J-S47020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellant

                       v.

CAROL LEIDY,

                            Appellee                       No. 2173 EDA 2013


                   Appeal from the Order Entered July 3, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010504-2011


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED NOVEMBER 25, 2014

        The Commonwealth of Pennsylvania appeals from the order entered on

July 3, 2013, which granted Carol Leidy’s Post-Conviction Collateral Relief

Act (“PCRA”) petition, vacated Ms. Leidy’s judgment of sentence, and

remanded the case for a new trial.             We vacate the trial court’s order and

remand.

        On September 24, 2012, Ms. Leidy entered a negotiated guilty plea to

one count of possession of a controlled substance with the intent to deliver

(“PWID”).1 During the guilty plea colloquy, Ms. Leidy acknowledged that her

guilty plea was based upon the following facts:

          The facts that the Commonwealth would have presented at
          trial are, that on August [18, 2010], [Philadelphia Police
____________________________________________


1
    35 P.S. § 780-113(a)(30).
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       O]fficers from the Narcotic Field Unit initiated a controlled
       buy from a property at 2931 South Sydenham Street in
       South Philadelphia. At that time Officer [Michael] Spicer,
       who was acting in an undercover capacity[,] went to 2931
       South Sydenham Street with the intent of purchasing pills
       from a person who had been described to him as a white
       female, approximately 45 to 50 years old, with blonde hair,
       named Carol.       Officer Spicer went with a confidential
       informant to 2931 South Sydenham Street, at which time
       [Ms. Leidy] answered the door and retrieved a large amber
       pill bottle and turned it over to Officer Spicer in exchange
       for money. [Ms. Leidy] stated to Officer Spicer at that time,
       [“]if you need more I have plenty, just let me know.[”] The
       pills that were turned over to Officer Spicer were 200 pills of
       what later tested positive for methadone, a [S]chedule II
       controlled substance. The weight of those 200 pills was
       40.69 grams. Also turned over to Officer Spicer [were] 60
       pills of amphetamine, also [a S]chedule II controlled
       substance. And the weight of those 60 pills was 14.43
       grams.

       After that controlled buy, . . . officers obtained a search and
       seizure warrant for the property at 2931 South Sydenham
       Street. It was executed the same day at approximately
       6:40 [p.m.] and [Ms. Leidy] was inside of the house at the
       time the warrant was issued and she was positively
       identified by [O]fficer Spicer. Recovered from inside of the
       house on the second floor front bedroom was one amber pill
       bottle, containing 476 methadone pills with the name of a
       person other than [Ms. Leidy on the label]. And those 476
       pills had a total weight of 95.65 grams. Also recovered in
       that bedroom was one bottle containing 84 methadone
       pills[,] a total weight of those pills was 16.73 grams. Also
       recovered was another bottle containing 595 methadone
       pills, another bottle containing 10 pills of what later tested
       positive for amphetamines, and another bottle containing
       75 pills of what later tested positive for temazepam[, a
       Schedule IV controlled substance. I]n another bedroom
       was found one clear Ziploc bag containing what later tested
       positive for marijuana, total weight 26.6 grams.           Also
       recovered from inside of the house was mail in the name of
       [Ms. Leidy]. The total weight of the [S]chedule II controlled
       substances . . . was over 100 grams. . . .


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N.T. Guilty Plea, 9/24/12, at 11-14.

      After Ms. Leidy acknowledged the above-summarized facts, the trial

court conducted the remainder of the plea colloquy and then sentenced Ms.

Leidy in accordance with the negotiated term of 11 ½ to 23 months of house

arrest, followed by eight years of reporting probation. Id. at 18. Ms. Leidy

did not file a direct appeal from her judgment of sentence and her judgment

of sentence thus became final, for PCRA purposes, on October 25, 2012.

See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b)(3).

