from the Judgment of Sentence Entered February 19, 2016 In
the Court of Common Pleas of Dauphin County Criminal Division
at No(s): CP-22-CR-0000036-2014, CP-22-CR-0002152-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.
Cornell Anthony Cole, appeals from the judgment of sentence
of 80-180 months' incarceration, imposed following his
conviction of four counts each of burglary and conspiracy.
After careful review, we affirm.
was charged with participating in a string of eight
commercial burglaries in 2013, at eight different locations
in Dauphin, Chester, Luzerne, and Schuylkill counties.
Appellant was also charged with conspiracy offenses related
to each burglary, which, depending on the case, involved one
or more of Appellant's co-defendants, Troy Baker and
Cornelius Smith. Following a jury trial which commenced on
January 22, 2016, and concluded on February 5, 2016,
Appellant was convicted of burglary and conspiracy counts
related to four of the incidents, and acquitted with respect
to all remaining counts. Specifically, at
CP-22-CR-0000036-2014 (hereinafter "0036"),
Appellant was convicted of conspiring to, and having
burglarized, Barr's Exxon in Schuylkill County, Thorndale
Exxon in Chester County, and Blue Ridge Country Club in
Dauphin County. At CP-22-CR-0002152-2014 (hereinafter
"2152"), Appellant was convicted of conspiring to,
and having burglarized, Shell Gas Station in Luzerne County.
On February 23, 2016, the trial court sentenced Appellant to
an aggregate term of 80-180 months'
filed a timely notice of appeal on March 18, 2016. He filed a
timely, court-ordered Pa.R.A.P. 1925(b) statement on April 8,
2016. The trial court issued its Rule 1925(a) opinion on
September 20, 2016.Appellant now presents the following
questions for our review:
A. Whether the trial court erred in denying Appellant's
pretrial motion to sever offenses where the acts alleged were
not considered a single criminal episode[?]
B. Whether the trial court erred in denying Appellant's
pretrial motion to sever [his] trial from that of his
co-defendants where different evidence applied to each
C. Whether the trial court erred in denying Appellant's
pretrial motion to suppress evidence observed by the Howard
County police officers where they acted in violation of the
Municipal Police Jurisdiction Act[?]
D. Whether the trial court erred in denying Appellant's
pretrial motion to suppress evidence obtained from the
cellular phone where police violated the Pennsylvania Wiretap
E. Whether the trial court erred in denying Appellant's
pretrial motion to exclude evidence of uncharged misconduct
as prior bad acts[?]
F. Whether the trial court erred in denying Appellant's
request for relief under Pa.R.Crim.P. 600[?]
G. Whether the trial court erred in denying Appellant's
request for a mistrial where the Commonwealth in opening
statements averred prior bad acts which fell outside the
trial court's pretrial ruling[?]
H. Whether the trial court erred in denying Appellant's
request for a mistrial where the Commonwealth
mischaracterized testimony presented by their expert
I. Whether the trial court erred in denying Appellant's
request for a mistrial where a Commonwealth witness averred
prior bad acts which fell outside the trial court's
Appellant's Brief at 7-8 (unnecessary capitalization
first two claims concern his motions to sever offenses and
co-defendants. "We consider the decision of whether to
deny a motion to sever under an abuse of discretion
standard." Commonwealth v. O'Neil, 108 A.3d
900, 905 (Pa. Super. 2015). With respect to the severance of
Offenses charged in separate informations may be tried
together if they are "based on the same act or
transaction" or if "the evidence of each of the
offenses would be admissible in a separate trial for the
other and is capable of separation by the jury so that there
is no danger of confusion." Pa.R.Crim.P. 582(A)(1).
The court has discretion to order separate trials if "it
appears that any party may be prejudiced" by
consolidating the charges. Pa.R.Crim.P. 583.
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa.
