Commonwealth v. Burton

234 A.3d 824

COMMONWEALTH of Pennsylvania, Appellee

v.Harold BURTON, Appellant

No. 868 EDA 2019

Superior Court of Pennsylvania.

Submitted March 3, 2020

Filed July 6, 2020

Reargument Denied September 9, 2020

Katherine E. Ernst, Public Defender, Rachel I. Silver, Public Defender, Norristown, for appellant.

Robert M. Falin, Assistant District Attorney, Tracy S. Piatkowski, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY STABILE, J.:

Appellant, Harold Burton, appeals from the judgment of sentence entered on October 30, 2018 in the Court of Common Pleas of Montgomery County after a jury convicted him of drug delivery resulting in death ("DDRD") and related offenses. Appellant contends the evidence was insufficient to support his conviction of DDRD because the jury acquitted him of recklessly endangering another person ("REAP"). He further asserts the trial court erred by denying his motion to suppress cell-site location information ("CSLI"). Upon review, we affirm.

From our review of the record, including the trial court's Rule 1925(a) opinion, we glean the following:

On January 29, 2016 at 5:52 a.m., officers responded to a call for an unresponsive person at 540 East High Street in Pottstown Borough. The unresponsive person was Renee Winslow, who was deceased upon the officers’ arrival. The officers found a syringe on the floor near her body. Officers also recovered three blue wax bags from the scene that were later determined to contain fentanyl. In addition, the officers recovered Ms. Winslow's cell phone and prescription pill bottles.

Between 7 p.m. and midnight on January 28, Ms. Winslow had exchanged text messages with the phone number 484-358-8938, which was stored in her phone under the name "Rachel." Appellant stipulated that the phone number was his and that he was using his phone during that window of time. As reflected in the trial court's Rule 1925(a) opinion, Ms. Winslow and Appellant exchanged the following text messages:

At 7:31 p.m., Ms. Winslow texted [Appellant], "Are you going to be around in like 45 minutes to come to my apartment?" [Appellant] replied, "Yeah." She replied, "O. k. Thank you," followed by, "Do you want me to call you or [ ] you want to just meet there at like 8:20?" [Appellant] responded at 7:34 p.m., "What are you going to need?" Ms. Winslow replied, "Depends. You givin to me for 10 or 15?" And again, "[I'd] really appreciate 10. Then I'd need four." At 7:36 p.m., [Appellant] responded, "Ok." Ms. Winslow responded, "Thanks babe so I'll see you in like 45 mins." At 9:15 p.m., Ms. Winslow texted again, "Are you not coming? I mean, it[’]s Thursday. Seems like you always tell me you're coming on Thursdays but never show up." At 10:20, she texted, "So what's up with that promise??" Between 10:37 p.m. and 10:47 p.m., there were three phone calls between the two. Finally, at 11:53 p.m., [Appellant] texted her "U ok?" Detective Cameron Parker testified that in his training and experience, this conversation was indicative of arranging a drug transaction.

Trial Court Opinion, 8/13/19, at 2 (citations to notes of trial testimony omitted).

Surveillance video of Ms. Winslow's apartment on the night of her death revealed that Ms. Winslow arrived home at approximately 8:26 pm. At approximately 10:39 p.m. and again at 10:47 p.m., she was seen opening her door and looking out, the second time while on the phone. Surveillance video from her apartment building showed Appellant walking near Ms. Winslow's building while talking on his phone. His phone was using the tower near her apartment. At approximately 10:47 p.m., Appellant entered Ms. Winslow's apartment and stayed less than one minute. Her boyfriend, who called for help, arrived home at approximately 5:48 a.m.

On June 22, 2016, Appellant was arrested and charged with DDRD, REAP, criminal use of a communication facility, and possession with intent to deliver a controlled substance ("PWID").¹ Appellant filed a motion to suppress the subscriber information relating to his cell phone. Initially, his request was based on claimed material misrepresentation in the application to obtain the information under the Wiretap Act. The court denied the motion. After the United States Supreme Court ruled that a search warrant was required to obtain CSLI absent exigent circumstances,² the Commonwealth applied for and obtained a search warrant. Appellant sought to exclude the CSLI in a supplemental motion to suppress. At the conclusion of a July 10, 2018 hearing, the court denied his motion.

Following a two-day trial, a jury found Appellant guilty of DDRD, criminal use of a communication facility, and PWID. The jury acquitted Appellant on the REAP charge. On October 31, 2018, the trial court sentenced Appellant to an aggregate term of 13 to 35 years in a state correctional institution.

Appellant filed a post-sentence motion challenging the weight of the evidence and seeking modification of his sentence. Following a hearing, the court denied the motion. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant asks us to consider two issues in this appeal:

1. Was there insufficient evidence that Appellant recklessly brought about the decedent's death as required by 18 Pa.C.S. § 2506(a) Drug Delivery Resulting in Death since the jury acquitted [Appellant] of Recklessly Endangering Another Person?

2. Did the trial court err in not granting the defense's Supplemental Motion to Suppress Cell Site Location Information?

Appellant's Brief at 1-2.

Appellant first challenges the sufficiency of evidence supporting his DDRD conviction in light of his acquittal of REAP, contending the guilty verdict for DDRD is inconsistent with his acquittal of REAP. Initially, we reiterate that

[o]ur standard of review upon a challenge to the sufficiency of the evidence is well settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, 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 none of the evidence.

Commonwealth v. Storey , 167 A.3d 750, 757 (Pa. Super. 2017) (quoting Commonwealth v. DiStefano , 782 A.2d 574, 582 (Pa. Super. 2001) (additional citations omitted)). Further,

it is well-settled that inconsistent verdicts are permissible in this Commonwealth. See Commonwealth v. States , 595 Pa. 453, 938 A.2d 1016, 1025 (2007). As we explained in Commonwealth v. Petteway , 847 A.2d 713 (Pa. Super. 2004) :

We note first that inconsistent verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal. Consistency in verdicts in criminal cases is not necessary. When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon the acquittal as no more than the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity. Thus, this Court will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is evidence to support the verdict. The rule that inconsistent verdicts do not constitute reversible error applies even where the acquitted offense is a lesser included offense of the charge for which a defendant is found guilty.

Commonwealth v. Barnes , 167 A.3d 110, 120 (Pa. Super. 2017) (en banc ) (quoting Petteway , 847 A.2d at 718 ) (citations and quotation marks omitted).

We next review the elements of the crimes at issue. With regard to DDRD,

[a] person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of [ 35 P.S. § 780-113(a)(14) or (30) ], and another person dies as a result of using the substance.

18 Pa.C.S.A. § 2506(a). The crime of DDRD "consists of two principal elements: ‘(i) [i]ntentionally administering, dispensing, delivering, giving, prescribing, selling or distributing any controlled substance or counterfeit controlled substance and (ii) death caused by (‘resulting from’) the use of that drug.’ " Commonwealth v. Kakhankham , 132 A.3d 986, 991-92 (Pa. Super. 2015). As this Court recently determined:

[T]he applicable mens rea for the crime of drug delivery resulting in death is two-fold. First, the delivery, distribution or sale of the contraband must be intentional. Kakhankham , 132 A.3d at 992. Second, the actual death must be the reckless result of the actions of the defendant. Id. at 995. As such, the crime is an intentional act in providing contraband, with a reckless disregard of death from the use of the contraband.

Commonwealth v. Carr , 227 A.3d 11, 16-17 (Pa. Super. 2020).³

With respect to REAP, "[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily...