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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARCIAL ANTON COOPER, II
Appellant No. 244 MDA 2016
Appeal from the Judgment of Sentence February 4, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001419-2015
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2016
Marcial Anton Cooper, II appeals from the judgment of sentence
imposed following his conviction for the sole count of delivery of a controlled
substance. We affirm.
The following facts were adduced at trial. Trooper Noel Velez, a
member of the Vice Unit of Pennsylvania State Police Troop J, utilized a
female confidential informant (hereinafter “CI”), to arrange for the purchase
of an ounce of cocaine. N.T., 12/14/15, at 63. The operation was
conducted on January 31, 2013, at approximately 5:00 p.m. Id. at 95. On
that date, the CI informed Trooper Velez that an individual known to the CI
only as “Juan” agreed to sell her cocaine in a Wal-Mart parking lot. Id. at
67. Trooper Velez, along with Corporal John Comerford, proceeded to the
* Retired Senior Judge assigned to the Superior Court.
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area. The CI, who was driving her own vehicle, met the officers in a parking
lot across from the Wal-Mart. Trooper Velez conducted the controlled buy
procedure and gave the CI $800. She then proceeded to the Wal-mart
parking lot. Id. at 71.
Trooper Velez followed the CI’s vehicle and maintained visual contact.
He observed her vehicle as she parked next to a silver, four-door vehicle.
The officer parked where he could see through the target vehicle’s
windshield. The CI exited her vehicle, approached the silver car, and
entered the passenger seat. Trooper Velez observed the CI and the driver,
later identified as Appellant, having a brief conversation. Appellant and the
CI exchanged unidentified items. Id. at 67-69.
Following the transaction, the CI returned to her vehicle and Appellant
immediately exited the parking lot. Trooper Velez wrote down the license
plate and contacted Corporal Comerford, who was in a separate vehicle and
parked nearby. Id. at 70-71; 109. He related everything he had just
observed, and described Appellant’s vehicle and its license plate. Id. at 70-
71. The corporal began to follow Appellant’s vehicle and the two cars
merged onto a highway.
Meanwhile, the CI returned to the original meeting location across the
street. She handed Trooper Velez a plastic bag of white powder, which was
determined to contain 28.7 grams of cocaine. Id. at 135.
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Since the authorities did not know Appellant’s name, Trooper Travis
Martin, who was part of the police operation and waiting on the highway,
was instructed to stop the vehicle. Following the drug sale, Corporal
Comerford called Trooper Martin and told him the sale had been completed,
and described the seller’s vehicle, including its license plate number.
Trooper Martin stopped the vehicle, obtained Appellant’s driver’s license and
information, and allowed him to leave. Id. at 127-129. The plan was to
continue the investigation, but the CI was unable to make further contact
with Appellant. Id. at 78.
On December 14, 2015, Appellant was found guilty of delivery of a
controlled substance. He was sentenced on February 4, 2016, to a period of
one year less one day to two years less one day incarceration. Appellant
timely filed a notice of appeal, and complied with the trial court’s order to
prepare a Pa.R.A.P. 1925(b) statement. The trial court issued an opinion on
April 5, 2016. The matter is now ready for our review. Appellant raises two
issues for our consideration.
I. Whether the trial court erred in denying Appellant's motion
to suppress the identification of the Appellant following a traffic
stop conducted by Trooper Martin as the Commonwealth failed
to offer evidence at the pre-trial hearing to establish articulable
facts to support reasonable suspicion and/or probable cause that
the Appellant and his vehicle had been involved in a criminal
offense?
II. Whether there was sufficient evidence to convict the
Appellant on the charge of delivery of a controlled substance as
the Commonwealth failed to offer testimony from the
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confidential informant that the Appellant had provided her
cocaine while inside the Appellant's vehicle?
Appellant’s brief at 4.
The first claim pertains to the denial of Appellant’s motion to suppress.
Our standard of review of the denial of a suppression motion is well-settled.
We are limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Since] the prosecution prevailed in the suppression
court, we may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the factual findings of the trial
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015) (citation
omitted). When this Court evaluates the propriety of an officer detaining a
citizen for investigative purposes, we apply the following principles:
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. This standard, less
stringent than probable cause, is commonly known as
reasonable suspicion. In order to determine whether the police
officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give due weight to the specific
reasonable inferences the police officer is entitled to draw from
the facts in light of his experience.
Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa.Super. 2016) (citing
Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa.Super. 2014)). When a
motion to suppress has been filed, the burden is on the Commonwealth to
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establish by a preponderance of the evidence that the challenged evidence is
admissible. Commonwealth v. Joseph, 34 A.3d 855, 860 (Pa.Super.
2011).
Appellant asserts that the trial court should have suppressed the
identification evidence1 because the Commonwealth failed to call any witness
who directly observed the controlled buy. According to Appellant, Trooper
Martin’s testimony was insufficient to satisfy the Commonwealth’s burden to
supply articulable facts justifying the seizure, and the Commonwealth was
required to call one of the troopers who witnessed the actual drug sale. In
urging affirmance of the trial court’s order, the Commonwealth cites to the
principle that officers may rely on information from their fellow officers in
effectuating a seizure, and argues that Trooper Martin was permitted to
seize the vehicle since Corporal Comerford clearly would have been able to
do so.
It is well-settled that a police officer may validly rely on information
related by a fellow officer in effectuating a seizure. The officer who actually
makes the stop need not have personal knowledge of the facts justifying the
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1
Appellant does not clarify whether he means Trooper Martin should have
been precluded from identifying Appellant at trial, or that the case should be
entirely dismissed, as the police learned Appellant’s name from that
encounter. We need not resolve that question given our disposition of the
claim.
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seizure. We summarized this concept in Commonwealth v. Chernosky,
874 A.2d 123 (Pa.Super. 2005) (en banc):
It is entirely permissible for an officer to engage in the
investigation of a suspect based on the observations of another
officer even when the officer conducting the investigation has
not been supplied with the specific facts needed to support the
seizure; however, the officer who made the observations must
have the necessary facts to support the ordered interdiction.
See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675,
83 L.Ed.2d 604 (1985) (police may conduct investigatory stop in
reliance on another police department's wanted flyer as long as
flyer was issued based on articulable facts supporting reasonable
suspicion); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d
794 (1972) (officer making warrantless arrest pursuant to order
from superior need not have probable cause for arrest provided
superior had information necessary to support probable cause to
order arrest). This precept flows from the realities of police
investigation, which often relies upon the cooperation of many
police officers.
Id. at 126.
We briefly examine Hensley. Therein, an officer with the St. Bernard,
Ohio police department received information on December 10, 1981 from an
informant, who told the officer that Thomas Hensley had recently
participated in an armed robbery of a tavern. Based on this information, the
officer distributed a “wanted flyer” to other police departments in the area.
The flyer simply stated that Hensley was wanted for investigation of a
robbery and gave a description. Id. at 223.
The Covington Police Department, located approximately five miles
from St. Bernard, received the flyer on December 10, 1981. Several officers
were acquainted with Hensley and began periodically checking areas he was
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known to frequent. On December 16, 1981, several officers saw Hensley
driving in the area, and stopped him. Firearms were recovered, leading to
federal charges and a conviction.
The Court of Appeals for the Sixth Circuit reversed the conviction,
finding that the flyer omitted a description of the specific and articulable
facts which led the St. Bernard Police to suspect Hensley’s involvement in a
completed crime. The Supreme Court reversed, holding that “if a flyer or
bulletin has been issued on the basis of articulable facts supporting a
reasonable suspicion that the wanted person has committed an offense, then
reliance on that flyer or bulletin justifies a stop to check identification.” Id.
at 232. Therefore, provided the St. Bernard authorities who issued the
bulletin possessed reasonable suspicion, based on specific and articulable
facts, the Covington authorities were permitted to briefly detain Hensley.
Id. at 233-34.
Our Supreme Court discussed Hensley in Commonwealth v. Queen,
639 A.2d 443 (Pa. 1994), which Appellant relies upon. In Queen, Officer
Bryant of the Philadelphia Police Department proceeded to a scene following
a police radio request. When he arrived, three detectives were standing
behind a vehicle occupied by Queen. One of these detectives, Mr. Mango,
approached Officer Bryant and stated that Queen “resembled a male wanted
for robbery.” Id. at 444. Based on this information, Officer Bryant seized
Queen, which ultimately led to the recovery of a firearm. Id. At the
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suppression hearing, the Commonwealth called only Officer Bryant. The
High Court concluded that the Commonwealth was required to call Detective
Mango to sustain its burden, relying in part on Hensley:
. . . Hensley clearly supports the proposition that a stop and
frisk may be supported by a police radio bulletin only if evidence
is offered at the suppression hearing establishing the articulable
facts which support the reasonable suspicion. To hold otherwise
would permit the government to bypass the protections of the
Fourth Amendment and Article I, Section 8, of the Pennsylvania
Constitution by always having a second police officer summoned
for assistance for the purpose of making the inquiry of a suspect
on the basis of an initial police officer's suspicion. At no time
would the government have to establish any articulable facts,
thus completely emasculating the protections against illegal
searches and seizures.
Applying the above principles to this record, it is clear that the
suppression court erred in refusing to suppress Appellant's
weapon. The suppression court assumed that Detective
Mango possessed the required facts to conduct an
investigatory stop.
Id. at 445-46 (emphasis added).
By relying on Queen, Appellant argues that the Commonwealth was
required to call the witnesses who directly observed the conduct. We
disagree. Neither Hensley nor Queen commands that the prosecution
present the testimony of the officer who directly observed the conduct in
question. Queen’s holding that the Commonwealth was required to call
Detective Mango to sustain its burden simply reflected the reality that only
Detective Mango possessed the relevant information. The focus is not on
the person who observed the conduct, but rather upon the requirement that
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the “evidence . . . offered at the suppression hearing establish[es] the
articulable facts.” Id. at 445. Herein, the Commonwealth clearly satisfied
that requirement by establishing that officers visually observed a CI
purchasing drugs from Appellant, and stopped Appellant’s vehicle shortly
thereafter. Those facts simply came in through Trooper Martin.2
We note that Trooper Martin was directly involved in the investigation
of the criminal conduct. He was part and parcel of the investigation, and
was therefore permitted to rely upon, and testify to, his fellow officer’s
observations. See United States v. Ventresca, 380 U.S. 102, 111 (1965)
(“Observations of fellow officers of the Government engaged in a common
investigation are plainly a reliable basis for a warrant applied for by one of
their number.”); Hensley, supra at 231 (“[E]ffective law enforcement
cannot be conducted unless police officers can act on directions and
information transmitted by one officer to another and that officers, who
must often act swiftly, cannot be expected to cross-examine their fellow
officers about the foundation for the transmitted information.”) (citation
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2
We are mindful that our scope of review limits our analysis to the evidence
presented at the suppression hearing. In re L.J., 79 A.3d 1073 (Pa. 2013).
At the suppression hearing, Trooper Martin testified that Corporal Comerford
told him of the pending controlled buy, and, following the sale, called
Trooper Martin. The corporal described a 2001 Chrysler Sebring, bearing a
particular license plate, told the trooper the driver had just sold drugs to a
CI, and told him the direction it was traveling on a particular highway. N.T.
12/14/15, at 7.
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omitted).3 Thus, the Commonwealth satisfied its burden and offered
articulable facts justifying the seizure.
Appellant’s second claim pertains to the sufficiency of the evidence.
The standard we apply is well-settled.
In reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury's
verdict beyond a reasonable doubt. The Commonwealth can
meet its burden by wholly circumstantial evidence and any doubt
about the defendant's guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances. As an appellate court, we must review
the entire record and all evidence actually received. The trier of
fact while passing upon the credibility of witnesses and the
weight of the evidence produced is free to believe all, part or
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3
We note that in Commonwealth v. Yong, 120 A.3d 299 (Pa.Super.
2015), appeal granted, 137 A.3d 573 (Pa. 2016), we rejected an extension
of the fellow-officer rule to the situation where knowledge of one officer is
imputed to another. Therein, Officer Gerald Gibson arrested Yong while
executing a search warrant. The Commonwealth presented Officer Joseph
McCook, who had observed Yong participate in a controlled buy two days
before the execution of the warrant. The Commonwealth did not present
any evidence that Officer McCook shared his knowledge with Officer Gibson
or directed him to take any action, instead arguing that his knowledge could
be imputed to Officer Gibson.
We reversed the trial court’s denial of suppression, concluding that imputing
knowledge under those facts stretched the fellow officer doctrine to its
breaking point. “At Yong's suppression hearing, it was the Commonwealth's
burden to establish that Officer McCook directed Officer Gibson to arrest
Yong.” Herein, the Commonwealth established that Corporal Comerford
directed Trooper Martin to effectuate the stop, and that the two officers were
in communication regarding a joint investigation. Those actions comfortably
fit within the fellow-officer rule.
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none of the evidence. Because evidentiary sufficiency is a
question of law, our standard of review is de novo and our scope
of review is plenary.
Commonwealth v. Dawson, 132 A.3d 996, 1001-02 (Pa.Super. 2016)
(citation omitted).
Instantly, Appellant’s sole conviction was for delivery of a controlled
substance, codified at 35 P.S. § 780–113(a)(30) of The Controlled
Substance, Drug, Device and Cosmetic Act, which states in relevant part:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
....
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner
not registered or licensed by the appropriate State
board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113. Delivery is defined as “the actual, constructive, or
attempted transfer from one person to another of a controlled substance,
other drug, device or cosmetic whether or not there is an agency
relationship.” 35 P.S. § 780-102.
Herein, the Commonwealth’s theory of delivery derived from the CI’s
exchange of currency for the plastic bag that was turned over to the police.
Since Appellant stipulated at trial that the substance in that bag was
cocaine, the only element at issue was the delivery. Appellant maintains
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that the absence of the CI’s testimony is fatal to the Commonwealth’s ability
to prove the charge beyond a reasonable doubt.
We disagree. The Commonwealth may secure a conviction through
circumstantial evidence. Trooper Velez testified that, immediately prior to
the controlled buy, he searched both the CI and her vehicle with negative
results. She was wearing skintight clothing that, in the Trooper’s estimation,
could not possibly have concealed drugs on her person without his
knowledge. N.T., 12/14/15, at 100. Moreover, Appellant left the Wal-Mart
parking lot immediately after finishing the observed exchange and did not go
into the Wal-Mart. The Trooper maintained constant visual contact
throughout the entire encounter. While the Trooper admitted he could not
see exactly what was exchanged in the vehicle, he saw something being
passed between Appellant and the CI. The jury was permitted to infer that
the object Appellant transferred to the CI was the cocaine that was turned
over to Trooper Velez.
Appellant argued at trial and in this appeal that the authorities could
have strip-searched the CI and failed to check for traps in her vehicle that
may have contained drugs. Those asserted deficiencies clearly go to the
weight of the evidence, not its sufficiency. Therefore, this evidence, deemed
credible by the jury in its role as fact-finder and viewed in the light most
favorable to the Commonwealth, was sufficient to sustain the conviction for
delivery of a controlled substance.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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