Super. 2005). The comment to Rule 563 (Joinder of Offenses in
Information) indicates that "it is assumed that offenses
charged in the same information will be tried together,
unless the court orders separate trials." Pa.R.Crim.P.
Supreme Court has consolidated these rules into a three-part
Where the defendant moves to sever offenses not based on the
same act or transaction that have been consolidated in a
single indictment or information, or opposes joinder of
separate indictments or informations, the court must
therefore determine:  whether the evidence of each of the
offenses would be admissible in a separate trial for the
other;  whether such evidence is capable of separation by
the jury so as to avoid danger of confusion; and, if the
answers to these inquiries are in the affirmative, 
whether the defendant will be unduly prejudiced by the
consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa.
1997) (quoting Commonwealth v. Lark, 543 A.2d 491,
496-97 (Pa. 1988)).
Appellant was charged with eight burglaries at eight separate
locations, which occurred across four counties, and involved
numerous investigating police departments. Appellant concedes
that certain evidence was common to multiple burglaries, such
as cell phone evidence which demonstrated his presence at all
eight locations, and expert testimony regarding evidence
(paint chips which corresponded to evidence obtained from the
Barr's Exxon burglary) found on a crowbar in his car when
he was arrested immediately following the Shell Gas Station
burglary. However, Appellant argues that
the Commonwealth called at least twelve (12) witnesses who
could only testify to only one (1) burglary. The Commonwealth
called five (5) witnesses to provide testimony relating only
to the Barr's Exxon burglary. The Commonwealth presented
four (4) witnesses to provide testimony relating to the Blue
Ridge Country Club burglary only. The Commonwealth called at
least two (2) witnesses to present evidence as to only the
burglary at the Thorndale Exxon. The Commonwealth called an
employee and Pennsylvania State Police Trooper to provide
testimony only regarding the … Shell Station
If a witness had testimony to give involving more than one
burglary, the witness testified more than once, making the
trial even longer and more confusing. Investigator John
McPhillips, Howard County Officer Dale Kreller, and Detective
James Glucksman all testified multiple times.
Appellant was unduly prejudiced by having each burglary tried
together. The voluminous testimony presented by the
Commonwealth just to establish a burglary occurred made it
difficult for jurors to focus on identity evidence relative
to each burglary. Especially considering the fact that a
burglary occurred was not at issue. Each burglary could have
been prosecuted without overlapping witnesses. Grouping all
eight (8) burglaries into one (1) trial created confusion and
prolonged the trial process.
Appellant's Brief at 24-25.
trial court decided against severance of offenses because
"the burglaries took place over an approximately five
(5) month period within and around central
Pennsylvania." Trial Court Opinion (TCO), 9/20/16, at
10. Each burglary usually involved the same two
co-conspirators, and strikingly similar circumstances in each
case, in "the way each burglary was carried out, [and]
the time of occurrence of each burglary." Id.
Each burglary occurred at night. Each burglary involved the
dismantling of the security systems in place, either through
the cutting of external alarm wires, or the removal of
internal security mechanisms such as alarm panels and DVR
systems and, often, both. Cash and cigarettes were the
primary targets of the heists. This evidence, collectively,
established a modus operandi ("MO") for
the multi-month burglary scheme carried out by the
perpetrators, evidence corroborated by the items discovered
in the vehicle in which Appellant was found and stopped by
police following the last burglary incident. Identity
evidence was also established with cell phone and GPS
tracking data, linking Appellant and his cohorts to the
vicinity of the burglary locations at the very same time the
agree with the trial court that the evidence from each of
these burglaries would have been admissible in the trials for
the others. As noted above, the evidence of each burglary
tended to prove in the others, "preparation" and a
coordinated "plan, " the "identity" of
the co-conspirators, as well as a "lack of
accident" in terms of explaining why Appellant and his
cohorts just happened to be near each location at the time of
each of the burglaries. See Pa.R.E. 404(b)(2)
(permitted uses of other-bad-acts evidence). His presence
near eight burglaries over 5 months, where each burglary was
characterized by substantially similar circumstances pointing
to a common culprit or culprits, is powerful identity
regard to whether the evidence from the different burglaries
was capable of separation by the jury, and whether Appellant
was unduly prejudiced by the decision not to sever the cases,
the trial court notes that the verdict speaks for itself:
Appellant was acquitted of several burglaries and conspiracy
counts, indicating that the jury clearly was able to parse
the evidence involved in each individual case. See
TCO at 11. We agree. See Commonwealth v. Dozzo, 991
A.2d 898, 903 (Pa. Super. 2010) (holding that "the jury
found [the A]ppellant not guilty of all charges in one case,
and not guilty of three out of four charges in a second case,
demonstrating the jury considered each case and each charge
separately and did not cumulate the evidence").
