J-S56004-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSEPH FLICK

                            Appellant                   No. 3053 EDA 2011


            Appeal from the Judgment of Sentence October 11, 2011
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015607-2010


BEFORE: ALLEN, J., OTT, J., and COLVILLE, J.*

MEMORANDUM BY OTT, J.:                                  FILED APRIL 24, 2015

        This matter is before this panel on remand from our Supreme Court,

with instruction to reconsider our prior disposition1 in light of its recent

decision in Commonwealth v. Castro, ___ A.3d ___, 2013 WL 2722742

(Pa. filed Jun. 16, 2014). The issue at hand is what manner of relief, if any,

Flick is entitled to regarding his claim of after discovered evidence in the

form of police corruption.        Upon consideration of the certified record and

Castro, we reinstate our prior order and remand this matter to allow Flick to



____________________________________________


*
    Retired Senior Judge formerly assigned to the Superior Court.
1
  Commonwealth v. Flick, 87 A.3d 890 [3053 EDA 2011] (Pa. Super.
2013) (unpublished memorandum decision), vacated and remanded, 103
A.3d 1224 (Pa. 2014).
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file a post sentence motion nunc pro tunc addressing after discovered

evidence.

       The factual and procedural history of this matter is particularly

important to the resolution of this claim.          Accordingly, we detail the

following:

       On September 29, 2010, at approximately 2:00 p.m., Philadelphia

Police Officers Thomas Liciardello and John Speiser, both of the Narcotics

Field Unit (NFU), set up surveillance of 109 West Thompson Street,

Philadelphia, Pennsylvania.        N.T. Trial, 8/4/2011, at 37-38.2   The record

reveals Thompson Street to be a one-way residential street with parking on

both sides and with a single lane of travel. Id. at 86. The residence at 109

West Thompson is approximately 60 feet from the corner of Hope and

Thompson, where the police were situated.3 Id. at 45. Officers Liciardello

and Speiser parked their unmarked police car on the opposite side of the

street near the corner of Hope and Thompson.            Id. at 85.    When they

arrived at the scene, both Flick and another man, later identified as Ali

Farrell, were standing in front of the residence. Id. at 40. All the windows

of the car, except the front windshield, were tinted. Id. at 39-40. Officer


____________________________________________


2
 A typographic error in the notes of testimony indicates the first day of trial
was April 4 rather than August 4.
3
  Hope and Front Streets are the two cross streets defining the relevant
block of West Thompson.



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Speiser sat in the front passenger seat and Officer Liciardello laid back in his

seat, apparently in the driver’s seat. Id. at 38, 106. He did so because, “if

somebody on the block sees two people sitting in a car they technically think

they’re police.” Id. at 106. Nonetheless, Officer Liciardello testified he got

out of the car on two or three occasions to walk around the block “to make it

seem like it’s not so obvious.” N.T. Trial, 8/5/2011, at 29, 9. Each time he

left the car, he was gone for approximately ten minutes. Id. at 30. Officer

Liciardello walked past Flick and Ferrell at least once, presumably on the

opposite side of the street. Id. at 9-10. Officer Liciardello testified he left

the actual surveillance of the target residence to Officer Speiser. Id. at 10.

       Officer Speiser testified that approximately 20 minutes after setting up

the surveillance, he witnessed an unknown white male approach Flick and

give him money. N.T. Trial, 8/4/2011, at 42. Flick went into the residence,

returned shortly and handed something small to the man, who then left the

scene. Id.

       Officer Speiser further testified that at approximately 2:45 p.m., he

witnessed a small blue car park at the northwest corner of Front and

Thompson.4 Id. at 44-45. Ferrell started walking toward the car. A man got

out of the car and started walking toward Ferrell. Id. The male handed


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4
  It is unclear if the small blue car was travelling on Thompson Street,
thereby passing the parked surveillance car, or was travelling on Front
Street.



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Ferrell money and Ferrell returned to Flick. Id. Ferrell handed Flick the

money and Flick went back into the residence again and returned less than

one minute later. Id.      Flick handed some bright orange objects to Ferrell,

who then walked back to the man.          Id.   Ferrell gave the bright orange

objects to the man, who then got back into the car, which then drove away.

Id. at 45-46. Officers Speiser and Liciardello immediately followed the small

blue car, by necessity driving past Flick and Ferrell to get to Front Street. Id.

at 46. They eventually approached the blue car, which was stuck in traffic,

at Girard and Montgomery, in front of the 26th Police District. Id. at 47.

Drugs were located in the car and a search warrant was subsequently

obtained for 109 West Thompson Street. Id. at 112. Officer Liciardello was

the affiant. Id. at 113.

      At approximately 6:10 p.m., Officers Speiser, Liciardello and Brian

Reynolds, also of the NFU, arrived at 109 West Thompson to serve the

warrant. Id. at 56-57. As they approached, they determined Flick was no

longer outside. Id. at 97. Rather than serve the warrant, they drove around

the neighborhood and located Flick standing outside a bar he was known to

frequent. Id. The officers arrested him at that time, telling him they were

investigating a rape. Id. at 82. They returned to 109 West Thompson at

which time they saw Ferrell sitting on the front steps. Id. at 83. Ferrell was

arrested and the residence was searched. Id. The police found drugs,

paraphernalia and a semi-automatic handgun. Id. at 62-68.




