Com. v. Welch, C.

J-S29009-13

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER WELCH, :
:
Appellant : No. 2185 EDA 2012

Appeal from the Judgment of Sentence July 12, 2012,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0001307-2011

BEFORE: DONOHUE, MUNDY and OLSON, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MARCH 06, 2015

Appellant, Christopher Welch (“Welch”), appeals from the judgment of

sentence following his convictions of possession with intent to deliver

(“PWID”), 35 P.S. §§ 780-113(a)(30), conspiracy to commit PWID, 18

Pa.C.S.A. § 903(c), and persons not to possess firearms, 18 Pa.C.S.A. §

6105. During the pendency of this appeal, Welch filed a “Motion to Vacate

Briefing Schedule and Remand to the Court Below for a Hearing on After-

Discovered Evidence” (hereinafter, “Welch’s Motion”). In a memorandum

decision dated July 19, 2013, we granted Welch’s Motion. On August 26,

2014, however, our Supreme Court vacated this decision in light of its

opinion in Commonwealth v. Castro, 93 A.2d 818 (Pa. 2014). On

remand, we affirm the trial court’s denial of Welch’s motion to suppress,
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vacate his conviction for persons not to possess firearms, and deny Welch’s

Motion for a new trial based on after-discovered evidence.

The trial court summarized the relevant factual background of this

case as follows:

On July 27, 2009, Narcotics Officer Michael Spicer
[(“Officer Spicer”)] received information from an
informant about sales of prescription medications
occurring at 2329 Hutchinson Street in Philadelphia
by a man named Carmen. After setting up
surveillance on July 29th, Officer Spicer observed the
a man later identified as Carmen Rossi [(“Rossi”)]
leaving and then returning to that location, a
rowhouse, several times, and saw Rossi, while
standing in front of that location, receive an
unknown amount of United States currency and hand
something small to an unknown male individual.
Based upon his experience, the officer believed that
he had witnessed a narcotics transaction. N.T.
2/2/2012 at 65, 72-74.

Following that transaction, Rossi went back inside
2329 Hutchinson and [Welch] parked nearby and
entered that location as well. [Welch], accompanied
by a woman who was later identified as a Ms. Celli,
was holding a multicolored bag. About ten minutes
later, Rossi again had a brief interaction with another
male in front of the property, exchanging United
States currency for a small object. The officer
identified this as a narcotics transaction as well.
Twenty minutes after that exchange, at
approximately 5:10 p.m., [Welch], Celli, and a Mr.
Bowen walked out of the property together.1
[Welch] and Celli returned to their vehicle and
Bowen got into another vehicle. [Welch] drove off,
and was followed by Bowen. Officer Spicer notified
another police unit that he was going to follow the
vehicles. Id. at 73-79.

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Officer Spicer followed [Welch] and Mr. Bowen, who
was following [Welch] in a separate vehicle, as they
drove to the neighborhood of Philadelphia known as
Fishtown. When [Welch] parked his vehicle near the
intersection of York Street and Cedar Street, [Officer
Spicer] observed him point to Bowen, who was in his
car, and signal for him by a circular hand motion to
drive around the block, which Bowen did. Then,
Bowen returned to the corner of York and Cedar
Streets, parked his vehicle, and walked to the trunk
and opened it. Officer Spicer then observed that
Bowen had a holstered handgun under his jacket.
Upon seeing the gun, Officer Spicer notified the other
units involved that he would be apprehending Bowen
and that [Welch] should also be apprehended for
investigation. Id. at 77-83.

The officers that were working with Officer Spicer
approached [Welch], who ran from them. During his
apprehension, [Welch] ran into an apartment
building where he dropped the multicolored bag he
had been carrying. Inside the bag, police found 76
Methadose pills, 46 Suboxone pills, another bottle of
60 Suboxone pills, and two bottles of Oxycodone pills
containing 50 and 37 pills. [Welch] himself was
carrying $310 in United States currency, keys to an
apartment in that building, and a cell phone. During
this time, Sergeant Seaman and Officers Perrotti and
Speiser had taken over surveillance of 2329
Hutchinson. Id. at 83-86.

