Com. v. McCullough, C.

J-S54036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COREY MCCULLOUGH
Appellant No. 1642 MDA 2013
Appeal from the Judgment of Sentence January 27, 2012
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0003154-2010
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 09, 2014
I respectfully dissent. While we applaud local law enforcement for
their efforts to keep illegal drugs off of our streets, in this particular case the
police short-circuited the proper avenues to establish probable cause to
arrest. As a result, the Commonwealth failed to prove that McCullough
committed the crime of attempt to deliver a controlled substance.
Accordingly, his convictions are infirm and should be reversed.
Instantly, a jury convicted McCullough of possession with intent to
deliver, attempt to deliver a controlled substance, and criminal use of a
communication facility. Criminal use of a communication facility is defined
as:
J-S54036-14
A person commits a felony of the third degree if that
person uses a communication facility1 to commit, cause or
facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the
act of April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
18 Pa.C.S. § 7512(a) (emphasis added). Notably, if the underlying felony or
the attempt of the underlying felony never occurs, then a defendant has
facilitated nothing and cannot be convicted under section 7512.
Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004); 18 Pa.C.S. §
7512.
The majority concludes that the police lawfully arrested McCullough
without a warrant based on the fact that he “allegedly commit[ed] several
felonies.” Majority Opinion, at 6. Specifically, the majority supports the trial
court’s decision to deny suppression and affirm McCullough’s convictions for
attempt to deliver a controlled substance and criminal use of a
communication facility based on the following facts: (1) Officer Gula’s
experience in investigating drug trafficking; (2) McCullough and Gula’s
conversations about exchanging cocaine for money; and (3) police
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1
Here, a cell phone was the instrument deemed to be a communication
facility under section 7215(a). See 18 Pa.C.S. § 7512(c) (“communication
facility” is defined as “[a] public or private instrumentality used or useful in
the transmission of signs, signals, writing, images, sounds, data or
intelligence of any nature transmitted in whole or in part, including [] . . .
[a] telephone.”) (emphasis added).
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knowledge that McCullough had been arrested in the past for drug dealing.
Id. at 7.
Probable cause to arrest exists “when the facts and circumstances
within the police officer's knowledge and of which the officer has reasonably
trustworthy information are sufficient in themselves to warrant a person of
reasonable caution in the belief that an offense has been committed by the
person to be arrested." Commonwealth v. Williams, 941 A.2d 14, 27 (Pa.
Super. 2008). Here, the facts were insufficient to lead Officer Gula to
reasonably believe that an offense had been or was being committed in his
presence.
“A person commits the crime of attempt, when with intent to commit a
specific crime, he does any act which constitutes a substantial step toward
commission of that crime.” 18 Pa.C.S. § 901(a). The inquiry into whether
“a substantial step” has been taken focuses on the acts the defendant has
done and not the acts that remain for the defendant to actually commit the
crime. See Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa.
Super. 2003) (defendant committed crime of attempt of IDSI and statutory
sexual assault where he made following substantial steps: (1) made hotel
reservation pursuant to conversation with undercover officer posing as
young girl; (2) packed an overnight bag; (3) drove two and one half hours
to arranged meeting site at arranged time; and (4) purchased wine and
condoms); Commonwealth v. Gilliam, 417 A.2d 1203 (Pa. Super 1980);
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(inmate guilty of attempt to escape where he committed following acts
constituting substantial steps: (1) manufactured and assembled
paraphernalia necessary to effectuate escape and (2) sawed through bars in
cell window); see also Commonwealth v. McCauley, 797 A.2d 920 (Pa.
Super. 2001) (defendant convicted of attempt to acquire a controlled
substance by fraud, forgery, deception or subterfuge where he presented
forged subscription to pharmacist and then attempted to leave store, when
he was apprehended).
Delivery of a controlled substance is prohibited under section 780-113
of the Controlled Substance, Drug, Device and Cosmetic Act (the Act). See
35 P.S. § 780-113(a)(1) (“The following acts and the causing thereof within
the Commonwealth are hereby prohibited: The manufacture, sale or
delivery, holding, offering for sale, or possession of any controlled
substance, other drug, device or cosmetic that is adulterated or
misbranded.”). Moreover, the term “delivery” is defined under the Act as
“[t]he 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. Some factors
which may be used to infer intent to deliver are: manner in which substance
packaged; presence of drug paraphernalia; large sums of cash found on
defendant; and behavior of the defendant. Commonwealth v. Ramos,
573 A.2d 1027 (Pa. Super. 1990).
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Here, McCullough failed to take a substantial step toward committing
the crime of delivery of a controlled substance. Specifically, there was a lack
of evidence to conclude that Officer Gula reasonably believed that
McCullough was attempting to transfer drugs to Officer Gula immediately
preceding his arrest. At most, Officer Gula was able to assume that the
man, “Cory,” with whom he had had several cell phone conversations about
buying ½ ounce of cocaine in exchange for $840.00, was the same individual
in the maroon Buick whom he followed to Cusick Avenue. Even considering
the content of their prior cell phone conversations, Officer Gula had no way
of knowing that the individual who exited the maroon Buick was in fact the
same person he discussed buying drugs from until that individual took some
substantial step toward delivering drugs to him. See Commonwealth v.
Moss, 852 A.2d 374 (Pa. Super. 2004) (Commonwealth may not obtain
conviction under section 7512 for attempt to deliver drugs based solely on
evidence that defendant engaged in drug-related telephone conversations
with known drug trafficker).
Essentially, the police jumped the gun in this case. Without any
additional evidence to show that McCullough made a “substantial step” in
delivering the cocaine to Officer Gula, there was no probable cause to arrest
him for attempt to deliver a controlled substance. Compare
Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. 2008) (conviction for
attempt to deliver affirmed on appeal where defendant exhibited suspicious
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gestures and movements in officer’s presence, officer testified size, shape,
color and packaging of substance on defendant’s person was consistent with
crack cocaine, and defendant admitted substance looked like cocaine and
that he planned to knowingly sell substance to support drug addiction). As a
result, no attempt at the underlying felony occurred to support McCullough’s
conviction for use of a communication facility. 18 Pa.C.S. § 7512.
Therefore, Officer Gula did not have probable cause to arrest McCullough,
and any drugs uncovered from his arrest and subsequent search of the car
should have been suppressed. Because the suppression court’s legal
conclusions are not supported by the facts of record, the court erred in
denying McCullough’s suppression motion. Accordingly, I would reverse.
Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010).2
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2
However, if McCullough’s convictions were not infirm, I agree with the
majority that the imposition of the mandatory sentencing provision of
section 7508 violated the rule in Apprendi as interpreted by Alleyne.
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