Commonwealth v. Castro

DISSENTING OPINION BY

STEVENS, P.J.

Although Appellant claims to be entitled to a new trial based on after-discovered evidence, his sole proffer was a newspaper article that contains mere allegations of Officer Richard Cujdik’s misconduct which do not constitute evidence. Moreover, as Appellant asks us to speculate on what evidence he will be able to present at an evidentiary hearing, it cannot be determined if this potential “evidence” would be used for any other purpose than to impeach Officer Richard Cujdik’s credibility. For these reasons, one must conclude that Appellant failed to satisfy every prong of the after-discovered evidence test. As a result, I respectfully dissent from the Majority’s decision to remand the case for an evidentiary hearing.

Our standard of review is limited in the context of a claim of after-discovered evidence:

After-discovered evidence is the basis for a new trial when it: 1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely for impeaching the credibility of a witness; and 4) is of such nature and character that a new verdict will likely result if a new trial is granted. Commonwealth v. Boyle, 533 Pa. 360, 625 A.2d 616, 622 (1993); Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988). Further, the proposed new evidence must be “producible and admissible.” Smith [518 Pa. at 50], 540 A.2d [at] 263; Commonwealth v. Scott, 503 Pa. 624, 470 A.2d 91, 93 (1983).

*1250Commonwealth v. Chamberlain, 612 Pa. 107, 30 A.3d 381, 414 (2011).

Appellant claims he is entitled to a new trial based on a newspaper article published in the Philadelphia Daily News on March 30, 2009, four days after he was convicted in this case. In the article, Jose Duran, the owner of a local convenience store, alleged that Philadelphia Police Officer Richard Cujdik and several other officers entered his business and cut the wires to several cameras of his video surveillance system. The article also indicates Duran recovered video footage which allegedly shows the officers cutting the wires to one of the cameras. Although Duran contends the officers removed the cameras to steal thousands of dollars in cash and merchandise from his store, the article states that the officers had a search warrant and claimed to be confiscating the store’s surveillance videos as evidence Duran was selling drug paraphernalia.

The article’s author alleged that Officer Richard Cujdik falsely claimed in his search warrant application that a confidential informant, who is not identified in the article, purchased small ziplock bags from Duran’s store on the day of the raid at approximately 4:30 p.m. After reviewing the surveillance video from one of the cameras recorded from 4 to 5 p.m., the author of the article indicated that this particular camera did not record anyone purchasing ziplock bags during this time. Although Officer Richard Cujdik apparently indicated in the search warrant that his informant purchased similar ziplock bags on two other occasions, the article reveals that Duran claims he was unable to locate the video footage from those days. Based on this information, the author of the article concludes that Officer Richard Cujdik fabricated evidence to obtain the search warrant for Duran’s store.

Before this article was published in the Philadelphia Daily News on March 30, 2009, a task force of federal and local law enforcement had already launched an investigation of the Philadelphia Narcotics Field Unit in February 2009. Although the investigation was targeted at allegations of Officer Jeffrey Cujdik’s conduct, who is Officer Richard Cujdik’s brother, the task force also investigated the entire Narcotics Field Unit team who made arrests with Officer Jeffrey Cujdik. To date, the parties agree that no charges have been filed against any member of the Philadelphia Narcotics Field Unit, including Officer Richard Cujdik, the police affiant in this case.

Appellant’s sole proffer to support his after-discovered evidence claim was the aforementioned Philadelphia Daily News article. In his brief submitted to this Court sitting en banc, Appellant claimed the article “established that Officer [Richard] Cujdik had in another case obtained a search warrant based on the false representation that CI-142 had purchased drug paraphernalia at a store.” Appellant’s Substituted Brief, at 10 (emphasis added). I disagree with Appellant’s contention that these mere allegations established any fact concerning Officer Richard Cujdik’s conduct.

Before we reach the four-prong after-discovered evidence test, it is essential to discuss whether Appellant actually presented evidence that is “producible and admissible.” Chamberlain, 612 Pa. 107, 30 A.3d at 414. Newspaper articles generally do not constitute evidence, as they contain inadmissible hearsay that cannot be offered to prove its truth. Pa.R.E. 801-802. See also Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70, 72 (1987) (upholding exclusion of newspaper article as inadmissible hearsay); Presbyterian SeniorCare v. Unemployment Compensation Bd. of Review, 900 A.2d 967, 978 (Pa.Cmwlth.2006) (finding uncorroborated dou*1251ble hearsay in newspaper article was not sufficient to establish the allegation as fact).1 In this case, the article contains a reporter’s account of a witness’s testimony in the Duran case, which is double hearsay. Appellant attempts to offer the article to prove the truth of its allegations: the claim that Officer Richard Cujdik fabricated evidence to obtain a search warrant for Duran’s store. As such, the article would be inadmissible for this purpose.

In a submission to this en banc court after oral argument, Appellant concedes the sole newspaper article he presented in his post-sentence motion request was not itself evidence, but essentially claims the article provides a basis for believing he may find after-discovered evidence to present at the hearing. Response to the Commonwealth’s Post-Argument Memorandum, at 1-2. However, in making this concession, Appellant shows he failed to meet the initial hurdle in presenting producible and admissible evidence in his petition, and asks this Court to remand for a hearing so that .he can find possible evidence to support his claim. Chamberlain, 612 Pa. 107, 30 A.3d at 414. However, our Supreme Court has held that “an eviden-tiary hearing ... is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim.” Commonwealth v. Scott, 561 Pa. 617, 628, 752 A.2d 871, 877 n. 8 (2000).

Even if this Court accepts Appellant’s claim that he can prove the allegations set forth in the newspaper article, it is pure speculation to determine what evidence Appellant will be able to offer at the hearing. Even though the Majority states that newspaper articles are generally inadmissible and concedes that Appellant does not seek to admit the newspaper article itself as evidence, the Majority desires to remand this case to allow Appellant to introduce “the content of what is described in the article” which is “independently verifiable.” Majority, at 1245, 1249. However, the main “content” that Appellant seeks to prove in the newspaper articles are mere accusations by reporters and a local store-owner that Officer Richard Cujdik may have been involved in misconduct. Although we do not discount the gravity of these accusations, Appellant failed to explained what evidence he could present at an evidentiary hearing to verify these allegations.

Although not offered as a basis for Appellant’s after-discovered evidence claim in the trial court, the Majority points out that the newspaper article indicated that Jose Duran recovered one video surveillance tape which allegedly shows an officer disabling one of the convenient store cameras.2 However, even if this video does show an officer removing one of the surveillance cameras, this is not evidence of misconduct as the article also states that the officers told Duran they were confiscating surveillance videos which likely contained evidence of the sale of drug paraphernalia within Duran’s store.

In addition, the Majority claims this video “directly contradicts]” Officer Richard Cujdik’s search warrant application which indicates that one of his informants purchased drug paraphernalia from Duran’s store on the day of the raid at approxi*1252mately 4:00 p.m. However, the fact that the particular video camera failed to record this transaction is not independently verifiable evidence of Officer Cujdik’s misconduct. The article indicates that Duran’s convenient store had numerous cameras to view and record different parts of the store. Thus, although one of Duran’s cameras did not record a sale of drug paraphernalia on that particular date and time, one cannot conclude that the sale of drug paraphernalia was not recorded by another camera in the store. Further, even though Officer Richard Cujdik stated in his search warrant application that his informant had also purchased drug paraphernalia from Duran’s store on two prior occasions, the article indicates Duran was seemingly unable to locate video of those dates.

For these reasons, there is no merit in remanding this case for an evidentiary hearing, which would waste valuable judicial resources. Appellant failed to identify any “evidence” which would be producible and admissible. Over three years after federal and local law enforcement began their investigation, neither Officer Richard Cujdik nor any member of the Philadelphia Narcotics Field Unit has been charged with misconduct. Appellant did not identify any witnesses that could offer admissible testimony of their personal knowledge of Officer Richard Cujdik’s misconduct, identify any possible evidence that could be presented, or complete any additional discovery in the three years this request has been pending. Yet, Appellant asks this Court to remand to the trial court to launch a parallel investigation into the same matter, but offers no insight how he will substantiate the allegations he has set forth.

The majority relies on Rivera in which a three-judge panel of this Court found that Rivera was entitled to a new trial based on after-discovered evidence contained in a newspaper article which detailed the arrest of the laboratory technician who testified at Rivera’s trial. Commonwealth v. Rivera, 939 A.2d 355, 357-59 (Pa.Super.2007). As the laboratory technician was “arrested and accused of skimming drugs for personal use instead of securing the evidence for prosecution in drug cases,” the Rivera court found that the technician’s arrest called into question her testimony which was used to convict Rivera of possession of a controlled substance with intent to deliver. Id.

