J. A03013/16


                               2016 PA Super 81

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                         Appellant        :
                                          :
                    v.                    :
                                          :
ALPHONSO GRIFFIN,                         :
                                          :
                         Appellee         :       No. 528 EDA 2015

                    Appeal from the Order January 15, 2015
              In the Court of Common Pleas of Philadelphia County
                   Criminal Division No.: CP-51-0000663-2014


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

OPINION BY DUBOW, J.:                                 FILED APRIL 08, 2016

         The Commonwealth appeals from the Order entered in the Philadelphia

County Court of Common Pleas granting Appellee, Alphonso Griffin, a new

trial.    After careful review, we conclude that the trial court improperly

granted Appellee’s Post-Sentence Motion for a New Trial based on after-

discovered evidence.     Accordingly, we reverse the trial court’s Order and

reinstate Appellee’s conviction and Judgment of Sentence.

         Between September 3, 2013, and September 17, 2013, Philadelphia

narcotics police officers conducted surveillance at 3153 and 3163 Weymouth

Street after receiving numerous complaints that a tall, thin, black male with

a beard was selling drugs from these locations.

         On September 3, 2013, Officer Stephen Dmytryk observed Appellee,

who matched the descriptions that several residents and a confidential
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informant (“CI”) provided, standing in front of an abandoned house at 3153

Weymouth Street. Officer Dmytryk conducted a controlled buy using a CI on

September 3, 2013. Officer Dmytryk searched the CI before and after the

transaction. Officer Dmytryk observed the CI hand pre-recorded buy money

to Appellee, who then entered 3153 Weymouth Street, exited shortly

thereafter, and handed 13 small packets of heroin to the CI.

        On September 15, 2013, Officer Dmytryk, assisted by Officers Gina

Jackson and Charles Kapusnick, conducted a second controlled buy using a

CI.    As Officer Jackson and Officer Kapusnick looked on, Officer Dmytryk

searched the CI before and after the transaction.          The three officers

observed the CI hand pre-recorded buy money to Appellee, who then

entered 3163 Weymouth Street, exited shortly thereafter, and handed one

clear Ziploc packet of marijuana to the CI.

        The Commonwealth obtained a search warrant and on September 17,

2013, Officer Thomas Kuhn arrested Appellee at Officer Dmytryk’s direction

during the execution of the search warrant, assisted by Officers Thomas

Kuhn and Micah Waters, as well as Sergeant William Torpey.

        The Commonwealth charged Appellee with Possession of a Controlled

Substance With Intent to Deliver (“PWID”)1 and related drug offenses. He

proceeded to a bench trial on July 9, 2014. Officer Dmytryk testified at trial.

Id. at 9-29.      The parties stipulated to the testimony of Officer Kuhn

1
    35 P.S. § 780-113(a)(30).



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regarding his arrest of Appellee, as well as the testimonies of Officer Waters

and Sergeant Torpey regarding their observations. Id. at 27-28.

        The trial court convicted Appellee of the PWID charge resulting from

the September 15, 2013 transaction, and found Appellee not guilty of all

other charges. On July 9, 2014, the trial court sentenced Appellee to three

years’ reporting probation.

        On August 1, 2014, Appellee filed a Post-Sentence Motion for a New

Trial based on after-discovered evidence, pursuant to Pa.R.Crim.P. 720(C).2

The trial court vacated Appellee’s conviction, and held a hearing on January

15, 2015.

        At the hearing, Appellee offered the following documents as after-

discovered evidence, none of which pertain to the instant case:

        1.   A federal indictment unsealed on July 27, 2014, charging
             six Philadelphia police officers with numerous federal
             crimes, including charges under the Racketeer Influence
             and Corrupt Organizations Act. One paragraph in the
             indictment alleged that police officer “S.D.” 3 falsified a
             police report in a criminal case against Kenneth Mills in
             2011.

        2.   A federal civil rights complaint filed in Kenneth Mills v.
             The City of Philadelphia and Philadelphia Police
             Officer Dmytryk, Badge #1851 containing an allegation
             that Officer Dmytryk included false allegations and
             material misrepresentations of fact in an affidavit of

2
   Pa.R.Crim.P. 720 pertains to post-sentence procedures. Rule 720(C)
provides that a Post-Sentence Motion for a New Trial based on after-
discovered evidence “must be filed in writing promptly after such discovery.”
3
    The Commonwealth acknowledged that “S.D.” is Officer Stephen Dmytryk.



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            probable cause supporting a search warrant. Mills also
            alleged that Officer Dmytryk conspired to bring false
            charges and malicious prosecution against him.

      3.    A Philadelphia Inquirer article from August 1, 2014,
            quoting Kenneth Mills and repeating his accusations about
            Officer Dmytryk.

      4.    A    transcript  from   the    preliminary    hearing    in
            Commonwealth v. Kenneth Mills, where Officer
            Dmytryk testified about his participation in the execution
            of a search warrant.

      5.    Police reports and property receipts pertaining to the case
            of Commonwealth v. Kenneth Mills.

See N.T. Hearing, 1/15/15, at 4-6.

