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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ROLANDO HERNANDEZ,

                          Appellant                   No. 1624 EDA 2013


             Appeal from the Judgment of Sentence May 10, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003464-2010


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ROLANDO HERNANDEZ,

                          Appellant                   No. 1625 EDA 2013


             Appeal from the Judgment of Sentence May 10, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015322-2010


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 18, 2015

       Rolando Hernandez has filed these appeals at two criminal action

numbers.     Appellant’s challenge is identical in both appeals, and we have

consolidated them for purposes of disposition.           Since Appellant was

*
    Former Justice specially assigned to the Superior Court.
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sentenced to a mandatory minimum sentence under a statute that has been

declared unconstitutional as a whole, we are constrained to vacate his

judgment of sentence and remand for resentencing. In all other respects,

we affirm.

      On December 28, 2009, Appellant was charged with possession of a

controlled substance with intent to deliver (“PWID”) and conspiracy at

criminal action number 3464-2010. The facts underlying that offense were

set forth by the trial court as follows.

      At approximately 9:00 a.m. on December 28, 2009, Officers
      Timothy Linahan and John Fleming set up surveillance for the
      sale of narcotics in an unmarked police vehicle on the 2600 block
      of North Waterloo Street. Officers Linahan and Fleming parked
      their car on the west side of 2700 block of North Waterloo
      Street, facing southbound toward the 2600 block. The Officers
      observed Michael Cartagena and Luis Melendez standing on the
      west side of 2600 Waterloo Street.

             At approximately 9:30 a.m., Officers Linahan and Fleming
      saw an unidentified Hispanic female approach Melendez, have a
      brief conversation with him, and hand him money. In response,
      Melendez crossed to the east side of the street, went to a parked
      2003 Buick, and bent down to retrieve small objects located
      underneath the car on the curb side. He then returned to the
      female, spoke to her, and handed her small objects. Officers
      were unable to stop the female.

             At approximately 9:55 a.m., a male later identified as
      Douglas Stansbury approached Melendez. After a brief
      conversation, Stansbury handed money to Melendez. Again,
      Melendez crossed to the east side of the street, retrieved objects
      from near the same Buick, and returned to Stansbury. Melendez
      gave Stansbury small objects, and Stansbury left the area.
      Officer Linahan radioed for other officers to stop Stansbury.
      Sergeant Lonnie Clausson stopped Stansbury and found a yellow
      tint packet of cocaine in his mouth.

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           At approximately 10:15 a.m., Melendez and Cartagena
     entered the Buick parked on the east side of the street. Then,
     Melendez exited the Buick and crossed over to the west side of
     the block. At approximately 10:20 a.m., two unknown white
     males approached Melendez. After a brief conversation, the two
     males handed Melendez money. Again, Melendez crossed from
     the west side to the east side of the street, retrieved small
     objects, returned to the two males, and handed them the
     objects. The males then left the area. Officers were unable to
     locate the males.

            At approximately the same time, two unknown black males
     approached Melendez, spoke to him, and handed him money.
     Melendez put one finger up in the air, indicating "one minute."
     Melendez then knocked at the door of 2640 Waterloo Street.
     After approximately thirty seconds, the Appellant answered the
     door and let Melendez into the house. Two to three minutes
     later, Melendez exited the house, crossed to the east side of the
     street, and bent down. Melendez set an object down near the
     rear of the parked Buick. Melendez then walked over to the two
     black males and handed them small objects. The males left the
     scene.     Officers were unable to stop these males.           At
     approximately 10:45 a.m., Melendez again entered the Buick
     with Cartagena.

           At approximately 11:00 a.m., Cartagena exited the Buick,
     crossed the street, and stood on the west side of 2600 Waterloo
     Street. An unknown Hispanic male and female approached
     Cartagena. The individuals handed Cartagena money. Like
     Melendez, the Appellant crossed to the east side of the street,
     retrieved small objects from behind the Buick, returned, and
     handed them the objects. Back-up officers were unable to locate
     the buyers.

           At approximately 11:15 a.m., Officer Linahan radioed for
     available backup officers to stop Cartagena and Melendez.
     Sergeant Lonnie Clausson and Officer Swift responded to the call
     and stopped Cartagena and Melendez. Officer Linahan exited his
     vehicle, walked toward 2600 Waterloo Street, and approached
     the Buick. Officer Linahan looked through the car window and
     observed a clear baggie containing yellow tint packets of crack
     cocaine.

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              Sergeant Clausson and Officer Linahan then walked to
        2640 Waterloo Street and knocked on the front door. The
        Appellant poked his head out of a second floor front bedroom
        window and said that he would be right down. After two to three
        minutes, the Appellant answered the front door. The police
        subsequently detained the Appellant for investigation pending a
        search warrant.

             The Officers later called in a K-9 dog to sniff for drugs in
        the parked Buick. After the dog gave a positive indication for
        drugs near the doors, the Officers secured the car. Officers then
        conducted a walk-through of 2640 Waterloo to secure the house
        while they waited for the search warrant.           The Officers
                                                            1
        subsequently contacted Lieutenant Robert Otto [sic ] and Officer
        Michael Spicer of the Narcotics Field Unit.

              Officer Spicer and Lieutenant Otto [sic] obtained a search
        warrant for the Buick and for 2640 Waterloo Street and
        confiscated the drugs in the car and the house. In the Buick,
        Spicer and Otto confiscated a marijuana blunt from inside the
        ashtray. They also found a clear packet of marijuana on the
        front seat and plastic with 28 yellow Ziploc packets of crack
        cocaine. In the console between the two front seats, Spicer and
        Otto further confiscated $33.00, and two bills addressed to
        Cartagena.

               Inside the house, Officer Spicer and Lieutenant Otto [sic]
        recovered 92 packets of marijuana and 55 orange packets of
        powder cocaine in a bedroom. The Officers recovered 364
        yellow tinted Ziploc packets of crack cocaine near a .40 [caliber]
        semiautomatic handgun with 3 live rounds in the basement. The
        Officers also recovered 61 Xanax pills, 11 packets of heroin,
        marijuana, and various drug paraphernalia in the living room.
        Additionally, the Officers recovered money in the basement,
        living room, and bedroom totaling $1,837.00. In the bedroom
        and the living room, the Officers found unused Ziploc packets
        and jars. They also found a lease, access card, Comcast bill, a
        payment card, and mail in the Appellant's name.

Trial Court Opinion, 4/9/14, 3-8 (footnotes and emphasis omitted).

1
    The officer’s last name, according to the trial transcript, was Ott.

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      While Appellant was on release from bail as to the December 2009

charges, he was arrested on August 21, 2010 and charged at criminal action

number    15322-2010     with    PWID,     conspiracy,   possession   of   drug

paraphernalia, persons not to possess a firearm, and possession of an

unlicensed firearm. Appellant does not raise any challenge to his convictions

for those offenses; therefore, we find it unnecessary to detail those facts. A

full recitation of the facts leading to those charges can be found in the trial

court’s opinion at pages 8-12.

      The actions were consolidated for trial and Appellant proceeded to trial

with co-defendants Michael Cartagena and Suhay Rodriguez. A jury found

Appellant guilty of PWID and conspiracy at 3464-2010 and of PWID,

conspiracy, possession of drug paraphernalia, and carrying an unlicensed

firearm at 15322-2010. Thereafter, the trial court found Appellant guilty of

persons not to possess a firearm. Prior to sentencing, Appellant filed a

motion for extraordinary relief asking for a new trial based upon after-

discovered evidence.2   This motion solely related to the charges lodged at

15322-2010 and concerned the fact that one of the police officers involved in

that matter, Officer Spicer, was no longer being used as a witness in

narcotics cases.   The court heard argument on the motion on March 15,

2
  The filing of such a motion is ordinarily improper since motions for
extraordinary relief are intended to be oral. Pa.R.Crim.P. 704(B); see also
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004); compare
Pa.R.Crim.P. 720(C).


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2013, and denied it on May 10, 2013. That same date, the court sentenced

Appellant at both cases to an aggregate term of imprisonment of eight to

sixteen years incarceration.       Specifically, the court imposed a drug

mandatory minimum sentence of five to ten years incarceration pursuant to

18 Pa.C.S. § 7508, and a consecutive three to six years incarceration for

criminal conspiracy at case number 3464-2010.           Additionally, the court

imposed concurrent sentences at case number 15322-2010. One of those

sentences, a five to ten year period of imprisonment was a mandatory

minimum sentence, pursuant to both § 7508 and 42 Pa.C.S. § 9712.1, the

latter of which relates to firearms in close proximity to drugs.

      Appellant timely appealed. The trial court directed Appellant to file and

serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.    Appellant complied, and the trial court authored its Rule 1925(a)

opinion.   The matter is now ready for this Court’s review.        In this appeal,

Appellant raises one issue:

      Did the trial court commit an abuse of discretion by denying
      Appellant’s motion for extraordinary relief based on evidence
      that a police officer involved in the instant matter had been
      disavowed by the Philadelphia District Attorney’s Office after
      Appellant was convicted?

Appellant’s consolidated brief at 2.3


3
  Appellant’s brief and arguments are identical to those of his co-defendant
Michael Cartagena, whose case also was heard by this panel. Our discussion
of the law and arguments of the parties is therefore identical in both
matters, although citations to the relevant brief’s page numbers differ.

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      Appellant’s   claim   implicates    the   law   governing   after-discovered

evidence. In Commonwealth v. Padillas, 997 A.2d 356 (Pa.Super. 2010),

this Court opined that a petitioner must show the evidence “(1) could not

have been obtained prior to the conclusion of the trial by the exercise of

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will

not be used solely to impeach the credibility of a witness; and (4) would

likely result in a different verdict if a new trial were granted.” Id. at 363.

Failure to satisfy any of these aspects of the test results in the claim failing.

Padillas, supra at 363.

      With respect to determining the diligence aspect of the test, a

petitioner cannot show diligence if he declined “to question or investigate an

obvious,   available   source   of   information[.]”     Id.      In   addition   to

demonstrating that the evidence could not be ascertained despite reasonable

diligence, a petitioner must prove that the evidence is not merely cumulative

or corroborative of other evidence introduced at trial.            Evidence that

supports a defense leveled at trial may be considered corroborative and/or

cumulative. Id. at 365.

      In considering the prejudice prong of the after-discovered evidence

test, courts are to look to “the integrity of the alleged after-discovered

evidence, the motive of those offering the evidence, and the overall strength

of the evidence supporting the conviction.”            Padillas, supra at 365.




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Moreover,     the   after-discovered     evidence    must     be    admissible.

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014).

      Appellant argues that because he learned after his trial that the

Philadelphia District Attorney’s Office no longer prosecuted drug cases

involving Officer Spicer and several other narcotics officers, including an

Officer Betts,4 all of whom had been transferred from the narcotics unit, he

should be awarded a new trial.      According to Appellant, on December 3,

2012, Philadelphia District Attorney R. Seth Williams notified the Philadelphia

Police Commissioner that he would no longer use Officer Spicer, Officer

Betts, and four other officers in drug cases or accept narcotics cases where

those officers were necessary witnesses.     In addition, the correspondence

indicated that the District Attorney’s Office would no longer approve

warrants where any of the officers were affiants or provided averments

necessary to establish probable cause.

      Several articles from the Philadelphia Inquirer from December 5, 2012,

December 7, 2012, and January 31, 2013, appeared in relation to the

District Attorney’s decision. Those newspaper articles asserted that Officer

Spicer, Officer Betts, and their colleagues could no longer be considered

credible witnesses and had been the target of Internal Affairs investigations

and federal lawsuits relative to false arrests, fraudulent reports, and the use


4
 Although briefly mentioning Officer Betts in his brief, Appellant’s focus is on
Officer Spicer, who had more extensive involvement in the case.

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of excessive force.   According to the January 31st article, the Philadelphia

District Attorney’s Office had withdrawn 260 cases where the officers were

involved.

      Appellant maintains that the fact, which the Commonwealth does not

dispute, that it no longer prosecutes drug cases where Officer Spicer is an

essential witness could not have been discovered before or during his trial.

Specifically, the Commonwealth tried Appellant in September of 2012,

before the District Attorney’s notification to the Police Commissioner.

      Appellant continues that the evidence would not be used solely to

impeach Officer Spicer and Officer Betts because such evidence would also

“call into question the validity of the search warrant that Officer Spicer

prepared and obtained.”       Appellant’s brief at 14.     In Appellant’s view,

attacking Officer Spicer’s reliability would go “directly to establish appellant’s

innocence at least with respect to the drugs found in the house[.]” Id.

      Next, Appellant contends that since there was no evidence at trial that

Officer Spicer or Officer Betts were no longer being utilized as witnesses in

drug cases, the evidence was not cumulative or corroborative of that

presented at trial. Lastly, Appellant asserts that, had the jury been aware

that the District Attorney’s Office was not prosecuting drug cases where

Officer Spicer was a material witness, it would likely have reached a different

verdict.




