J-S12012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYREE CANTY

                            Appellant                 No. 985 EDA 2015


                   Appeal from the PCRA Order March 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003406-2009


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                              FILED March 21, 2016

        Appellant, Tyree Canty, appeals from the March 20 2015 order

dismissing, without a hearing, his amended petition for relief filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After

considered review, we affirm based on the sound reasoning of the PCRA

court’s May 14, 2015 opinion.

        The PCRA court has summarized the procedural and factual history of

this case, and we need not recount that full history here.    See generally

PCRA Court Opinion, 5/14/15, at 1-3. For purposes of our review, we note

the instant appeal is from the disposition of Appellant’s timely first PCRA

petition as amended, Appellant’s notice of appeal is timely, and Appellant

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-S12012-16


and the PCRA court have complied with Pennsylvania Rule of Appellate

Procedure 1925.

        On appeal, Appellant raises a single issue for our review.

              Whether the [PCRA] court erred in denying the
              Appellant’s Petition for Post Conviction Relief where
              the Commonwealth presented the tainted testimony
              of Police Officer John Speiser, who was subsequently
              indicted federally and who the Philadelphia County
              District Attorney’s Office no longer calls as a witness
              as a matter of policy, in order to prove to the jury
              that the Appellant was engaged as an accomplice in
              the possession with the intent to distribute a
              controlled dangerous substance[?]

Appellant’s Brief at 2.

        Our standard of review is well settled.

              Our standard of review of [an] order granting or
              denying relief under the PCRA requires us to
              determine whether the decision of the PCRA court is
              supported by the evidence of record and is free of
              legal error. The PCRA court’s findings will not be
              disturbed unless there is no support for the findings
              in the certified record.

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super.

2015), quoting Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super.

2014) (citation omitted). We review the PCRA court’s legal conclusions de

novo.    Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014)

(citation omitted).    Instantly, the PCRA court dismissed Appellant’s first

amended and second amended PCRA petitions without first affording a

hearing. “There is no absolute right to an evidentiary hearing. On appeal,

we examine the issues raised in light of the record to determine whether the

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J-S12012-16


PCRA court erred in concluding that there were no genuine issues of material

fact and in denying relief without an evidentiary hearing.” Commonwealth

v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en banc) (internal

quotation marks and citation omitted).

       In his second amended PCRA petition, Appellant claimed that newly

discovered evidence entitled him to a new trial.1        Second Amended PCRA

Petition, 6/26/14, at 1.       Specifically, Appellant alleged facts about Officer

John Speiser, one of the officers involved in executing a search warrant and

who testified at Appellant’s trial, including, inter alia, that “Officer Speiser

was transferred out of the Narcotic’s [sic] unit… for allegedly providing false

information to obtain search and seizure warrants, testifying falsely and

otherwise engaging in unlawful behavior to justify [the] arrest and

prosecution of certain individuals ….” Id. at 4 ¶ 14. Accordingly, Appellant

argues he should be granted a new trial because Officer Speiser’s testimony

is tainted. Appellant’s Brief at 8-9.

              After-discovered evidence is the basis for a new trial
              when it: 1) has been discovered after the trial and
              could not have been obtained at or prior to the
              conclusion of trial by the exercise of reasonable
              diligence; 2) is not merely corroborative or
              cumulative; 3) will not be used solely for impeaching
              the credibility of a witness; and 4) is of such nature
              and character that a new verdict will likely result if a
              new trial is granted. Further, the proposed new
              evidence must be “producible and admissible.”
____________________________________________
1
  On appeal, Appellant does not challenge the dismissal of the other claims
raised in his pro se and first amended PCRA petitions.


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J-S12012-16


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

denied, 132 S. Ct. 2377 (2012).

       In his brief, Appellant does not address this standard, or explain how

these threshold requirements have been met. Rather, Appellant focuses his

argument on the alleged inapplicability of the independent source rule to

permit the admission into evidence of the information testified to by Officer

Speiser.2 Appellant’s Brief at 7-8.

