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Commonwealth v. Cole

Superior Court of Pennsylvania

July 7, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CORNELL ANTHONY COLE, Appellant

         Appeal 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. [*]

          OPINION

          BENDER, P.J.E.

         Appellant, 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.

         Appellant 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.[1] 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' incarceration.[2]

         Appellant 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.[3]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 case[?]
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 Act[?]
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 witness[?]
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 pretrial ruling[?]

Appellant's Brief at 7-8 (unnecessary capitalization omitted).

         Severance

         Appellant's 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:

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. 563 (comment).

         Our Supreme Court has consolidated these rules into a three-part severance test:

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: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] 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, [3] 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)).

         Here, 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 [burglary].
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.

         The 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 burglaries occurred.

         We 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 evidence.

         With 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 offense.

         Appellant 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[.]"

         In 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.

         Suppression

         Appellant's 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)).

         The 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.

         Some 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.

         Officer 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.

         Initially, 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.[4] 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 time. Id.

         On 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 103.

         Appellant 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 follows:

(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).

         Appellant 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 (Pa. 2009).

         Appellant 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[5] 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 ...

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