      On January 22, 2013, Ms. Leidy filed a timely, counseled PCRA

petition, wherein Ms. Leidy claimed that she was entitled to a new trial

because of certain after-discovered evidence. Specifically, Ms. Leidy claimed

that she had recently become aware of two newspaper articles, which

declared that a group of Philadelphia Police Officers in the Narcotics Field

Unit had been accused of work-related illegality and that “[t]he District

Attorney of the City of Philadelphia, Seth Williams, has stated that he will no

longer use the officers as witnesses, accept charges, or approve search

warrants in narcotics cases in which [the accused officers] were involved.”

PCRA Petition, 1/22/12, at 1-2. Ms. Leidy claimed that some of the accused

officers “were involved in [her] case.” Id. at 1.

      Within her PCRA petition, Ms. Leidy did not plead that the officers

committed misconduct in her case.       See id. at 1-2.    Instead, Ms. Leidy

claimed only that the officers’ loss of credibility and the District Attorney’s

internal policy – refusing to “use the officers as witnesses, accept charges,

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or approve search warrants in narcotics cases in which [the accused officers

were involved” – constituted “after-discovered evidence,” which entitled Ms.

Leidy to relief under Section 9543(a)(2)(vi) the PCRA. Id. Ms. Leidy thus

requested that the PCRA court vacate her judgment of sentence, allow her to

withdraw her plea, and remand the case for a new trial. See id. at 2.

      On June 19, 2013, the PCRA court held a hearing on Ms. Leidy’s

petition, during which time Ms. Leidy testified on her own behalf. During the

PCRA hearing, Ms. Leidy denied that she sold controlled substances on

August 18, 2010 and further denied that she                     possessed controlled

substances in her residence on that date. See PCRA Hearing, 6/19/13, at

8 - 74. Again, however, Ms. Leidy did not specify misconduct by any of the

now-discredited officers who were involved in her case.

      Further, during the PCRA hearing, the Commonwealth presented the

testimony of Philadelphia County Assistant District Attorney Paul Reddel.

ADA Reddel was the district attorney who represented the Commonwealth

during the underlying prosecution of Ms. Leidy.           ADA Reddel testified that

Philadelphia Police Officers Tom Liciardello and Michael Spicer were involved

in Ms. Leidy’s arrest, that there are allegations of illegality against Officers

Liciardello and Spicer, and that, because of the allegations against Officers

Liciardello and Spicer, the District Attorney’s Office “doesn’t call [] Officer

Liciardello,   Spicer,   and   the   rest   of   that   team”    to   testify   for   the

Commonwealth. Id. at 91. Counsel for Ms. Leidy did not ask ADA Reddel




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whether the Commonwealth could have proved its allegations against Ms.

Leidy through witnesses other than Officers Liciardello and Spicer.

      Following the presentation of the evidence, Ms. Leidy’s counsel

admitted that she did not adduce any “evidence of specific misconduct in

this case.”   Id. at 105.   Nevertheless, counsel argued that Ms. Leidy was

entitled to PCRA relief because of the “after-discovered fact” that “the

District Attorney’s Office doesn’t use these cops” at trial and that District

Attorney “Seth Williams said these guys are not credible.” Id.

      On July 3, 2013, the PCRA court entered an order that granted Ms.

Leidy post-conviction collateral relief, vacated her judgment of sentence, and

remanded the case for a new trial. PCRA Court Order, 7/3/13, at 1. As the

PCRA court explained:

        The after-discovered evidence is the fact that the District
        Attorney’s Office is no longer calling the police officers who
        were involved in this case as witnesses. The evidence could
        not be obtained before trial. It is not cumulative and it is
        not solely for impeachment. And is of such a nature and
        character that a different disposition would be likely.

        So I’m granting this petition. I’m vacating the conviction
        and the sentence and I would grant a new trial.

N.T. Oral Argument, 7/3/13, at 6-7.

      The Commonwealth filed a timely notice of appeal and now raises the

following claims to this Court:

        [1.] Did the PCRA court err in granting [Ms. Leidy] a new
        trial where[] as a matter of law[, Ms. Leidy’s] guilty plea
        precluded a claim of [after-]discovered evidence on
        collateral review[?] . . .

