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Commonwealth v. Santos

Superior Court of Pennsylvania

December 11, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
MICHAEL SANTOS, Appellee

         Appeal from the Order Entered December 15, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0002209-2014

          BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J. [*]

          OPINION

          DUBOW, J.

         The 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.

         Between 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, [1] and sell 43 packets of crack cocaine to a confidential informant ("CI") using pre-recorded buy money.

         On July 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.

         On July 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 drug sales.

         Later 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.

         From 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.

         The Commonwealth charged Appellee with Possession of a Controlled Substance With Intent to Deliver ("PWID"), Criminal Conspiracy, and Possession of a Controlled Substance.[2] 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.

         Appellee requested a jury trial, which the trial court scheduled for November 8, 2014. On August 7, 2014, Appellee filed a Motion for Discovery[3]seeking 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.[4] 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[5] 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.

         On August 12, 2014, [6] 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.

         On 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.[7]Regarding the case against Kenneth Mills in 2011, the City agreed to comply and turn over any information in its possession regarding that case.

         At this 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.

         The 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.[8] Appellee requested a continuance in order to subpoena a PPD sergeant assigned to the purported joint FBI/PPD task force.

         On 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.[9] 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.

         As part 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.[10] 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.

         On 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 ...


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