Com. v. Centuollo, M. (memorandum)

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J-S43027-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MARK CENTUOLLO, Appellant No. 2397 EDA 2013 Appeal from the PCRA Order entered July 19, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0013732-2010 BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED JULY 15, 2014 petition for post-conviction relief filed pursuant to the Post Conviction Relief -46. We affirm. The PCRA court detailed the pertinent facts and procedural history as follows: On March 7, 2011, [Appellant] entered into a negotiated plea to possession with intent to deliver a controlled substance (PWID) and possession of an instrument of crime (PIC). Pursuant to the negotiation, the Commonwealth agreed to demandatorize [sic] the sentence which, based upon the weight of the controlled substance, would have been a minimum of 5 years [of] incarceration. Sentencing was deferred to permit trial counsel to attempt to resolve the issue of the forfeiture of On July 19, 2011, [Appellant] was sentenced to the *Former Justice specially assigned to the Superior Court. J-S43027-14 negotiated sentence of 2½ - 5 years [of] incarceration followed by three years [of] probation. Appellant did not file a direct appeal. [On] April 4, 2012, [Appellant] filed a pro se petition for PCRA relief complaining that there was a discrepancy concerning the weight of the confiscated drugs; that because he had a prescription for 16 of the 102 tablets, the total weight of the drugs was lower, which would decrease the offense gravity score and the guideline range, and trial counsel was ineffective for permitting him to be sentenced to an incorrect guideline sentence on the PWID. PCRA counsel was appointed and, on November 8, 2012, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),] indicating that he had found no meritorious issues to be raised in an amended petition. On November 27, 2012, a notice pursuant to Pa.R.Crim.P. 907 was filed and served on [Appellant] indicating that the petition would be dismissed after 20 days without further proceedings, and the case was listed December 21, 2012 for formal dismissal. [Appellant filed a pro se determined that no relief was warranted. At the December 21, 2012 listing, PCRA counsel informed the Court that he wished to withdraw the [Turner/Finley allegedly corrupt and criminal Philadelphia Police Officers. The [PCRA court] permitted the withdrawal to allow counsel opportunity to investigate the claims. On January 10, 2013, [PCRA] counsel filed an amended petition requesting that the guilty plea be withdrawn because newly discovered evidence, namely allegations of police corruption concerning certain officers involved in guilty only because of the incarceration exposure he faced. dated December 30 correspond to those recited by the District Attorney from regarding the date of the article or the specific allegations -2- J-S43027-14 against the officers. Appellant later submitted a second affidavit, dated June 2, 2013, claiming that he was innocent of the crimes he pleaded guilty to and again maintaining that he entered the negotiated plea only because of the potential prison time he faced had he gone to trial, namely the 5 year mandatory. The Commonwealth filed a motion to dismiss arguing that [Appellant] is bound by his statements under oath. On petition for PCRA relief was formally dismissed. Thereafter, [Appellant] filed a motion to reconsider the dismissal of his PCRA request to withdraw his guilty plea which was denied. PCRA Court Opinion, 12/27/13, at 1-4 (footnotes omitted). appeal followed. This timely Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925. Appellant raises the following issue on appeal: 1. Did the PCRA court err in not allowing Appellant to withdraw his guilty plea nunc pro tunc when the arresting officers have been implicated in corrupt and criminal activity? petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a -3- J-S43027-14 claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001). the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been citing 42 Pa.C.S.A. § 9543(a)(2)(vi). The test applied to determine whether a PCRA petitioner is entitled to postconviction relief based on after-discovered evidence is well settled: To obtain relief based on after-discovered evidence, [a PCRA petitioner] must demonstrate 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. Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (quoting Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). More show by a preponderance of the evidence that each of these factors has Foreman, 55 A.3d at decision to grant or deny a new trial, on the basis of after-discovered evidence, an appellate court is to -4- J-S43027-14 determine whether the PCRA court committed an abuse of discretion or error Id. In support of his issue on appeal, Appellant asserts that the PCRA court erred in denying his request to withdraw his guilty plea, nunc pro tunc, because: [Appellant] discovered new evidence that his arresting officers engaged in corrupt and criminal activity. Appellant faced a lengthy mandatory sentence and that is the reason for entering into a plea agreement. Appellant has subsequently sworn that he is innocent of the crimes for which he had been convicted. There are also Brady discovery issues and Procedural Due Process issues Therefore, this matter should be remanded to the PCRA court to allow Appellant to withdraw his guilty plea nunc pro tunc. uments, the PCRA Court first noted that PCRA Court Opinion, 12/27/13, at 5. The PCRA court then reasoned: To substantiate his claim, [Appellant] cites to Commonwealth v. Castro, [55 A.3d 1242 (Pa. Super. 2012) (en banc),] appeal granted, 65 A.3d 291 (Pa. 2013). *** In [Castro, the Superior Court] held that the afterdiscovered evidence [of a newspaper article discussing criminal allegations against a police officer involved in evidentiary hearing to determine if a new trial was required. Id. -5- J-S43027-14 In the instance case, unlike Castro, who became aware of the news article four days after his trial, where [the same officer named in the article] was the only witness, Appellant became aware of the article approximately 17 months after he entered his plea and was sentenced. Additionally, unlike the defendant in Castro, who went to trial, [Appellant] pleaded guilty to the charges. He was thoroughly colloquied and, under oath, agreed that the summary of the evidence, and the amendments and additions by trial counsel read in the record by the [Assistant] District Attorney, were the facts to which he was pleading guilty. A defendant who elects to plead guilty has a duty to answer questions truthfully and is bound by the statements he makes in open court while under oath, and may not later assert grounds for withdrawing the plea which contradict the statements he withstanding, [Appellant] fails to provide any specific information regarding the substance or content of the news article such that the Court is able to undertake the kind of meticulous analysis conducted in Castro. Additionally, in his December 30, 2012 affidavit, [Appellant] did not allege that any misconduct had those recited by the [Assistant] District Attorney from the demonstrated that he is entitled to relief on this claim. PCRA Court Opinion, 12/27/13, at 5-9 (citations and footnote omitted). In arguing to the contrary, Appellant first asserts that he should be granted a new trial based on after-discovered evidence even though he previously entered a guilty plea. In support, Appellant cites to our Supreme Commonwealth v. Peoples, 319 A.2d 679 (Pa. 1974). Even if we were to agree with Appellant, he is not entitled to relief based upon the afterhearing. -6- J-S43027-14 On June 16, 2014, the Pennsylvania Supreme Court reversed this Castro. Commonwealth v. Castro, 2014 Pa. LEXIS 1515, ___ A.3d ___ (Pa. 2014). In Castro, the high court concluded that would warrant a remand for an evidentiary hearing. Id. at *1. The Castro court stated: We need not belabor the question of whether a newspaper article is evidence - - the parties agree the article itself is not evidence. The Superior Court erred in treating the article as containing evidence; the article contains allegations that suggests such evidence may exist, but allegations in the media, whether true or false, are no more evidence than allegations in any other out-ofcourt situation. Nothing in these allegations, even read in references to the officer being under investigation for misconduct contains no information what evidence existed to substantiate this averment. One cannot glean from these bald allegations what evidence of misconduct [Castro] intended to produce at the hearing. *** In short, things appear suspicious, but that is not proof, and the proffer of the article to point to misconduct by speculate about possible corruption that has not been corroborated. Speculation is no more valuable than allegation. More than the article is required to prove the veracity of its contents. Castro, 2014 Pa. LEXIS 1515, at *19-22 (footnote and citation omitted). Focusing on the quantum of evidence necessary to warrant an pronouncement in Castro -7- J-S43027-14 evidence makes it more than probable that a trier of fact would come to a Id. at *23 n.13 (quoting Castro, 55 A.3d at 1249. can alert a party to the possible existence of evidence, the party must do more than attach the article as establishing evidence that will meet the four-pronged [afterdiscovered evidence] test. Id. at *23. Finally, the high court reiterated: the [evidentiary] hearing is for the presentation of evidence, not the potential discovery of evidence. An evidentiary hearing [] is not meant to function as a fishing expedition for any possible evidence that may Id. at *26 (citation omitted). Here, without citing to any specific newspaper article that suggests police corruption, Appellant seeks not a remand for an evidentiary hearing, but rather the withdrawal of his guilty plea. According to Appellant, his guilty ple Commonwealth deemed to be nonCastro new trial based on after-discovered evidence pursuant to Pa.R.Crim.P 720. In ruling regarding the quantum of evidence necessary to warrant an requisi Castro, at *25; see Pa.R.Crim.P. 902(A)(15) (providing that a request for an evidentiary shall include a signed certification as to each -8- J-S43027-14 intended witness and the nature of his or her testimony). As stated by the of after-discovered evidence in this case amounted to no more than speculation and conjecture. Brady claim fails given the same paucity of after- federal government knew of the abovecorruption and refused to use these officers in federal prosecuti aware of the corruption allegations. This is simply insufficient to show a Brady violation. The PCRA requires petitioners to plead and prove their assertions by a preponderance of the evidence. Inherent in this pleading and proof requirement is that the petitioner must not only state what the issues are, but also he must demonstrate in his pleadings and briefs how the issues will be proved. PCRA Court Opinion, 12/27/13, at 10 (citations omitted). We agree. Without citation to any police officers were known to be corrupt by the federal government but the Philadelphia District Attorney used them to prosecute cases nonetheless without revealing anything to defense attorneys. This was initially the Brady claim relies on speculation and conjecture. In sum, because Appellant failed to present sufficient evidence to support his after-discovered evidence and Brady claim, the PCRA court -9- J-S43027-14 order denying Appellant post-conviction relief. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 - 10 -

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