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          [2.] Did the PCRA court err in granting [Ms. Leidy] a new
          trial where . . . [Ms. Leidy] failed to prove that the evidence
          in question is exculpatory, existed prior to the plea, is not
          limited to impeachment, would have changed the outcome,
          and would make a different verdict likely on retrial?

Commonwealth’s Brief at 3.

        As we have stated, “[o]ur standard of review from the grant or denial

of post-conviction relief is limited to examining whether the PCRA court’s

determination is supported by the evidence of record and whether it is free

of legal error.”    Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.

Super. 2011). “In evaluating a PCRA court’s decision, our scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the prevailing party at the trial level.”

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “We

may affirm a PCRA court’s decision on any grounds if it is supported by the

record.” Id.

        We conclude that the Commonwealth’s first claim on appeal is

meritless, but that the Commonwealth’s second claim on appeal entitles it to

relief and mandates that we vacate the PCRA court’s order.

        According to the Commonwealth’s first argument on appeal, the PCRA

court    “applied   the   wrong    legal   standard”   to   Ms.   Leidy’s   claim.

Commonwealth’s Brief at 11. In particular, the Commonwealth argues that

Ms. Leidy’s guilty plea foreclosed her ability to raise an “after-discovered

evidence” claim during post-conviction collateral relief proceedings. Id. As

the Commonwealth argues, “[t]o the extent that the instant claim could

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have been entertained at all, it should have been reviewed under the

manifest injustice standard, not the more lenient PCRA standard for [after]-

discovered evidence.” Id.

        The Commonwealth’s argument fails.             Our Supreme Court has

previously held that a petitioner may obtain post-conviction collateral relief

upon an “after-discovered evidence” claim even where the petitioner has

pleaded guilty before the trial court.

        In Commonwealth v. Peoples, 319 A.2d 679 (Pa. 1974), the

petitioner filed a Post-Conviction Hearing Act (“PCHA”)2 petition, requesting

that the PCHA court allow him to withdraw his guilty plea because of after-

discovered evidence. The Commonwealth opposed the petition by arguing

that “as a matter of law, the presence of such [after-discovered] evidence

alone should not entitle [the petitioner] to withdraw his guilty plea” – but

that the petitioner must, instead, be forced to meet the “manifest injustice”

threshold for withdrawing a guilty plea.         Peoples, 319 A.2d at 680.   Our

Supreme Court rejected the Commonwealth’s argument and held:

          In numerous cases, most recently in Commonwealth v.
          Starr, 301 A.2d 592 (Pa. 1973), [the Supreme Court has]
          held that a court should allow the withdrawal of a guilty plea
          after sentencing to correct a manifest injustice to the
          defendant. The first issue thus presented by the case is
          whether a defendant has met the requirements of Starr . . .
          if he has produced after-discovered evidence which would
          have entitled him to a second trial if he had gone to trial
____________________________________________


2
    The PCHA was the statutory predecessor of the PCRA.



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         originally rather than pleading guilty. [The Supreme Court
         is] of the opinion that any after-discovered evidence which
         would justify a new trial would also entitle a defendant to
         withdraw his guilty plea. It would be incongruous to allow a
         defendant a new trial on the basis of after-discovered
         evidence when he has already had one trial, but to deny
         him a new trial on the basis of such evidence merely
         because he had originally decided not to go to trial, but
         plead guilty, perhaps because he did not have the additional
         evidence.

Peoples, 319 A.2d at 681.

       Thus, Peoples holds that, where a post-conviction collateral relief

petitioner seeks to withdraw her plea based upon after-discovered evidence,

the ability of the petitioner to satisfy the after-discovered evidence standard

means that the petitioner is, ipso facto, able to satisfy the manifest injustice

standard.

