending with the digits “1948.” (Id.) Ms. Morales’ sister was
identified in the reports as Kimberly Marable with an address of 1728 L-d Street
and her telephone number was given. (Id.) Ms. Morales and Mr. Beamer were
both identified as living at the same address, 1735 D-e Street, and as having the
same telephone number. (Id.)
On April 14, 2008, Appellant began investigating the reported
kidnapping of the missing twins. (Jury Trial Transcript August 27, 2012 (N.T.
8/27/12) at 80; Jury Trial Transcript August 28, 2012 (N.T. 8/28/12) at 145-148.5)
On April 16, 2008 Appellant drafted an affidavit of probable cause for “Joyce
Marable.” (N.T. 8/28/12 at 169.) Following review of Appellant’s draft affidavit,
the District Attorney’s charging office approved charges against “Joyce Marable”
for two (2) counts of Criminal Conspiracy, Unlawful Restraint, Interference- Child,
False Imprisonment, Concealing Whereabouts, Endangering Welfare, and
5
The reproduced record provided by the Appellant does not contain complete transcripts of the
jury trial. Complete transcripts were received by this Court on September 9, 2014. All
references to the trial testimony are to the transcripts received by this Court on September 9,
2014; transcript references do not refer to the reproduced record.
7
Recklessly Endangering Another Person. (P Ex. 6, Affidavit of Probable Cause,
R.R. at 361a; N.T. 8/28/12 at 171, 177.) Appellant filed the following finalized
affidavit of probable cause for the approved charges:
On Monday 4/14/08 at about 7:00PM, parents of the complainants
(missing 2 month old infant girls- twins) were reported missing: Imani
Beamer and Izhane Beamer dobs: 2/10/08 b/f. The girls were reported
by both parents; both stated there is no custody dispute with the
maternal grandmother, identified as defendant #1: Joyce Marable
62/b/f. When interviewed by Det Blowes #9107, at their residence
([D-e] St.) at about 8:54PM on 4/15/08, the parents stated their baby
girls were left in the custody of her sister (Kimberly Marable 45/b/f)
at her residence at [L-d] St, on Tuesday, 4/8/08. The parents were to
pick the girls up on the next day, Wednesday, 4/9/08. However,
because of a sudden appointment, the sister asked if the maternal
grandmother, listed defendant, could watch the girls briefly. The
parents stated they agreed she has watched the girls prior to this and
there was no reason for any concern. The girls were then taken to
5960 [L-w] St, which is the defendant’s residence. Sometime, on
Wednesday 4/10/08, before the parents could pick up the girls, the
defendant packed up all the girls things, including a pack and play
crib, and left for an unknown location in Dover, Delaware. The
defendant’s sister and defendant #2: Aunt Johnnie Mae Walters
58/b/f, informed the parents their father is very ill, and she picked
defendant #1 and the girls up in a new silver Envoy with unknown
Delaware tags and left. She also stated she would return the girls on
Saturday, 4/12/08. The parents stated, they did not give the defendant
any permission to take the girls away into another state nor to keep
them all this time and they demanded their return. Defendants
refused, stating they will return sometime on Saturday, the 12th.
On Saturday, 4/12/08, the maternal grandmother defendant #1 and the
aunt defendant #2, failed to bring the girls home. Later the same
evening the Aunt called and stated their father had passed away and
they would now return the girls on Monday, the 14th. Once again, the
defendants failed to return the girls despite several demands by the
parents. The parents also stated the defendants have failed to tell them
the location of the girls, they now believe are in Wilmington,
Delaware.
8
On Wednesday, 4/16/08, exactly one week later, the defendants still
refuse to return the infant girls to their parents. The parents insist there
is no custody dispute or issue; all computer checks would indicate no
custody dispute or DHS actions involving the missing baby girls. The
most recent communication was at about 3:30PM, on 4/16/08. The
defendants are now demanding the father of the girls to submit to a
drug test before they return their children. The parents believe the
defendants have no intention on bringing the girls home and they
refuse to give their location.
(P Ex. 6, Affidavit of Probable Cause, R.R. at 361a, 362a; N.T. 8/28/12 at 177-
178.)
