 (Photo: Tyger Williams/Philadelphia Inquirer)
Three women in the house said they had received a knock on the door from a man posing as a pizza deliverer. He and another man forced their way in at gunpoint and asked one of the women where her boyfriend was. She said she didn’t know, and the men soon left without taking anything.
As police approached the house, they saw two men running away. They arrested 28-year-old Sopheap Phat and 43-year-old Jessie Higgins, eventually charging both men with burglary and conspiracy to commit burglary. They recovered a bandana and a gun holster from Higgins. They also recovered a Taurus revolver from an alley where Higgins was running.
The women identified Phat and Higgins as the men who burst into their home. They said that during the home invasion, Higgins had received a phone call and turned to Phat and said, “Let’s go.” The two men then left.
One of the women, Casie Sanchez, said there had been a third perpetrator, a Black man in his 20s, about 6 feet tall, with a tan jacket and jeans, who got away. She also told the police that one of the other women might have known this man, implying the home invasion was a set-up.
Phat gave a statement to Detective John Druding on January 11, 2009. He said he did not know the identity of the third man but that his nickname was “Rome.”
Quickly, after Higgins and Phat were arrested, police subpoenaed their mobile phone records. Higgins’s cell carrier was Sprint. Phat used Metro PCS.
On October 19, 2009, Phat entered into an agreement with prosecutors, pleading guilty to reduced charges in exchange for his cooperation. Part of the deal was an agreement that Phat not be deported.
Phat said that 43-year-old Jerome Loach had been involved in the home invasion and was the person he had previously identified as “Rome.” Phat told police that Loach had persuaded him to commit the home invasion to pay off a debt, and that Phat had posed as the pizza deliverer. He said Loach had been present during the robbery, had given Phat a gun, and had texted Higgins during the crime.
Loach had previous convictions, but in 2009 he was running a barbershop, where Phat worked. Loach also had two sons, both named Jerome.
On December 19, 2009, Loach was charged with 43 counts, including three counts of robbery and single counts of criminal conspiracy, burglary, false imprisonment, terroristic threats, and attempted theft. He was arrested January 4, 2010. Neither Phat nor Higgins had been charged with the majority of these alleged crimes.
Loach said he had an alibi for the night of the home invasion, which was a Saturday. He said he was performing in a play called “Clean Up Your Own Mess,” at a church in South Philadelphia.
Loach’s first attorney failed to investigate his alibi. Loach replaced her, and his new attorney said he would present this defense. But as the case moved to trial, the attorney told Loach and his family that he could not present this defense, as the first attorney had failed to give adequate notice.
Loach’s trial in the Philadelphia County Court of Common Pleas began on May 19, 2011. Two of the women from the home invasion testified, but neither identified Loach. While Phat had told police that Loach was involved in the home invasion, and those statements were read to jurors, Phat had recanted those accusations before trial. He testified that Loach did not participate in the home invasion and was innocent. Higgins pled guilty on December 3, 2009, to burglary, conspiracy to commit burglary, and two weapons charges and was sentenced to between five and 10 years in prison. He did not testify at Loach’s trial.
Prosecutors used phone records to show Loach’s involvement. The original records they subpoenaed in 2009 had been largely exculpatory for Loach.
The Sprint records for the Higgins phone showed no local calls on the day of the home invasion. The police assumed the records were wrong, and they were not introduced into evidence. Police then used a digital tool called a Universal Forensic Extraction Device, or UFED, to get records directly from the phone, but that also showed no calls or texts between that phone and Loach’s phone on the day of the home invasion. Finally, Detective Christopher Tankelewicz went into the phone and looked at the call log.
Testifying as an expert in digital forensics, Tankelewicz said that he “manually extracted” 25 calls between the phone allegedly belonging to Higgins and a phone registered to Loach’s wife. He said he also found a text message from the Loach phone to the Higgins phone, made a few hours before the home invasion. This information was contained in a “supplemental report” that Tankelewicz attached to the UFED report. He presented these findings as phone records and said, “What you see is what you get.”
The police had also obtained Phat’s phone records, which showed a call at 1:22 p.m. and 9:07 p.m. to the phone registered to Loach’s wife. But equally important, the phone continued to be used after Phat’s arrest at 9:20 p.m. on January 10, 2009. Druding testified that Phat would have had his phone confiscated upon arrest, and he was unable to explain these additional calls.