Relying on Rivera, the majority suggests that this Court’s subsequent decision in Commonwealth v. Estepp, 17 A.3d 939 (Pa.Super.2011), should be overruled. In Estepp, the defendant asked this Court to remand his case to the lower court for a hearing on after-discovered evidence based on similar articles containing allegations of Officer Jeffrey Cujdik’s misconduct in falsifying evidence in narcotics investigations. As the article Estepp cited “merely state[d] that Officer [Jeffrey] Cujdik was under investigation for misconduct,” this Court found Estepp could “only speculate about possible corruption that has not been corroborated.” Id. at 943 (emphasis added).3 This Court correctly distinguished Estepp’s case from the newspaper article in Rivera, which was substantiated by the laboratory technician’s arrest, which at least required probable cause. Id. See Commonwealth v. McAdoo, 46 *1253A.3d 781, 784 (Pa.Super.2012) (citation omitted) (providing that an arrest must be supported by probable cause). Accordingly, this Court found that Estepp failed to present after-discovered evidence which entitled him to a new trial.

Likewise, in this case, Appellant’s citation to a newspaper article which simply states that Officer Richard Cujdik is under investigation for alleged corruption in another case is not evidence, but, rather, is speculation about Officer Richard Cujdik’s conduct and testimony in this case. No matter how serious the accusations may be, allegations are not evidence. The Majority’s decision to remand to the trial court simply because Appellant has shown “the potential for uncovering exculpatory evidence” is not appropriate. Majority, at 1249.

In addition, to support its conclusion that Appellant had presented after-discovered evidence that would likely result in a different verdict, the Majority took judicial notice sua sponte of additional newspaper articles which state that the City of Philadelphia settled twenty-one lawsuits against Officers Jeffrey and Richard Cujdik. The Majority improperly took judicial notice of these settlement agreements as this Court may not uphold a trial court’s order on the basis of off-the-record facts. Ney v. Ney, 917 A.2d 863, 866-67 (Pa.Super.2007) (citing In re Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980)). Neither party included evidence of the City of Philadelphia’s settlements into the certified record. Further, Pennsylvania Rule of Evidence 201 provides that a party is “entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” Pa.R.E. 201(e). The Commonwealth was not given an opportunity to respond to the Majority’s judicial notice of the City of Philadelphia’s settlement agreements as evidence of Officer Cujdik’s corruption.

After concluding that Appellant has not presented producible and admissible evidence for our review, we cannot determine whether this potential evidence meets all four prongs of the after-discovered evidence test. As Appellant never explained how he would substantiate the allegations of Officer Cujdik’s misconduct, this Court would be required to speculate on the evidence Appellant could offer to support his claim.

Even assuming arguendo that we accept the newspaper article as evidence as the sole entry in the certified record, Appellant would only be able to use this article for impeachment purposes. The article essentially details Officer Richard Cujdik’s alleged misconduct in another case with an informant that is not identified. From Appellant’s brief to this Court, it is apparent that Appellant attempts to require us to infer that Officer Richard Cujdik’s alleged falsification of evidence in that case makes it likely that he gave untruthful testimony in this case. From this proffer, Appellant failed to prove he would not use the article solely for impeachment and has not met this prong of the after-discovered evidence test.

Accordingly, I dissent.

. "Although decisions of the Commonwealth Court are not binding on this Court, we may rely on them if we are persuaded by their reasoning.” NASDAQ OMX PHLX, Inc. v. PennMont Sec., 2012 WL 2877607, at *11 n. 7 (Pa.Super.Ct. July 16, 2012) (citing In re Brown, 30 A.3d 1200, 1204 n. 2 (Pa.Super.2011)).

. Despite the Majority's claim the online newspaper article contains a link to view the surveillance videos, this link was removed from the online article and the videos are not currently available for viewing.

. The Estepp court also indicated that the articles that Estepp relied on for his after-discovered evidence claim did not have dates printed on the page, but were handwritten on the article presumably by Estepp. Such information is relevant to the prong of the after-discovered evidence test which requires Appellant to present evidence which was "discovered after the trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence.” Chamberlain, 612 Pa. 107, 30 A.3d at 414.