J-S37029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAFENUS L. BURTON,                         :
                                               :
                       Appellant.              :   No. 1874 EDA 2018


         Appeal from the Judgment of Sentence Entered, May 31, 2018,
              in the Court of Common Pleas of Delaware County,
             Criminal Division at No(s): CP-23-CR-0004259-2016.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 28, 2019

        Lafenus L. Burton appeals from the judgment of sentence, imposing an

aggregate of five-and-half to eleven years’ incarceration. A jury convicted

him of conspiracy to possess cocaine with intent to deliver and possession of

cocaine.1    Burton says police violated his constitutional rights when they

searched his minivan and seized the drugs inside it. Thus, he contends the

court of common pleas should have suppressed the Commonwealth’s physical

evidence against him. Burton also asserts the evidence at trial was insufficient

to convict him of either crime. As we explain, no appellate relief is due, and

we affirm.

        Burton and his 13 co-defendants ran an elaborate scheme to distribute

cocaine in 2015.      To dismantle their criminal enterprise, the Pennsylvania
____________________________________________


1   18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(16).
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State Police and local officers conducted numerous controlled buys and video

surveillance   throughout    Delaware    County,    including   outside   Burton’s

residence. Investigators also obtained six wiretap orders from this Court, and

a judge of the court of common pleas issued various search warrants. Police

intercepted and transcribed phone calls and text messages from, to, and

between the drug dealers numbering in the thousands.

      A camera police positioned outside Burton’s home recorded him driving

a green, Chrysler Town & Country minivan.          The investigators eventually

obtained a search warrant for his residence. Among other things, the trial

judge who signed that warrant authorized police to search for and to seize

“indicia of . . . ownership of the . . . vehicle(s) described herein, including but

not limited to . . . keys.” Attachment “A” to Search Warrant at No. X53-0051-

B, Burton’s Motion to Suppress Evidence, 9/19/16.

      When they executed the search warrant, officers uncovered no drugs.

Instead, they found $2,000 in a safe and $800 in the pocket of a pair of pants

next to Burton’s bed. Also, in the pants were car keys to his Town & Country

minivan. The police took those keys, located the vehicle on the street outside,

unlocked it, and drove the minivan back to the barracks. Police then obtained

a warrant to search it. Inside they uncovered Burton’s expired driver’s license,

a vehicle registration in Burton’s name, 10 bags of cocaine totaling 87 grams,

and a substance commonly used to “cut” (i.e., dilute) cocaine for retail sale.

      Law enforcement arrested Burton and his co-conspirators. Burton filed

a motion to suppress the evidence. The court of common pleas denied the

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motion, and the case proceeded to a jury trial. The jury convicted Burton,

and the trial court sentenced him as previously described. This timely appeal

followed.2

          Burton raises three claims of error, which we have reordered to accord

with this Court’s penchant for addressing sufficiency-of-the-evidence claims

first:3

            A.    Whether the trial court erred in denying [his] oral
                  motion for judgment of acquittal, and therefore the
                  sufficiency of the evidence for the convictions of
                  conspiracy to [possess] controlled substance with the
                  intent to deliver and possession of a controlled
                  substance, when the Commonwealth did not present
                  any testimony or evidence that [Burton] knowingly or
                  intentionally possessed a controlled substance or that
                  [he] was in a conspiracy with another person to
                  commit the crime of delivery of a controlled
                  substance.

            B.    Whether the trial court erred in denying [his] motion
                  to suppress evidence when there was false or
                  misleading statements in the affidavit of probable
                  cause of the search warrant for the minivan . . . .

            C.    Whether the trial court erred in denying [his] motion
                  to suppress evidence when the minivan key, and the
                  minivan itself, were not listed in the application for

____________________________________________


2Both Burton and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

3 See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (en
banc) (citing dicta from Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super.
2011) and elevating it into a “best practice” by stating, “Because a successful
sufficiency of the evidence claim warrants discharge on the pertinent crime,
we must address this issue first.”).



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                 search warrant of [Burton’s home], and both [were]
                 seized without a warrant . . . .

Burton’s Brief at 1-2.

