Opinion
J-A31024-16 No. 1750 EDA 2015
05-30-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY M. HUNTER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011846-2013 BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY MOULTON, J.:
Former Justice specially assigned to the Superior Court.
Anthony M. Hunter appeals from the May 15, 2015 judgment of sentence entered in the Philadelphia County Court of Common Pleas following his conviction for manufacture, delivery, or possession with intent to deliver a controlled substance ("PWID"), 35 P.S. § 780-113(a)(30). We affirm.
The trial court set forth the following facts:
On September 3, 2013, at about 6:00 p.m., Philadelphia Police Officer James Reilly, an experienced narcotics officer assigned to the Narcotics Strike Force, commenced an investigation together with backup officers in the area of a playground located in the 5000 block of Parrish Street. The playground is a known drug area. From inside an unmarked police vehicle, the officer observed [Hunter] approximately fifty feet away, sitting
with two other males on steps that led into the playground. During the surveillance, the officer saw a woman enter the playground, and walk to a slide in the playground. As the woman stood next to the slide, [Hunter] rose from the steps, approached her, and the two engaged in a brief conversation.
When the conversation ended, the woman handed [Hunter] an unknown amount of U.S. currency. [Hunter] took the money and then reached into his shorts' pocket and took out a container from which he removed small objects that he handed to the woman. After handing her the objects, [Hunter] closed the container and returned to the steps.
Based on his training and experience, Officer Reilly believed that [Hunter] had engaged in a drug transaction, with the woman. As such, he directed Officer Patrick Banning, who was acting as a back-up officer, to stop the woman. However, Officer Banning was unable to locate the alleged buyer.
Soon thereafter, a male later identified as Gregory Jefferson entered the playground and proceeded to the same spot by the slide where the transaction occurred earlier. [Hunter] was again observed approaching him and engaging in a transaction identical to the earlier incident.
Upon receiving small objects from [Hunter], Jefferson left the playground and was apprehended by Officer David Aponte, who was serving as a uniformed back-up officer. Incident thereto, Officer Aponte received two clear plastic packets filled with crack cocaine.
At about 6:35 p.m., another male entered the playground and informed [Hunter] that the police were in the area. [Hunter] immediately stood up attempting to leave the area. Officer Reilly directed his backup officers to stop [Hunter], who sprinted from the playground upon police officers['] arrival. After a ten minute pursuit during which he hid from police, [Hunter] was apprehended. Post arrest, police seized $117.00 from [Hunter]. In addition, police seized a white and blue chewing gum container that [Hunter] discarded during the pursuit. Upon inspection the container was found to have inside it ninety-two packets of crack cocaine weighing 4.234 grams. Officer Reilly then
proceeded to the location where [Hunter] was being held and identified him as the male he saw exchange small items for U.S. currency with the woman and Jefferson.1925(a) Opinion, 1/21/16, at 2-3 ("1925(a) Op.") (internal citations and footnote omitted).
On June 18, 2014, a jury convicted Hunter of PWID. Hunter filed a post-verdict motion for a new trial, alleging that he had obtained new information regarding the officers involved in his case. Hunter argued that he learned that Officer Christopher Hulmes was arrested and charged with perjury related to preliminary hearing testimony and a search-warrant application in a separate case. Although Officer Hulmes was not involved in Hunter's case, Hunter noted that Officer Banning, who was involved in Hunter's investigation, signed the search-warrant application containing the allegedly inaccurate information. Hunter argued that the prosecution had a duty to disclose to the defense both Officer Hulmes and Officer Banning's personnel files, particularly any disciplinary investigations.
At the hearing on the post-verdict motion, the following exchange occurred:
THE COURT: That's what I'm trying to figure out. Is [Officer] Hulmes involved in this case?N.T., 5/15/15, at 7-8.
[HUNTER'S COUNSEL]: [Officer] Hulmes is not. Banning, his partner, is involved. And Banning was --
THE COURT: Was Banning his partner at the time of this arrest?
[COMMONWEALTH]: I don't know if they were partners at the time of this arrest. I know that [Officer] Banning was not - I know that [Officer] Hulmes was not on this job. [Officer] Hulmes has nothing to do with the case that we're in front of Your Honor for.
THE COURT: That's what I'm trying to figure out. So what's the exculpatory information?
[HUNTER'S COUNSEL]: The exculpatory information was [Officer] Patrick Banning's relationship -- excuse me -- Patrick Banning's participation in the Arthur Rowland case where Patrick Banning signed the search warrant that was based on falsely attested material by Christopher Hulmes in an effort to prosecute somebody based on false evidence. . . .
Hunter's post-verdict motion requested "all Brady material involving Officers Patrick Banning, James Reilly, Sergeant [Scott] DiDonato, Christopher Hulmes, David Aponte, and all other officers in [Hunter]'s case," referring to Brady v. Maryland , 373 U.S. 83 (1963). However, while his appellate brief references "the arresting and investigating officer[s]," it only addresses materials related to Officers Banning and Hulmes. Thus, Hunter has waived his Brady claims relating to Officers Reilly and Aponte, Sergeant DiDonato, and all other officers involved in Hunter's case. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.").