              Applying [the independent source] rule to the instant
              case, [Appellant] argues that there is no source of
              evidence other than the tainted evidence offered by
              [] Officer [] Speiser that is “truly independent” of
              either the tainted evidence or the police who
              engaged in the misconduct [].       Officer Speiser’s
              tainted testimony must therefore be considered to be
              excludable, with no sufficiently independent source
              available to replace it.

Id. at 8.

       The PCRA court did not base its decision on the independent source

doctrine.    Rather, based on its review of the record, it determined that

Appellant failed to establish that, absent Officer Speiser’s testimony, a

different verdict would likely result. PCRA Court Opinion, 5/14/15, at 5. The

PCRA court noted that another officer was responsible for the underlying

____________________________________________
2
   The independent source doctrine applies as an exception to the
exclusionary rule where an excluded fact is discovered through a source
truly independent from the source whereby it was illegally obtained. See
Commonwealth v. Williams, 2 A.3d 611, 618-619 (Pa. Super. 2010) (en
banc), quoting United States v. Herrold, 962 F.2d 1131, 1140 (3rd Cir.
1992), cert. denied, Herrold v. United States, 506 U.S. 958 (1992).


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J-S12012-16


controlled buy of narcotics from Appellant and the procurement of the

resultant search warrant. Id. Officer Speiser was only peripherally involved

with the execution of the search warrant as it pertained to Appellant. Id. at

4-5. Officer Speiser’s testimony was relevant only to Appellant’s alleged co-

conspirator.3 Id. However, as noted by the PCRA court, the jury acquitted

Appellant of the conspiracy charge and the Commonwealth never argued the

Appellant’s possession with intent to deliver charge [PWID] was based on

any accomplice liability theory.4         Id. at 5.   The PCRA court explained as

follows.

                      In stating as his ground for relief that [Officer]
              Speiser gave “tainted evidence of accomplice
              liability,” [Appellant] appears to argue that even
              though defendant was acquitted of conspiracy, and
              even though [Officer] Speiser’s testimony only
              establishes the culpability of [co-defendant],
              [Appellant] still was prejudiced because the jury may
              have convicted him of PWID under an accomplice
              theory based upon [co-defendant’s] conduct. This
              argument is refuted by the record. The evidence at
              trial established that [Appellant] let the informant
              into the apartment, that [Appellant] had a large
              amount of cash on his person, and that the keys to
              the safe containing the drugs were on a lanyard
              around [Appellant’s] neck. All of this demonstrated
              that [Appellant] exercised dominion and control over
              the narcotics and was guilty as a principle [sic]. In
              fact, the Commonwealth never argued to the jury
              that [Appellant] was guilty of PWID as a result of any
____________________________________________
3
    The alleged co-conspirator’s case was not consolidated with Appellant’s.
4
  The record reveals, however, that the Commonwealth did request the trial
court to give an accomplice liability instruction to the jury, which the trial
court granted. See N.T., 2/17/10, at 207-210; N.T., 2/18/10, at 3, 82-85.


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J-S12012-16


            conduct on the part of [co-defendant]. N.T. 2/16/10
            at 193 -201.

                  Accordingly, the record demonstrates that
            there is no likelihood that a different verdict would
            result on the PWID charge, which was the sole
            charge of conviction, should a new trial be held
            without the testimony of Officer Speiser. Therefore,
            no relief is due.

Id. at 5-6 (citation omitted)

      We agree. Our review of the certified record leads us to conclude the

PCRA court’s assessment of the facts at trial and the import of Officer

Speiser’s testimony is accurate. We agree that, assuming, arguendo, Officer

Speiser’s evidence is “tainted” and excludable, its relevance pertains chiefly

to the conspiracy charge for which Appellant was acquitted.    The remaining

untainted evidence, which supports the jury’s guilty verdict for the PWID

charge would be largely unaffected and it is unlikely a new trial would result

in a different outcome. See Chamberlain, supra.