A.      Sufficient Evidence Supports Burton’s Criminal Convictions.

        Burton challenges the evidence against him. He claims that it is legally

insufficient to support his convictions of (1) conspiracy to possess cocaine with

intent to deliver and (2) possession of cocaine.4       The learned trial court

authored an expansive, detailed, and well-reasoned opinion in support of its

refusal to overturn the jury’s verdicts of guilty.

        That court described the elements and the evidence of Burton’s two

crimes as follows:

           [First, p]ursuant to 18 Pa. C.S.A. § 903: A person is guilty
           of conspiracy with another person or persons to commit a
           crime if with the intent of promoting or facilitating its
           commission he:

              (1) agrees with such other person or persons that they
              or one or more of them will engage in conduct which
____________________________________________


4   Our scope and standard of review are clear:

           Challenges to the sufficiency of the evidence are governed
           by our familiar and well-established standard of review. We
           consider the evidence presented at trial de novo. We are
           obliged to evaluate that evidence in the light most favorable
           to the Commonwealth, as the verdict winner, and we draw
           all reasonable inferences therefrom in the Commonwealth’s
           favor. Through this lens, we must ascertain whether the
           Commonwealth proved all of the elements of the crime at
           issue beyond a reasonable doubt. This is a question of law.
           Our scope of review is plenary.

Commonwealth v. Chambers, 188 A.3d 400, 409 (Pa. 2018) (citations
omitted).

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          constitutes such crime or an attempt or solicitation to
          commit such crime; or

          (2) agrees to aid such other person or persons in the
          planning or commission of such crime or of an attempt
          or solicitation to commit such crime.

       [18 Pa. C.S.A. § 903.]

               The [trial] testimony clearly demonstrates that the
       surveillance and investigation into the drug-trafficking ring
       . . . was not just a one-day investigation; rather, a concerted
       and intensive effort by several, law-enforcement
       departments, which included undercover surveillance,
       confidential informants, wiretap applications, listening to
       thousands of phone calls, applying for and serving search
       warrants, as well as numerous meetings and briefings about
       the key players in the trafficking ring. Sergeant Skahill’s
       interpretation of the phone calls between Townsend and
       [Burton] were not based upon a hunch. The interpretations
       were based upon years of experience and training in
       undercover, drug-trafficking investigations on a broader
       scale, as well as on an intimate level with this investigation,
       becoming familiar with Townsend and his distributors, the
       interworking of their business, actions, and lingo. Sergeant
       Skahill knew the days and times Townsend received
       cocaine; he knew the slang which the group used to relay
       when they needed product and when they had the money
       to [give] Townsend back.

              Sergeant Skahill testified that the most common
       exchange for drugs is money, particularly cash, and
       [Burton] had several stashes of large quantities of cash,
       hidden all over his house. The calls themselves paint the
       picture.   When [Burton] needed supply he would call
       Townsend, Townsend would retrieve it for him, and call him
       back when it was secured. In addition, Sergeant Skahill
       knew that Townsend’s practice was to front the drugs to his
       distributors, who then paid him back after the product was
       sold, further supported by [Burton] on the phone calls,
       telling Townsend that he is good and that he is ready for
       him to come pick up the cash.         All of the evidence
       unequivocally demonstrates that [Burton], agreed with
       another person, namely his brother, Townsend, that they



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       would engage in conduct which constituted the crime of
       delivering cocaine, a controlled substance.

       [Second, pursuant] to 35 P.S. § 780-113(a)(16): The
       following acts and the causing thereof within the
       Commonwealth are hereby prohibited:            Knowingly or
       intentionally possessing a controlled or counterfeit
       substance by a person not registered under this act, or a
       practitioner not registered or licensed by the appropriate
       State board, unless the substance was obtained directly
       from, or pursuant to, a valid prescription order or order of a
       practitioner, or except as otherwise authorized by this act.

             “Possession can be found by proving actual
       possession, constructive possession, or joint constructive
       possession. Where a defendant is not in actual possession
       of the prohibited items, the Commonwealth must establish
       that the defendant had constructive possession to support
       the conviction. Constructive possession is a legal fiction, a
       pragmatic construct to deal with the realities of criminal law
       enforcement. We have defined constructive possession as
       conscious dominion, meaning that the defendant has the
       power to control the contraband and the intent to exercise
       that control.    To aid application, we have held that
       constructive possession may be established by the totality
       of the circumstances.” Commonwealth v. Parrish, 191
       A.3d 31, 37 (Pa. Super. 2018). “In other words, the
       Commonwealth must establish facts from which the trier of
       fact can reasonably infer that the defendant exercised
       dominion and control over the contraband at issue.” Id.,
       191 A.3d at 38.

