J. A12042/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
ALPHONSO GRIFFIN,                         :          No. 498 EDA 2017
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, December 12, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0000663-2014


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 10, 2018

         Alphonso Griffin appeals the December 12, 2016 judgment of sentence

of the Court of Common Pleas of Philadelphia County resentencing him to

three years’ probation for his conviction of possession with intent to deliver

(marijuana) (“PWID”).1 After careful review, we vacate and remand for a new

trial.

         The facts and procedural history, as recounted by Judge Clemons Jones,

are as follows:

              On September 3, 15, and 16 of 2013,
              Stephen Dmytryk (“Officer Dmytryk”), a narcotics
              officer with the Philadelphia Police Department
              conducted surveillance at 3153 and 3163 Weymouth
              Street in Philadelphia, PA. Officer Dmytryk undertook
              the surveillance based on information he allegedly
              received from several residents, stating that a tall,

1   35 P.S. § 780-113(a)(30).
J. A12042/18


          thin, black male with a beard was conducting drug
          sales on this block.

          On September 3, 2013 between 2:00 and 4:00 pm,
          Officer Dmytryk began surveilling the 3100 block of
          Weymouth.        Officer Dmytryk testified that he
          observed an individual matching the description given
          by several complaining residents standing in front of
          an abandoned house at 3153 Weymouth Street.
          Officer Dmytryk conducted a controlled narcotics
          “buy” from the observed individual using a
          confidential informant (“Cl”) on September 3, 2013.
          The Cl was searched before and after the transaction.
          From a distance of approximately 15-20 house lengths
          away and without any visual aids, Officer Dmytryk
          claims that he observed the CI hand the individual,
          identified by Officer Dmytryk as [appellant], the
          pre-recorded buy money. The observed individual
          was then seen entering 3153 Weymouth Street,
          exiting shortly thereafter, and handing small objects
          to the CI.           Upon the CI’s returning to
          [O]fficer Dmytryk, the CI gave [O]fficer Dmytryk
          13 small packets of heroin.

          On September 15, 2013, Officer Dmytryk conducted a
          second controlled narcotics “buy” using the CI. This
          controlled transaction occurred at 3163 Weymouth
          Street. Officer Dmytryk searched the CI before and
          after the transaction. Officer Dmytryk observed the
          CI engage in a conversation for approximately
          15 seconds with an individual identified by
          Officer Dmytryk    as   [appellant].     After   this
          conversation,    this   individual   then    entered
          3163 Weymouth Street, exited shortly thereafter and
          accepted United States currency from the informant
          and handed him small items in return.        The CI
          returned to Officer Dmytryk and turned over a clear
          Ziploc bag containing marijuana.

          On September 16, 2013, Officer Dmytryk again set up
          surveillance on the 3100 block of Weymouth at
          approximately 2[:]00 p.m. During the 20 minute
          surveillance, Officer Dmytryk testified that he
          observed [appellant] standing on the block and going


                                  -2-
J. A12042/18


          in and out of 3153 and 3163 Weymouth Street. After
          observing this activity for approximately 20 minutes,
          Officer Dmytryk terminated the surveillance.

          On September 17, 2013, search and seizure warrant
          175846      was     obtained     and     executed     at
          3153 Weymouth Street at 2[:]25 pm. No evidence
          was recovered from this location.           During the
          execution of the warrant on 3153 Weymouth,
          Officer Dmytryk observed [appellant] standing across
          the street near the driver’s side door of a grey Pontiac
          parked on the west side of the street between
          3153 and 3163 Weymouth.               Officer Dmytryk
          instructed Officer Thomas Kuhn to arrest [appellant].
          Neither narcotics nor money were recovered from
          [appellant]. Another assisting officer, Officer Micah
          Waters recovered 11 packets of crack cocaine from
          the driver side mirror of the gray Pontiac.
          Simultaneously, search and seizure warrant 175847
          was executed at 3163 Weymouth Street. Sergeant
          William Torpey recovered $1,040 of United States
          currency from a woman’s purse in a hallway closet and
          three yellow packets of marijuana from a drawer in
          the living room table.

