Argued September 11, 2013.
Appeal from the Judgment of Superior Court Superior Court entered on October 5, 2012 at No. 3447 EDA 2009 vacating the Judgment of Sentence of June 22, 2009 of the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. CP-51-CR-0014957-2008, MC-51-CR-0012695-2008. Trial Court Judge: Linda A. Carpenter, Judge.
Intermediate Court Correale F. Stevens, Judge, Mary Jane Bowes, Judge, Susan Peikes, Judge, Jack A., Panella, Judge, Jacqueline O. Shogan, Judge, Cheryl Lynn Allen, Judge, Anne E. Lazarus, Judge, Sallie Mundy, Judge, David N., Wecht, Judge.
For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns, Jr., Esq., Mary L. Huber, Esq., Philadelphia District Attorney's Office.
For Jose Castro, APPELLEE: Karl Baker, Esq., Bradley Steven Bridge, Esq., Owen W. Larrabee, Esq., Defender Association of Philadelphia.
JUDGES: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE EAKIN. Mr. Justice Stevens did not participate in the consideration or decision of this case. Mr. Chief Justice Castille and Messrs. Justice Saylor, Baer and McCaffery join the opinion. Madame Justice Todd files a concurring opinion.
MR. EAKIN, JUSTICE.
In this appeal, we are asked to determine whether a newspaper article submitted as the sole support for a motion for new trial on the basis of after-discovered evidence warrants the grant of a hearing. Finding allegations in an article do not constitute evidence, we reverse the Superior Court's order remanding for a hearing on appellee's after-discovered evidence claim.
Trial testimony established that on March 11, 2008, Officer Richard Cujdik of the Philadelphia Narcotics Field Unit gave pre-recorded money to a confidential informant (CI-142), who entered appellee's home to purchase drugs. CI-142 spoke with Yvette Torres at the door, went inside, and returned a few minutes later with two clear, red-lidded jars of PCP. Officer Cujdik used this transaction as probable cause in an application for a search warrant, which was issued and executed later that day. Officer Cujdik stationed himself at the rear of the property while other officers knocked on the front door. After the knock, Officer Cujdik saw appellee run out the back door and toss a clear plastic baggie into the neighboring yard. While other officers apprehended appellee, Officer Cujdik retrieved the baggie, which contained five clear glass jars of PCP, two of which had red lids like those purchased earlier by CI-142.
Appellee was arrested and charged with knowing and intentional possession of a controlled substance, possession with intent to deliver a controlled substance (PWID), and conspiracy with Torres to commit PWID. At appellee's bench trial, the Commonwealth presented Officer Cujdik's testimony, money seized from Torres, and the drugs. The trial court found appellee guilty of conspiracy and possession of a controlled substance, but not guilty of PWID. Appellee was sentenced to six to 23 months imprisonment followed by two years probation for conspiracy, and a concurrent six to 23 months imprisonment and one year of probation for possession.
On March 30, 2009, four days after the trial, the Philadelphia Daily News published an article alleging police misconduct by Officer Cujdik, his brother (also a narcotics officer), and other officers during a raid of a convenience store in 2007. In the article, the store's owner alleged the officers entered his business to execute a search warrant and confiscated the store's surveillance cameras, which they claimed contained evidence he was selling drug paraphernalia. According to the owner, the officers cut the wires to the cameras, confiscated them, and stole $10,000 in cash as well as cigarettes and other inventory; the article averred the property receipt the officers filed reported a fraction of that amount of cash, and the cameras were not listed on the receipt. The article further indicated the owner recovered ten minutes of video footage from a back-up surveillance system, which showed the officers cutting the wires to a camera. No footage showed the alleged looting of the store. The article stated Officer Cujdik's affidavit for the warrant averred that a confidential informant purchased drug paraphernalia at the store two and a half hours before the raid, and alleged that video from this time period did not show anyone purchasing such items.
The article also stated Officer Cujdik's brother was the subject of federal and local investigations stemming from allegations he lied on search warrants to gain access to suspected drug homes and became too close with his informants. The article indicated eight other convenience store owners said the same officers disabled their stores' video cameras, stole inventory, and confiscated cash without reporting the full amount on the property receipt, and stated when this information was published in an earlier article on March 20, six more store owners, including the one featured in the instant article, contacted the reporter and described similar incidents.
Appellee filed a post-sentence motion for a new trial on the basis of after-discovered evidence based solely on the newspaper article that stated Officer Cujdik was under investigation for corruption and falsification of evidence in another case involving the same confidential informant. The motion stated:
1. [Appellee] was arrested on March 11, 2008 by Philadelphia Police Officer Richard Cudjik badge number 3262 and charged with PWID, [c]onspiracy and [k]nowing and [i]ntentional [p]ossession.
2. On March 26, 2009 this [c]ourt sitting without a jury found [appellee] guilty of [c]onspiracy as to the PWID charge and of [k]nowing and [i]ntentional [p]ossession while finding him not guilty of PWID.
3. On that date prior to trial, counsel was not aware that [O]fficer Cudjik was under investigation for among other things improper use of Confidential Informant 142.
4. This case involves information from the use of Confidential Informant 142 as probable cause to obtain a search warrant.
5. Subsequent to the date of trial on March 30, 2009, the Philadelphia Daily News published an article (copy attached as Exhibit A) detailing an untruthful affidavit based on information
supposedly given to [O]fficer Cudjik by Confidential Informant #142 as to sales of paraphernalia at a store owned by one Jose Moran at 7301 N. 20th Street. That affidavit alleges a sale at 4:30 p.m. on September 11, 2007 whereas a viewing of the video tape for the period between 4:00 o'clock and 5:00 o'clock P.M. in the store shows no such sale.
6. The facts adduced at trial do not show that [appellee] was in the house at the time a sale was made to the informant but only that he was present some five hours later ...