             The evidence presented by the Commonwealth at trial
       was sufficient to establish that [Burton] knowingly or
       intentionally possessed, cocaine, a controlled substance.
       [He] admitted during his own testimony that the keys
       located in his pocket on the day of the search warrant
       execution were his; those keys were the keys to the
       Chrysler minivan that was parked right across the street
       from his house and the same exact minivan and plate
       number as the one both Officer Donohue and Chief Nolan
       would see [Burton] driving around Chester during their
       everyday routine patrols.




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               Located inside [Burton’s] vehicle were numerous
         items that had [his] name on them; including his wallet
         containing his license and the car registration. Perhaps,
         even more telling were documents such as rental car
         agreements and bills, documents that could only be left in
         the car by [Burton, whose] own testimony about owning the
         car but lending it out was incredible and riddled with
         contradictions. In addition, Sergeant Skahill explained the
         reasoning behind storing the drugs in the vehicle rather than
         in [Burton’s] home or on his person. Keeping the drugs
         close by allowed [him] to have constructive possession over
         the drugs, i.e., the ability to exercise dominion and control
         over the drugs whenever he needed to make a sale.

Trial Court Opinion, 11/29/18, at 19-21.

      We agree with the trial court and adopt its analysis of the sufficiency

issue as our own. The evidence of Burton’s guilt of the two offenses for which

the jury convicted him is overwhelming.

B.    Burton Waived His Attack upon the Affidavit of Probable Cause.

      Burton also argues the court of common pleas should have suppressed

the Commonwealth’s evidence, because police provided the judge who issued

a search warrant for his minivan with false and misleading information in their

affidavit of probable cause. Throughout his argument, Burton heavily relies

upon Trooper Stienmetz’s suppression and trial testimony about the affidavit

of probable cause. However, Burton never cites to the actual affidavit.

      The Commonwealth suggests this is due to Burton’s failure to make the

affidavit a part of the appellate record. See Commonwealth’s Brief at 6 n.2,

8 n.3. It argues the affidavit’s absence causes waiver. Id. at 11.

      We agree. It is well-settled that “the ultimate responsibility of ensuring

that the transmitted record is complete rests squarely upon the appellant and

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not upon the appellate courts.” Commonwealth v. Preston, 904 A.2d 1, 7

(Pa. Super. 2006) (en banc) (citing Pa.R.A.P. 1931). If an appellant does not

include the evidence supporting an appellate issue in the certified record, that

appellate issue “must be deemed waived for the purpose of appellate review.”

Id.

      Here, Burton asks us to review the affidavit of probable cause that the

police used to obtain a search warrant for his minivan. That affidavit was his

only exhibit at the suppression hearing. Yet, on appeal, he has not provided

us with it – the language of which is the basis for his claim of error.

      When police have obtained a warrant, the suppression court’s scope of

review is limited to the affidavit of probable cause. If a defendant seeks to

suppress “evidence obtained pursuant to a search warrant, no evidence shall

be admissible [in the suppression court] to establish probable cause other

than the affidavits . . . .” Pa.R.Crim.P. 203(D). And, when the Commonwealth

wins the suppression hearing, our scope or review of that hearing is limited to

“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.” Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011),

affirmed, 78 A.3d 1044 (Pa. 2013).

      Because the Commonwealth had to confine its case to the four corners

of the affidavit, that affidavit is invaluable to our appellate review. Without it,

none of the Commonwealth’s evidence (or the suppression court’s basis for its

findings of fact) is of record. The only evidence of record remaining within

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our scope of review is the uncontradicted evidence that Burton, the losing

party, offered. Lacking the affidavit, we cannot differentiate between Burton’s

uncontradicted and contradicted evidence.

       Thus, he has placed us in a quandary.5         Burton’s omission of the

Commonwealth’s evidence (the affidavit) from the certified record has crippled

our ability to review this claim of error. We cannot review the allegedly false

and misleading language of an affidavit we do not possess.

       Under Preston, supra, we must dismiss this issue as waived.