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        At trial, Flick’s defense was based upon the alleged incredibility of the

police officers. In closing argument, the Commonwealth argued the officers’

testimony was truthful, stating:

        Think about motive or bias. Does not exist in this case. Did
        they know this defendant? Nope. Did they have anything to
        gain? No. Everything to lose. What did we hear? Before this
        defendant was even arrested Officer Liciardello said he swore out
        a warrant. He already put down his name and his badge and
        swore before a judge under oath like he did before you ladies
        and gentlemen, the day of this incident, this is what I just saw,
        please give me permission to execute this warrant to find more
        drugs. He swore on that day and he’s sworn again. Lots of
        consequences for lying. You don’t just face my office, prison
        yourself, you face the press. You know that’s what happens.

N.T. Trial, 8/5/2011, at 53-54.

        Flick was subsequently convicted of possession with intent to deliver,

conspiracy, and a violation of the Uniform Firearms Act, and was sentenced

to five to ten years’ incarceration. He appealed, claiming the judgment of

sentence was against both the weight and sufficiency of the evidence. On

December 5, 2012, Supervising Judge Sheila Woods-Skipper filed the

Pa.R.A.P. 1925(a) Opinion on behalf of the trial judge, the Honorable Willis

Berry.5

        At approximately the same time that the trial court opinion was filed, a

series of news articles appeared in the local Philadelphia press indicating

that certain members of the NFU, including Officers Speiser, Liciardello, and
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5
    Judge Berry is no longer on the bench, having retired.




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Reynolds, had fallen under suspicion of corruption. 6 On December 3, 2012,

Philadelphia District Attorney, R. Seth Williams, Esq., sent a letter to

Philadelphia Police Commissioner Charles Ramsey indicating that the District

Attorney’s office would no longer accept Officers Speiser, Liciardello and

Reynolds7 as witnesses in narcotics cases.       Further, the District Attorney’s

office would also no longer approve any search or arrest warrant in a

narcotics case in which any of the officers was an affiant or when any

warrant contained averments from any of the officers. Finally, the District

Attorney’s office would no longer accept for charging any narcotics case in

which any of the officers would be a necessary witness.

       Upon learning this information, Flick supplemented the official record

with copies of the news articles and the letter from District Attorney Williams

to Police Commissioner Ramsey. Flick also filed a motion asking the matter

be remanded on the basis of after discovered evidence to determine how, if

at all, revelations of police misconduct affected the instant matter.         On

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6
   The articles related how scores of cases were being withdrawn amidst
allegations such as theft from drug dealers, planting evidence and providing
false testimony. Articles also noted the United States Attorney’s office had
declined to use the officers as witnesses for at least the two prior years and
that the officers had, for years, been the subject of repeated lawsuits and
internal affairs investigations. The officers are currently on trial in federal
court, facing criminal charges related to these allegations.
7
  Three other officers were included in the list of banned officers. Those
officers are not involved in this matter. We note that all six officers are, at
the time of this writing, on trial in federal court.



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October    24,   2013,     an   unpublished      memorandum   decision   was   filed

dismissing the direct appeal and remanding the matter to allow Flick to file a

nunc pro tunc motion formally raising his claim of after discovered evidence.

See Commonwealth v. Flick, 3053 EDA 2011 (10/24/2013) (unpublished

memorandum). It is important to emphasize that our prior decision did not

grant Flick a hearing regarding after discovered evidence. Rather, we only

granted Flick the opportunity to present a developed argument, via post-

sentence motion, regarding the newly disclosed information regarding police

corruption.

       While Flick’s case was pending in the Pennsylvania Supreme Court,

that Court considered a similar argument in Commonwealth v. Castro,

supra.     In Castro, our Supreme Court held that citation to newspaper

articles alone is insufficient to warrant a remand for an evidentiary hearing

regarding a claim of after discovered evidence.8 Id. at 827-28. As noted,

our Supreme Court has remanded this matter for our reconsideration in light

of Castro. Accordingly, we must relate the factual background of that case.

       In Castro, the defendant filed a Pa.R.Crim.P. 720(C) after discovered

evidence motion seeking a new trial. In support of his request for relief, he

attached copies of several newspaper articles detailing the alleged misdeeds
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8
  The police officer involved in Castro, Officer Richard Cujdik, was also a
member of the NFU, and was also accused of misconduct, including improper
use of a confidential informant. Officer Cujdik was not one of the six officers
named in District Attorney Williams’ letter.



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committed by Police Officer Richard Cujdik in the course of the performance

of his duties.   These included allegations of fabricating evidence regarding

confidential informant (CI) #142, the same CI used to implicate Castro. An

en banc panel of our Court granted Castro relief, vacating judgment of

sentence and remanding for an evidentiary hearing on his motion.            See

Commonwealth v. Castro, 55 A.3d 1242 (Pa. Super. 2012) (en banc).

