Appeal from the PCRA Order of November 20, 2007 In the Court of Common Pleas of Philadelphia County, Criminal, Nos. CP-51-CR-1204871-2001, CP-51 CR-1203211-2001, CP-51-CR-0511611-2002, CP-51-CR-1000691-2001, CP-51-CR-0405351-2004, CP-51-CR-1200351-2001 & CP-51-CR-0507581-2001.
The opinion of the court was delivered by: Klein, J.
Petition for Reargument Filed August 12, 2009
BEFORE: STEVENS, KLEIN and KELLY, JJ.
¶ 1 These consolidated appeals are from the orders denying Post Conviction Relief, 42 Pa.C.S.A. § 9541-9546 (PCRA), by the Honorable D. Webster Keogh.
The PCRA petitions were filed when it was discovered through a newspaper article that a chemist for the police department, Colleen Brubaker, was a drug addict and had been taking confiscated pain pills for her own use and possibly selling other types of drugs to support her habit.*fn1 The PCRA court denied post- conviction relief on the grounds that defendants failed to prove that the newly discovered evidence would have compelled a different result at trial. While the individual cases are different, we agree with Judge Keogh that, viewing the totality of the circumstances, none of the defendants have shown that the evidence of Brubaker's subsequent improper activity would have compelled a different result at any of the trials. Therefore, we affirm.
¶ 2 Each of these defendants was arrested between 1999 and 2002. While the evidence was disputed, Brubaker testified that she only started stealing the painkillers in 2005, and that those thefts involved prescription painkillers, not the substances at issue in the defendants' cases (cocaine, heroin, marijuana). Defendants' counsel suggested that Brubaker was stealing cocaine, heroin and marijuana from the lab and selling it on the street to support her painkiller habit, calling into question the type and amount of drugs upon which the defendants' convictions were based. In each case, however, there either was an analysis of some of the drugs seized by another chemist, a field test performed by the arresting officers, or other evidence that corroborated the drug transactions.
¶ 3 Procedurally, counsel for the defendants claims in the appellate briefs that defendants' petitions for relief are not subject to the constraints of the PCRA as they were also filed under Pa. R.Crim.P. 720(c) and as motions for habeas corpus. This claim fails. A comment following Pa.R.Crim.P. 720 (c) makes clear that, "After-discovered evidence discovered after completion of the direct appeal process should be raised in the context of the PCRA." Pa.R.Crim.P. 720(c) (comment). Defendants' motions must be considered solely as PCRA petitions, and they are, therefore, subject to all of the PCRA's requirements. SeeCommonwealth v. Fahy, 737 A.2d 214, 223-24 (Pa. 1999) ("There is no alternative basis for relief outside the framework of the PCRA."); Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa. 1997) (PCRA provides sole means for obtaining state collateral relief); cf. Commonwealth v. West,938 A.2d 1034 (Pa. 2007) (in the rare case where relief cannot be pursued or is not cognizable under the PCRA, it is properly reviewed under habeas corpus).
¶ 4 Appellants Soto, Aviles and Wise have failed to show that they are currently "serving a sentence of imprisonment, probation or parole for the crime," as the PCRA requires. See 42 Pa.C.S.A. § 9543 (a)(1)(i). The dates of sentencing and the sentences handed down suggest that these three men have completed their terms, and are therefore no longer eligible for post conviction relief.*fn2 The burden of proving that a petitioner is currently serving a sentence of imprisonment, probation or parole rests on the petitioner. We conclude, therefore, that the PCRA court was correct in denying these three petitions.
¶ 5 Judge Keogh was also correct in concluding that all seven appeals fail on their merits.*fn3 To succeed in obtaining a new trial based on after-discovered evidence, the petitioner must prove, among other things, that the new evidence would likely compel a different verdict. Commonwealth v. D'Amato, 856 A.2d 806 (Pa. 2004). In the instant case, the Appellants claim numerous times that the evidence of Brubaker's illegal activities should compel a different verdict, but they fail to provide any argument that supports this.
The trial court opinion notes that the Appellants "have failed to show any nexus between their drug cases and Brubaker's misconduct in the laboratory."
Trial Court Opinion at 5. According to the investigation into Brubaker's misconduct, Brubaker started stealing narcotics after all seven Appellants here were convicted, and, further, she only stole painkillers. The Appellants' assertion that she likely stole drugs years before and that she stole other types of drugs is conjecture. The Appellants have failed to show that there likely would have been a different result at trial had Brubaker's activities been known.
¶ 6 Our decision in Commonwealth v. Rivera, 939 A.2d 355 (Pa. Super. 2007), does not require we hold otherwise. In Rivera, an earlier case involving Brubaker, this Court remanded on direct appeal for a hearing on whether there should be a new trial for "the lower court [to] develop the record and make that call in the first instance. Id. at 359.It is true that this Court stated "... it would appear likely that a new trial is warranted in this case." Id. However, that statement is merely dictum. Rivera was remanded for the trial court to "make the call." In this case, Judge Keogh "made the call," and we believe he made the right call. Moreover, as the Rivera case was on direct appeal and these cases before us are here on collateral review, the standard is different, and higher. In Rivera, there was no need to show that the new evidence "would have changed the outcome of the trial if it had been ...