J-A06010-20


                                  2020 PA Super 157

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    HAROLD BURTON

                             Appellant                  No. 868 EDA 2019


        Appeal from the Judgment of Sentence entered October 30, 2018
             In the Court of Common Pleas of Montgomery County
                Criminal Division at No: CP-46-CR-0005776-2016


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

OPINION BY STABILE, J.:                                   FILED JULY 06, 2020

        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:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      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.


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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



____________________________________________


1   18 Pa.C.S.A. §§ 2506(a), 2705, 7512(a), and 35 P.S. § 780-113(a)(30).

2   Carpenter v. United States, 138 S.Ct. 2206 (2018).

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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:

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         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

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         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.




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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

____________________________________________


3 As Appellant notes, the trial court did not instruct the jury as to any mens
rea requirement for the second element of Section 2506(a). With respect to
DDRD, the trial court instructed the jury in accordance with the Pa. SSJI
(Crim), § 15.2506 as follows:

       First, that the defendant delivered and/or sold and it’s not
       important, it could be delivery or sale, however it took place, but
       we've been using the term delivery -- a controlled substance to a
       person, in this case Renee Winslow. Second, that the defendant
       did so intentionally; that is, it was his conscious object to deliver
       a controlled substance to Renee Winslow. Third, that the delivery
       or sale was in violation of the Controlled Substances, Drug, Device
       and Cosmetic Act. And again, that’s one of the charges here, that
       it is in violation of the Act. And fourth, that a person has died as
       a result of using the substance. So if you find each of these
       elements beyond a reasonable doubt, you should find the
       defendant guilty. If you do not find each proven beyond a
       reasonable doubt, then you would find the defendant not guilty.

Notes of Testimony, Trial, 7/13/18, at 221-22. The instruction as delivered
did not address mens rea relating to recklessness for the second element of
DDRD, nor does the suggested instruction include any such language.
Appellant’s counsel did not request any additions or corrections to the
instructions. Id. at 232. Consequently, any issues relating to the instruction
are waived. See Pa.R.A.P. 302(a) (issues not raised in the trial court cannot
be raised for the first time on appeal). The jury requested that the charges
be read a second time. The court complied and again delivered the instruction,
in accordance with the suggested standard jury instructions. Id. at 247-48.

Even if Appellant had preserved an objection to the instruction, he would not
be entitled to any relief. See Storey, 167 A.3d at 758 (defendant not entitled
to relief based on lack of “recklessness” instruction on second element of
DDRD, recognizing this Court’s determination that the sale of heroin “satisfies
the reckless element as to the possibility of [buyer’s] death.” Kakhankham,
132 A.3d at 995-96.).



                                           -7-
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person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The

Crimes Code defines “recklessly” as follows:

       A person acts recklessly with respect to a material element of an
       offense when he consciously disregards a substantial and
       unjustifiable risk that the material element exists or will result
       from his conduct. The risk must be of such a nature and degree
       that, considering the nature and intent of the actor’s conduct and
       the circumstances known to him, its disregard involves a gross
       deviation from the standard of conduct that a reasonable person
       would observe in the actor's situation.

18 Pa.C.S.A. § 302(b)(3).4

       Appellant contends that “REAP is a lesser included of [DDRD] because

recklessly brin[g]ing about a person’s death is an element of [DDRD].”

____________________________________________


4 The court delivered the following instruction with respect to REAP, in
accordance with Pa. SSJI (Crim), §15.2705:

       Second, he’s charged with recklessly endangering another person.
       The defendant has been charged with this crime. To find the
       defendant guilty of this offense, you must find that the defendant
       recklessly did something that placed or may have placed Renee
       Winslow in danger of death or serious bodily injury. A person acts
       recklessly with respect to serious bodily injury when he
       consciously ignores a great and unjustified risk that what he is
       doing will cause another person to be seriously injured. The risk
       must be so serious that considering what a defendant did and
       what his intentions were, he acted in a way that would amount to
       a gross deviation from the standard of conduct that a reasonable
       person in his situation would have followed. If after considering
       all the evidence you find the Commonwealth has established
       beyond a reasonable doubt that the defendant's reckless action
       placed Renee Winslow in danger of death or serious injury, you
       should find the defendant guilty of recklessly endangering another
       person. Otherwise, you must find him not guilty.

Notes of Testimony, Trial, 7/13/18, at 222-23.



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Appellant’s Brief at 4 (citing Kakhankham). He contends that our Supreme

Court’s decision in Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005),

requires that Appellant’s DDRD conviction be vacated as a “legally inconsistent

verdict . . . because the acquittal of the lesser crime proves that there was

insufficient evidence to prove each element of the greater crime.” Id. We

cannot agree.