Accordingly, we conclude that the trial court did not abuse
its discretion in declining to order separate trials for each
also argues that the trial court should have ordered separate
trials for each co-defendant/co-conspirator. However, as
correctly noted by the trial court, there is a universal
preference for a joint trial of co-conspirators. TCO at 10.
As our Supreme Court explained in Commonwealth v.
Housman, 986 A.2d 822, 834 (Pa. 2009), "joint
trials are preferred where conspiracy is charged.
[Nevertheless, s]everance may be proper where a party can
establish the co-defendants' defenses are so antagonistic
that a joint trial would result in prejudice. …
However, the party seeking severance must present more than a
mere assertion of antagonism[.]"
Appellant's brief, he makes minimal efforts to establish
or explain how his and his co-defendants' defenses were
so antagonistic so as to warrant separate trials.
Appellant's Brief at 25-26. Appellant only notes that not
all co-defendants were charged with every burglary, and that
some discrepancies existed in the cell phone ping evidence.
Id. We conclude that Appellant's short,
undeveloped argument in this regard is wholly unconvincing,
especially given our courts' preference for a joint trial
of co-conspirators. Accordingly, we conclude that the trial
court did not abuse its discretion when it refused to sever
the trials for the burglaries for each co-conspirator.
next two claims concern the trial court's denying of
Appellant's motion to suppress certain evidence. With
regard to both claims:
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining
whether the suppression court's factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider 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. Where the suppression
court's factual findings are supported by the record, we
are bound by these findings and may reverse only if the
court's legal conclusions are erroneous. Where, as here,
the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression
court's legal conclusions are not binding on an appellate
court, whose duty it is to determine if the suppression court
properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa.
Super. 2012) (quoting Commonwealth v. Hoppert, 39
A.3d 358, 361-62 (Pa. Super. 2012)).
first suppression claim is in regard to evidence obtained by
Howard County (Maryland) Police Officer Dale Kreller
regarding the Blue Ridge Country Club burglary. Specifically,
the target of Appellant's suppression motion was evidence
of Officer Kreller's observations at the scene
(descriptions of the perpetrators' clothing and
behavior), and the identification of Appellant's van,
which was parked behind co-defendant Baker's truck, near
the scene of the crime, and GPS tracking data the officer
collected. Appellant claims this evidence was suppressible on
the basis that it was obtained in violation of the Municipal
Police Jurisdiction Act (MPJA), 42 Pa.C.S. § 8953.
factual background is necessary to understand the nature of
the evidence sought to be suppressed, as well as the manner
in which it was obtained. Appellant's driver's
license and debit card were found at the scene of a burglary
of Cindy Skylight Liquors in Elkridge, Maryland, on August
12, 2013. N.T. Suppression Hearing, 8/26/14, at 16-18.
Initially, officers responding to the burglary collected
these items from the scene of the burglary, processed them
into evidence, where they were reviewed by Officer Nathan
Guilfoyle, who initially led the investigation. Officer
Guilfoyle took this evidence to the Repeat Offender Proactive
Enforcement (ROPE) Division of the Criminal Investigations
Bureau of the Howard County Police Department.