      Our   Supreme     Court   granted   the   Commonwealth’s   petition   for

allowance of appeal and determined that the mere inclusion of newspaper

articles, no matter how damning otherwise, did not suffice as evidence

sufficient to support the grant of a hearing on a Rule 720(C) after discovered

evidence motion. Specifically, our Supreme Court stated:

      We decline to impose a strict requirement that the proponent of
      a Rule 720 motion attach affidavits or other offers of proof; the
      rule does not contain express language requiring this, in contrast
      to the rules pertaining to PCRA petitions. However, we hold a
      motion must, at the very least, describe the evidence that will be
      presented at the hearing. Simply relying on conclusory
      accusations made by another, without more, is insufficient to
      warrant a hearing. The article here mentioned individuals who
      may have been relevant witnesses in the end, as well as a video
      tape and an ongoing investigation regarding Officer Cujdik. The
      motion says nothing about which, if any, of this potential
      evidence appellee would rely on to support his request for a new
      trial. Absent identification of the actual testimony, physical
      evidence, documentation, or other type of evidence to support
      the allegations of Officer Cujdik's wrongdoing, we cannot
      conclude appellee had evidence to offer; to conclude otherwise
      would be speculation.

Castro, 93 A.3d at 827 (footnote omitted).




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       The    Castro    decision    also   discussed   a   prior   relevant   decision,

Commonwealth v. Brosnick, 607 A.2d 725 (Pa. 1992). In Brosnick, the

defendant provided not only newspaper articles detailing alleged problems

with the accuracy of DUI breath-testing machines, he also included a citation

to a report from the State Auditor General that attacked the credibility of the

certificates of accuracy for the machines.         The citation to the report was

sufficient additional information to support the grant of a new trial.              In

distinguishing Brosnick from Castro, our Supreme Court stated:

       Unlike Brosnick, there was no such end product here, no
       published report, no findings made, no charges filed. While
       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.[9]

Castro, 93 A.3d at 827.

       Therefore, there is no bright line rule for the type of proof needed to

obtain a hearing pursuant to a Rule 720(C) after discovered evidence

motion.      However, solely citing newspaper articles, which are essentially a

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9
  The four-prong test for awarding a new trial because of after-discovered
evidence is well settled. The 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).

Because we are not granting Flick substantive relief on his petition, we leave
the application of the four-prong test to the trial court.



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second-hand relation of possible evidence, does not suffice.       Rather, the

petitioner must provide minimally, a description of the evidence that is

anticipated to be presented. In Brosnick, such evidence was provided by

citation to a report from the Auditor General detailing the technical problems

that Brosnick anticipated raising.

       Instantly, Flick has provided copies of both newspaper articles,

detailing several allegations of misconduct, and the letter from the

Philadelphia District Attorney, indicating that in no uncertain terms Officers

Liciardello, Speiser and Reynolds will not be allowed to take the stand in

future drug cases, and no cases in which they supplied affirmations would go

forward. We believe the District Attorney’s letter is akin to the Auditor

General’s report that proved to be a sufficient basis for relief in Brosnick.

The letter goes beyond merely challenging their credibility by rendering the

officers incompetent to testify.         In the same way the Auditor General’s

report exposed the problems with the certification of DUI breath-testing

machinery, the District Attorney’s letter exposed the inability of the subject

officers to provide credible testimony.10

       In addition to our analysis demonstrating that, based upon the quality

of evidence presented, this case is more similar to Brosnick than Castro,


____________________________________________


10
   In discussing Brosnick, Castro also speaks of charges being filed as
being a greater level of evidence than newspaper articles. Federal charges
have been filed against the officers and the trial proceeds.



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we also note that the relief originally sought herein was not an evidentiary

hearing. Our Court’s original decision did not grant Flick a fishing license in

contravention to the Supreme Court’s mandate.           It granted Flick the

opportunity to present a motion containing a developed description of the

evidence he would rely upon seeking a new trial.      We believe this limited

grant of relief by our Court complies with the dictates of both Brosnick and

Castro, by allowing the parties to present fully developed presentations of

their evidence and by having the trial court make the initial determination

regarding the substance of the after discovered evidence.

      Considering the grave nature of the allegations leveled against the

officers, these allegations need to be addressed fully and openly because the

integrity of the criminal justice system is at issue in this matter.       The

opportunity for Flick to present a fully developed motion will not only allow

him to describe his proposed evidentiary support, but will also grant the

Commonwealth the opportunity to present evidence in support of its position

without presuming prejudice.     Accordingly, we believe this Court’s prior

decision, dismissing Flick’s direct appeal, without prejudice, and granting

him nunc pro tunc relief to file a post-sentence motion with the trial court

regarding his claim of after discovered evidence was proper. Said order is

reinstated.

      Appeal dismissed. Flick is granted leave to file a nunc pro tunc post

sentence motion raising his claim of after discovered evidence. Request for

an evidentiary hearing is denied without prejudice to request a hearing in

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the nunc pro tunc motion. Said motion shall be filed within ten days of the

filing of this decision.    Case remanded with instructions.         Jurisdiction

relinquished.

      Judge Colville did not participate in the consideration or decision of this

case upon remand.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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