Com. v. Griffin, A. ( 2018 )

J. A12042/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALPHONSO GRIFFIN, : No. 498 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, December 12, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0000663-2014
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 10, 2018
Alphonso Griffin appeals the December 12, 2016 judgment of sentence
of the Court of Common Pleas of Philadelphia County resentencing him to
three years’ probation for his conviction of possession with intent to deliver
(marijuana) (“PWID”).1 After careful review, we vacate and remand for a new
trial.
The facts and procedural history, as recounted by Judge Clemons Jones,
are as follows:
On September 3, 15, and 16 of 2013,
Stephen Dmytryk (“Officer Dmytryk”), a narcotics
officer with the Philadelphia Police Department
conducted surveillance at 3153 and 3163 Weymouth
Street in Philadelphia, PA. Officer Dmytryk undertook
the surveillance based on information he allegedly
received from several residents, stating that a tall,
1 35 P.S. § 780-113(a)(30).
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thin, black male with a beard was conducting drug
sales on this block.
On September 3, 2013 between 2:00 and 4:00 pm,
Officer Dmytryk began surveilling the 3100 block of
Weymouth. Officer Dmytryk testified that he
observed an individual matching the description given
by several complaining residents standing in front of
an abandoned house at 3153 Weymouth Street.
Officer Dmytryk conducted a controlled narcotics
“buy” from the observed individual using a
confidential informant (“Cl”) on September 3, 2013.
The Cl was searched before and after the transaction.
From a distance of approximately 15-20 house lengths
away and without any visual aids, Officer Dmytryk
claims that he observed the CI hand the individual,
identified by Officer Dmytryk as [appellant], the
pre-recorded buy money. The observed individual
was then seen entering 3153 Weymouth Street,
exiting shortly thereafter, and handing small objects
to the CI. Upon the CI’s returning to
[O]fficer Dmytryk, the CI gave [O]fficer Dmytryk
13 small packets of heroin.
On September 15, 2013, Officer Dmytryk conducted a
second controlled narcotics “buy” using the CI. This
controlled transaction occurred at 3163 Weymouth
Street. Officer Dmytryk searched the CI before and
after the transaction. Officer Dmytryk observed the
CI engage in a conversation for approximately
15 seconds with an individual identified by
Officer Dmytryk as [appellant]. After this
conversation, this individual then entered
3163 Weymouth Street, exited shortly thereafter and
accepted United States currency from the informant
and handed him small items in return. The CI
returned to Officer Dmytryk and turned over a clear
Ziploc bag containing marijuana.
On September 16, 2013, Officer Dmytryk again set up
surveillance on the 3100 block of Weymouth at
approximately 2[:]00 p.m. During the 20 minute
surveillance, Officer Dmytryk testified that he
observed [appellant] standing on the block and going
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in and out of 3153 and 3163 Weymouth Street. After
observing this activity for approximately 20 minutes,
Officer Dmytryk terminated the surveillance.
On September 17, 2013, search and seizure warrant
175846 was obtained and executed at
3153 Weymouth Street at 2[:]25 pm. No evidence
was recovered from this location. During the
execution of the warrant on 3153 Weymouth,
Officer Dmytryk observed [appellant] standing across
the street near the driver’s side door of a grey Pontiac
parked on the west side of the street between
3153 and 3163 Weymouth. Officer Dmytryk
instructed Officer Thomas Kuhn to arrest [appellant].
Neither narcotics nor money were recovered from
[appellant]. Another assisting officer, Officer Micah
Waters recovered 11 packets of crack cocaine from
the driver side mirror of the gray Pontiac.
Simultaneously, search and seizure warrant 175847
was executed at 3163 Weymouth Street. Sergeant
William Torpey recovered $1,040 of United States
currency from a woman’s purse in a hallway closet and
three yellow packets of marijuana from a drawer in
the living room table.
On September 17, 2013, [appellant] was arrested and
charged with one count of possession with the intent
to deliver a controlled substance (PWID), one count of
possession of a controlled substance . . . and one
count of possession of marijuana . . . .