Ms. Combs was not immediately arrested. Appellant testified that in
the fall of 2008, she received a call from an officer on the fugitive task force,
“Brian”, requesting information on whether the warrant Appellant sought for
“Joyce Marable” was still good. (N.T. 8/28/12 at 196, 232.) Appellant testified
that she checked the National Crime Information Center (NCIC) database to see if
the warrant was still active and checked the Philadelphia Arraignment Reporting
System (PARS) database to see if an arrest had been made, and that upon finding
an active warrant with no reported arrest she communicated that the warrant was
still good. (N.T. 8/28/12 at 238.) On February 29, 2009, Ms. Combs was arrested
in front of her colleagues and students at Bache-Martin Elementary School in
Philadelphia, where she had worked as a teacher’s-aid for severally disabled
children for over fifteen years. (Jury Trial Transcript August 29, 2012 (N.T.
8/29/12) at 96-97, 101, 104-105, 124.) Following Ms. Combs’ arrest, and several
subsequent court appearances, the District Attorney received a letter from Ms.
Morales stating that she had fabricated the existence of the children and the
allegations against Ms. Combs in order to convince Mr. Beamer to reunite with
9
her. (P Ex. 36, Morales Letter to DA Yacoubian, R.R. at 477a; N.T. 8/28/12 at
134, 136; N.T. 8/29/12 at 130.)
The fact that the twins did not exist and were instead a fabrication is a
sensational fact but a fact that is largely irrelevant to this appeal. The main
relevance of this fact is that it demonstrates that Ms. Combs indisputably satisfied
the third prong of her malicious prosecution claim: the proceedings terminated in
her favor. However, the issue of Appellant’s liability cannot be resolved by the
fact that the twins did not exist and the proceedings terminated in Ms. Combs’
favor. A police officer is not a judge or jury; it is not the duty of a police officer to
determine guilt or innocence but to determine whether there is a reasonable basis to
believe there is criminal activity. Manley, 997 A.2d at 1239; De Salle v. Penn
Central Transportation Co., 398 A.2d 680, 683-684 (Pa. Super. 1979).
Previous Pennsylvania cases, Hugee and Neczypor, held that an
inadequate and unreasonable investigation of the circumstances concerning alleged
criminal conduct cannot support a reasonable ground of suspicion, for as the late
Justice Musmanno stated in Neczypor, “when no immediate action is called for and
time may be devoted to adequate preliminary investigation, the protection of the
individual demands such an investigation because the hardships, humiliation,
suspense and expense to which an innocent person is subjected in an improper
prosecution cannot be compensated for by a mere acquittal.” 169 A.2d at 531; see
also Cosmas v. Bloomingdales Brothers, 660 A.2d 83, 86-87 (Pa. Super. 1995)
(“haste or lack of care, however, may be an important issue in the search for
probable cause in a malicious prosecution case”). Probable cause does not exist
where there is evidence of the unreliability of the witness whose statement is relied
upon, where exculpatory evidence is disregarded, and where material facts are
10
withheld or misrepresented; however, a police officer has no duty to investigate
exculpatory evidence that is not readily available, speculative information provided
by the accused, and the statements of a single credible witness may serve as
sufficient evidence of probable cause. See, e.g., Kelley; Hugee; Miller; Turano;
Wainauskis; De Salle.6
In Turano, the plaintiff in a malicious prosecution action argued that a
police officer was liable for an inadequate and unreasonable investigation into
alleged criminal activity because the police officer issued a summons for the
plaintiff’s arrest without interviewing him, inspecting his vehicle, which was
allegedly used in the crime, and without verifying his alibi.7 631 A.2d at 825. Due
to the lack of similar cases in Pennsylvania, this Court examined cases from other
6
Although this jurisdiction does not contain extensive precedent examining probable cause in
the context of malicious prosecution claims, the law in Pennsylvania concerning a police
officer’s duty when establishing probable cause is in accord with decisions reached in other
jurisdictions. See, e.g. Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000) (while a single credible
witness may support probable cause “independent exculpatory evidence or substantial evidence
of the witness’ own unreliability that is known by the arresting officers could outweigh the
identification such that probable cause would not exist.”); Kuehl v. Burtis, 173 F.3d 646, 650
(8th Cir. 1999) (“An officer contemplating an arrest is not free to disregard plainly exculpatory
evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable
cause exists.”); Clipper v. Tacoma Park Maryland, 876 F.2d 17 (4th Cir. 1989) (probable cause
negated by failure to investigate readily available exculpatory evidence and reliance on
speculative information); Boose v. City of Rochester, 71 A.D. 2d 59 (N.Y. App. Div. 1978)
(probable cause negated by failure to verify identity of accused, inclusion of inaccurate
information, and dormant investigation prior to arrest).
