Com. v. Burrell, K.

J-A15005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KALEKE M. BURRELL,
Appellant No. 1432 EDA 2018
Appeal from the Judgment of Sentence Entered April 10, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006144-2016
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 30, 2019
Appellant, Kaleke M. Burrell, appeals from the judgment of sentence of
an aggregate term of four to eight years’ incarceration, followed by five years’
probation, imposed after a jury convicted him of possession with intent to
deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30), and
conspiracy to commit PWID, 18 Pa.C.S. § 903. On appeal, Appellant
challenges the trial court’s denial of his pretrial motion to suppress, as well as
the sufficiency of the evidence to sustain his convictions. After careful review,
we affirm.
Appellant was arrested and charged with the above-stated offenses after
undercover officers observed him and his co-defendant, Rasheed Woods,1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Woods has also filed an appeal with this Court, which is docketed at 1340
EDA 2018.
J-A15005-19
engage in a sale of narcotics to an unidentified, white male on July 21, 2016.
Appellant and Woods were arrested shortly after the sale, and found to be in
possession of large quantities of crack cocaine and U.S. currency.
Prior to trial, both Appellant and Woods filed motions to suppress the
evidence recovered following their warrantless arrests, arguing that police
lacked probable cause. A suppression hearing was conducted on April 20,
2017. There, Officer Anthony Salvatore of the Darby Borough Police
Department testified. N.T. Suppression Hearing, 4/20/17, at 4. Officer
Salvatore explained that in February of 2016, he received information from
Andrew Heffer, a then-confidential informant,2 that Woods “was the leader of
a drug trafficking organization selling heroin and crack through southwest
Philadelphia and Delaware County.” Id. at 6. The officer investigated Heffer’s
claims by checking police reports and speaking with Sergeant Mike Davis of
the 12th District in Philadelphia. Id. That investigation showed that Woods
“had been arrested numerous times for drug trafficking [and] firearm
violations.” Id. at 7. Officer Salvatore deemed Heffer’s tip about Woods
reliable, and set up a controlled purchase of drugs between Heffer and Woods.
Id. During the controlled buy, Woods sold Heffer cocaine. Id. at 9. Over the
____________________________________________
2 Officer Salvatore testified that Heffer’s identity was subsequently revealed,
id. at 6, and that after the controlled buy from Woods, Heffer was
“deactivated” as an informant because he began “getting high and getting
drugs from other sources[,]” id. at 21, 23.
-2-
J-A15005-19
ensuing months, Officer Salvatore and other officers “kept continuous[,] non-
routine surveillance on [] Woods.” Id. at 9-10.3
In March of 2016, an individual named Brian Burnett-McCullough
contacted Officer Salvatore, claiming that Woods “was the leader of a drug
trafficking organization” that “controlled the area of 72nd and 73rd Street[s] in
Southwest Philadelphia.” Id. at 10. Officer Salvatore again spoke to Sergeant
Davis, who confirmed that he had received “the same information.” Id. at 11.
Officer Salvatore also discovered that Woods had been arrested by Cherry Hill
Police in New Jersey after police searched an apartment, in which Woods was
present and mail addressed to him was found, and uncovered “about a kilo of
cocaine….” Id. at 12.
On July 21, 2016, Officer Salvatore received information that Woods
was going to be making a narcotics transaction in the area of Andrews Avenue
and Blunston Avenue in Collingdale, Pennsylvania. Id. at 12-13. Officer
Salvatore set up surveillance at that location, and observed Woods arrive in
the area around 2:00 p.m., driving a silver Toyota Scion with non-tinted
windows. Id. at 13. Using binoculars, Officer Salvatore could see that another
man, later identified as Appellant, was a passenger in the car. Id. at 13, 14.
____________________________________________
3Officer Salvatore explained that by “non-routine surveillance,” he meant that
officers would conduct surveillance of Woods “at least once a week and if
[officers were] able to do more than one day a week[,] then more than one
day a week [was] done.” Id. at 25. However, no surveillance logs or other
documentation was turned over to the Delaware County District Attorney’s
Office, and nothing of “evidentiary value” was observed during the five months
of surveillance between the controlled buy and the incidents surrounding
Woods’ arrest on July 21, 2016, discussed infra. Id. at 24-25.
-3-
J-A15005-19
The vehicle turned into a driveway and “[a] female came out of the house,
walked over to the driver side of the silver Scion[,] [l]eaned into the driver
side window[,] [w]as there for approximately 30 seconds, and then walked
right back into the house.” Id. at 13-14.
Woods then drove the vehicle out of the driveway and proceeded to
Andrews Avenue and Blunston Avenue, where the car “pulled over again and
met with a white male.” Id. at 14. The man handed U.S. currency “into the
passenger window….” Id. at 16. “The white male then received something
small and white in return and put it in his pocket, turned around and walked
right back across the street and into a house.” Id. at 14. On re-direct
examination, Officer Salvatore further described the item received by the
white male as a small, clear, Ziploc bag that contained a white substance,
which the officer believed was crack cocaine, based on his experience of seeing
“cocaine numerous times” and conducting “hundreds of arrests involving crack
cocaine.” Id. at 30-31.
After the man went back into the house, the vehicle driven by Woods
“pulled off” and was stopped shortly thereafter by Lieutenant Richard Gibney.
Id. at 34. Lieutenant Gibney testified that Woods’ vehicle was pulled over
and blocked in by several police cars. Id. The officers exited their vehicles
with their guns drawn and ordered Appellant and Woods to show their hands.
Id. Lieutenant Gibney testified that Woods and Appellant were “jumping all
over the car, they were reaching into their waistbands, they were reaching all
over … the car.” Id. Ultimately, the men were removed from the vehicle and
-4-
J-A15005-19
detained, after which they were transported to the police station. Id. at 35,
37. During a subsequent search of the vehicle, officers recovered “13 knotted
sandwich bags containing a large amount of [a] hard white chunky substance.”
Id. at 17. Additionally, in Woods’ possession, officers found $2,110 in U.S.
currency, as well as a large bag holding “37 small[,] clear plastic bags
containing a hard[,] white[, and] chunky substance and … one loose[,] clear
bag containing a hard[,] white[, and] chunky substance.” Id. Appellant
possessed “two knotted sandwich bags with a hard[,] white[, and] chunky
substance” and $52 in U.S. currency. Id. at 17, 18. The substance was later
determined to be crack cocaine.
Based on this evidence, the court denied Appellant’s and Woods’
motions to suppress. Their cases proceeded to a jury trial in January of 2018,
at the close of which both men were convicted of PWID and conspiracy to
commit PWID. On April 10, 2018, Appellant was sentenced to the aggregate
term of incarceration and probation stated supra. He filed a timely notice of
appeal, and he also complied with the court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant raises
the following issue for our review:
A. Did the [t]rial [c]ourt commit an error of law when it failed to
grant Appellant’s [m]otion to [s]uppress, where the officers lacked
reasonable suspicion to detain and probable cause to arrest
Appellant for the crimes charged?
B. Was the evidence insufficient as a matter of law to convict
Appellant of [c]onspiracy to commit [PWID] … with Woods?
-5-
J-A15005-19
Appellant’s Brief at 5.
Our standard of review of Appellant’s first issue is well-settled:
We are limited to determining whether the lower court’s factual
findings are supported by the record and whether the legal
conclusions drawn therefrom are correct. We may consider the
evidence of the witnesses offered by the Commonwealth, as
verdict winner, and only so much of the evidence presented by
[the] defense that is not contradicted when examined in the
context of the record as a whole. We are bound by facts supported
by the record and may reverse only if the legal conclusions
reached by the court were erroneous.
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (en banc)
(citation omitted).
Preliminarily, Appellant avers that the police conducted an investigative
detention when they stopped Woods’ vehicle and, thus, they were required to
possess reasonable suspicion to validate that detention. The Commonwealth
addresses Appellant’s arguments under both the reasonable suspicion and
probable cause standards, making no explicit distinction regarding which
standard should apply. Notably, however, at the suppression hearing, the
Commonwealth argued only that probable cause supported the warrantless
arrest and search of Appellant and Burrell. See N.T. Suppression Hearing at
45-47.
We need not definitively determine whether Appellant and Woods were
simply detained, or effectively arrested, when their vehicle was stopped by
police because, even under the more imposing, probable-cause standard, we
deem the conduct of the police officers lawful. Our Court has explained that:
-6-
J-A15005-19
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.
Probable cause justifying a warrantless arrest is determined
by the totality of the circumstances. [P]robable cause does not
involve certainties, but rather the factual and practical
considerations of everyday life on which reasonable and prudent
men act. It is only the probability and not a prima facie showing
of criminal activity that is a standard of probable cause. To this
point on the quanta of evidence necessary to establish probable
cause, the United States Supreme Court recently noted that finely
tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no
place in the probable-cause decision.
Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)
(cleaned up).
In this case, Appellant argues that Officer Salvatore’s prior investigation
into Woods did not reveal anything connecting Appellant to drug activity, and
the officer’s testimony about the July 21, 2016 drug sale focused exclusively
on Woods’ conduct. Appellant insists that he “was arrested without a single
piece of evidence suggesting that he was involved in criminal activity” and
that “[t]he record is completely silent as to any facts to warrant a person of
reasonable caution in the belief that [he] had committed any offense.”
Appellant’s Brief at 21. He also argues that Officer Salvatore “never testified
as to how his training, knowledge, and experience lead [sic] him to believe
that [Appellant] was involved in any criminal activity.” Id. at 20.
-7-
J-A15005-19
Appellant’s argument is unconvincing. Admittedly, the totality of the
circumstances in this case certainly provided Officer Salvatore with stronger
probable cause to believe that Woods had committed a crime; however,
contrary to Appellant’s argument, there were sufficient facts demonstrating
probable cause to arrest him, as well. Notably, Officer Salvatore’s months-
long investigation into Woods provided reliable evidence that Woods was a
drug dealer. Officer Salvatore received a tip that Woods would be selling
drugs at a specific location on July 21, 2016. When the officer set up
surveillance on that date and at that location, he observed Woods and
Appellant arrive in a vehicle. After a brief exchange with a woman, the two
men traveled to another location close by and a white man approached the
passenger side of the vehicle. The man handed money into the vehicle
through the passenger window where Appellant was sitting, and received a
small bag containing a chunky, white substance, which he placed in his pocket
as he walked into a nearby house.
Officer Salvatore explained why, due to his training and experience, he
believed that he had observed a drug sale. Specifically, the officer testified at
the suppression hearing that he had been a patrolman for over 13 years. N.T.
Suppression Hearing at 5. During that time, he had “worked narcotics and
then [been] assigned to the DEA Narcotics Task Force,” in which he was then
in his third year. Id. He attended “DEA Narcotics Investigation School[,]” as
well as “numerous narcotics conferences involving different trainings.” Id.
When pressed to explain why he believed that the white, chunky substance
-8-
J-A15005-19
he observed in the small bag given to the white male was crack cocaine, the
officer testified that he has “seen crack cocaine numerous times” and he has
“had hundreds of arrests involving crack cocaine.” Id. at 30.
In sum, Appellant has not convinced us that the trial court erred in
denying his motion to suppress. Officer Salvatore testified that Appellant’s
arrest was premised on: the information he gleaned during his months-long
investigation of Woods, including the controlled purchase of drugs from Woods
by Heffer; the tip that Woods would be selling drugs at a specific location on
July 21, 2016; the officer’s observation, at that location, of a female
approaching the car and then quickly returning to her home; and the officer’s
seeing the white male hand cash through the window on Appellant’s side of
the vehicle, and receive in exchange a small, clear bag containing a white,
chunky substance that, due to the officer’s training and experience, he
believed to be crack cocaine. Based on the totality of these facts and
circumstances, Officer Salvatore had probable cause to order a warrantless
arrest of Appellant.
Appellant next contends that the evidence was insufficient to sustain his
conviction for conspiracy to commit PWID. To begin, we note our standard of
review of a challenge to the sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
-9-
J-A15005-19
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
In regard to the crime of criminal conspiracy, we have explained:
To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered into
an agreement to commit or aid in an unlawful act with another
person or persons, (2) with a shared criminal intent and (3) an
overt act was done in furtherance of the conspiracy. “This overt
act need not be committed by the defendant; it need only be
committed by a co-conspirator.”
As our Court has further explained with respect to the agreement
element of conspiracy:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of
a shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances
of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation.
The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence
linking the accused to the alleged conspiracy beyond a
reasonable doubt. Even if the conspirator did not act as a
principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators in
furtherance of the conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)
(citations omitted).
- 10 -
J-A15005-19
Here, Appellant insists that he “was merely present at the scene of a
crime, which is[,] without more, insufficient to establish a criminal
conspiracy.” Appellant’s Brief at 28. The record belies Appellant’s argument.
At trial, Officer Salvatore testified essentially the same as he did at Appellant’s
suppression hearing regarding Woods’ and Appellant’s conduct on July 21,
2016, which led him to conclude that he had witnessed a drug sale to the
unidentified white male. N.T. Trial, 2/7/18, at 33-39. In particular, the officer
stated:
[Officer Salvatore:] The white male leaned into the passenger side
of the vehicle. I did observe [U.S.] currency in this white male’s
hand as he began to lean into the vehicle. When he took his hand
out of the vehicle, he was holding a small object and it was white
in color.
Id. at 38.
Officer Salvatore also reiterated his testimony about the evidence
discovered during the search of the vehicle and Woods’ and Appellant’s
persons. The officer explained that on Woods’ side of the car, officers found
three cell phones “a clear sandwich bag that contained 13 knotted sandwich
bags that all contained a hard white chunky substance that was later identified
to be crack cocaine.” Id. at 40-41. Additionally, during a strip search of
Woods at the police station, officers found “a sandwich bag containing 37 small
clear glassine bags and 1 additional small clear glassine bag all containing
what was later discovered to be crack cocaine in-between the cheeks of []
Woods’ buttocks.” Id. at 44. Appellant was also “found to have a sandwich
- 11 -
J-A15005-19
bag containing two clear knotted sandwich bags with an amount of crack
cocaine inside it.” Id. at 46. Those bags were recovered from Appellant’s
underwear. Id. at 47. On cross-examination, Officer Salvatore testified that
the amount of drugs in Appellant’s possession cost approximately $300 to
$400 dollars and, in his experience, it was rare for a crack cocaine user to
possess that amount of drugs for personal use. Id. at 73-74, 75. Woods also
possessed $2,110 in U.S. currency, id. at 47, and Appellant possessed $52 in
U.S. currency, id. at 49.
Lieutenant Gibney also offered trial testimony similar to his suppression
hearing testimony, stating that when he stopped the car driven by Woods,
both Woods and Appellant “were in the car jumping all over the place, reaching
around, reaching up, [and] reaching down.” Id. at 81-82.
We conclude that the totality of this evidence was sufficient to prove
that Woods and Appellant conspired to sell crack cocaine. The men were in
the car together when it arrived at the location where Officer Salvatore’s
tipster had said that Woods would be selling drugs. When the white male
approached the vehicle, he did so on the passenger side where Appellant was
sitting. The man handed cash into the vehicle directly in front of Appellant,
and his hand emerged holding a bag containing a white substance that Officer
Salvatore believed, in light of his training and experience, to be crack cocaine.
In addition, when Lieutenant Gibney stopped Woods’ vehicle, both Woods and
Appellant were seen ‘jumping’ and reaching around inside the vehicle. The
subsequent search of the vehicle revealed large quantities of crack cocaine,
- 12 -
J-A15005-19
and both Appellant and Woods possessed bags of crack cocaine concealed in
their private areas. Officer Salvatore testified, without objection from the
defense, that the quantity of drugs found on Appellant’s person was more than
is typically possessed for personal use.
From these facts, it was permissible for the jury to infer that Appellant
was not merely present at the scene but, instead, that he and Woods shared
a criminal objective and intent to sell crack cocaine. Thus, Appellant’s
conviction for criminal conspiracy is supported by sufficient evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/19
- 13 -