After receiving warrants for [Welch's] apartment and
for 2329 Hutchinson, the police conducted searches
of both locations that evening. At 2329 Hutchinson,
they arrested Rossi and found on his person $4,307
in United States currency and a bottle containing 84
Percocet pills. In the basement, they found a safe
containing a .9mm Taurus handgun loaded with
seventeen rounds, a pill bottle containing 53
Percocet pills prescribed to Mary Bowen, and a life
insurance policy in Rossi's name. In the kitchen,
police recovered a zip-lock bag containing 145
Oxycontin pills and a bottle containing 93

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Hydrocodone pills. From a second-floor bedroom,
they recovered 121 Vicodin pills, a zip-lock bag with
195 Percocet pills, and another bottle of Percocet
containing 100 pills. Police also found mail
addressed to Rossi and a pocketbook on the first
floor with $765 in United States currency. Id. at 86-
90[.]

At 2401 East York, [Welch's] apartment, at
approximately 9:45 p.m., police found two fifty-
gallon trash bags; the first contained a large number
of non-narcotic pills. The second contained 18
bottles containing 2,041 Percocet pills, eight bottles
containing 1,205 Vicodin pills, three bottles
containing 219 Oxycontin pills, one bottle containing
240 Tylenol Four pills, fourteen bottles containing
1,309 Methadose pills, 4 bottles containing 2,143
Xanax pills, five bottles containing 255 Adderall pills,
one bottle containing 80 Ritalin pills, [two] bottles
containing 153 Dextroamphetamine pills, one bottle
containing 100 Codeine, three bottles containing 122
Hydromorphine pills, 12 bottles containing 756
Morphine pills, three bottles containing 250 Clonidin
pills, two bottles containing 160 Metadate pills, two
bottles containing 152 Methylphentadine or
Methylphentadate pills, eleven boxes of Fentanyl
patches, two boxes of Daytrana, two pint bottles of
Hydrocodone liquid, one bottle of Methadone liquid,
one pint bottle of Roxicet liquid, and one fluid ounce
of Morphine Sulfate. A safe contained $2,480 in
United States currency; the apartment also
contained paperwork and mail in [Welch's] name.
Id. at 90-93.

By party stipulation, the Commonwealth submitted a
police firearms identification report that confirmed
that the gun that Bowen carried was an operable
Glock .40 caliber handgun. N.T. 2/3/2012, pp. 71-
72.

_____________

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1
For his role in these events, Mr. Robert Bowen
entered a guilty plea to PWID and Conspiracy at CP-
51-CR-0001303-2011.

Trial Court Opinion, 9/21/2012, at 2-4.

On February 1, 2012, Welch filed a motion to suppress evidence. At

the suppression hearing, the Commonwealth presented the testimony of

Officer Spicer, Officer Brian Reynolds (“Officer Reynolds”), and Officer

Jeffrey Walker (“Officer Walker”).1 On February 2, 2012, the trial court

denied Welch’s suppression motion.

On February 3, 2012, Welch waived his right to a trial by jury and

stipulated to the introduction of all relevant, non-hearsay testimony

introduced at the suppression hearing. N.T., 2/3/2012, at 69. Welch also

stipulated that he did not have a valid license to carry a firearm and that he

had been convicted of a prior offense that prohibits him from lawfully

possessing, owning or carrying a handgun. Id. at 72. Against the advice of

counsel, Welch testified on his own behalf, during which he emphasized,

inter alia, that he “never acted with [] Rossi[,]” and that he did not possess

or touch a gun. Id. at 73-74, 76, 80.

1
Officer Spicer testified as to his observations beginning with the
surveillance of 2329 Hutchinson Street and 2401 East York Street through
his search of 2329 Hutchinson Street and 2401 East York Street. See N.T.,
2/2/2012, at 64-175. Officer Reynolds testified as to the contents and
recovery of Welch’s bag at 2401 East York Street. See id. at 178-181.
Officer Walker testified regarding his involvement in the apprehension and
arrest of Welch. See id. at 181-202.

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The trial court convicted Welch of the three above-referenced crimes

and subsequently sentenced him to concurrent terms of six to twelve years

of imprisonment for the PWID and conspiracy to commit PWID convictions.

The trial court imposed no further penalty for the persons not to possess

firearms conviction. The trial court later denied Welch’s motion for

reconsideration of sentence.

On appeal, Welch raised two issues for our consideration and

determination:

I. Is [Welch] entitled to a new trial as the result of
[c]ourt error where the [c]ourt failed and refused to
grant [Welch’s] [m]otion to [s]uppress certain
physical evidence seized, including drugs, money,
keys and other contraband, and all where the
Commonwealth undertook a search and seizure
without probable cause; without reasonable
suspicion; without consent; and without any
exception to the warrant requirement; and where the
actions of the Commonwealth law enforcement
officers were the proximate cause of a forced
abandonment of a bag by [Welch] which contained
drugs?

II. Is [Welch] entitled to an arrest of judgment on
the charge of VUFA, Section 6105, where [Welch]
was convicted of said section but where [Welch] did
not possess a weapon, either personally or
constructively, and where [Welch] was convicted
based on the possession of a weapon by a third
party, and where [Welch] cannot be held legally
responsible for said possession?

Appellant’s Brief at 3.

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After the Supreme Court remanded the case to this Court for

reconsideration in light of its decision in Castro, we ordered the parties to

file supplemental briefs on the issue of whether Welch’s Motion contains

sufficient detail regarding proposed evidence and witnesses to comply with

the standards set forth in Castro. Having received supplemental briefs, we

will proceed to address the two issues Welch raises on direct appeal and

reconsider Welch’s Motion regarding after-discovered evidence.

For his first issue on appeal, Welch argues that the trial court erred in

denying his motion to suppress evidence. In particular, Welch contends that

pursuant to Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996), the illegal

conduct of law enforcement officers here, in seizing him as a result of an

unlawful pursuit without probable cause to do so, resulted in a forced

abandonment of the multicolored bag he had been carrying that contained

drugs.

Our standard of review in addressing a challenge to a trial court's

denial of a suppression “is limited to determining whether the factual

findings are supported by the [suppression] record and whether the legal

conclusions drawn from those facts are correct.” Commonwealth v.

Garibay, 2014 WL 6910879, at *7 (Pa. Super. Dec. 9, 2014) (quoting

Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa. Super. 2014)). In so

doing, “we look at all of the evidence in the light most favorable to the

Commonwealth and determine whether the [suppression] record supports

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the suppression court's findings of fact.” Id. (quoting Commonwealth v.

Reppert, 814 A.2d 1196, 1208 (Pa. Super. 2002) (en banc));

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

A criminal defendant has no standing to contest the search and seizure

of items he has voluntarily abandoned.2 See, e.g., Commonwealth v.

Byrd, 987 A.2d 786, 790 (Pa. Super. 2009) (citing Commonwealth v.

Tillman, 621 A.2d 148, 150 (Pa. Super. 1993)). Pursuant to the doctrine of

“forced abandonment,” however, when contraband is discarded by a person

fleeing from a police officer who possesses neither probable cause to arrest

nor reasonable suspicion to conduct a Terry3 stop, the contraband is the

fruit of an illegal seizure. Matos, 672 A.2d at 770. In Matos, our Supreme

Court recognized that a “forced abandonment” violates the criminal

defendant’s rights under Article I, Section 8 of the Pennsylvania Constitution,

even though the United States Supreme Court has refused to recognize the

doctrine under the Fourth Amendment to the United States Constitution. Id.

2
In his appellate brief, Welch argues that the Commonwealth failed to
prove that he abandoned the multicolored bag, as the evidence is consistent
with a finding that he merely left the bag on the steps where it was
subsequently retrieved by the police officers. Welch’s Brief at 10-12 (citing
Commonwealth v. Williams, 551 A.2d 313 (Pa. Super. 1988)). We must
agree with the Commonwealth, however, that during the suppression
hearing counsel for Welch waived this claim, as he repeatedly conceded
abandonment as part of his argument in support of “forced abandonment”
under Matos. Because the claim was waived in the trial court, it may not be
asserted now on appeal. Pa.R.A.P. 302(a).
3
Terry v. Ohio, 392 U.S. 1 (1968).

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(citing California v. Hodari D., 499 U.S. 621 (1991)); Commonwealth v.

Jones, 978 A.2d 1000, 1005 n.6 (Pa. Super. 2009).

In this case, Welch contends that the contents of the multicolored bag

should have been suppressed because of a forced abandonment. Welch

argues that upon arriving at his residence, plain clothes police officers

“without any particular reason … physically rushed at [him] in an

intimidating fashion” and chased him into his apartment, during which time

he dropped his bag. Welch’s Brief at 10. According to Welch, “two very

large men were charging at him, and if they were not police, [he] certainly

would have had to fear for his safety, and if they were police, a reasonable

individual would have understood that the police were charging at him with

no probable cause or any other reason to have stopped him.” Id. at 11.