7
In Turano the police officer applied for an arrest warrant for Turano on the basis of a statement
from Hunt that “while he was attempting to cross the street, a dark color, older-model station
wagon struck him with the left front fender and continued to drive away.” 631 A.2d at 824.
Hunt further stated that the driver “looked like” Turano, whom Hunt knew, and Hunt later found
the car parked on a street in Carbondale. Id. The police officer located the vehicle in front of
Turano’s store and confirmed that the vehicle belonged to Turano. Id. After receiving a
summons for arrest, Turano contacted the police officer and informed him that he had not hit
Hunt and that he had an alibi. Id. Turano was never contacted by the police for an interview, to
inspect his car, or to verify his alibi. Id. Following a preliminary hearing that was twice
continued, the charges against Turano were dropped. Id.
11
jurisdictions where malicious prosecution claims were brought based on the failure
of a police officer to investigate an alleged defendant’s alibi. Id. at 826. This
Court concluded that where probable cause exists due to a witness’s credible
identification, the failure to investigate evidence that would be beneficial to the
accused, such as an alibi, does not vitiate the reasonable basis for prosecution. Id.
The Turano Court cited with approval De Salle, where the Superior
Court held that probable cause existed for a railroad flagman’s arrest when stolen
property was found in an area over which the flagman and a conductor had
exclusive control, even though had the police checked for fingerprints, the flagman
would have been cleared of wrongdoing. Turano, 631 A.2d at 825. In reaching its
conclusion in De Salle, the Superior Court noted that the arrest was neither
precipitous nor deficient in normal investigative procedures. 398 A.2d at 684. In
addition to relying on De Salle, Turano distinguished a second Superior Court
decision, Wainauskis, because unlike the evidence in Wainauskis, the evidence in
Turano did not demonstrate that material facts were withheld or misrepresented in
order to obtain the summons for plaintiff’s arrest. Turano, 631 A.2d at 825; see
also Commonwealth v. Hall, 302 A.2d 342, 344 (Pa. 1973) (“if a magistrate is
furnished, and reviews falsified averments, he is effectively precluded from
making a detached and objective determination,” of probable cause) (internal
quotations omitted).
In the instant matter, there was sufficient evidence for a reasonable
jury to conclude that Appellant’s affidavit in support of arrest was based upon
material facts withheld or misrepresented, that it disregarded available exculpatory
evidence, and that it was supported by statements from a witness known to be
unreliable. The evidence therefor supports the jury’s determination that Appellant
12
lacked probable cause for the arrest of Ms. Combs and that Appellant prevented a
neutral magistrate from making a detached and objective determination as to
whether to issue a warrant for Ms. Combs’ arrest.
In the affidavit, Appellant states that she interviewed both Ms.
Morales and Mr. Beamer at their D-e Street residence on April 15, 2008. (P Ex. 6,
R.R. at 361a-362a; N.T. 8/27/12 at 134, 136, 184; N.T. 8/28/12 at 51-52,
160.) Appellant testified before the jury that she did not interview Mr. Beamer but
that he was present when she interviewed Ms. Morales. (N.T. 8/27/12 at
184a.) The Investigative Interview Report created by Appellant did not identify
Mr. Beamer as being present at the interview and the only statement relayed by
Mr. Beamer recorded in the report was a quotation attributed to him by Ms.
Morales. (P Ex. 10 Investigative Interview Report, R.R. at 366a-371a; N.T.
8/28/12 at 51.) Mr. Beamer testified that he never met Appellant and that she did
not come to his residence. (Beamer Video Deposition, February 22, 2012 (Beamer
Dep.) at 26, 67, R.R. at 289a, 330a.) Mr. Beamer testified that his only contact
with Appellant was during three phone calls in the month following the initial
police report and that he never spoke with her face to face. (Id. at 83, 85, 86, R.R.
at 346a, 348a, 349a.)
The jury heard evidence that although Mr. Beamer referred to Ms.
Morales as his wife, the two were in fact divorced, and that they maintained
separate residences, with Ms. Morales residing in Delaware County and Mr.