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      The Commonwealth responds that Appellant’s proffered evidence

consisted of newspaper articles which, in Castro, supra, were held

insufficient to constitute after-discovered evidence.            In Castro, the

Pennsylvania Supreme Court reversed a decision by this Court that had

remanded for additional proceedings on the basis of after-discovered

evidence in the nature of newspaper articles. Those articles indicated that

the Philadelphia police officer involved in the undercover drug investigation

in that matter had engaged in serious misconduct in other cases.               The

Castro Court concluded that the newspaper articles were not admissible

evidence.

      The Commonwealth also posits that Appellant cannot demonstrate that

a different verdict would be likely if the jury were apprised of Officer Spicer’s

issues. In leveling this aspect of its response, the Commonwealth notes that

Officer Spicer had limited involvement in the case. The evidence supporting

Appellant’s convictions stemmed from eyewitness observations from Officer

Linahan and Officer Fleming.        It points out that the officers observed

numerous    hand-to-hand     drug   transactions,   and   that   Appellant’s   co-

conspirator was seen restocking a stash of drugs from another conspirator’s

house. Further, police arrested one buyer who had a yellow-tinted packet of

crack cocaine in his mouth. This cocaine was consistent with that viewed by

Officer Linahan and Officer Clausson inside the Buick that Appellant and

Melendez were seen utilizing.

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      The Commonwealth adds that Officer Spicer’s testimony regarding

additional cocaine and mail with Appellant’s name inside the Buick was

cumulative of the overwhelming additional evidence that Appellant used the

vehicle when distributing drugs.      It points out that other officers also

testified that Appellant’s conspirator, Roberto Hernandez, lived in the house

that was being used to supply Appellant and Melendez with drugs. Finally,

the Commonwealth assails Appellant’s position with respect to Officer

Spicer’s involvement with securing the search warrant. It submits that the

affidavit for that warrant was based on information provided by Officer

Linahan.

      We find that, based on the additional evidence supplied by other

officers, the revelation of Officer Spicer’s removal from the narcotics unit

and the District Attorney’s refusal to prosecute cases in which he was a

material witness, would not have altered the verdict.     Here, Officer Spicer

was not an essential witness as to the elements of the offenses. Although

Officer Spicer was the affiant on the search warrant, the information used to

establish probable cause came from other officers. Evidence that Appellant

was involved in hand-to-hand cocaine transactions was extensive and had

no relation to Officer Spicer.   Officers, other than Officer Spicer, observed

Appellant inside the Buick in question and engaging in frequent interactions

that, viewed in a light most favorable to the Commonwealth, were plainly

drug sales.   A drug sniffing dog alerted on the vehicle prior to Officer

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Spicer’s involvement.    Moreover, evidence that the house in question was

being used as a drug operations base was supported by officers other than

Officer Spicer.

      Since the evidence, even excluding the evidence discovered by Officer

Spicer,5 was overwhelming that Appellant was selling cocaine and doing so

with other individuals, there is no probability that the jury would have found

Appellant not guilty of PWID and conspiracy based on information regarding

potential corruption on the part of Officer Spicer. Accordingly, his issue fails.

      Nonetheless, and although Appellant does not raise the issue, we are

constrained to vacate Appellant’s judgment of sentence since he was

sentenced under a mandatory sentencing statute that has been struck down

as unconstitutional as a whole. See Commonwealth v. Vargas, 2014 PA

Super 289 (en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc); Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super.

2014); compare also Commonwealth v. Valentine, 101 A.3d 801

(Pa.Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super.

2014); Commonwealth v. Bizzel, 2014 PA Super 267; Commonwealth v.




5
  We note that Officer Spicer was not the only officer collecting evidence
from the house.


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Wolfe, 2014 PA Super 288; Commonwealth v. Ferguson, 2015 PA Super

1.6

      Judgment of sentence vacated.           Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2015




6
   Writing solely for myself, I note that in recent cases I have criticized this
Court’s severability and separation of powers analysis relative to mandatory
minimums, Commonwealth v. Bizzel, 2014 PA Super 267 (Bowes, J.,
concurring); Commonwealth v. Wolfe, 2014 PA Super 288 (Bowes, J.,
concurring) (joined by Jenkins, J.), and suggested that we re-visit our
legality of sentence paradigm as it relates to Alleyne mandatory minimum
questions. See Wolfe, supra. Further, I have been reluctant to sua sponte
overturn a mandatory sentence without adequate briefing. See Wolfe,
supra at *9 (noting that our Pennsylvania Supreme Court has declined to
address illegal sentencing questions not raised or adequately argued in that
court). I continue to adhere to those views, but I am currently bound by the
decisions cited in the body of this memorandum.

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