In closing arguments, the prosecutor referenced the text from Loach to Higgins and said the phone records showed a coordinated effort by Loach, Phat and Higgins. “At 9:07 p.m. the robbery is underway… Sopheap Phat is in the middle of this robbery. Who does he call? He calls the defendant. Why would he do that?”
He continued: “Ladies and gentleman, there were 25 phone calls that day. Now, I don’t know about you, but I can’t remember the last time I called someone 25 times in one day. The only way that’s happening, something very important must be happening. Think about it. Something in your life, you know, a baby, you know, a job promotion, you get on the phone, you keep calling people. Well, this robbery is important. It’s important to the defendant. It’s important to Phat and Higgins.”
During deliberations, jurors asked to review the cell phone records for Higgins. Prosecutors told the judge that they didn’t have the actual records, just the supplemental report, which was given to jurors. The jury convicted Loach of criminal conspiracy on May 27, 2011, but acquitted him on the other charges.
Because of Loach’s previous convictions for armed robbery and assault, he was sentenced under a repeat-offender statute to between 25 and 50 years in prison.
Loach appealed his conviction, arguing among other things that a potential juror was dismissed due to his race and that Phat’s out-of-court statement was too unreliable to be admitted into evidence. The Superior Court of Pennsylvania denied his appeal on March 8, 2013.
While in prison, Loach continued to pursue his claim of innocence. He sent several subpoenas to Sprint, including one referring to himself as the “Law Office of Jerome Loach,” seeking phone records for Jesse Higgins. He was able to obtain records showing there was no phone registered in his name. The phone was in Higgins’s wife’s name, which meant the phone records and the supplemental report were improperly described to jurors.
On February 10, 2014, Loach filed a pro se motion for post-conviction relief. The motion was later amended on October 26, 2018, after Michael Pileggi began representing Loach.
According to the motions, the police and prosecutors had misled the jury about the phone records. First, they had conflated the manually extracted phone log with certified records. Second, they had said the phone was Higgins’s when it wasn’t; it was registered to his wife.
In addition, the records Loach obtained showed Loach’s phone had no texting capabilities. Phat had told detectives that Loach had texted him, and both Tankelewicz and Druding each testified that the phone records contained a text from Loach to Higgins.
The motion said that Loach’s trial attorney had been ineffective for failing to thoroughly investigate the phone records before trial and for failing to secure alibi witnesses. It also said the trial attorney did a poor job cross-examining Phat about his plea arrangement to avoid deportation before giving the inculpatory statement against Loach in October 2019.
Prosecutors pushed back. In its response, the District Attorney’s Office for Philadelphia County said Loach’s claims were speculative. The response noted that records established some communication between Phat and Loach’s phone on the day of the home invasion.
It also explained the 25 calls that police testified they found between the Loach and Higgins phones. The response said that the Higgins number was masked in the records of the Loach phone, showing up as landline calls, which were then presumably forwarded to the Higgins phone.
But the state said it would not oppose an evidentiary hearing about whether Loach’s trial attorney was ineffective for failing to secure the testimony of alibi witnesses.
At the hearing, Pileggi presented evidence of Loach’s alibi, including the “playbill” that mentioned Loach’s role in the production and was distributed to people who attended the show at the church. There were two two-hour performances on January 10; the first at 4 p.m., the second at 8 p.m.
On July 24, 2020, Judge Tracey Roman-Brandeis vacated Loach’s conviction and ordered a new trial. She said that Loach’s attorneys had been ineffective in pursuing an alibi defense and that the state engaged in misconduct by failing to disclose accurate phone records.
Prosecutors with the district attorney’s Conviction Integrity Unit agreed that there had been problems with Loach’s conviction, but they didn’t want to dismiss his case. Instead, they offered him a deal to plead guilty to a reduced charge and become eligible for immediate parole. Loach turned it down. “He was adamant in regard to his innocence, and he rejected it,” Pileggi said.
Loach was released on house arrest, while prosecutors weighed whether to proceed with a new trial on the remaining conspiracy charge. They noted that a different theory of how Loach conspired to plan the home invasion would render his alibi moot.
Nearly a year later, on June 24, 2021, the state dismissed the charge, stating that prosecutors said they had insufficient evidence to move forward.
On July 13, 2021, Loach filed a lawsuit against the City of Philadelphia, Tankelewicz and Druding in U.S. District Court for the Eastern District of Pennsylvania, seeking compensation for his wrongful conviction. The lawsuit was settled in February 2023 for
$300,000.
– Ken Otterbourg
|