Beamer residing in Philadelphia with his Grandmother Thelma at the D-e Street
address. (Id. at 16, 18 24, 57, R.R. at 279a, 281a, 287a, 320a.) Although the
Investigative Interview Report states that Mr. Beamer’s Grandmother Thelma
spoke with Ms. Combs by phone after Ms. Combs had taken the children,
13
Appellant testified that she did not interview Thelma to corroborate this fact while
at the house because she was told that Thelma was ill; Appellant did not document
the presence or illness of Thelma in the Investigative Interview Report. (N.T.
8/27/12 at 182.)
The Investigative Interview Report states that the interview took place
on April 15, 2008 at 8:54 p.m. (P Ex. 10, R.R. at 366a-371a.) However, the jury
was presented with evidence that Appellant sent a message to a Delaware State
Police terminal at 7:17 p.m. on April 15, 2008 requesting assistance locating
“Joyce Marable” who was last seen in a new silver Envoy with Delaware license
tags. (P Ex. 28, Delaware Terminal Message, R.R. at 446a-451a.) Appellant
testified that she learned of the silver Envoy with Delaware license tags from her
interview with Ms. Morales; this information is not in the initial police report and
the only documentation of the source of this information is the Investigative
Interview Report, which was purportedly created over an hour later in the dining
room of Mr. Beamer’s residence. (N.T. 8/27/12 at 139, 189, 194-195, 197.)
The Investigative Interview Report was not signed by Ms. Morales
and was written in Appellant’s hand, and while Appellant testified that she
recorded Ms. Morales’ words verbatim on the report, Appellant also testified that
Ms. Morales made other statements during the interview that supported Ms.
Morales’ credibility in Appellant’s eyes, which she did not record, such as
explaining the absence of the twins’ effects from the household by stating that the
twins’ belongings were upstairs and at her sister’s house. (P Ex. 10, R.R. at 366a-
371a; N.T. 8/27/12 at 157, 211-212.) This testimony conflicts with the affidavit
and with the statements by Ms. Morales recorded in the Investigative Interview
Report, where Ms. Combs’ is said to have taken all of the twins’ belongings to
14
Delaware. (P Ex. 10, R.R. at 366a-371a; N.T. 8/27/12 at 211-212; N.T. 8/28/12 at
164.) Appellant testified and the evidence demonstrated that at no other time
during the course of Appellant’s investigation did she leave the South Detectives
Division in order to interview any other witness or otherwise investigate the
missing twins. (N.T. 8/27/12, 8/28/12; P Ex. and Defendant’s Exhibit (D Ex.) all,
R.R. at 352a-638a.)
In her statement to Appellant, Ms. Morales did not identify Ms.
Combs’ by her correct name, identifying her instead as “Joyce Marable”; Ms.
Combs has used the name “Joyce Combs” since her divorce in 1974 and it is both
her legal name and the name she is known by. (P Ex. 2, 3, 10, R.R. at 366a-371a;
D Ex. 9 PennDot Record, Interstate Identification Index Record, R.R. at 571a-
579a; N.T. 8/28/12 at 174-175, 179; N.T. 8/29/12 at 94-95.) Appellant was aware
of Ms. Combs’ correct name, but Appellant referred to Ms. Combs as “Joyce
Marable” in the affidavit. (P Ex. 6, R.R. at 361a; N.T. 8/28/12 at 174-175, 178.)
Ms. Morales did not know the correct address for Ms. Combs and reported that she
lived in the 5900 block of L-w street, although she also stated that she had been to
Ms. Combs’ house recently and spoken with a neighbor, Ms. Doral, who told her
that Ms. Combs and Ms. Morales’ Aunt, Johnnie Mae Walters, had taken the twins
away in a silver Envoy with Delaware tags. (P Ex. 10, R.R. at 354a-357a, 366a-
371a; N.T. 8/27/12 at 154, 156-158, 160-161, 163; N.T. 8/28/12 at 24, 30.) The
affidavit does not mention Ms. Doral. Appellant testified that she had problems
locating Ms. Doral, but Appellant also testified that she did not speak with any of
Ms. Combs’ neighbors in an attempt to locate Ms. Doral or ask other police
officers to do so, and Appellant was unable to offer any documentation of a search
for Ms. Doral. (N.T. 8/27/12 at 161; 8/28/12 at 24, 30.) For more than twenty-two
15
(22) years, Ms. Doral has lived four (4) doors down from Ms. Combs on the 5600
block of L-w Street. (N.T. 8/29/12 at 96.) The database searches that Appellant
conducted did uncover Ms. Combs’ correct address, but Appellant did not check
the address, determine whether anyone was living at the address, or put the correct
address in the affidavit. (D Ex. 9; N.T. 8/28/12 at 61-64, 174, 180, 182-183.) Ms.