       Within the Commonwealth’s brief to this Court, the Commonwealth

acknowledges Peoples and the legal edict contained within that opinion.

Nevertheless, according to the Commonwealth, we should not follow

Peoples because its reasoning is “erroneous.” Commonwealth’s Brief at 13-

14. Yet, we have no authority to overrule our Supreme Court. See, e.g.,

Preiser v. Rosenzweig, 614 A.2d 303, 306 (Pa. Super. 1992) (“[a]s an

intermediate appellate court, we are not free to disregard the existing law of

this   Commonwealth     and   the   decisions   of   our   [S]upreme   [C]ourt”).

Therefore, since our High Court has held that a post-conviction collateral

relief petitioner, who pleaded guilty before the trial court, may obtain relief




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based upon after-discovered evidence, the Commonwealth’s first claim on

appeal fails as a matter of law.

       For the Commonwealth’s second claim on appeal, the Commonwealth

claims that – even if the PCRA court were correct to view Ms. Leidy’s claim

under the “after-discovered evidence” standard – the PCRA court erred when

it granted Ms. Leidy relief. We agree.

       Under the PCRA, to be entitled to post-conviction collateral relief upon

a claim of after-discovered evidence, the petitioner must plead and prove

that her conviction or sentence resulted from “[t]he unavailability at the

time of trial of exculpatory evidence that has subsequently become available

and would have changed the outcome of the trial if it had been introduced.”

42 Pa.C.S.A. § 9543(a)(2)(vi).      As our Supreme Court has held, Section

9543(a)(2)(vi) is satisfied where the PCRA petitioner establishes that:

         (1) the evidence has been discovered after trial and it could
         not have been obtained at or prior to trial through
         reasonable diligence; (2) the evidence is not cumulative;
         (3) it is not being used solely to impeach credibility; and (4)
         it would likely compel a different verdict.

Commonwealth v. Washington, 927 A.2d 586, 595 (Pa. 2007); see also

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa. 1998).                Moreover,

“the   proposed   new    evidence   must    be   producible   and   admissible.”

Commonwealth v. Smith, 17 A.3d 873, 887 (Pa. 2011).

       In this case, the PCRA court held that “the fact that the District

Attorney’s Office is no longer calling the police officers who were involved in

this case as witnesses” constituted “after-discovered evidence” under the

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PCRA and entitled Ms. Leidy to post-conviction collateral relief.3 The PCRA

court reasoned that, if Ms. Leidy’s trial had occurred after the District

Attorney’s new internal policy went into effect, the effect of the policy

would have been that the Commonwealth would not have presented the

testimony of Officers Liciardello and Spicer. According to the PCRA court, if

the Commonwealth would not have presented the testimony of these two

officers, “the Commonwealth would not [have been] able to present any

evidence to prove the charges against [Ms. Leidy].”              Therefore, the PCRA

court held, Ms. Leidy was entitled to relief under the PCRA.                Trial Court

Opinion, 12/11/13, at 6.

       We    respectfully    disagree     with     the   PCRA   court’s   analysis   and

conclusion. At the outset, the PCRA court is incorrect to conclude that, if the

Commonwealth would not have presented the testimony of these two

officers, “the Commonwealth would not [have been] able to present any

evidence to prove the charges against [Ms. Leidy].”              PCRA Court Opinion,

12/11/13, at 6. Certainly, within Ms. Leidy’s guilty plea colloquy, Ms. Leidy

acknowledged that – when Officer Spicer initially purchased controlled
____________________________________________


3
  In resolving this claim, we focus on the testimony of ADA Reddel and not
the newspaper articles Ms. Leidy has attached to her PCRA petition, as our
Supreme Court has recently held that newspaper articles do not constitute
after-discovered evidence. Commonwealth v. Castro, 93 A.3d 818 (Pa.
2014). Nevertheless, since ADA Reddel testified that the District Attorney’s
Office “doesn’t call [] Officer Liciardello, Spicer, and the rest of that team” to
testify for the Commonwealth, we may consider Ms. Leidy’s claim. PCRA
Hearing, 6/19/13, at 91.