On May 15, 2015, after denying Hunter's post-verdict motion, the trial court sentenced Hunter to 33 to 72 months' incarceration. Hunter did not file a post-sentence motion. On June 12, 2015, Hunter timely filed a notice of appeal.
The delay in sentencing was due to several requests for continuance, mostly by Hunter's counsel. --------
Hunter raises the following issue on appeal:
[] Did the trial court make an error of law and thereby violate [Hunter]'s rights of federal due process, right to a fair trial, and equal protection of the laws, when the Honorable Judge McCaffery denied [Hunter]'s post-conviction motion, seeking relief for the Commonwealth's failure to provide his counsel with Brady 1 material regarding the disciplinary history of the officers involved in [Hunter]'s matter?
Hunter's Br. at 2.1 Brady v. Maryland , 373 U.S. 83 (1963)
Our Supreme Court has stated that "under Brady , 'a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature.'" Commonwealth v. Solano , 129 A.3d 1156, 1170 (Pa. 2015) (quoting Commonwealth v. Walker , 36 A.3d 1, 9 (Pa. 2011)). To prevail on a Brady claim, an appellant must demonstrate that: (1) "the evidence at issue was favorable to him, because it was either exculpatory or could have been used for impeachment"; (2) "the prosecution either willfully or inadvertently suppressed the evidence"; and (3) "prejudice ensued." Id. (quoting Walker , 36 A.3d at 9). Furthermore, prejudice occurs when the evidence is material, that is, when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. (quoting Walker , 36 A.3d at 9).
Hunter claims that the Commonwealth should have disclosed the personnel files of Officer Christopher Hulmes and Officer Patrick Banning, as "there was no similar impeachment available." Hunter's Br. at 15. Hunter argues that the Commonwealth possessed this information but failed to disclose it. Hunter claims that he would have used this information as evidence of other crimes, wrongs, or acts pursuant to Pennsylvania Rule of Evidence 404(b) and to undermine the officers' reliability. Id. Finally, Hunter contends that he was prejudiced by the withholding of this information because "it [wa]s extremely likely that the verdict would have been different" had the jury known of the officers' "practice of lying in the past about other drug cases, planting and/or stealing narcotics, and/or lying about confidential informants." Id. at 16-17.
The trial court reasoned as follows:
[Hunter]'s entire argument is purely speculative. [Hunter] asserts that because Officers Reilly and Banning previously worked with Officer Hulmes, their testimony during [Hunter]'s trial is tainted and may have been false. However, [Hunter] failed to present a scintilla of evidence to show that Banning or Reilly lied, that their personnel records contained exculpatory information, or that they participated in Officer Hulmes' alleged criminal activity, something which [Hunter]'s counsel conceded to this Court. " Brady does not require the disclosure of information 'that is not exculpatory but might merely form the groundwork for possible arguments or defenses.'" Commonwealth v. Chamberlain , 30 A.3d 381, 409 (Pa. 2011) (citation omitted). To this Court's knowledge, Hulmes has yet to be tried or convicted on the per[j]ury charge.1925(a) Op. at 4-5. We agree.
Moreover, a review of the record shows Officer Banning played a minor role in this investigation and Officer Reilly's testimony was corroborated by other testimony including the seizure of evidence from the buyers and drugs abandoned by [Hunter]. Most importantly, Officer Hulmes played no role in this arrest. For these reasons, [Hunter] utterly failed to establish prejudice and his claims necessarily fail.
We conclude that any information regarding Officer Hulmes was not subject to disclosure under Brady. Because, as Hunter concedes, Officer Hulmes was not involved in Hunter's investigation, Officer Hulmes' alleged wrongdoing had no impact on Hunter's case. See supra note 1. Thus, any materials in Officer Hulmes' personnel files would not be exculpatory and could not serve as material impeachment evidence in Hunter's trial. See Solano , 129 A.3d at 1170 (stating appellant must establish that evidence is favorable to him because it is exculpatory or impeachment material).
Similarly, Hunter failed to establish how he was prejudiced by not having Officer Banning's personnel files during trial. Officer Banning's role in Hunter's case was minimal, and Hunter merely speculates that because Officer Banning was involved in a separate case where another officer allegedly engaged in criminal activity, Hunter is entitled to all of Officer Banning's personnel files.
As the trial court noted, Officer Banning played a minor role in Hunter's investigation. Furthermore, his testimony was corroborated by the testimony of Sergeant DiDonato and other officers as well as by physical evidence. Accordingly, Hunter failed to establish that there was a reasonable probability that, had the evidence been disclosed, the result would have been different. See Solano , 129 A.3d at 1170 (stating prejudice occurs when "there is a reasonable probability that . . . the result of the proceeding would have been different").
We also note that Hunter is seeking is a "wholesale inspection" of Officer Banning's personnel files, which "certainly require[s] a greater showing of basis and necessity than simply unsupported speculation." Commonwealth v. Blakeney , 946 A.2d 645, 661 (Pa. 2008). The Pennsylvania Supreme Court has explained that "[a] defendant has no right to obtain or review personnel records in the mere hope that he might uncover some collateral information with which to challenge the credibility of a police officer." Id. The Court reasoned that "the strong public interest in protecting the privacy and safety of law enforcement officers requires a narrowly targeted and supported request for relevant documents." Id.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/30/2017