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*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROLANDO HERNANDEZ,

Appellant No. 1624 EDA 2013

Appeal from the Judgment of Sentence May 10, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003464-2010

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROLANDO HERNANDEZ,

Appellant No. 1625 EDA 2013

Appeal from the Judgment of Sentence May 10, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015322-2010

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ. 

MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015

Rolando Hernandez has filed these appeals at two criminal action 

numbers. Appellant’s challenge is identical in both appeals, and we have 

consolidated them for purposes of disposition. Since Appellant was 
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sentenced to a mandatory minimum sentence under a statute that has been 

declared unconstitutional as a whole, we are constrained to vacate his 

judgment of sentence and remand for resentencing. In all other respects, 

we affirm.

On December 28, 2009, Appellant was charged with possession of a 

controlled substance with intent to deliver (“PWID”) and conspiracy at 

criminal action number 3464-2010. The facts underlying that offense were 

set forth by the trial court as follows.

At approximately 9:00 a.m. on December 28, 2009, Officers 

Timothy Linahan and John Fleming set up surveillance for the 

sale of narcotics in an unmarked police vehicle on the 2600 block 

of North Waterloo Street. Officers Linahan and Fleming parked 

their car on the west side of 2700 block of North Waterloo 

Street, facing southbound toward the 2600 block. The Officers 

observed Michael Cartagena and Luis Melendez standing on the 

west side of 2600 Waterloo Street.

At approximately 9:30 a.m., Officers Linahan and Fleming 

saw an unidentified Hispanic female approach Melendez, have a 

brief conversation with him, and hand him money. In response, 

Melendez crossed to the east side of the street, went to a parked 

2003 Buick, and bent down to retrieve small objects located 

underneath the car on the curb side. He then returned to the 

female, spoke to her, and handed her small objects. Officers 

were unable to stop the female.

At approximately 9:55 a.m., a male later identified as 

Douglas Stansbury approached Melendez. After a brief 

conversation, Stansbury handed money to Melendez. Again, 

Melendez crossed to the east side of the street, retrieved objects 

from near the same Buick, and returned to Stansbury. Melendez 

gave Stansbury small objects, and Stansbury left the area. 

Officer Linahan radioed for other officers to stop Stansbury. 

Sergeant Lonnie Clausson stopped Stansbury and found a yellow 

tint packet of cocaine in his mouth.
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At approximately 10:15 a.m., Melendez and Cartagena 

entered the Buick parked on the east side of the street. Then, 

Melendez exited the Buick and crossed over to the west side of 

the block. At approximately 10:20 a.m., two unknown white 

males approached Melendez. After a brief conversation, the two 

males handed Melendez money. Again, Melendez crossed from 

the west side to the east side of the street, retrieved small 

objects, returned to the two males, and handed them the 

objects. The males then left the area. Officers were unable to 

locate the males.

At approximately the same time, two unknown black males 

approached Melendez, spoke to him, and handed him money. 

Melendez put one finger up in the air, indicating "one minute." 

Melendez then knocked at the door of 2640 Waterloo Street. 

After approximately thirty seconds, the Appellant answered the 

door and let Melendez into the house. Two to three minutes 

later, Melendez exited the house, crossed to the east side of the 

street, and bent down. Melendez set an object down near the 

rear of the parked Buick. Melendez then walked over to the two 

black males and handed them small objects. The males left the 

scene. Officers were unable to stop these males. At 

approximately 10:45 a.m., Melendez again entered the Buick 

with Cartagena.

At approximately 11:00 a.m., Cartagena exited the Buick, 

crossed the street, and stood on the west side of 2600 Waterloo 

Street. An unknown Hispanic male and female approached 

Cartagena. The individuals handed Cartagena money. Like 

Melendez, the Appellant crossed to the east side of the street, 

retrieved small objects from behind the Buick, returned, and 

handed them the objects. Back-up officers were unable to locate 

the buyers.

At approximately 11:15 a.m., Officer Linahan radioed for 

available backup officers to stop Cartagena and Melendez. 

Sergeant Lonnie Clausson and Officer Swift responded to the call 

and stopped Cartagena and Melendez. Officer Linahan exited his 

vehicle, walked toward 2600 Waterloo Street, and approached 

the Buick. Officer Linahan looked through the car window and 

observed a clear baggie containing yellow tint packets of crack 

cocaine.
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Sergeant Clausson and Officer Linahan then walked to 

2640 Waterloo Street and knocked on the front door. The 

Appellant poked his head out of a second floor front bedroom 

window and said that he would be right down. After two to three 

minutes, the Appellant answered the front door. The police 

subsequently detained the Appellant for investigation pending a 

search warrant. 

The Officers later called in a K-9 dog to sniff for drugs in 

the parked Buick. After the dog gave a positive indication for 

drugs near the doors, the Officers secured the car. Officers then 

conducted a walk-through of 2640 Waterloo to secure the house 

while they waited for the search warrant. The Officers 

subsequently contacted Lieutenant Robert Otto [sic1] and Officer 

Michael Spicer of the Narcotics Field Unit. 

Officer Spicer and Lieutenant Otto [sic] obtained a search 

warrant for the Buick and for 2640 Waterloo Street and 

confiscated the drugs in the car and the house. In the Buick, 

Spicer and Otto confiscated a marijuana blunt from inside the 

ashtray. They also found a clear packet of marijuana on the 

front seat and plastic with 28 yellow Ziploc packets of crack 

cocaine. In the console between the two front seats, Spicer and 

Otto further confiscated $33.00, and two bills addressed to 

Cartagena.

Inside the house, Officer Spicer and Lieutenant Otto [sic] 

recovered 92 packets of marijuana and 55 orange packets of 

powder cocaine in a bedroom. The Officers recovered 364 

yellow tinted Ziploc packets of crack cocaine near a .40 [caliber] 

semiautomatic handgun with 3 live rounds in the basement. The 

Officers also recovered 61 Xanax pills, 11 packets of heroin, 

marijuana, and various drug paraphernalia in the living room. 

Additionally, the Officers recovered money in the basement, 

living room, and bedroom totaling $1,837.00. In the bedroom 

and the living room, the Officers found unused Ziploc packets 

and jars. They also found a lease, access card, Comcast bill, a 

payment card, and mail in the Appellant's name.

Trial Court Opinion, 4/9/14, 3-8 (footnotes and emphasis omitted).

 

1 The officer’s last name, according to the trial transcript, was Ott.
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While Appellant was on release from bail as to the December 2009 

charges, he was arrested on August 21, 2010 and charged at criminal action 

number 15322-2010 with PWID, conspiracy, possession of drug 

paraphernalia, persons not to possess a firearm, and possession of an 

unlicensed firearm. Appellant does not raise any challenge to his convictions 

for those offenses; therefore, we find it unnecessary to detail those facts. A 

full recitation of the facts leading to those charges can be found in the trial 

court’s opinion at pages 8-12.

The actions were consolidated for trial and Appellant proceeded to trial 

with co-defendants Michael Cartagena and Suhay Rodriguez. A jury found 

Appellant guilty of PWID and conspiracy at 3464-2010 and of PWID, 

conspiracy, possession of drug paraphernalia, and carrying an unlicensed 

firearm at 15322-2010. Thereafter, the trial court found Appellant guilty of 

persons not to possess a firearm. Prior to sentencing, Appellant filed a 

motion for extraordinary relief asking for a new trial based upon afterdiscovered evidence.2

 This motion solely related to the charges lodged at 

15322-2010 and concerned the fact that one of the police officers involved in 

that matter, Officer Spicer, was no longer being used as a witness in 

narcotics cases. The court heard argument on the motion on March 15, 

 

2 The filing of such a motion is ordinarily improper since motions for 

extraordinary relief are intended to be oral. Pa.R.Crim.P. 704(B); see also

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004); compare

Pa.R.Crim.P. 720(C). 
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2013, and denied it on May 10, 2013. That same date, the court sentenced 

Appellant at both cases to an aggregate term of imprisonment of eight to 

sixteen years incarceration. Specifically, the court imposed a drug 

mandatory minimum sentence of five to ten years incarceration pursuant to 

18 Pa.C.S. § 7508, and a consecutive three to six years incarceration for 

criminal conspiracy at case number 3464-2010. Additionally, the court 

imposed concurrent sentences at case number 15322-2010. One of those 

sentences, a five to ten year period of imprisonment was a mandatory 

minimum sentence, pursuant to both § 7508 and 42 Pa.C.S. § 9712.1, the 

latter of which relates to firearms in close proximity to drugs. 

Appellant timely appealed. The trial court directed Appellant to file and 

serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Appellant complied, and the trial court authored its Rule 1925(a) 

opinion. The matter is now ready for this Court’s review. In this appeal, 

Appellant raises one issue:

Did the trial court commit an abuse of discretion by denying 

Appellant’s motion for extraordinary relief based on evidence 

that a police officer involved in the instant matter had been 

disavowed by the Philadelphia District Attorney’s Office after 

Appellant was convicted?

Appellant’s consolidated brief at 2.3 

 

3 Appellant’s brief and arguments are identical to those of his co-defendant 

Michael Cartagena, whose case also was heard by this panel. Our discussion 

of the law and arguments of the parties is therefore identical in both 

matters, although citations to the relevant brief’s page numbers differ. 
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Appellant’s claim implicates the law governing after-discovered 

evidence. In Commonwealth v. Padillas, 997 A.2d 356 (Pa.Super. 2010), 

this Court opined that a petitioner must show 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.” Id. at 363. 

Failure to satisfy any of these aspects of the test results in the claim failing. 

Padillas, supra at 363. 

With respect to determining the diligence aspect of the test, a 

petitioner cannot show diligence if he declined “to question or investigate an 

obvious, available source of information[.]” Id. In addition to 

demonstrating that the evidence could not be ascertained despite reasonable 

diligence, a petitioner must prove that the evidence is not merely cumulative 

or corroborative of other evidence introduced at trial. Evidence that 

supports a defense leveled at trial may be considered corroborative and/or 

cumulative. Id. at 365. 

In considering the prejudice prong of the after-discovered evidence 

test, courts are to look to “the integrity of the alleged after-discovered 

evidence, the motive of those offering the evidence, and the overall strength 

of the evidence supporting the conviction.” Padillas, supra at 365. 
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Moreover, the after-discovered evidence must be admissible. 

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014). 

Appellant argues that because he learned after his trial that the 

Philadelphia District Attorney’s Office no longer prosecuted drug cases 

involving Officer Spicer and several other narcotics officers, including an 

Officer Betts,4all of whom had been transferred from the narcotics unit, he 

should be awarded a new trial. According to Appellant, on December 3, 

2012, Philadelphia District Attorney R. Seth Williams notified the Philadelphia 

Police Commissioner that he would no longer use Officer Spicer, Officer 

Betts, and four other officers in drug cases or accept narcotics cases where 

those officers were necessary witnesses. In addition, the correspondence 

indicated that the District Attorney’s Office would no longer approve 

warrants where any of the officers were affiants or provided averments 

necessary to establish probable cause.

Several articles from the Philadelphia Inquirer from December 5, 2012, 

December 7, 2012, and January 31, 2013, appeared in relation to the 

District Attorney’s decision. Those newspaper articles asserted that Officer 

Spicer, Officer Betts, and their colleagues could no longer be considered 

credible witnesses and had been the target of Internal Affairs investigations 

and federal lawsuits relative to false arrests, fraudulent reports, and the use 

 

4 Although briefly mentioning Officer Betts in his brief, Appellant’s focus is on 

Officer Spicer, who had more extensive involvement in the case. 
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of excessive force. According to the January 31st article, the Philadelphia 

District Attorney’s Office had withdrawn 260 cases where the officers were 

involved.

Appellant maintains that the fact, which the Commonwealth does not 

dispute, that it no longer prosecutes drug cases where Officer Spicer is an 

essential witness could not have been discovered before or during his trial. 

Specifically, the Commonwealth tried Appellant in September of 2012, 

before the District Attorney’s notification to the Police Commissioner.

Appellant continues that the evidence would not be used solely to 

impeach Officer Spicer and Officer Betts because such evidence would also 

“call into question the validity of the search warrant that Officer Spicer 

prepared and obtained.” Appellant’s brief at 14. In Appellant’s view, 

attacking Officer Spicer’s reliability would go “directly to establish appellant’s 

innocence at least with respect to the drugs found in the house[.]” Id. 

Next, Appellant contends that since there was no evidence at trial that 

Officer Spicer or Officer Betts were no longer being utilized as witnesses in 

drug cases, the evidence was not cumulative or corroborative of that 

presented at trial. Lastly, Appellant asserts that, had the jury been aware 

that the District Attorney’s Office was not prosecuting drug cases where 

Officer Spicer was a material witness, it would likely have reached a different 

verdict. 
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The Commonwealth responds that Appellant’s proffered evidence 

consisted of newspaper articles which, in Castro, supra, were held 

insufficient to constitute after-discovered evidence. In Castro, the 

Pennsylvania Supreme Court reversed a decision by this Court that had 

remanded for additional proceedings on the basis of after-discovered 

evidence in the nature of newspaper articles. Those articles indicated that 

the Philadelphia police officer involved in the undercover drug investigation 

in that matter had engaged in serious misconduct in other cases. The 

Castro Court concluded that the newspaper articles were not admissible 

evidence. 

The Commonwealth also posits that Appellant cannot demonstrate that 

a different verdict would be likely if the jury were apprised of Officer Spicer’s 

issues. In leveling this aspect of its response, the Commonwealth notes that 

Officer Spicer had limited involvement in the case. The evidence supporting 

Appellant’s convictions stemmed from eyewitness observations from Officer 

Linahan and Officer Fleming. It points out that the officers observed 

numerous hand-to-hand drug transactions, and that Appellant’s coconspirator was seen restocking a stash of drugs from another conspirator’s 

house. Further, police arrested one buyer who had a yellow-tinted packet of 

crack cocaine in his mouth. This cocaine was consistent with that viewed by 

Officer Linahan and Officer Clausson inside the Buick that Appellant and 

Melendez were seen utilizing. 
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The Commonwealth adds that Officer Spicer’s testimony regarding 

additional cocaine and mail with Appellant’s name inside the Buick was 

cumulative of the overwhelming additional evidence that Appellant used the 

vehicle when distributing drugs. It points out that other officers also 

testified that Appellant’s conspirator, Roberto Hernandez, lived in the house 

that was being used to supply Appellant and Melendez with drugs. Finally, 

the Commonwealth assails Appellant’s position with respect to Officer 

Spicer’s involvement with securing the search warrant. It submits that the 

affidavit for that warrant was based on information provided by Officer 

Linahan.

We find that, based on the additional evidence supplied by other 

officers, the revelation of Officer Spicer’s removal from the narcotics unit 

and the District Attorney’s refusal to prosecute cases in which he was a 

material witness, would not have altered the verdict. Here, Officer Spicer 

was not an essential witness as to the elements of the offenses. Although 

Officer Spicer was the affiant on the search warrant, the information used to 

establish probable cause came from other officers. Evidence that Appellant 

was involved in hand-to-hand cocaine transactions was extensive and had 

no relation to Officer Spicer. Officers, other than Officer Spicer, observed 

Appellant inside the Buick in question and engaging in frequent interactions 

that, viewed in a light most favorable to the Commonwealth, were plainly 

drug sales. A drug sniffing dog alerted on the vehicle prior to Officer 
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Spicer’s involvement. Moreover, evidence that the house in question was 

being used as a drug operations base was supported by officers other than 

Officer Spicer. 

Since the evidence, even excluding the evidence discovered by Officer 

Spicer,5 was overwhelming that Appellant was selling cocaine and doing so 

with other individuals, there is no probability that the jury would have found 

Appellant not guilty of PWID and conspiracy based on information regarding 

potential corruption on the part of Officer Spicer. Accordingly, his issue fails. 

Nonetheless, and although Appellant does not raise the issue, we are 

constrained to vacate Appellant’s judgment of sentence since he was 

sentenced under a mandatory sentencing statute that has been struck down 

as unconstitutional as a whole. See Commonwealth v. Vargas, 2014 PA 

Super 289 (en banc); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 

2014) (en banc); Commonwealth v. Fennell, 105 A.3d 13 (Pa.Super. 

2014); compare also Commonwealth v. Valentine, 101 A.3d 801 

(Pa.Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super. 

2014); Commonwealth v. Bizzel, 2014 PA Super 267; Commonwealth v. 

 

5 We note that Officer Spicer was not the only officer collecting evidence 

from the house.
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Wolfe, 2014 PA Super 288; Commonwealth v. Ferguson, 2015 PA Super 

1.6 

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2015

 

6

 Writing solely for myself, I note that in recent cases I have criticized this 

Court’s severability and separation of powers analysis relative to mandatory 

minimums, Commonwealth v. Bizzel, 2014 PA Super 267 (Bowes, J., 

concurring); Commonwealth v. Wolfe, 2014 PA Super 288 (Bowes, J., 

concurring) (joined by Jenkins, J.), and suggested that we re-visit our 

legality of sentence paradigm as it relates to Alleyne mandatory minimum 

questions. See Wolfe, supra. Further, I have been reluctant to sua sponte

overturn a mandatory sentence without adequate briefing. See Wolfe,

supra at *9 (noting that our Pennsylvania Supreme Court has declined to 

address illegal sentencing questions not raised or adequately argued in that 

court). I continue to adhere to those views, but I am currently bound by the 

decisions cited in the body of this memorandum.