from the Order Entered December 15, 2014 In the Court of
Common Pleas of Philadelphia County Criminal Division at No.:
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J.
Commonwealth appeals from the December 15, 2014 Order entered
by the Philadelphia County Court of Common Pleas prohibiting
the Commonwealth from calling a police officer at trial to
remedy the Commonwealth's purported discovery violation.
After careful review, we reverse.
June 17, 2013, and July 2, 2013, Philadelphia narcotics
police officers conducted surveillance at 3205 and 3207 Rorer
Street. On June 17, 2013, Philadelphia Police Officer Stephen
Dmytryk observed Appellee enter and exit 3205 and 3207 Rorer
Street,  and sell 43 packets of crack cocaine to a
confidential informant ("CI") using pre-recorded
1, 2013, Officer Dmytryk, assisted by Officers Kapusniak and
Kuhn, conducted a second controlled buy using a CI. As
Officer Kapusnick looked on, Officer Dmytryk searched the CI
before and after the transaction. The officers observed the
CI hand pre-recorded buy money to Appellee, who then entered
3205 Rorer Street, exited shortly thereafter, and handed 38
packets of crack cocaine to the CI.
2, 2013, Officer Dmytryk, assisted by Officer Kapusniak,
returned to the area and observed Appellee enter and exit
3205 Rorer Street. Officer Dmytryk observed Appellee bend
down near a parked green Ford Explorer, and then conduct four
that afternoon, Officer Dmytryk called for backup officers to
arrest Appellee and assist in executing a search warrant.
Officer Hagins arrested Appellee and recovered $49. Officer
Hagins recovered one pill bottle with seven packets of heroin
and one pill bottle with 13 packets of crack cocaine from the
back seat of the green Ford Explorer.
3205 Rorer Street, police recovered $303, Appellee's
Pennsylvania ID card, new and unused clear ziplock packets,
and a set of keys that opened both 3205 and 3207 Rorer
Street. From 3207 Rorer Street, police recovered 278 packets
of marijuana, and 308 packets of heroin that matched the
packets of drugs recovered from the green Ford Explorer.
Commonwealth charged Appellee with Possession of a Controlled
Substance With Intent to Deliver ("PWID"), Criminal
Conspiracy, and Possession of a Controlled
Substance. On February 27, 2014, Officer Dmytryk
testified to the above facts as the Commonwealth's only
witness at Appellee's preliminary hearing, and the court
held Appellee for trial on all charges.
requested a jury trial, which the trial court scheduled for
November 8, 2014. On August 7, 2014, Appellee filed a Motion
for Discoveryseeking information related to a federal
indictment, unsealed in July 2014, charging six Philadelphia
police officers with numerous federal crimes, including
violation of the Racketeer Influence and Corrupt
Organizations Act. United States v. Thomas Liciardello,
Brian Reynolds, Michael Spicer, Perry Betts, Linwood Norman,
John Speiser, No. 2:14-cr-00412-ER (E.D.Pa. filed July
29, 2014). Significantly, Officer Dmytryk was not one of the
six indicted officers, and none of the six indicted officers
played any role in Appellee's case. Paragraph 87 in the
indictment alleged that a Philadelphia police officer,
referred to only as "S.D., " had falsified a police
report in an unrelated criminal case against Kenneth Mills in
2011. Appellee, believing "S.D."
referred to Officer Dmytryk, requested any information or
documents related to investigations of Officer Dmytryk in the
possession of the Philadelphia District Attorney's Office
or the Philadelphia Police Department ("PPD").
Appellee also sought any documents related to the state case
against Kenneth Mills in 2011, and any other
Brady material. Appellee essentially sought to
obtain any information substantiating Paragraph 87 in order
to support a similar argument in his case, i.e.,
that Officer Dmytryk also falsified paperwork related to the
instant PWID case against Appellee.
August 12, 2014,  Appellee served a subpoena duces
tecum on the PPD seeking any relevant documents related
to Officer Dmytryk, including, inter alia, internal
affairs investigations of Officer Dmytryk, any files related
to an alleged joint FBI/PPD task force, any documents related
to the case against Kenneth Mills in 2011, and any
Brady material. On August 14, 2014, the City of
Philadelphia filed a Motion to Quash Appellee's subpoena.
August 22, 2014, the trial court conducted a hearing, and an
Assistant City Solicitor for the City of Philadelphia
appeared on behalf of the PPD to address Appellee's
subpoena. Regarding internal investigations against Officer
Dmytryk, the City agreed to comply and turn over information
regarding three investigations of prior complaints against
Officer Dmytryk.Regarding the case against Kenneth Mills in
2011, the City agreed to comply and turn over any information
in its possession regarding that case.
hearing, the scope of the dispute over the subpoena narrowed
to Appellee's request for information to substantiate
Paragraph 87 in the indictment alleging that Philadelphia
Police Officer "S.D." had falsified a police report
in an unrelated criminal case against Kenneth Mills in 2011.
Citing press releases and the grand jury's indictment,
Appellee argued that the PPD must have a separate file as a
result of its work with the FBI in a joint task force
investigating the six indicted police officers.
City responded that it did not have any information that
Appellee alleged had substantiated Paragraph 87 in the
federal indictment. The City explained that any Philadelphia
police officers involved had been deputized by the FBI as
part of the purported joint task force, and the FBI had
"controlling authority" over the investigation and
its files. Essentially, the City claimed that Appellee should
have subpoenaed the FBI. The trial court held this portion of
the City's Motion to Quash under
advisement. Appellee requested a continuance in order
to subpoena a PPD sergeant assigned to the purported joint
FBI/PPD task force.
September 4, 2014, Appellee filed a Motion to Compel
Discovery, and the trial court held a hearing on September
12, 2014, at which Philadelphia Police Sergeant Gerard Deacon
testified. Sergeant Deacon, assigned to the "FBI
Corruption Task Force, " testified that he was deputized
by the FBI as a federal agent, but the PPD paid his salary.
Sergeant Deacon testified that the PPD does not keep their
own file regarding the FBI Corruption Task Force, explaining
that "[e]verything stays on the federal side. I report
to the [PPD] the investigation when there's an indictment
coming down, of course. But as far as any paperwork that has
to do with [a] federal investigation, none of that gets
handed over to the [PPD]." N.T., 9/12/14, at 17. In
response to the trial court's question, Sergeant Deacon
clarified that that the PPD had not received any
documentation or memos regarding an investigation into
Paragraph 87 in the federal indictment referencing
"S.D." Id. at 19.
of his duties on the FBI Corruption Task Force, Sergeant
Deacon testified that he had knowledge of corroborating
information to substantiate the single paragraph in the
federal indictment referencing "S.D." However,
Sergeant Deacon could not reveal this information "under
federal grand jury rules." N.T., 9/12/14, at
14. The trial court appeared to credit
Sergeant Deacon's testimony, stating that "I take
him on his word." Id. at 30. Nevertheless, the
trial court ordered the City to request the FBI file and
"to do their due diligence to see if there's any
memos or other type of paperwork that's been passed [to
the PPD]." Id.
October 1, 2014, in response to the City's request, the
U.S. Attorney's Office stated in a letter that the police
report previously passed to Appellee contained "the
names of all witnesses known to the government concerning
that search. Any additional items, including notes of
testimony and/or documents concerning that search, are not
subject to disclosure under grand jury secrecy rules.
See Federal Rule of Criminal Procedure