Kreller was a supervising member of the ROPE team, and the
ROPE team's primary purpose was to assist other criminal
investigation divisions by providing covert surveillance of
individuals suspected of committing crimes in or around
Howard County. Id. at 55. Essentially, Officer
Kreller was assigned to follow Appellant and report on any
suspicious or criminal activity observed.
Officer Kreller obtained historical cell phone tracking data
which indicated the presence of Appellant's cell phone
and his co-defendants' cell phones near the Cindy
Skylight Liquors at the time that business was
burglarized. Id. at 62-64. Officer Kreller
stated that Appellant and his cohorts were already on the
ROPE team's radar due to prior investigations, and that
they had already been aware of their "unique MO."
Id. at 93. Appellant and his co-defendants were
already suspected in multiple prior burglaries. Id.
Officer Kreller began to focus on Appellant because of the ID
evidence obtained at the Cindy Skylight Liquors burglary.
Id. at 95. On one occasion prior to his foray into
Pennsylvania while tracking Appellant, Officer Kreller
observed him, in his white van, meet up with co-defendant
Smith, in his Yukon. Id. at 96. Officer Kreller
followed them to a gas station in Woodbine, Maryland, where a
burglary of a gas station occurred that same evening.
Id. Officer Kreller also observed co-defendant Troy
Baker and another individual ostensibly casing a gas station
in Bartonsville, Maryland. Id. Baker and his cohort
were seen "on the roof" of the business at 2:30
a.m., inexplicably but for nefarious motives, although it
appears as if they did not attempt to gain entry at that
August 26, 2013, the evening of the Blue Ridge Country Club
burglary, Officer Kreller was in Howard County when he was
alerted that the suspects were moving north on Interstate 83
in Maryland. Officer Kreller followed them all the way to
Harrisburg, Pennsylvania. Id. at 98. Eventually, he
tracked them to the Blue Ridge Country Club, where he first
observed Appellant and Troy Baker circling the surrounding
area in Baker's vehicle. Id. at 97-99.
Subsequently, Officer Kreller observed the following:
So we heard an audible alarm from the Blue Ridge and we knew
they were in that area. And at this point it's really
tough on us trying to get in as close as we can without being
compromised. So basically myself and another detective were
laying in a fairway of the golf course where we watched
suspects walk across the fairway to the direction of what I
would refer to as the clubhouse, or the pro shop where they
were there for an extended period of time.
And then we observed two suspects walk back across the
fairway. I don't know of the time, five, ten minutes. I
would have to review my report how long it was, where they
were at the direction of the pro shop. But once they walked
back across the fairway there was then four suspects that
came into our view as they walked along Route 39 dressed in
all black clothing, ski masks, and items in their hand.
As cars came on along Route 39 the suspects would go to the
guardrail. They would go to the wood side of guardrail. They
would hunch down where it looks thick. They were trying to
hide themselves from traffic. And they would then walk back
and continue along Route 39.
Id. at 100. Officer Kreller did not enter
Pennsylvania in response to a request from any Pennsylvania
police department. However, neither Officer Kreller nor his
ROPE team members attempted to effectuate an arrest of any of
the individuals he observed at that time. Id. at
sought to suppress these observations, as well as the cell
phone tracking evidence that led Officer Kreller to follow
the defendants to the Blue Ridge Country Club, based on the
claim that Officer Kreller made these observations in
violation of the MPJA, which reads, in pertinent part, as
(a) General rule.--Any duly employed
municipal police officer who is within this Commonwealth, but
beyond the territorial limits of his primary jurisdiction,
shall have the power and authority to enforce the laws of
this Commonwealth or otherwise perform the functions of that
office as if enforcing those laws or performing those
functions within the territorial limits of his primary
jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an order issued
by a court of record or an order issued by a district
magistrate whose magisterial district is located within the
judicial district wherein the officer's primary
jurisdiction is situated, or where the officer is otherwise
acting pursuant to the requirements of the Pennsylvania Rules
of Criminal Procedure, except that the service of an arrest
or search warrant shall require the consent of the chief law
enforcement officer, or a person authorized by him to give
consent, of the organized law enforcement agency which
regularly provides primary police services in the
municipality wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any person for any
offense which was committed, or which he has probable cause
to believe was committed, within his primary jurisdiction and
for which offense the officer continues in fresh pursuit of
the person after the commission of the offense.
(3) Where the officer has been requested to aid or assist any
local, State or Federal law enforcement officer or park
police officer or otherwise has probable cause to believe
that the other officer is in need of aid or assistance.
(4) Where the officer has obtained the prior consent of the
chief law enforcement officer, or a person authorized by him
to give consent, of the organized law enforcement agency
which provides primary police services to a political
subdivision which is beyond that officer's primary
jurisdiction to enter the other jurisdiction for the purpose
of conducting official duties which arise from official
matters within his primary jurisdiction.
(5) Where the officer is on official business and views an
offense, or has probable cause to believe that an offense has
been committed, and makes a reasonable effort to identify
himself as a police officer and which offense is a felony,
misdemeanor, breach of the peace or other act which presents
an immediate clear and present danger to persons or property.
(6) Where the officer views an offense which is a felony, or
has probable cause to believe that an offense which is a
felony has been committed, and makes a reasonable effort to
identify himself as a police officer.
42 Pa.C.S. § 8953(a).
contends that "[h]ad Officer Kreller not been in
Pennsylvania unlawfully, the Commonwealth would be unable to
present at trial testimony that Appellant's van was in
Dauphin County; only that his cell phone pinged there.
Officer Kreller used his observations from his training and
experience, to conclude that the suspects matched …
Appellant, and that a burglary did occur."
Appellant's Brief at 30.
The courts of this Commonwealth have consistently held that
in applying the MPJA in a manner that effectuates its
purpose, we should construe its provisions liberally.
This Act is not among those statutes which must be strictly
construed under the rules of statutory construction, but
instead is subject to liberal construction to effectuate its
objectives and to promote justice. Commonwealth v.
McHugh, 413 Pa.Super. 572, 605 A.2d 1265 (1992).
Specifically, one of the principle objectives to be obtained
by this Act is to promote public safety while maintaining
jurisdictional police lines. Commonwealth v.
Merchant, 528 Pa. 161, 595 A.2d 1135 (1991). However, as
our Supreme Court stated in Merchant, "the
General Assembly recognized that constructing impenetrable
jurisdictional walls benefited only the criminals hidden in
their shadows." Id. at 169, 595 A.2d at 1139.
Commonwealth v. Eisenfelder, 444 Pa.Super. 435, 664
A.2d 151, 153 (1995).
Commonwealth v. Peters, 915 A.2d 1213, 1217-18 (Pa.
Super. 2007), aff'd and adopted, 965 A.2d 222
provides scant argument as to how Officer Kreller violated
the MPJA, and he fails to offer any analysis comparing and/or
contrasting the facts of this case with existing precedent
concerning the use of suppression as a remedy for violations
of the MPJA. The trial court had similar concerns:
We are unable to ascertain how the Maryland Officers
'illegally' entered the Commonwealth of Pennsylvania
thus causing their visual observations to be suppressed. The
ROPE team was operating and investigating suspect[s] [who]
were believed to be in their own jurisdiction. After tracking
the suspects to Pennsylvania, they observed them at a golf
course and did not attempt to make an arrest. Instead, they
followed the proper channels and made contact with detectives
in Pennsylvania. We further note that Detective
Glucksman and the Maryland Officers [subsequently]
entered a joint operation in an attempt to stop this string
of burglaries that had been occurring in their jurisdiction.
[Appellant] was ultimately arrested by Pennsylvania State
Troopers and Detective Glucksman was the affiant ...