       Appellant relies heavily on Magliocco in support of his contention that

his “inconsistent verdict” cannot stand.         In Magliocco, the defendant was

convicted of ethnic intimidation but was acquitted on a charge of terroristic

threats, a predicate offense for an ethnic intimidation conviction.5 On appeal,

this Court vacated the ethnic intimidation conviction and our Supreme Court

affirmed. Id. at 489-90.

       In Commonwealth v. Miller, 35 A.3d 1206 (Pa. 2012), the Court

reinforced that Magliocco is limited in its application.          In Miller, the

defendant was charged, inter alia, with second-degree murder and with


____________________________________________


5 At the time relevant to the proceedings in Magliocco, the Crimes Code
provided that a person is guilty of ethnic intimidation “if, with malicious
intention toward the race . . . of another individual or group of individuals, he
commits an offense under any other provision of this article or under
Chapter 33 . . . or under section 3503 . . . or under section 5504 . . .
with respect to such individual . . . or with respect to one or more members
of such a group.” 18 Pa.C.S.A. § 2710(a) (emphasis added). “It is undisputed
that the only potentially applicable predicate offense at issue in this case was
Terroristic Threats, 18 Pa.C.S.[A.] § 2706. The trial judge, however, acquitted
Magliocco of that offense, and that acquittal formed the basis for his appellate
challenge to the ethnic intimidation conviction before the Superior Court.”
Magliocco, 883 A.2d at 489 (footnotes omitted).

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robbery, which was the predicate offense for the second-degree murder

charge. A jury found him guilty of second-degree murder but acquitted him

of robbery. He appealed to this Court, claiming the evidence was insufficient

to sustain his second-degree murder conviction because the jury acquitted

him of the predicate offense of robbery.      We reversed, reasoning that the

murder conviction could not stand because acquittal of robbery reflected the

Commonwealth’s failure to prove the defendant killed his victim in the course

of perpetrating a robbery. The Supreme Court granted the Commonwealth’s

petition for allowance of appeal to consider whether “an acquittal on the felony

upon which a second-degree murder charge is predicated necessitate[s]

reversal of the jury’s second degree murder conviction?” Id. at 1208. The

Court noted that “[t]he question before us implicates the general issue of

inconsistent verdicts, which, under longstanding federal and state law, are

allowed to stand so long as the evidence is sufficient to support the

conviction.” Id. (citations omitted).

      The Court held that this Court erred by extending the Supreme Court’s

holding in Magliocco, “which was grounded in the plain text of the ethnic

intimidation statute[.]” Id. at 1212. “Magliocco reflects our conclusion that

the Commonwealth fails to prove an element of the offense of ethnic

intimidation if the factfinder acquits the accused of the predicate offense.” Id.

      Examining the elements of second-degree murder as defined in

18 Pa.C.S.A. § 2502(b), the Court ruled that a second-degree murder


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conviction does not require that the predicate offense was actually completed.

The Court held:

       [I]n contrast to the crime of ethnic intimidation, second-degree
       murder does not require, as an element of the crime, the
       completion of the predicate offense. Thus, Magliocco, which was
       grounded in the delineation of the elements of ethnic intimidation
       set forth in the text of that statute, does not control the outcome
       of the instant case, where a very different statute is at issue.
       Accordingly, relying on the long-standing and well-established
       principle that consistency in a verdict is not required, we hold that
       [Miller’s] acquittal of the predicate offense of robbery does not
       necessitate the vacatur of his conviction of second-degree
       murder. While recognizing that the jury’s verdict appears to be
       inconsistent, we refuse to inquire into or to speculate upon the
       nature of the jury’s deliberations or the rationale behind the jury’s
       decision. Whether the jury’s verdict was the result of mistake,
       compromise, lenity, or any other factor is not a question for this
       Court to review. We affirm that an acquittal cannot be interpreted
       as a specific finding in relation to some of the evidence, and that
       even where two verdicts are logically inconsistent, such
       inconsistency alone cannot be grounds for a new trial or for
       reversal. Furthermore, the “special weight” afforded the fact of
       an acquittal plays no role in the analysis of inconsistent verdicts,
       because, by definition, one of the verdicts will always be an
       acquittal. Magliocco and [Commmonweatlh v. Reed, 9 A.3d
       1138 (Pa. 2010)],6 are distinguished by the plain text of their
       particular governing statutes, which controlled our disposition of
       those cases, but are not generally applicable to other offenses.

Id. at 1213. See also Petteway, supra (no reversible error for inconsistent

verdict where acquitted offense is lesser included of charge for which

defendant is found guilty).




____________________________________________


6 In Reed, the Court considered the effect of an acquittal of an underlying
offense on the grading of a conviction for attempted unlawful contact with a
minor. See Miller, 35 A.3d at 1210-11.