Combs has lived on the 5600 block of L-w street for over twenty-two (22) years,
during which time she has routinely left for work at six o’clock in the morning
(6:00 a.m.) and returned home by five-thirty in the evening (5:30 p.m.) Monday
through Friday, a routine she followed in April and May of 2008. (N.T. 8/29/12 at
96-100.)
Ms. Morales reported that she had left the twins with her sister,
Kimberly Marable, who had then taken the twins to Ms. Combs’ residence. (P Ex.
10, R.R. at 366a-371a.) The address provided by Ms. Morales on the initial police
report for her sister Kimberly was incorrect and, although Appellant testified that
Ms. Morales stated she regularly left the twins with her sister, Ms. Morales was
unable to specify an address and could name only the street on which her sister
lived. (P Ex. 2, 3, and 10, R.R at 354a-357a, 366a-371a; N.T. 8/27/08 at 153-154,
N.T. 8/28/12 at 123-124, 164.) However, on April 14, 2008, Appellant had run
both PennDot and Voter Registration checks on Kimberly Marable, which had
returned two addresses, one of which matched the street name provided by Ms.
Morales. (P Ex. 32, PennDot Record, R.R. at 466a-467a; D Ex. 3 Voter
Registration Record, R.R. at 523a-527a.) Appellant testified that she tried very
hard to find Kimberly Marable and interview her. (N.T. 8/27/12 at
152.) However, Appellant also testified that she did not check for Kimberly
Marable at either of the addresses her searches had returned; she did, however,
16
proceed as though the L-d Street address, which matched the street name provided
by Ms. Morales, was the correct address. (N.T. 8/27/12 at 172, 199-201; N.T.
8/28/12 at 22-23, 150, 202-203.) Kimberly Marable testified that between April
2008 and February 2009 she was living at the L-d Street address, where she had
been residing for two (2) to three (3) years. (N.T. 8/29/12 at 73.) Kimberly
Marable testified that during this period she was unemployed, and that usually
either she or her son, who was also living in the residence, was at home. (N.T.
8/29/12 at 74.) Kimberly Marable testified that she did not receive a message in
any form from the Philadelphia Police Department asking her to contact
Appellant. (N.T. 8/29/12 at 74-75.)
The Investigative Interview Report records Ms. Morales as stating that
her Aunt Johnnie Mae called and told Ms. Morales that she and Ms. Combs were
keeping the kids in Delaware because Ms. Morales’ grandfather, identified as
Henry Walters, was sick and later because he had died. (P Ex. 10, R.R. at 366a-
371a.) Appellant testified that Ms. Morales was unsure whether her grandfather’s
last name was “Walters” or “Waters.” (N.T. 8/28/12 at 48.) Appellant testified
that she was unable to locate a “Henry Walters” or “Henry Waters” in Delaware
with any connection to the people in this case and that she found no potential
relatives or associated individuals with ties to Delaware in her background check
of Ms. Morales. (P Ex. 16, Ms. Morales’ LexisNexis Background Check, R.R. at
381a-392a; N.T. 8/28/12 at 45, 48-49, 184.) Appellant testified that she found no
record of a “Johnnie Mae Walters.” (N.T. 8/28/12 at 127.) Appellant testified that
she contacted Delaware State Police and that they were unable to find a record of a
new silver Envoy with Delaware tags. (N.T. 8/28/12 at 75, 127, 154.) Appellant
testified that the Delaware number Ms. Morales had provided as the number
17
“Johnnie Mae Walters” and Ms. Combs had called from was the number for ICA
Americas, Inc., and that she did not notice that the final four digits of the Delaware
number were identical to the final four digits of the Philadelphia number Ms.
Morales had provided for Ms. Combs. (N.T. 8/27/12 at 203-204; N.T. 8/28/12 at
73-74.)
Prior to swearing out the affidavit of probable cause for Ms. Combs’
arrest, Appellant was unable to corroborate any of the information provided by Ms.
Morales and Appellant consistently uncovered information that conflicted with
what Ms. Morales reported. (N.T. 8/28/12 at 105-106, 133.) Appellant also
learned that Ms. Morales had a number of aliases and a criminal record which
included charges for fraud and theft. (P Ex. 15, Morales’ Criminal Record, P Ex.
16, R.R. at 376a-392a; N.T. 8/28/12 at 41-42, 139.) Appellant did not speak to
Officer Lee, the officer who took the initial report of the missing twins. (N.T.
8/27/12 at 75, 95-96, 115.) Appellant did not interview Ms. Morales a second time
and testified that her sole contact with the parents after her initial interview of Ms.
Morales was a few telephone calls between Mr. Beamer and herself. (N.T. 8/28/12
at 87, 110-111; see also Beamer Dep. at 69, 86, R.R. at 332a, 349a.)
A reasonable jury could conclude that Appellant lacked probable
cause for the arrest of Ms. Combs and that Appellant’s affidavit in support of
probable cause effectively precluded the magistrate from making a detached and
objective determination that a warrant should be issued for Ms. Combs. See Hall,
302 A.2d at 344; Cosmas, 660 A.2d at 87 (a determination of probable cause
“depends on whether it was reached by fair and complete means, or whether it was
a product of some act or omission of defendants that may have tainted the
proceedings”). The affidavit states that both parents were interviewed in person.
18
The jury heard evidence to the contrary. The affidavit does not disclose that the
only source relied upon for the information contained within its four corners is Ms.
Morales. The affidavit conceals the fact that it is based solely on hearsay and
double hearsay. The affidavit omits mention of Mr. Beamer’s grandmother
Thelma and Ms. Comb’s neighbor Ms. Doral, making information supposedly
gleaned from them appear to have a different source. The affidavit does not
disclose that the vehicle described does not exist. The affidavit does not reveal that
Appellant could not find a record of “Aunt Johnnie Mae Walters,” a record of the
supposedly ill father, or a record of a familial relation to Ms. Morales living or
having lived in Delaware or a familial relation or associated individual named
“Walters.” The affidavit offers no hint that even the relatively minor steps
Appellant took to corroborate Ms. Morales’ statements by running database checks
only revealed contradictory information. The affidavit does not contain
information known to Appellant that would raise questions concerning the
credibility and reliability of Ms. Morales.
Based on the evidence when viewed in the light most favorable to Ms.
Combs as the verdict winner, a reasonable jury could conclude that Appellant
lacked probable cause to arrest Ms. Combs and that she deliberately
misrepresented and withheld material facts to make it appear as though she had
probable cause for arrest. Furthermore, because malice can be inferred from a lack
of probable cause, the want of probable cause supports a finding of malice. Even if
the lack of probable cause alone did not support a finding of malice, a reasonable
jury could conclude that Appellant’s actions demonstrated a complete disregard for
Ms. Combs’ rights.
19
Next, we address whether the Tort Claims Act provides Appellant
immunity from liability for malicious prosecution. The Tort Claims Act provides
immunity from tort liability for local agency employees acting within the scope of
their duties that cause injury to persons or property for which they would otherwise
be liable. 42 Pa. C.S. §§ 8541, 8545. However, the Tort Claims Act rescinds
immunity for local agency employees who cause an injury to persons or property
where it is “judicially determined that the act of the employee caused the injury
and that such act constituted a crime, actual fraud, actual malice or willful
misconduct.” 42 Pa. C.S. § 8550. Our Supreme Court held in Renk v. City of
Pittsburgh, 641 A.2d 289 (Pa. 1994), that a judicial finding that a local agency
employee committed an intentional tort, alone, is insufficient to establish willful
misconduct; instead, the evidence must demonstrate that the local agency
employee intended to commit the wrongful act. Following Renk, the Tort Claims
Act has been interpreted as providing immunity for the intentional tort of a local
government employee, such as a police officer, unless there is evidence of willful
misconduct aforethought—that the local government employee knew the act was
wrong and acted with that knowledge. Kuzel v. Krause, 658 A.2d 856, 860 (Pa.
Cmwlth. 1995). We conclude that the evidence in the instant matter, when viewed
in the light most favorable to Ms. Combs, is sufficient to support the determination
of the jury and the Trial Court that Appellant knew her investigation of the missing
twins was inadequate and that she did not have probable cause for the arrest of Ms.
Combs, and that Appellant acted with this knowledge to cause the arrest of Ms.
Combs.