Based upon our standard of review, however, we cannot proceed

based on Welch’s description of events. Here, trial court concluded, based

upon the evidence presented at the suppression hearing, that Welch began

to run “as soon as he saw Officer Spicer exit his vehicle” and that “the police

did not commit any unusual show of force sufficient to provoke flight.” Trial

Court Opinion, 9/21/2012, at 6. Instead, the trial court concluded that the

police “merely exited a police car and looked at [Welch] who then began

running.” Id. The evidence at the suppression hearing supports these

factual findings, as Officer Walker testified that Welch looked in his direction

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and began to run as soon as he got out of the car. N.T., 2/2/2012, at 194,

197.

Welch’s unprovoked flight does not, however, by itself establish

reasonable suspicion or probable cause for the police officer’s decision to

chase Welch into his apartment. Instead, unprovoked flight is sufficient to

establish reasonable suspicion only in high crime areas.4 See, e.g., In the

Interest of D.M., 781 A.2d 1161, 1165 (Pa. 2001); Commonwealth v.

Brown, 904 A.2d 925, 930 (Pa. Super. 2006). There was no testimony at

the suppression hearing that the events at issue here occurred in a high

crime area.

In this case, we conclude that other factors, in combination with

Welch’s unprovoked flight, establish reasonable suspicion. Most importantly,

the police officers had just observed Welch enter and then exit from a house

(Rossi’s), from which Officer Spicer testified that he observed hand-to-hand

4
Welch contends that because Officer Spicer testified that he advised the
other officers to arrest Welch, probable cause was required for the seizure.
In Matos, however, our Supreme Court indicated that either probable cause
or reasonable suspicion is sufficient to justify a seizure under the “forced
abandonment” doctrine. Matos, 672 A.2d at 770. Moreover, as the
Commonwealth correctly notes, this Court has held that an officer’s
intentions when effectuating a seizure are irrelevant when evaluating the
constitutionality of his or her actions. See, e.g., Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc) (“Whether a Fourth
Amendment violation has occurred ‘turns on an objective assessment of the
officer's actions in light of the facts and circumstances confronting him at the
time,’ and not on the officer's actual state of mind at the time the challenged
action was taken.”) (citation omitted), appeal denied, 990 A.2d 727 (Pa.
2010).

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drug transactions occurring on the street. After leaving Rossi’s house, Welch

then went to another part of the city accompanied by Bowen, who Officer

Spicer observed carrying a holstered gun under his jacket. These additional

facts, along with Welch’s unprovoked flight, were sufficient to establish

reasonable suspicion for the seizure of Welch (i.e., the chase into his

apartment). The multicolored bag Welch dropped on the stairs of the

apartment building was thus not the product of a forced abandonment and

the trial court did not err in denying Welch’s motion to suppress.

For his second issue on appeal, Welch contends that the

Commonwealth’s evidence was insufficient to support his conviction of

persons not to possess firearms. Welch’s Brief at 16. Our standard of

review for a sufficiency of the evidence claim is as follows:

We must determine whether the evidence admitted
at trial, and all reasonable inferences drawn
therefrom, when viewed in a light most favorable to
the Commonwealth as verdict winner, support the
conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to
find every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the
evidence claim must fail.

The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is
free to believe all, part, or none of the evidence
presented. It is not within the province of this Court
to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The
Commonwealth's burden may be met by wholly
circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact finder

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unless the evidence is so weak and inconclusive that,
as a matter of law, no probability of fact can be
drawn from the combined circumstances.

Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (citation

omitted).

Section 6105 of the Pennsylvania Crimes Code provides that persons

convicted of certain listed offenses “shall not possess, use, control, sell,

transfer or manufacture or obtain a license to possess, use, control, sell,

transfer or manufacture a firearm in this Commonwealth.” 18 Pa.C.S.A. §

6105(a)(1). The possession of a firearm may be constructive. See

Commonwealth v. Harvard, 64 A.3d 690, 699-700 (Pa. Super. 2013). To

prove constructive possession the Commonwealth must show that the

“defendant had both the ability to consciously exercise control over it as well

as the intent to exercise such control.” Id. at 699 (quoting

Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa. Super. 2009)).

