J-S12005-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

MICHAEL CARTAGENA,

                          Appellant                    No. 1518 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-0003463-2010


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

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

       Michael Cartagena appeals from the judgment of sentence of a

mandatory sentence of five to ten years incarceration imposed by the trial

court after a jury found him guilty of possession with intent to deliver

(“PWID”) and criminal conspiracy to commit PWID. After careful review, we

are constrained to vacate Appellant’s judgment of sentence and remand for

resentencing. In all other respects, we affirm.

       The trial court delineated the following salient facts.

             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 the Appellant and Luis Melendez standing on
       the west side of 2600 Waterloo Street.

*
    Former Justice specially assigned to the Superior Court.
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            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.

           At approximately 10:15 a.m., Melendez and the Appellant
     entered the Buick parked on the east side of the street. The
     Appellant sat in the driver's seat. 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, Rolando Hernandez
     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



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        approximately 10:45 a.m., Melendez again entered the Buick
        with the Appellant.

              At approximately 11:00 a.m., the Appellant exited the
        Buick, crossed the street, and stood on the west side of 2600
        Waterloo Street.     An unknown Hispanic male and female
        approached the Appellant. The individuals handed the Appellant
        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 the Appellant and Melendez.
        Sergeant Lonnie Clausson and Officer Swift responded to the call
        and stopped the Appellant 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.

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

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

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       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 the
       Appellant.

              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 Hernandez's name.

Trial Court Opinion, 4/9/14, 2-6 (footnotes and emphasis omitted).

       Police charged Appellant with the aforementioned offenses. Appellant,

Rolando Hernandez, and another individual, Suhay Rodriguez,2 were jointly

tried in September of 2012. The jury convicted Appellant of both PWID and

conspiracy to commit PWID.        Appellant filed a motion for extraordinary

relief.3   The court heard argument on the motion on March 15, 2013, and

denied it on May 10, 2013.        The court then sentenced Appellant to a




2
  The facts relevant to Ms. Rodriguez relate to a later incident not material to
the disposition of this case.
3
  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); but
compare Pa.R.Crim.P. 720(C).

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mandatory minimum sentence of five to ten years incarceration under 18

Pa.C.S. § 7508 followed by two years probation.

      This timely appeal ensued.       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. Appellant’s sole

issue on appeal is “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 brief at 2.

      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

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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.

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


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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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

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 13.    In Appellant’s view,

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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.

      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

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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.

     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

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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

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


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

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

Super 289 (en banc); Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super.

2014); compare also Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc); 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.

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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