          On September 17, 2013, [appellant] was arrested and
          charged with one count of possession with the intent
          to deliver a controlled substance (PWID), one count of
          possession of a controlled substance . . . and one
          count of possession of marijuana . . . .

          On July 9, 2014, [appellant] waived his right to a jury
          trial and was tried before the Honorable Joan A. Brown
          in a bench trial. [Judge Brown] convicted [appellant]
          of the PWID charge associated with the transaction
          occurring on September 15[,] 2013 and found him not
          guilty as to all other charges. On July 9, 2014,
          [Judge Brown] sentenced [appellant] to three years of
          reporting probation. Shortly thereafter, on July 16,
          2014, [appellant] filed a Post-Sentence Motion
          contending that the verdict was against the weight of
          the evidence. [Judge Brown, without a hearing]




                                   -3-
J. A12042/18


              issued an order denying the Post-Sentence Motion on
              July 22, 2014.[2]

              On August 1, 2014, [appellant] filed a Motion for a
              New Trial on the Grounds of After-Discovered
              Evidence,[3] pursuant to Title 234 of the
              [Pa.R.Crim.P.] 720(C). The Post-Sentence Motion to
              vacate sentence and introduce new evidence was
              granted on August 8, 2014.

              A contested motions hearing was held on January 15,
              2016. This hearing resulted in the trial court granting
              Defendant’s Motion for New Trial on the Grounds of
              After-Discovered Evidence.      The Commonwealth
              subsequently filed a Notice of Interlocutory Appeal

2   Judge Brown did not issue an opinion in support of this order.

3 In the post-sentence motion for a new trial based on after-discovered
evidence, appellant asserted that an indictment lodged against six City of
Philadelphia police officers referred to Officer Dmytryk by his initials as an
officer who falsified police reports in that a report did not disclose all of the
cash and other valuables that were recovered because police officers stole
them and did not disclose the true ownership of a handgun. In the motion,
appellant asserted:

              The information contained in the indictment
              implicating Officer [] Dmytryk in the knowing
              falsification of police paperwork and conspiracy to
              commit theft of evidence constitutes after-discovered
              evidence that would be relevant at trial in order to
              challenge the credibility of Officer Dmytryk and would
              serve to exculpate [appellant] of the charges against
              him. Had this information been presented at trial, the
              outcome of the case likely would have been different.
              Since this information was not known to Defense
              Counsel prior to the unsealing of the federal
              indictment, [appellant] is entitled to a new trial in this
              matter. [Appellant] respectfully requests that Your
              Honor vacate the finding of guilt and sentence and
              order a new trial in the interests of justice.

Post-sentence motion for a new trial based on after-discovered evidence,
8/1/14 at 2 ¶ 4.


                                        -4-
J. A12042/18


           pursuant to [Pa.R.A.P.] 311(a)(6) [o]n February 17,
           2015, while simultaneously filing a Statement of
           Errors Complained of on Appeal pursuant to
           [Pa.R.A.P.] 1925(b). On July 6, 2015 [Judge Brown]
           then     issued    an     opinion    pursuant    to
           [Pa.R.A.P.] 1925(a), holding that [appellant] was
           entitled to a new trial based on after[-]discovered
           evidence.

           On February 17, 2015, the Commonwealth filed an
           interlocutory appeal alleging that the information
           provided by [appellant] to support his motion was not
           evidence because it would be inadmissible at trial. On
           April 8, 2016, the Superior Court issued an opinion
           concluding that [Judge Brown] erred as a matter of
           law in granting [appellant’s] motion for a new trial
           based on after-discovered evidence. The Superior
           Court reversed the trial court’s grant of new trial and
           reinstated the judgment of sentence.

           On December 12, 2016, upon receiving the Superior
           Court’s appellate decision, [Judge Clemons Jones]
           reinstated the original sentence retroactively to
           July 9, 2014[.] On January 12, 2017, [appellant] filed
           a Post [] Conviction Relief Act (PCRA) petition alleging
           ineffective assistance of counsel for failing to timely
           file a notice of appeal to the Superior Court and
           seeking allowance of [a]ppeal nunc pro tunc[.]
           [Judge Clemons Jones] granted the [p]etition for
           allowance of appeal nunc pro tunc by order on
           January 27, 2017 and reinstated [appellant’s] right to
           file a direct appeal within thirty days of the order.
           [Appellant] filed a notice of appeal on the same day[.]

           On February 3, 2017, [Judge Clemons Jones] issued
           an order pursuant to [Pa.R.A.P.] 1925(b) requiring
           [appellant] to file a sufficiently detailed statement of
           errors complained of on appeal within twenty-one
           days[.] On February 17, 2017, [appellant] filed a
           Statement of Errors Complained of on Appeal . . . .

Trial court opinion, 8/23/17 at 2-5 (footnotes and headings omitted).




                                    -5-
J. A12042/18

      On August 23, 2017, Judge Clemons Jones issued her opinion, pursuant

to Pa.R.A.P. 1925(a). Judge Clemons Jones agreed with appellant that the

verdict was against the weight of the evidence and so contrary to the evidence

as to shock one’s sense of justice, such that a new trial was warranted.

      Appellant raises the following issue for this court’s review:

            Was not the verdict of guilt to one count of possession
            with intent to deliver marijuana against the weight of
            the evidence for the following reasons: (1) the verdict
            relies on a questionable identification where the trial
            court found the Commonwealth’s witness to be
            mistaken at least once regarding the drug seller’s
            identity based upon a credible alibi; (2) the officer
            observed the alleged transactions from a distance of
            15-20 house lengths without the use of visual aids
            and two days prior to appellant’s arrest;
            (3) [] appellant is deaf and mute, and needs a sign
            language interpreter, but the witness claimed to
            observe him engage in a 15 second conversation;
            (4) [] appellant had no connection to the two homes
            or the car in which money and narcotics were
            recovered; (5) [] appellant possessed no money,
            narcotics, or other contraband at the time of his
            arrest; (6) [] appellant did not engage in illegal or
            suspicious conduct on the date of his arrest; and
            (7) [] appellant had good character such that his
            conviction shocks the conscience and a new trial is
            necessary so that right may prevail?

Appellant’s brief at 2 (emphasis in original).

                  [T]he weight of the evidence is exclusively
                  for the finder of fact who is free to believe
                  all, part, or none of the evidence and to
                  determine the credibility of the witnesses.
                  An appellate court cannot substitute its
                  judgment for that of the finder of fact . . .
                  thus, we may only reverse the lower
                  court’s verdict if it is so contrary to the
                  evidence as to shock one’s sense of


                                      -6-
J. A12042/18


                  justice. Moreover, where the trial court
                  has ruled on the weight claim below, an
                  appellate court’s role is not to consider the
                  underlying question of whether the
                  verdict is against the weight of the
                  evidence . . . rather, appellate review is
                  limited to whether the trial court palpably
                  abused its discretion in ruling on the
                  weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      The initial rather unique issue we are required to deal with in this appeal

is not one presented by appellant. This nunc pro tunc appeal lies from the

reinstated judgment of sentence of July 9, 2014.        Appellant, following his

bench trial and original sentencing, filed a timely post-sentence motion raising

the same weight of the evidence issue presented in this appeal, and the trial

judge, Judge Brown, denied that motion.         In her Rule 1925(a) opinion,

Judge Clemons Jones addresses these same weight issues and finds them

meritorious, thereby suggesting we reverse Judge Brown’s credibility

determination and remand for a new trial. Interestingly, the Commonwealth

agrees with this assessment.

      While we have concerns about this procedural issue, what appears clear

to this court is that Judge Brown, Judge Clemons Jones, and the

Commonwealth all believe justice requires that appellant receive a new trial


                                      -7-
J. A12042/18

based on the testimony and credibility of Officer Dmytryk’s identification of

appellant. Albeit, in spite of Judge Brown’s erroneous grant of a new trial on

after-discovered evidence, Judge Clemons Jones’s Rule 1925(a) opinion

suggesting we reverse her colleague’s initial weight determination and

accepting the Commonwealth’s concession upon its review of the record that

a new trial is warranted, we vacate appellant’s conviction and remand for a

new trial.

      Judgment of sentence vacated. This case is remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/10/18




                                    -8-
