Com. v. Flick, J.

Superior Court of Pennsylvania

Com. v. Flick, J.

Superior Court of Pennsylvania·Decided April 24, 2015·No. 3053 EDA 2011·Unpublished

Opinion

J-S56004-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH FLICK

Appellant No. 3053 EDA 2011

Appeal from the Judgment of Sentence October 11, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015607-2010

BEFORE: ALLEN, J., OTT, J., and COLVILLE, J.*

MEMORANDUM BY OTT, J.: FILED APRIL 24, 2015

This matter is before this panel on remand from our Supreme Court,

with instruction to reconsider our prior disposition1 in light of its recent

decision in Commonwealth v. Castro, ___ A.3d ___, 2013 WL 2722742

(Pa. filed Jun. 16, 2014). The issue at hand is what manner of relief, if any,

Flick is entitled to regarding his claim of after discovered evidence in the

form of police corruption. Upon consideration of the certified record and

Castro, we reinstate our prior order and remand this matter to allow Flick to

____________________________________________

* Retired Senior Judge formerly assigned to the Superior Court. 1 Commonwealth v. Flick, 87 A.3d 890 [3053 EDA 2011] (Pa. Super. 2013) (unpublished memorandum decision), vacated and remanded, 103 A.3d 1224 (Pa. 2014). J-S56004-13

file a post sentence motion nunc pro tunc addressing after discovered

evidence.

The factual and procedural history of this matter is particularly

important to the resolution of this claim. Accordingly, we detail the

following:

On September 29, 2010, at approximately 2:00 p.m., Philadelphia

Police Officers Thomas Liciardello and John Speiser, both of the Narcotics

Field Unit (NFU), set up surveillance of 109 West Thompson Street,

Philadelphia, Pennsylvania. N.T. Trial, 8/4/2011, at 37-38.2 The record

reveals Thompson Street to be a one-way residential street with parking on

both sides and with a single lane of travel. Id. at 86. The residence at 109

West Thompson is approximately 60 feet from the corner of Hope and

Thompson, where the police were situated.3 Id. at 45. Officers Liciardello

and Speiser parked their unmarked police car on the opposite side of the

street near the corner of Hope and Thompson. Id. at 85. When they

arrived at the scene, both Flick and another man, later identified as Ali

Farrell, were standing in front of the residence. Id. at 40. All the windows

of the car, except the front windshield, were tinted. Id. at 39-40. Officer

2 A typographic error in the notes of testimony indicates the first day of trial was April 4 rather than August 4. 3 Hope and Front Streets are the two cross streets defining the relevant block of West Thompson.

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Speiser sat in the front passenger seat and Officer Liciardello laid back in his

seat, apparently in the driver’s seat. Id. at 38, 106. He did so because, “if

somebody on the block sees two people sitting in a car they technically think

they’re police.” Id. at 106. Nonetheless, Officer Liciardello testified he got

out of the car on two or three occasions to walk around the block “to make it

seem like it’s not so obvious.” N.T. Trial, 8/5/2011, at 29, 9. Each time he

left the car, he was gone for approximately ten minutes. Id. at 30. Officer

Liciardello walked past Flick and Ferrell at least once, presumably on the

opposite side of the street. Id. at 9-10. Officer Liciardello testified he left

the actual surveillance of the target residence to Officer Speiser. Id. at 10.

Officer Speiser testified that approximately 20 minutes after setting up

the surveillance, he witnessed an unknown white male approach Flick and

give him money. N.T. Trial, 8/4/2011, at 42. Flick went into the residence,

returned shortly and handed something small to the man, who then left the

scene. Id.

Officer Speiser further testified that at approximately 2:45 p.m., he

witnessed a small blue car park at the northwest corner of Front and

Thompson.4 Id. at 44-45. Ferrell started walking toward the car. A man got

out of the car and started walking toward Ferrell. Id. The male handed

4 It is unclear if the small blue car was travelling on Thompson Street, thereby passing the parked surveillance car, or was travelling on Front Street.

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Ferrell money and Ferrell returned to Flick. Id. Ferrell handed Flick the

money and Flick went back into the residence again and returned less than

one minute later. Id. Flick handed some bright orange objects to Ferrell,

who then walked back to the man. Id. Ferrell gave the bright orange

objects to the man, who then got back into the car, which then drove away.

Id. at 45-46. Officers Speiser and Liciardello immediately followed the small

blue car, by necessity driving past Flick and Ferrell to get to Front Street. Id.

at 46. They eventually approached the blue car, which was stuck in traffic,

at Girard and Montgomery, in front of the 26th Police District. Id. at 47.

Drugs were located in the car and a search warrant was subsequently

obtained for 109 West Thompson Street. Id. at 112. Officer Liciardello was

the affiant. Id. at 113.

At approximately 6:10 p.m., Officers Speiser, Liciardello and Brian

Reynolds, also of the NFU, arrived at 109 West Thompson to serve the

warrant. Id. at 56-57. As they approached, they determined Flick was no

longer outside. Id. at 97. Rather than serve the warrant, they drove around

the neighborhood and located Flick standing outside a bar he was known to

frequent. Id. The officers arrested him at that time, telling him they were

investigating a rape. Id. at 82. They returned to 109 West Thompson at

which time they saw Ferrell sitting on the front steps. Id. at 83. Ferrell was

arrested and the residence was searched. Id. The police found drugs,

paraphernalia and a semi-automatic handgun. Id. at 62-68.

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At trial, Flick’s defense was based upon the alleged incredibility of the

police officers. In closing argument, the Commonwealth argued the officers’

testimony was truthful, stating:

Think about motive or bias. Does not exist in this case. Did they know this defendant? Nope. Did they have anything to gain? No. Everything to lose. What did we hear? Before this defendant was even arrested Officer Liciardello said he swore out a warrant. He already put down his name and his badge and swore before a judge under oath like he did before you ladies and gentlemen, the day of this incident, this is what I just saw, please give me permission to execute this warrant to find more drugs. He swore on that day and he’s sworn again. Lots of consequences for lying. You don’t just face my office, prison yourself, you face the press. You know that’s what happens.

N.T. Trial, 8/5/2011, at 53-54.

Flick was subsequently convicted of possession with intent to deliver,

conspiracy, and a violation of the Uniform Firearms Act, and was sentenced

to five to ten years’ incarceration. He appealed, claiming the judgment of

sentence was against both the weight and sufficiency of the evidence. On

December 5, 2012, Supervising Judge Sheila Woods-Skipper filed the

Pa.R.A.P. 1925(a) Opinion on behalf of the trial judge, the Honorable Willis

Berry.5

At approximately the same time that the trial court opinion was filed, a

series of news articles appeared in the local Philadelphia press indicating

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