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      Turning to the case before us, in his Rule 1925(b) statement, Appellant

challenged the sufficiency of evidence relating to each of the two elements of

his DDRD conviction. Concise Statement, 4/22/19, at ¶¶ 1-2. However, he

has abandoned his sufficiency challenge regarding the first element, i.e., the

intentional delivery, sale, etc., of a controlled substance.        Instead he

challenges the sufficiency of evidence relating only to the second element,

i.e., that “another person dies as a result of using the substance,” contending

that his DDRD conviction cannot stand in light of his acquittal of REAP. We

disagree. As the trial court explained:

      Acquittal of REAP does not negate the mens rea required for the
      second element of [DDRD]. Rather, it is nothing more than the
      jury’s exercise of leniency. This [c]ourt submits that the sale of
      fentanyl alone is sufficient to establish the reckless mens rea
      required for the second element of [DDRD]. As the Court held in
      Kakhankham, the recklessness mens rea required for the second
      element of [DDRD] is satisfied by the delivery of a drug whose
      dangers are widely known. [Kakhankham, 132 A.3d at 995-96.]
      In the midst of today’s opioid epidemic it is common knowledge
      that fentanyl is particularly deadly. Specifically, the toxicologist
      testified that fentanyl is 40-50 times more potent than heroin and
      100 times more potent than morphine. Tellingly, a little more
      than an hour after delivering the drugs to Ms. Winslow, [Appellant]
      texted her, “U ok?,” indicating he knew the potency of what he
      had given her. Thus, delivering such a substance was inherently
      reckless and the evidence was sufficient to support a conviction
      for [DDRD].

Trial Court Opinion, 8/13/19, at 20.

      In Magliocco, the defendant’s acquittal of terroristic threats required

vacatur of his ethnic intimidation conviction because, under the terms of the

statute, ethnic intimidation required the commission of a predicate offense.


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By contrast, under the term of 18 Pa.C.S.A. § 2506(a), DDRD does not require

that a predicate offense be committed.

      Appellant here received inconsistent verdicts, a result acceptable under

Pennsylvanian law with few, limited exceptions, such as occurred in

Magliocco. Therefore, our inquiry is limited to whether there was sufficient

evidence to sustain his conviction of DDRD.

      “A challenge to the sufficiency of the evidence requires this Court to

determine ‘whether the evidence admitted at trial, and all the reasonable

inferences derived therefrom viewed in favor of the Commonwealth as verdict

winner, supports the jury’s finding of all the elements of the offense beyond a

reasonable doubt.’” Commonwealth v. Peck, 202 A.3d 739, 743 (Pa. Super.

2019), appeal granted on other grounds, 218 A.3d 374 (Pa. 2019) (quoting

Commonwealth v. Packer, 168 A.3d 163 n.3 (Pa. 2017) (citation and

quotation marks omitted). Again, 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.”

Kakhankham, 132 A.3d at 991-92.

      Based on our review of the record, we agree with the trial court that the

evidence was indeed sufficient. The evidence demonstrated that Appellant

intentionally delivered a controlled substance, fentanyl, to Ms. Winslow, that

fentanyl caused her death, and that her death was the reckless result of


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Appellant’s actions. See Carr, supra, 227 A.3d at 16-17 (“the crime is an

intentional act in providing contraband, with a reckless disregard of death from

the use of the contraband”); See also Storey, 167 A.3d at 758 (evidence

that defendant intentionally sold heroin to victim, that heroin caused the

victim’s death, and that defendant’s conduct in causing the victim’s death was

reckless, was sufficient to prove DDRD) and Peck, 202 A.3d at 745 (same).

Appellant’s first issue fails.

      In his second issue, Appellant contends the trial court erred in denying

his supplemental motion to suppress CSLI, i.e., cell-site location information.

As our Supreme Court instructed in Commonwealth v. Jones, 988 A.2d 649

(Pa. 2010):

      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.
      Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842
      (2003). 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.” Commonwealth v.
      Mistler, 590 Pa. 390, 912 A.2d 1265, 1269 (2006) (quoting
      Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 881
      (1998)). Thus, the conclusions of law of the courts below are
      subject to our plenary review. Mistler, supra; Commonwealth
      v. Morley, 545 Pa. 420, 681 A.2d 1254, 1256 n. 2 (1996).

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Id. at 654.

       At issue here is the CSLI the Commonwealth initially obtained under the

Pennsylvania Wiretap Act.         18 Pa.C.S.A. §§ 5701-5782.    Appellant filed a

motion to suppress, claiming material misrepresentation in the information

provided in the affidavit in support. Essentially, Appellant argued that the

affidavit referred to “purported heroin” whereas there was no mention of any

drug by name in the text messages between Appellant and Ms. Winslow. 7 The

motion was denied.

