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J-E01002-12 2012 PA Super 214 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSE CASTRO, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 3447 EDA 2009

Appeal from the Judgment of Sentence of June 22, 2009 In the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. CP-51-CR-0014957-2008, MC-51-CR-0012695-2008 BEFORE: STEVENS, P.J., BOWES, GANTMAN, PANELLA, SHOGAN, ALLEN, LAZARUS, MUNDY and WECHT., JJ. Filed: October 5, 2012

OPINION BY LAZARUS, J.:

Jose Castro appeals from his judgment of sentence imposed in the Court of Common Pleas of Philadelphia County on June 22, 2009. Because Castro

has satisfied each element of the four-part after-discovered evidence test based on alleged police corruption, we vacate and remand for an evidentiary hearing. The relevant factual history is as follows. Philadelphia Narcotics Officer Richard Cujdik1 met On March 11, 2008, with a Confidential

Informant, identified only as CI-142, to investigate a home in the Kensington

1

Officer Richard Cujdik's brother, Jeffrey, is also an officer on the narcotics task force. Because we refer to both officers herein, we address them by their full names.

J-E01002-12 section of Philadelphia for suspected drug activity. Officer Richard Cujdik

testified that he searched CI-142 to make sure that he did not have any money or contraband, and provided CI-142 with $20.00 of prerecorded "buy" money. CI-142 went to the residence, had a brief conversation with a person by the name of Yvette Torres at the door and proceeded inside. CI-142 exited the

residence a few minutes later with two clear jars with red lids containing a substance alleged to be PCP. Based on this "buy," Officer Richard Cujdik obtained a search warrant for the residence and returned with other officers to execute the warrant later that day. Officer Richard Cujdik positioned himself at the rear of the property as the other officers approached from the front. When the officers knocked on

the front door, Officer Richard Cujdik observed Castro exit from the back door and toss a clear plastic baggie into a neighboring yard. The officers

apprehended Castro, and Officer Richard Cujdik retrieved the baggie that Castro had tossed from the neighboring yard. Inside of the bag were five clear glass jars. Two of the jars had the same type of red lid as those allegedly A subsequent analysis of the substance in each of the

bought by CI-142.

seven glass jars (the two from CI-142 and the five from the baggie that Castro tossed) indicated the presence of PCP. Torres was arrested and searched after Officer Richard Cujdik identified her from the controlled buy with CI-142. The officers recovered $20 in U.S.

-2-

J-E01002-12 currency2 along with a key to the residence. When the officers went inside the home, they discovered two pieces of mail addressed to Castro and Torres at the home address. Police arrested Castro and charged him with knowing and intentional possession of a controlled substance,3 possession with intent to deliver a controlled substance,4 and conspiracy to engage in possession with intent to deliver a controlled substance.5 Castro proceeded to a bench trial on March 26, 2009. Officer Richard Cujdik was the only witness to testify; the only physical evidence introduced was the unrelated cash and drugs that were recovered. The court determined that the testimony of Officer Richard Cujdik was credible and found Castro guilty of conspiracy to engage in possession with intent to deliver a controlled substance and knowing and intentional possession of a controlled substance; however, the court found Castro not guilty of possession with intent to distribute a controlled substance. On June 22, 2009, the court sentenced Castro to 6 to 23 months' incarceration followed by two years' probation for the conspiracy charge, and a concurrent sentence of 6 to 23 months' incarceration followed by one year of probation for knowing and intentional possession.
2

The money recovered from Torres was not the prerecorded "buy money" given to CI-142 by Officer Cujdik. 35 P.S.

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