C.     The Seizure of Burton’s Minivan Key and Minivan Was Constitutional.

       As his final, appellate issue, Burton challenges the seizure of the minivan

keys from his pants’ pocket and the seizure of his minivan without a search

warrant for the vehicle. He argues that the police did not list the minivan’s

keys as a target of their search warrant; thus, he claims they had no right to

take them.     Similarly, he asserts that, because the minivan was parked a

hundred feet away from the house, the investigators had no search warrant

to enter or to seize it.

____________________________________________


5 This Court’s staff contacted the court of common pleas to ensure that the
affidavit was not missing due to an inadvertent, ministerial error of record
keeping. The law clerk to the judicial officer who heard the suppression
hearing informed us that the “affidavit/application for a search warrant for the
Butler Street residence” was not in the trial judge’s chambers. August 19,
2019 E-mail of Rachael L. Kemmey, Esq., Law Clerk to John P. Capuzzi, J.
(C.C.P. Delaware) to Appellate Counsel and Superior Court Staff. Therefore,
we conclude that only Burton’s failure to ensure the recordation of the affidavit
caused the gap in the appellate record, rather than any “breakdown in the
processes of the court” that we could rectify under Rule of Appellate Procedure
1926(b).

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       Burton does not challenge the issuing authority’s finding that probable

cause existed for the police to conduct the search of Burton’s home. Instead,

he challenges the officers’ actions in executing the search warrant. We are

therefore reviewing the suppression court’s opinion of those police actions.

       Accordingly, our scope of review shifts from the affidavit of probable

cause to the factual findings of the suppression court. We “determine whether

[those] factual findings are supported by the record. If so, we are bound by

those findings.” Commonwealth v. Howard, 762 A.2d 360, 361 (Pa. Super.

2000). Our scope of review is not plenary; we “are limited to considering only

the evidence of the prevailing party, and so much of the evidence of the non-

prevailing party as remains uncontradicted when read in the context of the

record as a whole.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). Also, we may

“not simply comb through the record to find evidence favorable to a particular

ruling. Rather, [we must] look to the specific findings of fact made by the

suppression court,” based upon the record that was developed in the

suppression court.6 Id. at 1085.

       Our standard of review for a suppression court’s factual findings remains

deferential, while our standard for reviewing its legal conclusions reaches the

zenith. As the Supreme Court of Pennsylvania has stated:


____________________________________________


6 Thus, the Commonwealth’s citation to and reliance upon the November 24,
2018 trial transcript for the proposition that Burton disowned the keys and the
minivan is misplaced. See Commonwealth’s Brief at 13 n.8. That testimony
is outside our scope of review.

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         When we state that part of our “task” is to determine
         whether the record supports the suppression court’s factual
         findings, this is another way of expressing that our standard
         of review is highly deferential with respect to the
         suppression court’s factual findings and credibility
         determinations. In other words, if the record supports the
         suppression court’s findings, we may not substitute our own
         findings. In stark contrast, our standard of review of the
         suppression court’s legal conclusions is de novo: appellate
         courts give no deference to the suppression court’s legal
         conclusions.

Id. at 1080 n.6. (some punctuation and citations omitted).

      Under both the federal and state constitutions, search warrants must

particularly describe the items to be seized under their terms. For example,

Article I, § 8 of the Constitution of the Commonwealth of Pennsylvania

provides:

         The people shall be secure in their persons, houses, papers
         and possessions from unreasonable searches and seizures,
         and no warrant to search any place or to seize any person
         or things shall issue without describing them as nearly
         as may be, nor without probable cause, supported by oath
         or affirmation subscribed to by the affiant.

Id. (emphasis added).

      Burton claims his minivan keys were not listed in the search warrant for

his residence. He is incorrect. The search warrant listed vehicle keys as one

of the items for the police to search for and to seize. The warrant authorized

the police to seize any “indicia of . . . ownership of the . . . vehicle(s) described

herein, including but not limited to . . . keys.”      Attachment “A” to Search

Warrant at No. X53-0051-B, Burton’s Motion to Suppress Evidence, 9/19/16.




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We therefore conclude that the minivan keys were permissibly seized under

the terms of the search warrant for Burton’s home.

      He also claims that his Town & Country Minivan did not appear in that

search warrant. While this is true, its absence from the warrant does not end

our inquiry.

