Com. v. Walker, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
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
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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)?
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(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.
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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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