       On June 22, 2018, approximately three weeks before this case

proceeded to trial, the United States Supreme Court issued its decision in

Carpenter v. United States, 138 S.Ct. 2206 (2018), holding that obtaining

CSLI constituted a search requiring a search warrant.          Consequently, the

Commonwealth sought and obtained a search warrant to obtain the CSLI to

conform to the Supreme Court’s mandate in Carpenter, invoking the

independent source doctrine.

       Quoting Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012), the

trial court explained:

       Under [the independent source doctrine], evidence tainted by
       illegal police conduct (such as an unlawful seizure) nevertheless
       may be admitted into evidence if the evidence can be fairly
       regarded as having an origin independent of the unlawful conduct.
       Pursuant to the doctrine as it subsequently evolved in
____________________________________________


7Testing revealed that the drug delivered and/or sold to Ms. Winslow by
Appellant was actually fentanyl rather than heroin.

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      Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226
      (1995), the independent source is to be “truly independent from
      both the tainted evidence and the police or investigative team
      which engaged in the misconduct by which the tainted evidence
      was discovered.” Id. at 334, 676 A.2d at 231[.]

Trial Court Opinion, 8/13/19, at 8-9 (quoting Henderson, 47 A.3d at 798-99

(additional citation omitted) (emphasis in original)).

      In Henderson, there were concerns relating to the probable cause

supporting a warrant obtained by a member of the police sexual assault unit

in a rape-kidnapping case. As a result, the prosecution sought to secure a

second warrant, invoking the independent source rule. Another member of

the same police sexual assault unit was tasked with undertaking a probable

cause investigation to support a second search warrant.          The detective’s

investigation included speaking with the detective who secured the original

warrant as well as, inter alia, a review of the case file and the victim’s medical

records. The detective then applied for and secured a second warrant that

was used to secure an additional blood sample from the defendant.

      The Supreme Court ruled that suppression of evidence obtained with the

second warrant was not required, explaining that the Court was “unwilling to

enforce a ‘true independence’ rule in absence of police misconduct and on pain

of the Commonwealth being forever barred from obtaining non-evanescent

evidence connecting [the defendant] with his crimes.” Henderson, 47 A.3d

at 804.   The Court limited “the independent police team requirement to




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situations in which the rule prevents police from exploiting the fruits of their

own willful misconduct.” Id. at 805.

      At the July 10, 2018 hearing on Appellant’s supplemental suppression

motion, Detective James Lavin testified that he was contacted by the DA’s

office and was asked to obtain a search warrant for Appellant’s cell phone

records. Detective Lavin reviewed various records and a surveillance video

from Ms. Winslow’s apartment but did not review the call detail records

obtained under the Wiretap Act. He did review the affidavit supporting the

application under the Wiretap Act but did not speak with the affiant officer.

He did acknowledge having spoken with that officer in passing in 2016. “No

information obtained from the call detailed records, as obtained pursuant to

the Wiretap Act, was included in the subsequent affidavit of probable cause

prepared by Det. Lavin.” Trial Court Opinion, 8/13/19, at 9.

      At the conclusion of the hearing, the court denied the suppression

motion, finding Detective Lavin was an independent source based on the

testimony presented at the hearing and a review of exhibits. The court noted

the unusual circumstances, particularly the timing of the Supreme Court’s

Carpenter decision.     That decision necessitated that the Commonwealth

establish the existence of an independent source to support issuance of a

warrant so it could obtain information it had previously properly obtained

under the Wiretap Act. Id. at 10-11 (citing Notes of Testimony, Suppression




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Hearing, 7/10/18, at 83-86).8             In addition, the court “denied, again,”

Appellant’s claim of a material misstatement in the initial warrant application.

Id. at 12.

       We conclude that the suppression court’s findings of fact are supported

by the record and that its legal conclusions drawn from those facts are correct.

The warrant was required in the instant case, not because of any police

misconduct, but rather because Carpenter announced a requirement for a

search warrant to obtain cell phone information that was previously obtainable

under the Wiretap Act. Therefore, we shall not disturb the court’s denial of

either Appellant’s original or supplemental motion to suppress. Appellant’s

second issue does not afford him relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/20




____________________________________________


8 We note that this Court, on January 24, 2020, held that court orders used
to obtain real-time CSLI constituted warrants issued in compliance with the
Fourth Amendment. Commonwealth v. Pacheco, --- A.3d ---, 2020 PA
Super 14 (filed 1/24/20). A petition for allowance of appeal is pending at 79
MAL 2020 (filed 2/24/20).

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