      Police may seize a person’s property without a warrant if an exception

to the warrant requirement exists. “A search conducted without a warrant is

deemed to be unreasonable and therefore constitutionally impermissible,

unless an established exception applies.” Commonwealth v. Romero, 183

A.3d 364, 396 (Pa. 2018). One such exception to the warrant requirement is

the automobile exception. See Commonwealth v. Gary, 91 A.3d 102 (Pa.

2014) (adopting the federal automobile exception under Art. I, § 8 of the

Constitution of the Commonwealth of Pennsylvania).         Thus, we have said,

“where police possess probable cause to search a car, a warrantless search is

permissible.” In re I.M.S., 124 A.3d 311, 317 (Pa. Super. 2015).

      Moreover, when investigators have probable cause to undertake a

warrantless search of an automobile, they simultaneously have constitutional

justification to seize it and search it afterwards. “For constitutional purposes,

we see no difference between on the one hand seizing and holding a car before

presenting the probable cause issue to a magistrate and on the other hand

carrying out an immediate search without a warrant. Given probable cause

to search, either course is reasonable under the Fourth Amendment.”

Chambers v. Maroney, 399 U.S. 42, 52 (1970); see also Commonwealth

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v. Holzer, 389 A.2d 101 (Pa. 1978) (applying Chambers under Pennsylvania

law). Hence, Burton’s fixation upon the minivan’s absence from the search

warrant is misplaced. That fact, standing alone, is an incomplete basis for this

Court to reverse the suppression court’s order, because the seizure of the

vehicle was permissible without a warrant.7

       As the Supreme Court of Pennsylvania held in Holzer:

          in considering the reasonableness of a given search or
          seizure of an automobile, the need for a warrant is often
          excused by exigent circumstances. The reasons are two-
          fold. First, a vehicle is highly mobile and the likelihood is
          therefore great that it and its contents may never be found
          if police were prohibited from immobilizing it until a warrant
          can be secured. Commonwealth v. Smith, 452 Pa. 1, 7,
          304 A.2d 456, 459 (1973), quoting Chambers v. Maroney,
          399 U.S. 42, 57, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

                Second, one’s expectation of privacy with respect to
          an automobile is significantly less than that relating to one’s
          home or office . . . Further, where the alleged illegal activity
          does not invade the interior of the car, the chances are even
          greater that no expectation of privacy has been infringed.

                It is reasonable, therefore, for constitutional
          purposes, for police to seize and hold a car until a search
          warrant can be obtained, where the seizure occurs after the
          user or owner has been placed into custody, where the
          vehicle is located on public property, and where there exists
          probable cause to believe that evidence of the commission
          of a crime will be obtained from the vehicle. Cardwell v.
          Lewis, 417 U.S. 583, 593-94, 94 S.Ct. 2464, 41 L.Ed.2d
          325 (1974); Chambers v. Maroney, supra 399 U.S. at 52,
          90 S.Ct. 1975.
____________________________________________


7 We also note that Burton does not contend that the police lacked probable
cause to seize his vehicle, and we may not supply him with such an argument.
“When an appellant’s argument is underdeveloped, we may not supply [him]
with a better one.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875,
884 (Pa. Super. 2019).

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Holzer, 389 A.2d at 106–07.

      In the present case, the conduct of the police was reasonable. Burton

was under an extensive investigation (along with family members and other

suspects) for drug trafficking. The police executed a valid search warrant for

his home and, in the process, discovered the keys to the Town and Country

Minivan they had observed him driving to and from the residence.

      Burton had parked his minivan on a public street. He or any one of his

alleged co-conspirators was still at large, and his family lived in the vicinity.

Thus, if Burton had a spare key for the minivan, he could have easily driven

the vehicle away while the police went to obtain a search warrant for it. Or

he or one his suspected co-conspirators could have had the minivan towed

away or cleaned it out, while police applied for a search warrant and met with

a magistrate. Finally, the police protected Burton’s right of privacy under both

constitutions, because, when they seized the minivan, investigators refrained

from searching it until after convincing a neutral magistrate that the search

was justified with probable cause and obtaining a search warrant. Thus, as in

Holzer, “[t]he warrantless seizure of the automobile was proper, as was the

trial court’s denial of the motion to suppress.” Id., 389 A.2d at 107.

      In sum, none of Burton’s three issues warrants relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/19




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