Daily Local News (West Chester, PA)
Woman sues Upper Darby for malicious prosecution
PHILADELPHIA » A former Delaware County resident is suing an Upper Darby detective and others for what she claims was a malicious prosecution that landed her in the county jail for 10 months before her acquittal at trial.
“I just don’t get why it drug on for so long,” said Bryonna Mack Friday about the case. “I need answers.”
Mack, 24, now living in Philadelphia, was previously staying with hermother about a half mile from the Sunoco Gas Station and A Plus Mini Mart at 8201 West Chester Pike in Upper Darby,
which was robbed Oct. 4, 2017, according to the complaint filed in Philadelphia Court of Common Pleas by her attorney, Jason Javie.
An employee working at the store that day, Shoaib Mahmood, called 911 and informed them that an unknown black male had come into the store about 1: 36 a. m. and robbed himat gunpoint. Mahmood said in a subsequent written statement that the robber was a male who shouted at himto turn over the money, then took him to a store room to try to erase security camera footage before running out with a quantity of cash.
Upper Darby Detective Thomas Thompson was assigned to the case. He testified during a bench trial in October 2018 that he and other detectives developed Mack as a suspect due to prior contacts with her and because of her facial features after reviewing security footage. Thompson put together and showed Mahmood a photo array of women the day after the robbery that includedMack and Mahmood identified Mack as the robber.
Mack turned herself in police after a warrant was issued for her arrest, but was unable to post the 10% of $ 150,000 bail and remained stuck at the county prison in Concord for 10 months awaiting trial.
During the bench trial
before Common Pleas Court JudgeGeorge Pagano, Mahmood testified that he could only see the robber’s eyes and hands. The rest of the face was obscured by a mask and the robber was wearing a hooded sweatshirt, he said.
Mahmood said on the stand that he was familiar with Mack coming into the store, but never told the 911 dispatcher or detectives prior to being shown the photo array that he knew his assailant. Defense attorneyWilliam Wismer said in closing arguments that he counted Mahmood using the identifier “he” 18 times prior to seeing the photo array.
hompson also agreed that a backpack retrieved from Mack’s home under a search warrant did not match one being worn by the robber, though he did not agree that a distinct pair of boots Mack owned with colorful drawings on them were discernable from the boots worn by the robber.
But Thompson did acknowledge that no other evidence tying Mack to the crime – such as the clothing worn by the robber or the gun itself – was recovered from that search warrant.
Mack’smother also testified that Mack was at home watching her little brother with two other people that night, and Mack’s cell phone data indicated she was searching the internet during the time of the robbery, according to Wismer.
Perhaps most damning for the prosecution,
however, was the fact that Mack has her last name tattooed across the knuckles of her right hand. Wismer was quick to point out that video surveillance of the robbery clearly showed the gunman had no such tattoo.
Pagano agreed, saying the surveillance was probably the best quality video of a crime scene he had seen to that point and that he could not get around the lack of a tattoo for the purposes of reasonable doubt. He rendered a verdict of not guilty on all charges.
“It’s clear as day that it’s not me,” said Mack Friday. “Even my figure going into the trial, I still wasn’t as big as this person. I spent 10 months in jail and I gained some weight, and it still wasn’t enough weight on me to match up to the video. I don’t get it. I wouldn’t be mad if it was
like, ‘ Oh, wow, that really do look like me,’ or ‘ He really dogotmy shape,’ or eventhe same color. He’s way lighter than me, first of all — I’m dark- skinned— and this guy is way bigger. It’s not there. It’s just not there.”
Mack said she still does not know why she was singled out as a suspect. She was on probation at the time of her arrest for a juvenile adjudication on a charge of simple assault. That maxed out while she was awaiting trial and she has had no further contacts with police since the acquittal, she said.
Calls to attorney Robert Didomenicis, representing Thompson in the suit, were not returned Friday. Attorney Susan Engle, representing Mahmood and corporate defendants in the case, could not comment for this story. Margie McAboy, a spokeswoman for Delaware County District Attorney Jack Stollsteimer, likewise declined comment. Stollsteimer was not elected to his position until after Mack’s case was concluded, but the assistant district attorney who prosecuted the case, Sandra Urban, still works in the office.
“It’s a sad state of affairs, because we want the right people arrested for crimes,” said Javie. “People should be arrested for the things that they do, but when it’s somebodywho had nothing to do with it, it’s abhorrent to our system of justice.”
Mack is now alleging
three claims for malicious prosecution, false imprisonment and negligent infliction of emotional distress. She is seeking punitive and compensatory damages in excess of $ 50,000 on each claim.
“This is about trying to put her back into the place that she was, trying to get her 10 months back,” said Javie. “It’s not easy to do, but we hope to be able to do that and sort of make sure this doesn’t happen to somebody else.”
The complaint claims M ah mood knew Mack was not the robber on the night in question and acted recklessly, carelessly or negligently when he identified her as such. In doing so, the complaint alleges, Mahmood “may have acted withmalice.”
Mack, who is a lesbian, said Friday that Mahmood knew who she was from prior interactions in the store, during which he commented negatively on her sexuality.
The complaint also says that the decision by Thompson and Mahmood to implicate her in the crime may have been the result of bias, prejudice or ill- will, and that Thompson was in possession of or aware of exculpatory evidence that should have caused a reasonable person to refrain from initiating or maintaining a criminal action against her.
“As the plaintiff did not commit theOctober 4, 2017 robbery and there was ample evidence indicating she did not do so as well as an utter lack of probable cause, her confinement was unlawful,” the complaint says.
Mack says in the complaint that she was subjected to the “deplorable conditions” at the county prison for months awaiting trial, during which time she lost her job at Target, was isolated from friends and family, suffered undue stress, anxiety, distress and the loss of liberty. The incarceration also strained relationships with Mack’s family, friends and others, tarnished her reputation and she continues to suffermental and emotional trauma, according to the complaint.
Mack said Friday that she still has anxiety and can’t sit still in one place for too long without feeling boxed in. She has started therapy and says she is mentally strong, but her time in prison — including spending 45 days in the hole after she was bullied – changed her.
“I’m not the same from when I went in, I can tell you that,” she said. “It for sure took a toll on me. It’s not easy at all.”