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substances from her on August 18, 2010 – Officer Spicer was accompanied

by a confidential informant.        N.T. Guilty Plea, 9/24/12, at 12.          Since the

confidential informant could have testified to the controlled purchase – and

since the confidential informant’s testimony could have supported a PWID

conviction    –   the   PCRA     court   is    incorrect   to   conclude    that,   if   the

Commonwealth would not have presented the testimony of Officers

Liciardello and Spicer, “the Commonwealth would not [have been] able to

present any evidence to prove the charges against [Ms. Leidy].”                      PCRA

Court Opinion, 12/11/13, at 6. (Emphasis supplied).

       Secondly, even if the confidential informant did not exist, the PCRA

court’s conclusion and reasoning would still be incorrect.                 Certainly, the

effect of the Philadelphia County District Attorney’s decision to “no longer

call[] the police officers who were involved in this case as witnesses” cannot

satisfy the PCRA’s after-discovered evidence standard, as the effect does

not constitute “evidence” at all.4 Rather, it is simply a consequence of a new

internal policy of the District Attorney’s Office. The effect of the policy does

not constitute testimony, a document, or a tangible object that may be

admitted at trial – and, therefore, the effect of the internal policy does not


____________________________________________


4
   Indeed, in this case, the theoretical “effect” of the District Attorney’s
internal policy is entirely conjectural, as Ms. Leidy pleaded guilty before the
new internal policy was created. Moreover, (even if the Commonwealth
chooses to follow its own internal policy) the new internal policy operates by
omitting certain potential evidence.



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constitute evidence. See, e.g., Smith, 17 A.3d at 887 (to satisfy the after-

discovered evidence standard, “the proposed new evidence must be

producible and admissible”). The PCRA court thus erred in concluding that

the effect of “the fact that the District Attorney’s Office is no longer calling

the police officers who were involved in this case as witnesses” entitles Ms.

Leidy to relief under Section 9543(a)(2)(vi) of the PCRA.

      We are cognizant of the fact that we may affirm a PCRA court’s order

on any basis.    See Rivera, 10 A.3d at 1279.        However, nothing in Ms.

Leidy’s PCRA petition entitles her to relief. First, as our Supreme Court has

recently held, the newspaper articles, by themselves, cannot satisfy the

PCRA’s after-discovered evidence standard.         Castro, 93 A.3d at 827

(“allegations [in a newspaper article] . . . are merely one reporter’s version

of a story; indeed, [such allegations are] double hearsay, as [they are] the

reporter relaying what he or she has been told by another person. . . . [The

newspaper] article itself is not evidence . . . the article contains allegations

that suggest such evidence may exist”).

      Second, any claim that the allegations against Officers Liciardello and

Spicer constitute “after-discovered evidence” because Ms. Leidy could have

used the allegations to attack the officers’ credibility also fails, as the PCRA

does not allow for relief upon an “after-discovered evidence” claim, where

the evidence is being used solely to impeach credibility. See Washington,

927 A.2d at 595; Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.

Super. 2010) (“a defendant seeking a new trial must demonstrate he will not

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use the alleged after-discovered evidence solely to impeach the credibility of

a witness”).

      Finally (and similarly), the actual “fact” that “the District Attorney’s

Office is no longer calling the police officers who were involved in this case

as   witnesses”   does    not   entitle     Ms.    Leidy   to   relief   under   Section

9543(a)(2)(vi) of the PCRA because, even if the “fact” were admissible at

trial, the fact would only be admissible to impeach the officers’ credibility.

Thus, “the fact that the District Attorney’s Office is no longer calling the

police officers who were involved in this case as witnesses” cannot satisfy

the PCRA’s after-discovered evidence standard. See Washington, 927 A.2d

at 595; Padillas, 997 A.2d at 365.

      We thus vacate the PCRA court’s order and remand.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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