On July 9, 2014, [appellant] waived his right to a jury
trial and was tried before the Honorable Joan A. Brown
in a bench trial. [Judge Brown] convicted [appellant]
of the PWID charge associated with the transaction
occurring on September 15[,] 2013 and found him not
guilty as to all other charges. On July 9, 2014,
[Judge Brown] sentenced [appellant] to three years of
reporting probation. Shortly thereafter, on July 16,
2014, [appellant] filed a Post-Sentence Motion
contending that the verdict was against the weight of
the evidence. [Judge Brown, without a hearing]
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issued an order denying the Post-Sentence Motion on
July 22, 2014.[2]
On August 1, 2014, [appellant] filed a Motion for a
New Trial on the Grounds of After-Discovered
Evidence,[3] pursuant to Title 234 of the
[Pa.R.Crim.P.] 720(C). The Post-Sentence Motion to
vacate sentence and introduce new evidence was
granted on August 8, 2014.
A contested motions hearing was held on January 15,
2016. This hearing resulted in the trial court granting
Defendant’s Motion for New Trial on the Grounds of
After-Discovered Evidence. The Commonwealth
subsequently filed a Notice of Interlocutory Appeal
2 Judge Brown did not issue an opinion in support of this order.
3 In the post-sentence motion for a new trial based on after-discovered
evidence, appellant asserted that an indictment lodged against six City of
Philadelphia police officers referred to Officer Dmytryk by his initials as an
officer who falsified police reports in that a report did not disclose all of the
cash and other valuables that were recovered because police officers stole
them and did not disclose the true ownership of a handgun. In the motion,
appellant asserted:
The information contained in the indictment
implicating Officer [] Dmytryk in the knowing
falsification of police paperwork and conspiracy to
commit theft of evidence constitutes after-discovered
evidence that would be relevant at trial in order to
challenge the credibility of Officer Dmytryk and would
serve to exculpate [appellant] of the charges against
him. Had this information been presented at trial, the
outcome of the case likely would have been different.
Since this information was not known to Defense
Counsel prior to the unsealing of the federal
indictment, [appellant] is entitled to a new trial in this
matter. [Appellant] respectfully requests that Your
Honor vacate the finding of guilt and sentence and
order a new trial in the interests of justice.
Post-sentence motion for a new trial based on after-discovered evidence,
8/1/14 at 2 ¶ 4.
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pursuant to [Pa.R.A.P.] 311(a)(6) [o]n February 17,
2015, while simultaneously filing a Statement of
Errors Complained of on Appeal pursuant to
[Pa.R.A.P.] 1925(b). On July 6, 2015 [Judge Brown]
then issued an opinion pursuant to
[Pa.R.A.P.] 1925(a), holding that [appellant] was
entitled to a new trial based on after[-]discovered
evidence.
On February 17, 2015, the Commonwealth filed an
interlocutory appeal alleging that the information
provided by [appellant] to support his motion was not
evidence because it would be inadmissible at trial. On
April 8, 2016, the Superior Court issued an opinion
concluding that [Judge Brown] erred as a matter of
law in granting [appellant’s] motion for a new trial
based on after-discovered evidence. The Superior
Court reversed the trial court’s grant of new trial and
reinstated the judgment of sentence.
On December 12, 2016, upon receiving the Superior
Court’s appellate decision, [Judge Clemons Jones]
reinstated the original sentence retroactively to
July 9, 2014[.] On January 12, 2017, [appellant] filed
a Post [] Conviction Relief Act (PCRA) petition alleging
ineffective assistance of counsel for failing to timely
file a notice of appeal to the Superior Court and
seeking allowance of [a]ppeal nunc pro tunc[.]
[Judge Clemons Jones] granted the [p]etition for
allowance of appeal nunc pro tunc by order on
January 27, 2017 and reinstated [appellant’s] right to
file a direct appeal within thirty days of the order.
[Appellant] filed a notice of appeal on the same day[.]
On February 3, 2017, [Judge Clemons Jones] issued
an order pursuant to [Pa.R.A.P.] 1925(b) requiring
[appellant] to file a sufficiently detailed statement of
errors complained of on appeal within twenty-one
days[.] On February 17, 2017, [appellant] filed a
Statement of Errors Complained of on Appeal . . . .
Trial court opinion, 8/23/17 at 2-5 (footnotes and headings omitted).
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On August 23, 2017, Judge Clemons Jones issued her opinion, pursuant
to Pa.R.A.P. 1925(a). Judge Clemons Jones agreed with appellant that the
verdict was against the weight of the evidence and so contrary to the evidence
as to shock one’s sense of justice, such that a new trial was warranted.
Appellant raises the following issue for this court’s review:
Was not the verdict of guilt to one count of possession
with intent to deliver marijuana against the weight of
the evidence for the following reasons: (1) the verdict
relies on a questionable identification where the trial
court found the Commonwealth’s witness to be
mistaken at least once regarding the drug seller’s
identity based upon a credible alibi; (2) the officer
observed the alleged transactions from a distance of
15-20 house lengths without the use of visual aids
and two days prior to appellant’s arrest;
(3) [] appellant is deaf and mute, and needs a sign
language interpreter, but the witness claimed to
observe him engage in a 15 second conversation;
(4) [] appellant had no connection to the two homes
or the car in which money and narcotics were
recovered; (5) [] appellant possessed no money,
narcotics, or other contraband at the time of his
arrest; (6) [] appellant did not engage in illegal or
suspicious conduct on the date of his arrest; and
(7) [] appellant had good character such that his
conviction shocks the conscience and a new trial is
necessary so that right may prevail?
Appellant’s brief at 2 (emphasis in original).
[T]he weight of the evidence is exclusively
for the finder of fact who is free to believe
all, part, or none of the evidence and to
determine the credibility of the witnesses.
An appellate court cannot substitute its
judgment for that of the finder of fact . . .
thus, we may only reverse the lower
court’s verdict if it is so contrary to the
evidence as to shock one’s sense of
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justice. Moreover, where the trial court
has ruled on the weight claim below, an
appellate court’s role is not to consider the
underlying question of whether the
verdict is against the weight of the
evidence . . . rather, appellate review is
limited to whether the trial court palpably
abused its discretion in ruling on the
weight claim.
Commonwealth v. Kim, 888 A.2d 847, 851
(Pa.Super. 2005) (citations and quotations omitted).
A motion for a new trial based on a challenge to the
weight of the evidence concedes the evidence was
sufficient to support the verdict. Commonwealth v.
Davis, 799 A.2d 860, 865 (Pa.Super. 2002).
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).
The initial rather unique issue we are required to deal with in this appeal
is not one presented by appellant. This nunc pro tunc appeal lies from the
reinstated judgment of sentence of July 9, 2014. Appellant, following his
bench trial and original sentencing, filed a timely post-sentence motion raising
the same weight of the evidence issue presented in this appeal, and the trial
judge, Judge Brown, denied that motion. In her Rule 1925(a) opinion,
Judge Clemons Jones addresses these same weight issues and finds them
meritorious, thereby suggesting we reverse Judge Brown’s credibility
determination and remand for a new trial. Interestingly, the Commonwealth
agrees with this assessment.
While we have concerns about this procedural issue, what appears clear
to this court is that Judge Brown, Judge Clemons Jones, and the
Commonwealth all believe justice requires that appellant receive a new trial
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based on the testimony and credibility of Officer Dmytryk’s identification of
appellant. Albeit, in spite of Judge Brown’s erroneous grant of a new trial on
after-discovered evidence, Judge Clemons Jones’s Rule 1925(a) opinion
suggesting we reverse her colleague’s initial weight determination and
accepting the Commonwealth’s concession upon its review of the record that
a new trial is warranted, we vacate appellant’s conviction and remand for a
new trial.
Judgment of sentence vacated. This case is remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/18
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