First and foremost, as detailed above, the evidence supports the
conclusion that Appellant knowingly made material misrepresentations and
20
omissions in her affidavit of probable cause. However, the record also contained
voluminous evidence of Appellant’s overall deficient investigation, which supports
the conclusion that Appellant’s conduct was willful, deliberate and knowing.
The jury heard evidence that Appellant’s investigation consisted
almost entirely of database searches. The jury heard evidence that Appellant’s
investigation did not take her past the threshold of the Philadelphia Police
Department South Detectives Division. The jury heard evidence that Appellant did
not check Ms. Combs’ residence, did not interview Mr. Beamer or his
grandmother, did not check Kimberly Marable’s residence or interview her, and
did not speak to the responding officer. In addition, the jury heard evidence that
Appellant failed to follow police directives in her investigation of the missing
twins.
Appellant testified that she knew what to do when investigating
missing persons because the police department has directives and that she is
familiar with those directives, including Philadelphia Police Department Directive
51, which identifies steps to follow when investigating missing persons. (P Ex. 40,
Directive 51, R.R. at 478-493; N.T. 8/27/12 at 81-82, 115, 216.) Appellant failed
to discuss issuing an amber alert with her superiors, Appellant failed to request
samples of the twins’ DNA, Appellant failed to search the twins’ residence,
Appellant failed to verify the information provided by Ms. Morales, and Appellant
failed to reinterview the parents within seventy-two (72) hours and once a week
within the first month of the missing persons reports; each of these steps is
identified in Directive 51 as required procedure when persons of tender age are
reported missing. (P Ex. 40, R.R. at 478-493; N.T. 8/28/12 at 100, 105-106, 107,
110-111, 206-208.) Appellant did enter the missing twins into the NCIC database
21
as required by Directive 51, but she testified that she did so because she was
directed to by a superior officer, Sergeant Sprawls. (N.T. 8/27/12 at 81-82.)
Appellant’s investigation began on the 14th of April 2008 and the
warrant for Ms. Combs was issued on the 19th of April 2008. Appellant did not
work on the 17th and 18th of April 2008. (N.T. 8/28/12 at 172.) Sergeant Sprawls
testified that in a missing persons investigation involving individuals of tender age
there should be continuous investigation by other shifts of detectives, even if the
assigned detective is off, and that other detectives were available to assist
Appellant; Appellant did not request any assistance in her investigation while she
was off on the 17th and 18th. (N.T. 8/28/12 at 65-66; N.T. 8/29/12 at 32, 35.)
When Sergeant Sprawls reviewed Appellant’s file and left her a note asking her
about the absence of birth certificates and vital statistics, and who “Grandma
Thelma” was, Appellant did not follow up. (P Ex. 29, Spawls Note; N.T. 8/29/12
at 25, 54-55.)
Appellant authored an internal memorandum to update her chain of
command on the status of the investigation, entitled a “White Paper,” on April 15,
2008. (P Ex. 11, 4/15/08 White Paper, R.R. at 372a; N.T. 8/27/12 at 78-79.)
Appellant authored a second White Paper on May 15, 2008. (P Ex. 12, 5/15/08
White Paper, R.R. at 375a.) In the second White Paper, Appellant has corrected
Ms. Combs’ address, stated she has no further information on “Johnnie Mae
Walters or Waters”, and noted that she contacted the Postal Inspectors Offices for
any possible addresses; otherwise, the two White Papers are almost identical in
content, if not form. (P Ex. 12, R.R. at 375a.) Appellant offered conflicting
testimony concerning the White Papers, testifying that she may have rewritten the
first White Paper because she didn’t like the wording and then that she authored an
22
updated White Paper in May because she had a different superior in May than she
did in April. (N.T. 8/28/12 at 54-58, at 193-194.) Like the affidavit, the White
Papers state that Appellant took actions that the jury had evidence to believe she
did not take and the extent to which Ms. Morales is the source for the information
in the White Papers is obscured, while the information casting doubt on Ms.
Morales’ statement is omitted. (P Ex. 11 and 12, R.R. at 372a, 375a.)
Following the issuance of the arrest warrant for Ms. Combs,
Appellant’s investigation all but ceased. The evidence showed that on May 6th she
sent a message to the 19th District asking them to leave a message for Kimberly
Marable at her door, but that she did not follow up on this request. (P Ex. 25,
5/6/08 Mssg. to 19th District; N.T. 8/27/12 at 169; N.T. 8/28/12 at 22-23, 186.)
On May 13th, Appellant sent a message to the Postal Inspectors Office requesting
address information and on May 15th, Appellant authored the second White Paper.
(N.T. 8/28/12 at 193.) Thirty days after the twins were reported missing, Appellant
was supposed to transfer a copy of her file to the Long Term Missing Persons
(LTMP) unit. (N.T. 8/28/12 at 113.) While the LTMP unit requires missing
persons files to include birth certificates before it will accept transfer of a file, an
officer in the LTMP unit accepted the file as a courtesy to Appellant on the
condition that Appellant supplement the file with the birth certificates. (N.T.
8/28/12 at 115-116.) Appellant did not supplement the file with the birth
certificates and testified that she never contacted the hospital where the twins were
reported to have been born or otherwise attempted to acquire the birth certificates
personally. (N.T. 8/28/12 at 116-117.)
After authoring the second White Paper, Appellant did nothing more
to investigate the circumstances surrounding the report of the missing twins and in
23
August 2008 she transferred to the Special Victims Unit. (N.T. 8/28/12 at 97.)
However, because Appellant was still responsible for the warrant for Ms. Combs,
Appellant was contacted by “Brian” from the fugitive task force in the fall of 2008
to determine the validity of the warrant. (N.T. 8/28/12 at 196, 232-233, 237.)
Appellant did not refer him to the LTMP unit. (Id.) Appellant did not contact Ms.
Morales or Mr. Beamer or conduct any review of her investigation to determine
whether probable cause still existed for Ms. Combs’ arrest. (Id.) Philadelphia
Police Department Directive 139 requires that once an arrest warrant is issued, the
officer who initiated the arrest warrant shall proceed with “due diligence” to
execute the warrant and keep it active by making frequent and thorough attempts to
arrest the individual named, and by ensuring every thirty (30) days that the
information on which the warrant is based remains reliable and contemporary. (P
Ex. 41 Directive 139, R.R. at 495a-506a.) Appellant did not proceed with “due
diligence” following the issuance of the arrest warrant for Ms. Combs and when
contacted in fall 2008 concerning the viability of the warrant, Appellant made no
attempts to comply with Directive 139. (N.T. 8/28/12 at 120-121, 196, 232-233.)
In sum, Appellant offered conflicting testimony, convenient
recollections, and scant documentary evidence of her investigation that lacked
basic details such as dates of actions taken and the names of individuals she spoke
with. Appellant did not follow basic police procedure or direction from her
superiors. Appellant made false statements and obscured her lack of investigation
in her written reports to her superiors. Appellant made material misrepresentations
and omissions in her affidavit in support of probable cause for the arrest of Ms.
Combs. The evidence, when viewed in the light most favorable to Ms. Combs, is
sufficient to support the conclusion that Appellant knew that her actions were
24
wrong and continued to act despite that knowledge; Appellant is therefore not
immune from liability for malicious prosecution under the Tort Claims Act.
Accordingly, because we find no basis upon which to overturn the
jury’s verdict, the order of the Trial Court denying Appellant judgment
notwithstanding the verdict is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joyce Combs :
:
:
v. : No. 1561 C.D. 2013
:
Det. Linda Blowes, Badge No. 9107, :
:
Appellant :
ORDER
AND NOW, this 17th day of February, 2015, the order of the
Philadelphia County Court of Common Pleas denying the Motion of Det. Linda
Blowes, Badge No. 9107, for Judgment Notwithstanding the Verdict in the above-
captioned matter is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joyce Combs :
:
v. : No. 1561 C.D. 2013
: Argued: May 12, 2014
Det. Linda Blowes, Badge No. 9107, :
Appellant :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY
JUDGE LEADBETTER FILED: February 17, 2015
Detective Blowes’ investigation was sloppy without a doubt.
However, there is no evidence that she bore any ill feelings toward Ms. Combs,
and I do not believe that negligence alone can sustain a charge of malicious
prosecution. Wagner v. Waitlevertch, 774 A.2d 1247, 1253 (Pa. Super. 2001)
[stating that actual malice in the context of malicious prosecution is defined as
either ill will in the sense of spite, lack of belief by the actor himself in the
propriety of the prosecution, or its use for an extraneous improper purpose (internal
quotations and citations omitted)]. Accordingly, I must respectfully dissent.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge