Com. v. Canty, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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