On appeal, Welch argues that the Commonwealth did not meet its

burden to prove that he possessed the gun on Bowen’s person, contending

that “[t]he mere fact that a co-defendant possessed a gun, even if that co-

defendant was a co-conspirator, does not mean that the gun was possessed

by all of the conspirators.” Welch’s Brief at 17-18. The trial court disagreed,

finding that:

The facts establish that [Welch], Bowen, and Rossi
were engaged in a conspiracy to sell large amounts
of narcotics, and in fact all three have been

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convicted of conspiracy to do just that. The facts
further establish that [Welch] directed Bowen’s
behavior during a time when Bowen was wearing a
handgun. Bowen followed [Welch] in his car, and
then, upon being directed to circle [Welch’s] block,
Bowen followed [Welch’s] directive and did just that.
In directing Bowen’s behavior, [Welch] demonstrated
that he had the power and the intent to control an
armed man in order to further the goals of their
narcotics conspiracy. To control the man is to
control the gun.

* * *

[A]lthough the handgun in question was recovered
from Bowen’s person, because [Welch] directed
Bowen’s behavior in the furtherance of their
narcotics operation, effectively ordering Bowen to
drive around the block for security purposes during a
time when [Welch] was carrying a large amount of
drugs and was therefore vulnerable, the gun can be
attributed to [Welch] under a theory of joint
constructive possession. Therefore, the evidence is
sufficient to establish the elements of a 6105
violation in this matter.

Trial Court Opinion, 9/21/2012, at 8-9.

In reaching this conclusion, the trial court relied on Commonwealth

v. Bricker, 882 A.2d 1008, 1016-17 (Pa. Super. 2005). In Bricker, the

jury convicted the appellant of, inter alia, possession of a controlled

substance (crack cocaine), PWID, and conspiracy. Id. at 1013. This Court

found that the appellant had joint constructive possession of crack cocaine

thrown on the floor of the residence by a co-conspirator because “it was

reasonable for the jury to infer that [a]ppellant and [his co-conspirator] had

joint constructive possession of the crack cocaine because [a]ppellant was

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selling crack cocaine for [his co-conspirator] out of [a]ppellant’s residence.”

Id. at 1016-17.

Bricker has no application on the facts presented in this case. Here,

Welch and Bowen were on the street near their respective vehicles. In

Bricker, by contrast, the appellant and his co-conspirator were together in a

residence, from which the appellant sold the drugs for his co-conspirator.

Welch signaling Bowen to drive around the block before Bowen parked his

vehicle does not give rise to any reasonable inference that Welch controlled

the gun on Bowen’s person.

The Commonwealth argues that it had no burden to prove constructive

possession of Bowen’s gun because the trial court convicted Welch of

conspiracy to commit PWID. Commonwealth’s Brief at 13. In support of

this argument, the Commonwealth directs us to Commonwealth v. Perez,

931 A.2d 703 (Pa. Super. 2007). In Perez, this Court held that “[b]ecause

the Commonwealth proved conspiracy, it did not have to prove Appellant’s

constructive possession of the drugs found in [the co-conspirator’s] home.

As a result of the conspiracy, the drugs in the home were fully attributable

to Appellant as well as [the co-conspirator].” Id. at 709 (citing

Commonwealth v. Holt, 711 A.2d 1011 (Pa. Super. 1998)).

In our view, Perez is inapposite because here (unlike in Perez)

possession of a firearm was not the crime underlying the conspiracy.

Instead, in both this case and in Perez, PWID was the object of this

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conspiracy. Thus, the reasoning in Perez (that the Commonwealth did not

have to prove constructive possession of the drugs in a conspiracy to

commit PWID) is inapplicable in the present instance, where possession of a

gun (rather than the drugs) during a conspiracy to commit PWID is at issue.

In imputing possession of the firearm to Welch, the Commonwealth

also relies on general rules of conspiratorial liability, which this Court has

summarized as follows:

Once there is evidence of the presence of a
conspiracy, conspirators are liable for acts of co-
conspirators committed in furtherance of the
conspiracy. Even if the conspirator did not act as a
principal in committing the underlying crime, he is
still criminally liable for the actions of his co-
conspirators taken in furtherance of the conspiracy.

The general rule of law pertaining to the
culpability of conspirators is that each
individual member of the conspiracy is
criminally responsible for the acts of his co-
conspirators committed in furtherance of the
conspiracy. The co-conspirator rule assigns
legal culpability equally to all members of the
conspiracy. All co-conspirators are
responsible for actions undertaken in
furtherance of the conspiracy regardless
of their individual knowledge of such actions
and regardless of which member of the
conspiracy undertook the action.

