Com. v. Burton, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LAFENUS L. BURTON, :
:
Appellant. : No. 1874 EDA 2018
Appeal from the Judgment of Sentence Entered, May 31, 2018,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0004259-2016.
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 28, 2019
Lafenus L. Burton appeals from the judgment of sentence, imposing an
aggregate of five-and-half to eleven years’ incarceration. A jury convicted
him of conspiracy to possess cocaine with intent to deliver and possession of
cocaine.1 Burton says police violated his constitutional rights when they
searched his minivan and seized the drugs inside it. Thus, he contends the
court of common pleas should have suppressed the Commonwealth’s physical
evidence against him. Burton also asserts the evidence at trial was insufficient
to convict him of either crime. As we explain, no appellate relief is due, and
we affirm.
Burton and his 13 co-defendants ran an elaborate scheme to distribute
cocaine in 2015. To dismantle their criminal enterprise, the Pennsylvania
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1 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(16).
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State Police and local officers conducted numerous controlled buys and video
surveillance throughout Delaware County, including outside Burton’s
residence. Investigators also obtained six wiretap orders from this Court, and
a judge of the court of common pleas issued various search warrants. Police
intercepted and transcribed phone calls and text messages from, to, and
between the drug dealers numbering in the thousands.
A camera police positioned outside Burton’s home recorded him driving
a green, Chrysler Town & Country minivan. The investigators eventually
obtained a search warrant for his residence. Among other things, the trial
judge who signed that warrant authorized police to search for and to seize
“indicia of . . . ownership of the . . . vehicle(s) described herein, including but
not limited to . . . keys.” Attachment “A” to Search Warrant at No. X53-0051-
B, Burton’s Motion to Suppress Evidence, 9/19/16.
When they executed the search warrant, officers uncovered no drugs.
Instead, they found $2,000 in a safe and $800 in the pocket of a pair of pants
next to Burton’s bed. Also, in the pants were car keys to his Town & Country
minivan. The police took those keys, located the vehicle on the street outside,
unlocked it, and drove the minivan back to the barracks. Police then obtained
a warrant to search it. Inside they uncovered Burton’s expired driver’s license,
a vehicle registration in Burton’s name, 10 bags of cocaine totaling 87 grams,
and a substance commonly used to “cut” (i.e., dilute) cocaine for retail sale.
Law enforcement arrested Burton and his co-conspirators. Burton filed
a motion to suppress the evidence. The court of common pleas denied the
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motion, and the case proceeded to a jury trial. The jury convicted Burton,
and the trial court sentenced him as previously described. This timely appeal
followed.2
Burton raises three claims of error, which we have reordered to accord
with this Court’s penchant for addressing sufficiency-of-the-evidence claims
first:3
A. Whether the trial court erred in denying [his] oral
motion for judgment of acquittal, and therefore the
sufficiency of the evidence for the convictions of
conspiracy to [possess] controlled substance with the
intent to deliver and possession of a controlled
substance, when the Commonwealth did not present
any testimony or evidence that [Burton] knowingly or
intentionally possessed a controlled substance or that
[he] was in a conspiracy with another person to
commit the crime of delivery of a controlled
substance.
B. Whether the trial court erred in denying [his] motion
to suppress evidence when there was false or
misleading statements in the affidavit of probable
cause of the search warrant for the minivan . . . .
C. Whether the trial court erred in denying [his] motion
to suppress evidence when the minivan key, and the
minivan itself, were not listed in the application for
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2Both Burton and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
3 See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (en
banc) (citing dicta from Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super.
2011) and elevating it into a “best practice” by stating, “Because a successful
sufficiency of the evidence claim warrants discharge on the pertinent crime,
we must address this issue first.”).
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search warrant of [Burton’s home], and both [were]
seized without a warrant . . . .
Burton’s Brief at 1-2.
A. Sufficient Evidence Supports Burton’s Criminal Convictions.
Burton challenges the evidence against him. He claims that it is legally
insufficient to support his convictions of (1) conspiracy to possess cocaine with
intent to deliver and (2) possession of cocaine.4 The learned trial court
authored an expansive, detailed, and well-reasoned opinion in support of its
refusal to overturn the jury’s verdicts of guilty.
That court described the elements and the evidence of Burton’s two
crimes as follows:
[First, p]ursuant to 18 Pa. C.S.A. § 903: A person is guilty
of conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
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4 Our scope and standard of review are clear:
Challenges to the sufficiency of the evidence are governed
by our familiar and well-established standard of review. We
consider the evidence presented at trial de novo. We are
obliged to evaluate that evidence in the light most favorable
to the Commonwealth, as the verdict winner, and we draw
all reasonable inferences therefrom in the Commonwealth’s
favor. Through this lens, we must ascertain whether the
Commonwealth proved all of the elements of the crime at
issue beyond a reasonable doubt. This is a question of law.
Our scope of review is plenary.
Commonwealth v. Chambers, 188 A.3d 400, 409 (Pa. 2018) (citations
omitted).
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constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
[18 Pa. C.S.A. § 903.]
The [trial] testimony clearly demonstrates that the
surveillance and investigation into the drug-trafficking ring
. . . was not just a one-day investigation; rather, a concerted
and intensive effort by several, law-enforcement
departments, which included undercover surveillance,
confidential informants, wiretap applications, listening to
thousands of phone calls, applying for and serving search
warrants, as well as numerous meetings and briefings about
the key players in the trafficking ring. Sergeant Skahill’s
interpretation of the phone calls between Townsend and
[Burton] were not based upon a hunch. The interpretations
were based upon years of experience and training in
undercover, drug-trafficking investigations on a broader
scale, as well as on an intimate level with this investigation,
becoming familiar with Townsend and his distributors, the
interworking of their business, actions, and lingo. Sergeant
Skahill knew the days and times Townsend received
cocaine; he knew the slang which the group used to relay
when they needed product and when they had the money
to [give] Townsend back.
Sergeant Skahill testified that the most common
exchange for drugs is money, particularly cash, and
[Burton] had several stashes of large quantities of cash,
hidden all over his house. The calls themselves paint the
picture. When [Burton] needed supply he would call
Townsend, Townsend would retrieve it for him, and call him
back when it was secured. In addition, Sergeant Skahill
knew that Townsend’s practice was to front the drugs to his
distributors, who then paid him back after the product was
sold, further supported by [Burton] on the phone calls,
telling Townsend that he is good and that he is ready for
him to come pick up the cash. All of the evidence
unequivocally demonstrates that [Burton], agreed with
another person, namely his brother, Townsend, that they
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would engage in conduct which constituted the crime of
delivering cocaine, a controlled substance.
[Second, pursuant] to 35 P.S. § 780-113(a)(16): The
following acts and the causing thereof within the
Commonwealth are hereby prohibited: Knowingly or
intentionally possessing a controlled or counterfeit
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly
from, or pursuant to, a valid prescription order or order of a
practitioner, or except as otherwise authorized by this act.
“Possession can be found by proving actual
possession, constructive possession, or joint constructive
possession. Where a defendant is not in actual possession
of the prohibited items, the Commonwealth must establish
that the defendant had constructive possession to support
the conviction. Constructive possession is a legal fiction, a
pragmatic construct to deal with the realities of criminal law
enforcement. We have defined constructive possession as
conscious dominion, meaning that the defendant has the
power to control the contraband and the intent to exercise
that control. To aid application, we have held that
constructive possession may be established by the totality
of the circumstances.” Commonwealth v. Parrish, 191
A.3d 31, 37 (Pa. Super. 2018). “In other words, the
Commonwealth must establish facts from which the trier of
fact can reasonably infer that the defendant exercised
dominion and control over the contraband at issue.” Id.,191 A.3d at 38.
The evidence presented by the Commonwealth at trial
was sufficient to establish that [Burton] knowingly or
intentionally possessed, cocaine, a controlled substance.
[He] admitted during his own testimony that the keys
located in his pocket on the day of the search warrant
execution were his; those keys were the keys to the
Chrysler minivan that was parked right across the street
from his house and the same exact minivan and plate
number as the one both Officer Donohue and Chief Nolan
would see [Burton] driving around Chester during their
everyday routine patrols.
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Located inside [Burton’s] vehicle were numerous
items that had [his] name on them; including his wallet
containing his license and the car registration. Perhaps,
even more telling were documents such as rental car
agreements and bills, documents that could only be left in
the car by [Burton, whose] own testimony about owning the
car but lending it out was incredible and riddled with
contradictions. In addition, Sergeant Skahill explained the
reasoning behind storing the drugs in the vehicle rather than
in [Burton’s] home or on his person. Keeping the drugs
close by allowed [him] to have constructive possession over
the drugs, i.e., the ability to exercise dominion and control
over the drugs whenever he needed to make a sale.
Trial Court Opinion, 11/29/18, at 19-21.
We agree with the trial court and adopt its analysis of the sufficiency
issue as our own. The evidence of Burton’s guilt of the two offenses for which
the jury convicted him is overwhelming.
B. Burton Waived His Attack upon the Affidavit of Probable Cause.
Burton also argues the court of common pleas should have suppressed
the Commonwealth’s evidence, because police provided the judge who issued
a search warrant for his minivan with false and misleading information in their
affidavit of probable cause. Throughout his argument, Burton heavily relies
upon Trooper Stienmetz’s suppression and trial testimony about the affidavit
of probable cause. However, Burton never cites to the actual affidavit.
The Commonwealth suggests this is due to Burton’s failure to make the
affidavit a part of the appellate record. See Commonwealth’s Brief at 6 n.2,
8 n.3. It argues the affidavit’s absence causes waiver. Id. at 11.
We agree. It is well-settled that “the ultimate responsibility of ensuring
that the transmitted record is complete rests squarely upon the appellant and
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not upon the appellate courts.” Commonwealth v. Preston, 904 A.2d 1, 7
(Pa. Super. 2006) (en banc) (citing Pa.R.A.P. 1931). If an appellant does not
include the evidence supporting an appellate issue in the certified record, that
appellate issue “must be deemed waived for the purpose of appellate review.”
Id.Here, Burton asks us to review the affidavit of probable cause that the
police used to obtain a search warrant for his minivan. That affidavit was his
only exhibit at the suppression hearing. Yet, on appeal, he has not provided
us with it – the language of which is the basis for his claim of error.
When police have obtained a warrant, the suppression court’s scope of
review is limited to the affidavit of probable cause. If a defendant seeks to
suppress “evidence obtained pursuant to a search warrant, no evidence shall
be admissible [in the suppression court] to establish probable cause other
than the affidavits . . . .” Pa.R.Crim.P. 203(D). And, when the Commonwealth
wins the suppression hearing, our scope or review of that hearing is limited to
“only the evidence of the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the context of the record as
a whole.” Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011),
affirmed, 78 A.3d 1044 (Pa. 2013).
Because the Commonwealth had to confine its case to the four corners
of the affidavit, that affidavit is invaluable to our appellate review. Without it,
none of the Commonwealth’s evidence (or the suppression court’s basis for its
findings of fact) is of record. The only evidence of record remaining within
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our scope of review is the uncontradicted evidence that Burton, the losing
party, offered. Lacking the affidavit, we cannot differentiate between Burton’s
uncontradicted and contradicted evidence.
Thus, he has placed us in a quandary.5 Burton’s omission of the
Commonwealth’s evidence (the affidavit) from the certified record has crippled
our ability to review this claim of error. We cannot review the allegedly false
and misleading language of an affidavit we do not possess.
Under Preston, supra, we must dismiss this issue as waived.
C. The Seizure of Burton’s Minivan Key and Minivan Was Constitutional.
As his final, appellate issue, Burton challenges the seizure of the minivan
keys from his pants’ pocket and the seizure of his minivan without a search
warrant for the vehicle. He argues that the police did not list the minivan’s
keys as a target of their search warrant; thus, he claims they had no right to
take them. Similarly, he asserts that, because the minivan was parked a
hundred feet away from the house, the investigators had no search warrant
to enter or to seize it.
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5 This Court’s staff contacted the court of common pleas to ensure that the
affidavit was not missing due to an inadvertent, ministerial error of record
keeping. The law clerk to the judicial officer who heard the suppression
hearing informed us that the “affidavit/application for a search warrant for the
Butler Street residence” was not in the trial judge’s chambers. August 19,
2019 E-mail of Rachael L. Kemmey, Esq., Law Clerk to John P. Capuzzi, J.
(C.C.P. Delaware) to Appellate Counsel and Superior Court Staff. Therefore,
we conclude that only Burton’s failure to ensure the recordation of the affidavit
caused the gap in the appellate record, rather than any “breakdown in the
processes of the court” that we could rectify under Rule of Appellate Procedure
1926(b).
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Burton does not challenge the issuing authority’s finding that probable
cause existed for the police to conduct the search of Burton’s home. Instead,
he challenges the officers’ actions in executing the search warrant. We are
therefore reviewing the suppression court’s opinion of those police actions.
Accordingly, our scope of review shifts from the affidavit of probable
cause to the factual findings of the suppression court. We “determine whether
[those] factual findings are supported by the record. If so, we are bound by
those findings.” Commonwealth v. Howard, 762 A.2d 360, 361 (Pa. Super.
2000). Our scope of review is not plenary; we “are limited to considering only
the evidence of the prevailing party, and so much of the evidence of the non-
prevailing party as remains uncontradicted when read in the context of the
record as a whole.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). Also, we may
“not simply comb through the record to find evidence favorable to a particular
ruling. Rather, [we must] look to the specific findings of fact made by the
suppression court,” based upon the record that was developed in the
suppression court.6 Id. at 1085.
Our standard of review for a suppression court’s factual findings remains
deferential, while our standard for reviewing its legal conclusions reaches the
zenith. As the Supreme Court of Pennsylvania has stated:
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6 Thus, the Commonwealth’s citation to and reliance upon the November 24,
2018 trial transcript for the proposition that Burton disowned the keys and the
minivan is misplaced. See Commonwealth’s Brief at 13 n.8. That testimony
is outside our scope of review.
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When we state that part of our “task” is to determine
whether the record supports the suppression court’s factual
findings, this is another way of expressing that our standard
of review is highly deferential with respect to the
suppression court’s factual findings and credibility
determinations. In other words, if the record supports the
suppression court’s findings, we may not substitute our own
findings. In stark contrast, our standard of review of the
suppression court’s legal conclusions is de novo: appellate
courts give no deference to the suppression court’s legal
conclusions.
Id. at 1080 n.6. (some punctuation and citations omitted).
Under both the federal and state constitutions, search warrants must
particularly describe the items to be seized under their terms. For example,
Article I, § 8 of the Constitution of the Commonwealth of Pennsylvania
provides:
The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizures,
and no warrant to search any place or to seize any person
or things shall issue without describing them as nearly
as may be, nor without probable cause, supported by oath
or affirmation subscribed to by the affiant.
Id. (emphasis added).
Burton claims his minivan keys were not listed in the search warrant for
his residence. He is incorrect. The search warrant listed vehicle keys as one
of the items for the police to search for and to seize. The warrant authorized
the police to seize any “indicia of . . . ownership of the . . . vehicle(s) described
herein, including but not limited to . . . keys.” Attachment “A” to Search
Warrant at No. X53-0051-B, Burton’s Motion to Suppress Evidence, 9/19/16.
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We therefore conclude that the minivan keys were permissibly seized under
the terms of the search warrant for Burton’s home.
He also claims that his Town & Country Minivan did not appear in that
search warrant. While this is true, its absence from the warrant does not end
our inquiry.
Police may seize a person’s property without a warrant if an exception
to the warrant requirement exists. “A search conducted without a warrant is
deemed to be unreasonable and therefore constitutionally impermissible,
unless an established exception applies.” Commonwealth v. Romero, 183
A.3d 364, 396 (Pa. 2018). One such exception to the warrant requirement is
the automobile exception. See Commonwealth v. Gary, 91 A.3d 102 (Pa.
2014) (adopting the federal automobile exception under Art. I, § 8 of the
Constitution of the Commonwealth of Pennsylvania). Thus, we have said,
“where police possess probable cause to search a car, a warrantless search is
permissible.” In re I.M.S., 124 A.3d 311, 317 (Pa. Super. 2015).
Moreover, when investigators have probable cause to undertake a
warrantless search of an automobile, they simultaneously have constitutional
justification to seize it and search it afterwards. “For constitutional purposes,
we see no difference between on the one hand seizing and holding a car before
presenting the probable cause issue to a magistrate and on the other hand
carrying out an immediate search without a warrant. Given probable cause
to search, either course is reasonable under the Fourth Amendment.”
Chambers v. Maroney, 399 U.S. 42, 52 (1970); see also Commonwealth
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v. Holzer, 389 A.2d 101 (Pa. 1978) (applying Chambers under Pennsylvania
law). Hence, Burton’s fixation upon the minivan’s absence from the search
warrant is misplaced. That fact, standing alone, is an incomplete basis for this
Court to reverse the suppression court’s order, because the seizure of the
vehicle was permissible without a warrant.7
As the Supreme Court of Pennsylvania held in Holzer:
in considering the reasonableness of a given search or
seizure of an automobile, the need for a warrant is often
excused by exigent circumstances. The reasons are two-
fold. First, a vehicle is highly mobile and the likelihood is
therefore great that it and its contents may never be found
if police were prohibited from immobilizing it until a warrant
can be secured. Commonwealth v. Smith, 452 Pa. 1, 7,
304 A.2d 456, 459 (1973), quoting Chambers v. Maroney,
399 U.S. 42, 57, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
Second, one’s expectation of privacy with respect to
an automobile is significantly less than that relating to one’s
home or office . . . Further, where the alleged illegal activity
does not invade the interior of the car, the chances are even
greater that no expectation of privacy has been infringed.
It is reasonable, therefore, for constitutional
purposes, for police to seize and hold a car until a search
warrant can be obtained, where the seizure occurs after the
user or owner has been placed into custody, where the
vehicle is located on public property, and where there exists
probable cause to believe that evidence of the commission
of a crime will be obtained from the vehicle. Cardwell v.
Lewis, 417 U.S. 583, 593-94, 94 S.Ct. 2464, 41 L.Ed.2d
325 (1974); Chambers v. Maroney, supra 399 U.S. at 52,
90 S.Ct. 1975.
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7 We also note that Burton does not contend that the police lacked probable
cause to seize his vehicle, and we may not supply him with such an argument.
“When an appellant’s argument is underdeveloped, we may not supply [him]
with a better one.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875,
884 (Pa. Super. 2019).
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Holzer, 389 A.2d at 106–07.
In the present case, the conduct of the police was reasonable. Burton
was under an extensive investigation (along with family members and other
suspects) for drug trafficking. The police executed a valid search warrant for
his home and, in the process, discovered the keys to the Town and Country
Minivan they had observed him driving to and from the residence.
Burton had parked his minivan on a public street. He or any one of his
alleged co-conspirators was still at large, and his family lived in the vicinity.
Thus, if Burton had a spare key for the minivan, he could have easily driven
the vehicle away while the police went to obtain a search warrant for it. Or
he or one his suspected co-conspirators could have had the minivan towed
away or cleaned it out, while police applied for a search warrant and met with
a magistrate. Finally, the police protected Burton’s right of privacy under both
constitutions, because, when they seized the minivan, investigators refrained
from searching it until after convincing a neutral magistrate that the search
was justified with probable cause and obtaining a search warrant. Thus, as in
Holzer, “[t]he warrantless seizure of the automobile was proper, as was the
trial court’s denial of the motion to suppress.” Id., 389 A.2d at 107.
In sum, none of Burton’s three issues warrants relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/19
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