J-S29005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

MALIK WALKER

                            Appellant                      No. 168 EDA 2016


                 Appeal from the PCRA Order December 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006271-2008


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                 FILED APRIL 26, 2017

        Malik Walker appeals from the trial court’s order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

        In 2009, Walker was convicted by jury of one count each of possession

with intent to deliver a controlled substance 1 and false identification to law

enforcement      authorities.2      The    drug   charge   stemmed   from   officers




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-13(a)(30).
2
    18 Pa.C.S. § 4914(a).
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uncovering 135 packets of crack cocaine3 in the front seat of the car Walker

was driving during a vehicle stop. A search incident to arrest also uncovered

$1,040 in cash on Walker’s person. The trial court sentenced Walker to an

aggregate term of 6-12 years’ imprisonment. No post-sentence motions or

direct appeal were filed. After filing his first PCRA petition in 2010 claiming

that trial counsel was ineffective for failing to file a direct appeal, our Court

reinstated Walker’s direct appeal rights. Walker filed a direct appeal nunc

pro tunc; on September 5, 2013, our Court affirmed Walker’s judgment of

sentence.     Commonwealth v. Walker, No. 2375 EDA 2011 (Pa. Super.

filed June 22, 2012).

       On December 9, 2013, Walker filed a pro se PCRA petition;4 counsel

was appointed and filed an amended petition.         In his amended petition,

Walker alleged that Philadelphia Police Officer Michael Spicer, who testified

as a Commonwealth witness5 at his jury trial, had allegedly been involved in

____________________________________________


3
 Officers seized three individual zip-lock baggies: one baggie contained 40
packets of crack cocaine; another baggie contained 41 packets of crack
cocaine; and the third baggie contained 54 packets of crack cocaine.
4
  Walker titled this document a “Motion for New Trial Based upon After
Discovered Evidence Alternatively, for Post Conviction Relief; or
Alternatively, for a Writ of Habeas Corpus.” The trial court correctly chose to
treat this as a timely filed PCRA petition. See Pa.R.Crim.P. 720 (Comment)
(“after-discovered evidence discovered after completion of the direct appeal
process should be raised in the context of the PCRA.”).
5
 At Walker’s trial, Officer Spicer testified as an expert witness in narcotics
and the packaging and distribution of narcotics opining that, based upon his
(Footnote Continued Next Page)


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illegal activities, unbeknownst to counsel6, at the time of Walker’s trial.

Walker alleged that he was entitled to relief under the PCRA where the

Philadelphia District Attorney’s Office had dismissed all open cases in which

Spicer was involved in the prosecution due to his untrustworthiness and the

fact that Spicer was “making up certain facts, particularly the facts about

use of a ‘source of information.’”           PCRA Petition, 12/9/13, at ¶ 7.   After

issuing Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a

hearing, the court entered an order on December 7, 2015, denying Walker’s

petition.   The trial court denied Walker’s petition finding that “the newly

discovered evidence regarding Officer Spicer was not exculpatory and would

not, in any manner, compel a different result in this case.”            Trial Court

Opinion, 3/15/16, at 6. This appeal follows.

      On appeal,7 Walker presents one issue for our consideration: Did the

court err by denying [his] Post Conviction Relief Act Petition (PCRA)?


                       _______________________
(Footnote Continued)

experience, the amount of drugs Walker possessed was intended for
distribution.
6
   In fact, five other officers were involved in the illegal activities which
allegedly included claims of false arrests, filing of fraudulent reports and the
use of excessive force. As a result of their actions, more than 250 open
cases were dismissed by the District Attorney’s Office.
7
  The trial court notes that Walker filed his Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal late. However, despite it
being untimely, the trial court addressed Walker’s claim. See Trial Court
Opinion, 3/15/16, at 2 n.3.



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       On appeal from the denial of PCRA relief, we must determine whether

the PCRA court’s findings are supported by the record and whether the order

is otherwise free of legal error.       Commonwealth v. Blackwell, 647 A.2d

915, 920 (Pa. Super. 1994). We will not disturb the PCRA court’s findings

unless they have no support in the record. Id.

       Instantly,   Walker     presented       an   after-discovered   evidence   claim

pursuant to § 9543(a)(2) of the PCRA.8 Specifically, Walker contends that

on December 3, 2012, Philadelphia District Attorney Seth Williams sent

then-Philadelphia Police Commissioner Charles Ramsey a letter indicating

that his office was no longer going to prosecute cases involving Officer

Michael Spicer. Walker asserts that this letter was first referenced on Fox

News on December 5, 2012.              Walker claims that he is entitled to post

conviction relief because this new evidence “would have been utilized to

undermine the officer’s reliability” and “if the fact finder had been aware of

[the] officer’s practice of lying in the past about other drug cases and/or

confidential informants, it is likely that [the] verdict would have been

different.” Amended PCRA Petition, 9/22/14, at ¶¶ 11-12.



____________________________________________


8
  Pursuant to 42 Pa.C.S. § 9543(a)(2)(vi) (“To be eligible for relief under this
subchapter, the petitioner must plead and prove by a preponderance of the
evidence . . . [t]hat the 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.”).



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      In Commonwealth v. Burton, 2017 Pa. LEXIS 664 (Pa. filed March

28, 2017), our Supreme Court set forth the requirements to prove an after-

discovered evidence claim under the PCRA:

      [W]here a petition is otherwise timely, to prevail on an after-
      discovered evidence claim for relief under 42 Pa.C.S. §
      9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
      evidence has been discovered after trial and 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.

Id. at *22 (emphasis added).

      Here, the evidence regarding Officer Spicer’s alleged illegal activities

could not have been obtained before the conclusion of trial by reasonable

diligence where it did not become known to the public until almost three

years after Walker was convicted.          Likewise, the evidence was not

corroborative or cumulative as the veracity of Officer Spicer’s expert

testimony was never questioned at trial.       Despite these conclusions, we

recognize that none of the after-discovered evidence Walker has identified

points towards his innocence or has any direct bearing on Officer Spicer’s

actions in this case. At most, it calls into question the credibility of Officer

Spicer.   In other words, all of the evidence referenced herein strongly

suggests that Officer Spicer is guilty of multiple instances of criminal

misconduct in other drug cases, but none of the evidence details any such

wrongdoing in this case.




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      In Commonwealth v. Brown, 596 A.2d 840 (Pa. Super. 1991), our

Court explained the role of a police officer qualified as an expert witness in a

drug possession case:

      A police officer, who qualifies as an expert witness, can give
      opinion evidence that a defendant possessed drugs with the
      intent to deliver, regardless of whether the defendant was
      charged with that particular crime. The opinion of the witness
      possessing such knowledge is permitted as an aid to the jury.
      This is true even when the expert expresses an opinion on the
      ultimate issue before the jury. When opinion evidence is properly
      admitted, it is then for the jury (or the trial court) to determine
      its credibility. The jury is free to reject it, accept it, or give it
      some weight between the two. A witness may testify to an
      ultimate issue only in those instances where the admission will
      not cause confusion or prejudice. Expert opinion testimony will
      be admitted only if it is based upon facts which are of record.

Id. at 842. See Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007)

(where it is not clear whether substance is being used for personal

consumption or distribution, final factor to be considered is expert

testimony).

      At trial, Spicer testified as to his qualifications that make him an

expert in narcotics packaging and use. N.T. Jury Trial, 2/25/09, at 139-43.

The Commonwealth offered Spicer’s testimony solely to prove to the jury

that Walker possessed the drugs with the intent to deliver rather than for

personal use or simple possession. Id. at 144 (“Do you have an opinion as

to whether those – whether that crack-cocaine was possessed for personal

use or with the intention of delivering it?”).     To that end, Spicer offered

detailed testimony regarding the way the instant drugs were broken down


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into three separate baggies which he opined to be indicia of drugs for

redistribution.   Id. at 147.   Spicer also opined that the confiscated drugs

were worth over $2,700 and that “money goes hand in hand with drugs.”

Id. at 145, 150. Notably, Spicer was not involved in any way with the car

stop, seizure of drugs, Walker’s arrest, or the prosecution of his case. Id. at

156 (“I can’t lend an opinion to the person or persons involved.       I wasn’t

there.     I have no observations or anything like that.     I strictly give the

district   attorney   my   opinion   on   the   evidence   recovered.”).     Cf.

Commonwealth v. Rivera, 939 A.2d 355 (Pa. Super. 2007) (where

laboratory technician testified regarding weight, type and chain of custody of

drugs in defendant’s trial, after-discovered evidence that technician had

been charged with stealing drugs from lab justified vacating defendant’s

judgment of sentence vacated and remanding case for evidentiary hearing

where evidence called into serious question type and amount of drug upon

which defendant's conviction and sentence were based).

       Moreover, the evidence would not likely compel a different result. To

establish the offense of possession of a controlled substance with intent to

deliver, the Commonwealth must prove beyond a reasonable doubt that a

defendant possessed a controlled substance with the intent to deliver it.

Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003). The

trier of fact may infer that the defendant intended to deliver a controlled

substance from an examination of the facts and circumstances surrounding

the case. Id. Factors to consider in determining whether the drugs were

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possessed with the intent to deliver include the particular method of

packaging, the form of the drug, the presence of large sums of cash on the

defendant’s person, and the behavior of the defendant. Commonwealth v.

Jackson, 645 A.2d 1366, 1368 (Pa. Super. 1994) (citations omitted). See

also Commonwealth v. Bagley, 442 A.2d 287 (Pa. Super. 1982) (to

determine whether evidence warrants inference of possession with intent to

deliver, trier of fact shall consider quantity of drugs, street value of drugs,

manner of packaging, and presence of paraphernalia used in drug

trafficking).

      Here, the defense focused on the issue of constructive possession and

whether or not the drugs found in the defendant’s vehicle, which included

several other occupants, could be tied to Walker. Moreover, based on the

sheer quantity of the drugs, lack of any drug use paraphernalia, and the

amount of money found on Walker, the jury could reasonably infer, without

the use of expert testimony, that Walker possessed the drugs with the intent

to deliver.     See Commonwealth v. Gill, 415 A.2d 2 (in certain

circumstances, possession of large quantities of controlled substance may

justifiably suggest inference of intent to deliver); Commonwealth v.

Santiago, 340 A.2d 440, 444 (Pa. 1975) (“intent with which a controlled

substance is possessed is generally established through circumstantial

evidence and . . . the quantity of the drug possessed is a circumstance which

may permit the inference that the possessor had an intent to sell, deliver or

otherwise distribute.”); Ratsamy, supra (“[P]ossession with intent to

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deliver can be inferred from the quantity of the drugs possessed and other

surrounding        circumstances,   such   as   lack   of   paraphernalia   for

consumption.”).       Thus, the evidence would not likely compel a different

result at trial.

      Accordingly, because Walker’s after-discovered evidence would have

been used to attack Spicer’s credibility and would not likely compel a

different verdict, the trial court’s decision is supported in the record.

Blackwell, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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