The premise of the rule is that the conspirators have
formed together for an unlawful purpose, and thus,
they share the intent to commit any acts undertaken
in order to achieve that purpose, regardless of
whether they actually intended any distinct act
undertaken in furtherance of the object of the

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conspiracy. It is the existence of shared criminal
intent that ‘is the sine qua non of a conspiracy.’

Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa. Super. 2002)

(citations omitted) (emphasis added), appeal denied, 569 Pa. 701, 805 A.2d

521 (2002). Thus, possession of a firearm can be imputed to a co-

conspirator if the firearm is used in furtherance of the object of the

conspiracy. See Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa.

Super. 2001), appeal denied, 569 Pa. 691, 803 A.2d 733 (2002) (affirming

possessory firearms convictions because Galindes engaged in a conspiracy to

commit burglary and a firearm was used by a member of the conspiracy to

aid in their escape). Because there is no evidence that the firearm on

Bowen’s person was used in furtherance of the conspiracy to commit PWID,

we cannot conclude that possession of the firearm can be attributed to

Welch.

For similar reasons, possession of the firearm cannot be imputed to

Welch by virtue of accomplice liability. In Commonwealth. v. Knox, 2014

WL 7090082 (Pa. December 15, 2014), our Supreme Court held that

accomplice liability is offense specific. Id. at *1. Accordingly, an accomplice

to a broader criminal undertaking may be criminally responsible for the

possession of a firearm by another accomplice to the undertaking when “the

evidence and reasonable inferences, taken in the light most favorable to the

Commonwealth as the verdict winner, supported a conclusion that [the

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appellant], acting with the intent to promote or facilitate [his accomplice’s]

unlicensed carrying of a concealed firearm, solicited [his accomplice] to

commit such offense or aided, agreed, or attempted to aid [his accomplice]

in doing so. Id. at *2.

Conducting the analysis as directed by our Supreme Court, we

conclude that the Commonwealth did not introduce any evidence to support

a finding that Welch acted with the intent to promote or facilitate either

Bowen’s possession of firearms. We likewise conclude that the certified

record contains no evidence that Welch promoted, aided, agreed, or

attempted to aid Bowen’s possession of firearms. Instead, the evidence

shows only that Welch was present at locations where Bowen possessed a

firearm. The trial court referred to evidence that Welch directed Bowen to

circle the block before parking his car, but this does not, even when taken in

the light most favorable to the verdict winner, satisfy the Commonwealth’s

burden of proof on this issue.

Finally, we consider Welch’s Motion to remand the case to the trial

court for an evidentiary hearing for a new trial based upon after-discovered

evidence. Specifically, Welch points to correspondence from the Philadelphia

District Attorney (R. Seth Williams) to the Philadelphia Police Commissioner

(Charles Ramsay), stating that he will no longer use six police officers

(including Officer Spicer) as witnesses in narcotics cases and will not accept

for charging any narcotics cases when either of these six police officers

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would be necessary witnesses. Also attached to Welch’s Motion was an

affidavit filed by Edward McCann, the First Assistant District Attorney of

Philadelphia, in another case involving narcotics charges, in which McCann

sought to quash a subpoena for internal documents relating to investigations

of the six officers (on the grounds that investigations were ongoing). Finally

Welch attached a series of newspaper articles, beginning on December 5,

2012, from The Philadelphia Inquirer, discussing the transfer of these six

police officers from narcotics duties to lower-profile units, which transfers

were necessary because these officers had been the targets of numerous

complaints to Internal Affairs as well as federal lawsuits involving claims of

false arrests, filing fraudulent reports, and the use of excessive force.

In his supplemental brief, Welch has also attached a 42-page federal

indictment against the six officers filed in the United States District Court for

the Eastern District of Pennsylvania on July 29, 2014. This indictment

charges Officer Spicer and the other officers with multiple counts of, inter

alia, robbery, extortion, possession with the intent to distribute cocaine,

falsification of records, and violations of the federal RICO statute (18 U.S.C.

§ 1962). Among other allegations, the indictment identifies multiple

occasions where the officers stole from persons accused of drug offenses

and filed false reports to conceal their criminal conduct.

Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a]

post-sentence motion for a new trial on the ground of after-discovered

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evidence must be filed in writing promptly after such discovery.”

Pa.R.Crim.P. 720(C). The comment to this rule indicates that “after-

discovered evidence discovered during the direct appeal process must be

raised promptly during the direct appeal process, and should include a

request for a remand to the trial judge[.]” Id. Comment. Whether a

petitioner is entitled to a new trial must be made by the trial court at an

evidentiary hearing.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.