      After careful review, we conclude that the PCRA court’s May 14, 2015

Rule 1925(a) memorandum opinion fully sets forth Appellant’s claim,

identifies the proper standards of review, discusses the relevant law, and

explains the bases for its conclusion that Appellant has failed to establish a

right to a new trial based on after-discovered evidence. We also conclude

the PCRA court correctly determined that there were no genuine issues of

material fact to justify a hearing.   See Burton, supra.      Accordingly, we




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J-S12012-16


adopt the May 14, 2015 opinion of the Honorable Glenn B. Bronson as our

own for the purposes of our disposition of this appeal.

      Based on the foregoing, we conclude the PCRA court committed no

error or abuse of discretion in dismissing Appellant’s second amended PCRA

petition   without   a   hearing.   See    id.;   Melendez-Negron,   supra.

Accordingly, the PCRA court’s March 20, 2015 order is affirmed.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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                                           --,--·--------                                                   Circulated 02/29/2016 10:51 AM




                                             IN THE COURT OF COMMON PLEAS
                                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                 CRIMINAL TRIAL DIVISION
                                              i
                     COMMONWEAL TH OF                                                           CP-5 l-CR-0003406-2009
                     PENNSYLVANIA                 CP·51-CR-000340&-2009 Comm. v. Canty, Tyree
                                                                   Opinion
                                                                                                        FILED
                             v.
                                                                                                    MAY 1 4 2015
                     TYREE CANTY                      Ill 1111111111111111111111                  . PostTrial UnH:
                                                              7296372941
                                                                    OPINION

                     BRONSON,J.                                                                       May 14, 2015

                                                  I. PROCEDURALBACKGROUND

                     0Il' February 18, 2010, f.ollowing a jury trial before this Court, defendant Tyree Canty

             was convicted of possession with intent to distribute a controlled substance ("PWID") (3 5

             Pa.C.S. § 780-l 13(a)(30)). On May 4, 2010, the Court sentenced defendant to six to fifteen

             years incarceration. No post-sentence motions were filed. Defendant was represented at trial

             and at sentencing by Carl Johnson, Esquire.

                     On April 26, 2011, the Superior Court affirmed defendant's judgment of sentence.

             Defendant was represented on appeal by Peter Levin, Esquire. Defendant then filed a pro se

             petition under the Post-Conviction Relief Act ("PCRA") on September 12, 2012. Mark

             Mungello, Esquire was appointed to represent defendant on July 1, 2013. On January 15, 2014,

             Mr. Mungello filed an Amended PCRA Petition ("Amended Petition") raising the sole claim that

             trial counsel was ineffective for failing to object to the prosecutor's wearing of a shoe string

             around his neck during closing arguments, Amended Petition at ,r 5. The Commonwealth filed a

             Motion to Dismiss on March 19, 2014. On June 6,2014, after reviewing defendant's PCRA

             Petition and the Commonwealth'. s Motion to Dismiss, this Court ruled that the claims set forth in

             defendant's petition were without merit and, pursuant to Pa.R.Crim.P. 907, the Court issued




·""·   ,..
                                      ··--r· -- "", ~·




    notice of its intent to dismiss the petition withouta hearing ("907 Notice''). Mr. Mungello filed a

    Second Ame~ded Motion for Post-Conviction Collateral Relief ("Sec.ond Petition") on June 26,

    2014, raising a claim. of newly .discovered evidence that one of the police officers involved this

    matter, Officer John Speiser, had provided false information to obtain search warrants and

    provided false testimony in certain narcotics cases. The Commonwealth filed a second motion to

· dismiss on January 23, 2015. On March 20, 2015, the Court entered an order dismissing

    defendant's PCRA Petition. This appeal followed.

             Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that he

    is entitled to a new trial or arrest of judgment as ''tainted evidence of accomplice liability in the

    form of testimony from indicted Police Officer John Speiser was presented ... to convict

    [ defendant] of possession with the intent to deliver a controlled substance."! Appellant Tyree

    Canty's Statement of Errors Complained of on Appeal ("Statement of Errors") at~~ .l-Z, For the

    reasons set forth below, defendant's claim is without merit, and the PCRA Court's order

dismissing his PCRA Petition should be affirmed.

                                            Il.·FACTUAL BACKGROUND

            The facts of this case were set forth in this Court's l 925(a) Opinion regarding

defendant's direct appeal:

                   On March 3, 2009, Officer [Derrick] Gamer met with a
            confidential informant to set up a controlled purchase of drugs from
            apartment five of the Simon Garden Apartments building in Philadelphia.
           N. T. 05/21/2009 at 12-14. Officer Gamer first searched the informant and
           determined that he had no drugs or money on his person. N.T. 05/21/2009
           at 13. Officer Gamer then gave the informant twenty dollars of pre-
           recorded buy money and watched as the informant entered the apartment
           building. N.T. 05/21/2009 at 13"15. From where he was positioned
           outside the apartment building, Officer Gamer could see the informant at
           the doorway of apartment five through a large window. N. T. 05/21 /2009
           at 15-16. Officer Garner then saw defendant open the door to apartment
           five. N.T. 05/21/2009 af16-17. Soon thereafter, the informant returned to

I
    Defendant's claims have been consolidated for ease of analysis.


                                                           2
         Officer Garner with two packets of crack cocaine. N .T. 05/21/2009 at 17-
         18. After a search, it was determined that the informant no longer had the
         pre-recorded twenty dollar bill on his person. N.T. 05/21/2009 at 18.

                 Based on these observations, Officer Gamer procured a warrant to
        search the apartment where this apparent drug sale had taken place. N.T.
        05/2 l /2009 at 18-19, 24 .... The search warrant was executed the following
        day at 6731 Musgrave Street, where Officer Gamer had observed the
        confidential informant meet defendant the day before. N.T. 05/21/2009 at
        26-27. Defendant was arrested inside the apartment at the time the
        warrant was executed. N.T. 05/21/2009 at 26.


                        ***
                 [W]hen the search warrant was executed, officers arrested
         defendant and recovered two hundred thirty seven dollars in cash from his
        person as well as some keys that were on a lanyard around defendant's
        neck. N.T. 02/17/2010 at 103-104, 127, 130. Inside the kitchen, the
         officers broke into a closet inside of which was a safe. N.T. 02/17/2010 at
         107, 142. The officers were able to open the safe using two of the keys
        that were on the lanyard around defendant's neck. N.T. 02/17/2010 at 106.
        Inside the safe were approximately three hundred packets of crack
        cocaine, one clear bag containing a chunk of cocaine, a clear bag
        containing a chunk of crack cocaine, a digital scale, and a brown paper
        bag containing numerous new and unused multicolored packets. N.T.
        02/17/2010 at 109-110, 113-114, 153-154. The officers determined that
        the third key around defendant's neck opened the lock on the door to the
        closet that they already had broken into to access the safe. N.T.
        02/17/2010 at 106, 108.

Trial Court Opinion, dated September 16, 2010.


                                        III. DISCUSSION

        An appellate court's review of a PCRA court's grant or denial of relief "is limited to
                                 I                                                     .
                                 l
determining whether the court'slfindings are supported by the record and the court's order is

otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996)

(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will

not disturb findings that are supported by the record." Id.

       Here, defendant asserts that the. tainted testimony of indicted Philadelphia Police Officer

John Speiser entitles defendant to a new trial or to an arrest of judgment. Statement of Errors at



                                                 3
  ~1   1 ~2. In particular, in his Second Petition, defendant asserts as newly discovered evidence that

  Officer Speiser was arrested and indicted for federal charges of falsifying information and for

 providing false testimony in narcotics investigations. Second Petition at 117-22. Defendant
                                   '
 argues that Officer Speiser's testimony was essential evidence in support of the charge against

  defendant of criminal conspiracy. Response to Commonwealth's Motion to Dismiss Second
                                   !
 Amended Motion for Post Conviction Collateral Relief at pp. 1-5. Defendant claims that since

 Speiser's testimony was essential, and since new evidence establishes that Speiser was not

 credible, the PCRA Court erred in not granting defendant a new trial or an arrest of judgment.