      The Commonwealth introduced a letter from the U.S. Attorney’s Office

stating that “Officer Dmytryk is not the subject of a federal investigation”

with respect to the allegations in the federal indictment.       Commonwealth

Exhibit C-1, Letter from U.S. Attorney Zane Memeger, dated October 7,

2014; N.T. Hearing, 1/15/15, at 11.

      At the conclusion of the hearing, the trial court granted Appellee’s

Motion for a New Trial.

      On   February   17,   2015,   the   Commonwealth   filed    a   Notice   of

Interlocutory Appeal to the Superior Court pursuant to Pa.R.A.P. 311(a)(6),

along with a Pa.R.A.P. 1925(b) Statement of Errors. The trial court filed a

Pa.R.A.P. 1925(a) opinion in which it summarily concluded:

      [T]he defendant has met [his] burden and deserves a new trial,
      as the very nature of the allegations against testifying police
      officer, Stephen Dmytryk, will open a plethora of additional
      discovery as well as documentary evidence by the defense to


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      compl[e]ment its impeachment evidence.           Surely, if this
      information had been presented to the Court at the time of trial,
      it would have resulted in a different verdict. Consequently, the
      defendant is entitled to a new trial.

Trial Court Opinion, dated 7/6/15, at 3 (emphasis added).

      The Commonwealth raises the following issue in this appeal:

      Did the lower court err in granting a new trial on the ground of
      after-discovered evidence where: defendant presented no
      evidence, and offered to present no admissible evidence; the
      alleged after-discovered evidence was usable only for
      impeachment; and the alleged after-discovered evidence was
      not such as to compel a different verdict?

Appellant’s Brief at 4.

      In reviewing the decision of a trial court to grant a new trial based on

after-discovered evidence, this Court “ask[s] only if the court committed an

abuse of discretion or an error of law which controlled the outcome of the

case.” Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa. Super. 2010)

(citation omitted).     “If a trial court erred in its application of the law, an

appellate court will correct the error.” Id.

      Regarding the scope of review, the Pennsylvania Supreme Court has

stated the following:

      The scope of review of a decision to grant a new trial is dictated
      by whether the trial court has set forth specific reasons for its
      decision or leaves open the possibility that reasons in addition to
      those stated support the award of a new trial. Where the trial
      court leaves open the possibility that reasons exist to support its
      decision in addition to those actually stated, an appellate court
      will undertake a broad review of the entire record. However,
      where the trial court indicates that the reasons stated are the
      only basis for which it ordered a new trial, an appellate court
      must confine the scope of its review to the stated reasons. This


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     is not to say that the reviewing court looks only to the stated
     reasons in a vacuum. It is the obligation of the reviewing court
     to look at the entire record to determine if the trial court’s stated
     reasons are supported therein.

Commonwealth v. Widmer, 744 A.2d 745, 750 (Pa. 2000) (citations

omitted).

     A trial court may grant a post-sentence Motion for a New Trial based

on after-discovered evidence if the appellant shows by a preponderance of

the evidence that the after-discovered evidence (1) could not have been

obtained prior to trial by exercising reasonable diligence; (2) is not merely

corroborative or cumulative; (3) will not be used solely to impeach a

witness’s credibility; and (4) would likely result in a different verdict.

Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014) (citation

omitted). The proposed new evidence must be “producible and admissible.”

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations

omitted).

     It is axiomatic that “[a]llegations are not evidence.” Commonwealth

v. Delbridge, 859 A.2d 1254, 1258 (Pa. 2004) (plurality). “One cannot

glean from [] bald allegations what evidence of misconduct appellee

intended to produce.” Castro, supra at 825.

     The Commonwealth avers that the trial court erroneously granted

Appellee’s Motion for a New Trial because: (1) Appellee did not present

evidence; he only presented allegations of criminal wrongdoing unrelated to

his case; (2) Appellee would only use the evidence to impeach Officer


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Dmytryk; and (3) the allegations would not compel a different verdict at a

new   trial   because      multiple   officers   observed     the   drug    transactions.

Appellant’s   Brief   at    19-27;     Appellant’s    Reply    Brief   at   8-9.     The

Commonwealth also argues that Appellee failed to show that his documents

were “producible and admissible at a subsequent trial.” Appellant’s Brief at

16.

      Appellee responds that the trial court properly granted his Motion for a

New Trial based on after-discovered evidence because: (1) he could not

have obtained or discovered the “evidence” prior to trial by exercising

reasonable diligence because the indictment remained sealed until he filed

his motion; (2) the “evidence” is not merely corroborative or cumulative

because nothing similar was presented at the trial and he had no reason to

challenge the officer’s credibility; (3) he would not use the “evidence” solely

for impeachment because he would also file a motion to reveal the

confidential informant and a motion to suppress; and (4) the “evidence”

would likely compel a different verdict. Appellee’s Brief at 19-33.