Super. 2010). At the evidentiary hearing, it is the petitioner’s burden to

prove, by a preponderance of the evidence, that the evidence (1) could not

have been obtained prior to the conclusion of the trial by the exercise of

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will

not be used solely to impeach the credibility of a witness; and (4) would

likely result in a different verdict if a new trial were granted. See, e.g.,

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). The trial court

must make these determinations on a fully developed evidentiary record.

Id.

In Castro, our Supreme Court addressed whether a petitioner may

“meet the test for after-discovered evidence where [he] proffers no

evidence, but instead relies on a newspaper article.” Castro, 93 A.3d at

824. Concluding that a newspaper article is not evidence but is rather “a

collection of allegations that suggest such evidence may exist,” id. at 925,

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the Supreme Court offered the following guidance in connection with this

Court’s consideration of a Rule 720 motion:

We decline to impose a strict requirement that the
proponent of a Rule 720 motion attach affidavits or
other offers of proof; the rule does not contain
express language requiring this, in contrast to the
rules pertaining to PCRA petitions. However, we
hold a motion must, at the very least, describe the
evidence that will be presented at the hearing.
Simply relying on conclusory accusations made by
another, without more, is insufficient to warrant a
hearing. … Absent identification of the actual
testimony, physical evidence, documentation, or
other type of evidence to support the allegations of
[the officer’s] wrongdoing, we cannot conclude
appellee had evidence to offer; to conclude otherwise
would be speculation.

Id. at 827.

In his supplemental appellate brief, Welch argues that he has satisfied

his pleading burden under Castro because the exhibits he has attached

show “exactly what evidence he would present” at the evidentiary hearing.

Welch’s Supplemental Brief at 5 (emphasis in original). Welch contends that

he “stands in far different shoes than Castro,” because he does not rely

merely on newspaper articles, but rather on documents that reflect that the

district attorney’s office and other law enforcement agencies have been

actively investigating significant wrongdoing by Officer Spicer. Id. at 7.

Finally, Welch claims that the lengthy federal indictment identifies precisely

what evidence he would present in support of his motion for a new trial. Id.

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In contrast, in its supplemental appellate brief, the Commonwealth

argues that the federal indictment, while more formal and credible than a

newspaper article, suffers from precisely the same shortcomings – namely

that it contains only unproven allegations of wrongdoing and is not an offer

of proof. Commonwealth’s Supplemental Brief at 4, 8. The Commonwealth

contends that Welch still has not identified any specific witnesses or any

producible, admissible evidence. Id. With respect to the correspondence by

R. Seth Williams and the affidavit by Edward McCann, the Commonwealth

claims that neither points to any admissible evidence nor reveals that the

Commonwealth has any admissible evidence in its possession. Id. at 11. As

such, the Commonwealth concludes that Welch has not met his burden

under Castro to obtain an evidentiary hearing. Id. at 12.

We need not decide whether Welch’s Motion complies with the newly

announced Castro requirements, since upon review of the entirety of the

information provided (including the supplemental briefs and the federal

indictment), we conclude that all of the evidence at issue here, even if

producible and admissible at an evidentiary hearing, would go solely to

Officer Spicer’s credibility. None of the evidence Welch has identified points

towards his innocence or has any direct bearing on Officer Spicer’s actions in

this case. 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

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wrongdoing in this case. Accordingly, in this case this evidence could be

used only for impeachment purposes to attack the credibility of Officer

Spicer’s testimony.5 Because after-discovered evidence to be used solely to

impeach the credibility of a witness does not constitute grounds for a new

trial, Pagan, 950 A.2d at 292, Welch’s Motion must be denied.

In his thoughtful dissenting opinion in Commonwealth v Choice, 630

A.2d 1005 (Pa. Super. 2003), Judge Klein offered a strong argument that in

appropriate cases impeachment evidence should constitute grounds for a

new trial:

Understandably, the majority relies on that
statement repeated so often it has become an adage
that, “the evidence will not be used solely for the
purposes of impeachment.”

This is proof of the reality of the legal maxim,
“communis error facit jus,” or “common error,
repeated many times, makes law.”

I believe that what we have called a four-prong test
is really only a three prong-test. Prong # 3, the
“only for impeachment” prong, is just an extension
of Prong # 4, that the new evidence would not affect
the outcome. Normally, evidence that just would
tend to impeach what a witness said would not
change the outcome at a new trial.