 Statement of Errors at   n 1-2.   This claim is without merit.

           In order to establish a newly discovered evidence claim under the PCRA, defendant must

 show that "the evidence: 1) has been discovered after the trial and 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 for impeachment purposes; and 4) is of

 such a nature and character that a different verdict will likely result if a new trial is granted."

 Commonwealth v. Johnson, 841 A.2d 136, 140-41 (Pa. Super. 2003). Defendant's claim fails

 since the record establishes that Speiser's testimony did not contribute to the jury's verdict of

 guilt on the count of conviction. As a result, defendant cannot demonstrate that a different

 verdict would likely result should a new trial be granted.

          At trial, the Commonwealth established that Philadelphia Police Officer Derrick Garner

 conducted a controlled purchase of drugs from apartment five of the Simon Garden Apartments

 building in Philadelphia. N.T. 02/17/10 at 15-22. Based on this controlled buy, Officer Gamer

procured a warrant to search the apartment where this apparent drug sale had taken place. N.T.

02/17/10 at 22'. The recor~ at trial further reveals that, while Officer Speiser participated in the

execution of the search warrant, he was not the officer who arrested and searched defendant.



                                                   4
                            . -·----r------------··----            .    ----·------··-




 N.T. 02/17/10 at 99, 126-127. Further, Officer Speiser did not recover any items from

 defendant. Rather, Officer Anthony Parrotti testified that he recovered two hundred thirty seven

 dollars in cash from defendant, as well as keys to the locked cabinet and safe in which there were
                                   i




 approximately three hundred packets of crack cocaine, one bag containing a chunk of cocaine, a

 bag containing a chunk of crack cocaine, a digital scale, arid smaller plastic packets for cocaine

 distribution. N. T. 02/17/10 at 103-114, 130, 153~ 154. Officer Speiser, meanwhile, was outside

 the apartment arresting Lawrence Temple, the second occupant of the apartment who had run out

 onto a fire escape when the police entered. N.T. 2/17/10 at 126-132. While Speiser's testimony

 was relevant to the conspiracy charge, since he arrested the alleged coconspirator, defendant was

 acquitted of the conspiracy cha~ge.
                    .          ,   I                    ,



        In stating as hi~ ground ifor relief that Speiser gave "tainted evidence ~f accomplice

 liability," defendant appears to ~gue that even though defendant was acquitted of conspiracy,

and even though Speiser' s testi~ony only establishes the culpability of Temple, defendant still
                                   I

was prejudiced because the jury may have convicted him of PWID under an accomplice theory

based upon Temple's conduct. This argument is refuted by the record. The evidence at trial

established that defendant let the informant into the apartment, that defendant-had a large amount
                        .          I
of cash on his person, and that the keys to the safe containing the drugs were on a lanyard around

defendant's neck. All of this demonstrated that defendant exercised dominion and control over

the narcotics and was guilty as a principle. In fact, the Commonwealth never argued to the jury

that defendant was guilty of PWID as a result of any conduct on the part of Temple. N.T. 2/16/10

at 193-201.

       Accordingly, the record demonstrates that there is no likelihood that a different verdict

would result on the PWID charge, which was the sole charge of conviction, should a new trial be




                                                 5
                             '!




held without the testimony of Officer Speiser. Therefore, no relief is due. See Johnson, 841 A.2d

at 140~41.

                                      IV. CONCLUSION

       For the foregoing reasons, the Court's order dismissing defendant's PCRA Petition

should be affirmed.




                                                           BY THE COURT:



                                                     ~
                                                           GLENN B. BRONSON, J.




                                             6