      Applying the law to the facts of this case, we conclude that the trial

court incorrectly found that Appellee provided “after-discovered evidence”

warranting the grant of a new trial.             The items and allegations Appellee

relies on to support his after-discovered evidence claim include: (1) the

federal indictment referencing the Mills case; (2) the federal civil rights

complaint filed in Mills; (3) the newspaper article; (4) the preliminary



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hearing transcript and other police paperwork from the Mills case.          As

described below, these items are not “evidence” and are, in all events, not

relevant Appellee’s case.

      First, Appellee presented a federal indictment.      As this Court has

previously observed, an indictment is not evidence.       Commonwealth v.

Smihal, 126 A.2d 523, 525 (Pa. Super. 1956). Rather, an indictment “is a

final accusation by the grand jury charging a person with the commission of

a crime, and such charge, in itself, is no indication of an accused’s guilt.”

Id.

      The federal indictment against six police officers that Appellee

presented as “after-discovered evidence” does not contain any allegations

that have any connection to the instant case. Significantly, Officer Dmytryk

was not one of the six indicted officers, and none of the six indicted officers

played any role in Appellee’s case. The indictment mentions “S.D.” in only

one paragraph, and the allegation of wrongdoing in that paragraph relates to

another case. In fact, U.S. Attorney Memeger stated that Officer Dmytryk

was not the subject of a federal investigation with respect to the allegations

in the federal indictment.

      Likewise, the federal civil rights Complaint Appellee provided as “after-

discovered evidence” does not meet the definition of admissible, relevant

evidence.   A Complaint is a pleading asserting allegations or accusations.

See Pa.R.C.P. 1017-1025, 1029; Fed.R.Civ.P. 2-3, 7-11; see, e.g. Discover



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Bank v. Stucka, 33 A.3d 82, 87 (Pa. Super. 2011) (noting that Bank set

forth sufficient “allegations” in its Complaint that, “if ultimately proven,

would permit recovery”).       As such, it is not evidence.    See Appeal of

Conyngham, 57 Pa. 474, 1868 WL 7205 (Pa. 1868) (noting that allegations

raised in pleadings are not evidence). Moreover, as noted above, the federal

complaint Appellee submitted involves allegations about an unrelated person

in an unrelated case. The Complaint has nothing to do with Appellee’s guilt

or innocence and has no connection to the instant case.

         Third, the newspaper article does not meet the definition of “evidence”

because it is merely the reporter’s version of facts and is not admissible at

trial.   As the court in Castro held, “[w]hile newspaper articles can alert a

party to the possible existence of evidence, the party must do more than

attach the article as establishing the evidence that will meet the four-

pronged test.” Castro, supra at 827 (emphasis added).

         Fourth, the transcript and other police paperwork involving an

unrelated preliminary hearing for another defendant contain no information

that pertains to Appellee’s case.     As such, these items are irrelevant and,

accordingly, inadmissible. Pa.R.E. 401-402; Commonwealth. v. Cook, 952

A.2d 594, 612 (Pa. 2008) (“the rule that irrelevant evidence is not

admissible is categorical”).       See Daniel J. Anders, Ohlbaum on the

Pennsylvania Rules of Evidence § 401.06 (2016 ed. LexisNexis Matthew

Bender).



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        Appellee   has   not    identified    testimony,   physical   evidence,

documentation, or other matters that would constitute after-discovered

evidence such that a trial court has the authority to the grant of a new trial

based on Rule 720(C).     The “evidence” that Appellee offers to support his

allegations of Officer Dmytryk’s wrongdoing is unrelated to his own case.

None of the proffered “evidence” shows charges filed against Officer

Dmytryk in this or any other case. None of Appellee’s “evidence” contains

factual findings and official conclusions relevant to Officer Dmytryk or to this

case.    See Castro, supra at 827.

        Moreover, even if the items identified by Appellee comprised relevant

evidence, they would not meet the four-prong admissibility test provided in

Castro. A defendant seeking a new trial must demonstrate he will not use

the alleged after-discovered evidence “solely to impeach a witness’s

credibility.” Castro, supra at 821 n.7 (citation omitted). Appellee admits

that he would use this “evidence” to attack the credibility of Officer

Dmytryk’s testimony.      Appellee’s Brief at 26.    A new trial could not be

granted pursuant to Pa.R.Crim.P. 720 on this basis alone.         See Castro,

supra at 827 n.13 (noting that “[e]ven if his impeachment would ‘destroy

and obliterate’ a witness, it is still impeachment[.]”).

        Although Appellee summarily argues that he would use the “evidence”

to find other evidence, “[a]n evidentiary hearing ... is not meant to function

as a fishing expedition for any possible evidence that may support some



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speculative claim.”     Castro, supra at 828.              “[T]here must be actual

discovery of actual evidence, not merely the possibility of such evidence.”

Id.

      Based on the foregoing, we conclude that the trial court erred as a

matter of law in granting Appellee’s motion for a new trial. Accordingly, we

reverse the order of the trial court granting Appellee a new trial based on

after-discovered evidence, and reinstate the judgment of sentence.

      Order     reversed.   Judgment    of      sentence    reinstated.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/8/2016




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