5
In Welch’s Motion, he argues that the evidence could also be used to file a
motion to suppress or to file a request for exculpatory material under Brady
v. Maryland, 373 U.S. 83 (1963). Welch’s Motion ¶ 16. At a suppression
hearing, however, the evidence would be used for the same purpose as at
trial (to attack Officer Spicer’s credibility). Similarly, Welch has not
identified any potential Brady material that could (if available) be used for
any non-credibility related purpose.

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A bald statement that evidence that only impeaches
would never justify a new trial defies common sense
and justice. Assume, for example, that a defendant
is convicted of a robbery when the victim cannot
make an identification, and the sole identification is
made by a citizen who comes forth later to report
that he witnessed the robbery and saw the
defendant, whom he recognized. The witness
identifies the defendant at trial. Suppose later it is
discovered that this witness was an enemy of the
defendant and in fact was a prisoner in an out-of-
state jail at the time the robbery took place. Under
the language of the rule as has been enunciated, this
testimony about the witnesses' jailing, proving that it
was impossible for him to see what he said he saw,
would not be enough to allow a new trial, absent
some other prong being met. Since testimony about
the incarceration would “be used solely for the
purposes of impeachment,” this information would
not be considered newly discovered evidence that
justifies a new trial.

If one examines the cases that quote the so-called
four-prong test, one can see that there is no case
where the only grounds disqualifying the evidence
from being considered after-discovered to warrant
relief is the fact that it only impeaches. Actually,
Prong # 3 is almost always cited in addition to Prong
# 4, which denies a new trial where the evidence is
not of such a nature and character that a different
outcome is likely. However, a common sense
approach is that in some cases, impeachment
evidence is likely to change the result.

Id. at 1009-10 (Klein, J., dissenting) (footnote omitted; emphasis in

original).

This constitutes one such case where impeachment evidence would

likely change the result at a new trial. Officer Spicer was the

Commonwealth’s key witness, both at the suppression hearing and at trial.

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It was Officer Spicer who conducted the surveillance of Rossi’s residence at

2329 Hutchinson Street and allegedly observed drug sales outside this

residence. Officer Spicer further testified that he allegedly observed Welch

enter and leave 2329 Hutchinson Street with a multicolored bag, directed

the other officers to follow Welch and Bowen to Welch’s apartment, and saw

Bowen’s holstered gun. Finally, it was Officer Spicer who testified he

directed the other officers to seize Welch, which seizure resulted in the

recovery of the multicolored bag and the drugs found inside Welch’s

apartment. In short, Officer Spicer’s testimony was critical to the

Commonwealth’s case against Welch. With a fertile basis to attack (destroy)

Officer Spicer’s credibility, a different outcome would likely have been the

result if Welch’s counsel had the benefit of the now-discussed impeachment

evidence.

This Court is not at liberty to adopt Judge Klein’s reasoning. In

Castro, our Supreme Court reaffirmed the four-part test for a new trial

based on after-discovered evidence under Rule 720 – which test continues to

include the prohibition against impeachment evidence. Castro, 93 A.3d at

825. We note that in Castro, the appellant argued that where the evidence

in question would “completely destroy and obliterate the testimony of the

one witness upon whose testimony the defendant was convicted,” the

evidence “goes to the ultimate question in the trial” and should be grounds

for a new trial. Id. The Supreme Court merely noted that “the test for

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whether a new trial is warranted is settled,” cited to prior decisions

referencing the four-part test (all of which post-date Judge Klein’s dissent in

Choice),6 and moved on to a discussion of the above-mentioned evidentiary

issues. Id.

For the foregoing reasons, we vacate the July 12, 2012 judgment of

sentence for Welch's conviction for persons not to possess firearms, 18

Pa.C.S.A. § 6105. Because the trial court imposed no penalty for this

conviction, our decision does not alter the trial court’s sentencing scheme

and thus remand is unnecessary. In all other respects, we affirm the July

12, 2012 judgment of sentence. Welch’s Motion for remand for an

evidentiary hearing based upon after-discovered evidence is denied.

Jurisdiction relinquished.

Mundy, J. and Olson, J. concur in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2015

6
Commonwealth v. Montalvo, 604 386, 986 A.2d 84, 109 (Pa. 2009);
Pagan, 950 A.2d at 292; Commonwealth v. Randolph, 582 Pa. 576, 873
A.2d 1277, 1283 (2005).

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