J-S54036-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                     v.

COREY MCCULLOUGH

                           Appellant                    No. 1642 MDA 2013


          Appeal from the Judgment of Sentence January 27, 2012
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0003154-2010


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

DISSENTING MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 09, 2014

      I respectfully dissent.    While we applaud local law enforcement for

their efforts to keep illegal drugs off of our streets, in this particular case the

police short-circuited the proper avenues to establish probable cause to

arrest.   As a result, the Commonwealth failed to prove that McCullough

committed the      crime    of attempt to     deliver   a controlled substance.

Accordingly, his convictions are infirm and should be reversed.

      Instantly, a jury convicted McCullough of possession with intent to

deliver, attempt to deliver a controlled substance, and criminal use of a

communication facility. Criminal use of a communication facility is defined

as:
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        A person commits a felony of the third degree if that
        person uses a communication facility1 to commit, cause or
        facilitate the commission or the attempt thereof of any
        crime which constitutes a felony under this title or under the
        act of April 14, 1972 (P.L.233, No.64), known as The Controlled
        Substance, Drug, Device and Cosmetic Act.

18 Pa.C.S. § 7512(a) (emphasis added). Notably, if the underlying felony or

the attempt of the underlying felony never occurs, then a defendant has

facilitated        nothing    and    cannot      be    convicted   under     section    7512.

Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004); 18 Pa.C.S. §

7512.

        The majority concludes that the police lawfully arrested McCullough

without a warrant based on the fact that he “allegedly commit[ed] several

felonies.” Majority Opinion, at 6. Specifically, the majority supports the trial

court’s decision to deny suppression and affirm McCullough’s convictions for

attempt       to    deliver   a     controlled    substance      and   criminal   use   of   a

communication facility based on the following facts:                      (1) Officer Gula’s

experience in investigating drug trafficking; (2) McCullough and Gula’s

conversations         about    exchanging        cocaine   for   money;    and    (3)   police


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1
  Here, a cell phone was the instrument deemed to be a communication
facility under section 7215(a). See 18 Pa.C.S. § 7512(c) (“communication
facility” is defined as “[a] public or private instrumentality used or useful in
the transmission of signs, signals, writing, images, sounds, data or
intelligence of any nature transmitted in whole or in part, including [] . . .
[a] telephone.”) (emphasis added).




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knowledge that McCullough had been arrested in the past for drug dealing.

Id. at 7.

      Probable cause to arrest exists “when the facts and circumstances

within the police officer's knowledge and of which the officer has reasonably

trustworthy information are sufficient in themselves to warrant a person of

reasonable caution in the belief that an offense has been committed by the

person to be arrested." Commonwealth v. Williams, 941 A.2d 14, 27 (Pa.

Super. 2008).     Here, the facts were insufficient to lead Officer Gula to

reasonably believe that an offense had been or was being committed in his

presence.

      “A person commits the crime of attempt, when with intent to commit a

specific crime, he does any act which constitutes a substantial step toward

commission of that crime.” 18 Pa.C.S. § 901(a). The inquiry into whether

“a substantial step” has been taken focuses on the acts the defendant has

done and not the acts that remain for the defendant to actually commit the

crime.      See Commonwealth v. Zingarelli, 839 A.2d 1064, 1069 (Pa.

Super. 2003) (defendant committed crime of attempt of IDSI and statutory

sexual assault where he made following substantial steps: (1) made hotel

reservation pursuant to conversation with undercover officer posing as

young girl; (2) packed an overnight bag; (3) drove two and one half hours

to arranged meeting site at arranged time; and (4) purchased wine and

condoms); Commonwealth v. Gilliam, 417 A.2d 1203 (Pa. Super 1980);


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(inmate guilty of attempt to escape where he committed following acts

constituting    substantial    steps:        (1)   manufactured      and   assembled

paraphernalia necessary to effectuate escape and (2) sawed through bars in

cell window); see also Commonwealth v. McCauley, 797 A.2d 920 (Pa.

Super. 2001) (defendant convicted of attempt to acquire a controlled

substance by fraud, forgery, deception or subterfuge where he presented

forged subscription to pharmacist and then attempted to leave store, when

he was apprehended).

      Delivery of a controlled substance is prohibited under section 780-113

of the Controlled Substance, Drug, Device and Cosmetic Act (the Act). See

35 P.S. § 780-113(a)(1) (“The following acts and the causing thereof within

the Commonwealth are hereby prohibited:                The manufacture, sale or

delivery, holding, offering for sale, or possession of any controlled

substance,     other   drug,   device   or    cosmetic   that   is   adulterated   or

misbranded.”).    Moreover, the term “delivery” is defined under the Act as

“[t]he actual, constructive, or attempted transfer from one person to

another of a controlled substance, other drug, device or cosmetic whether or

not there is an agency relationship.”          35 P.S. § 780-102.      Some factors

which may be used to infer intent to deliver are: manner in which substance

packaged; presence of drug paraphernalia; large sums of cash found on

defendant; and behavior of the defendant.            Commonwealth v. Ramos,

573 A.2d 1027 (Pa. Super. 1990).


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      Here, McCullough failed to take a substantial step toward committing

the crime of delivery of a controlled substance. Specifically, there was a lack

of evidence to conclude that Officer Gula reasonably believed that

McCullough was attempting to transfer drugs to Officer Gula immediately

preceding his arrest.    At most, Officer Gula was able to assume that the

man, “Cory,” with whom he had had several cell phone conversations about

buying ½ ounce of cocaine in exchange for $840.00, was the same individual

in the maroon Buick whom he followed to Cusick Avenue. Even considering

the content of their prior cell phone conversations, Officer Gula had no way

of knowing that the individual who exited the maroon Buick was in fact the

same person he discussed buying drugs from until that individual took some

substantial step toward delivering drugs to him.        See Commonwealth v.

Moss, 852 A.2d 374 (Pa. Super. 2004) (Commonwealth may not obtain

conviction under section 7512 for attempt to deliver drugs based solely on

evidence that defendant engaged in drug-related telephone conversations

with known drug trafficker).

      Essentially, the police jumped the gun in this case.           Without any

additional evidence to show that McCullough made a “substantial step” in

delivering the cocaine to Officer Gula, there was no probable cause to arrest

him   for   attempt     to   deliver   a   controlled   substance.     Compare

Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. 2008) (conviction for

attempt to deliver affirmed on appeal where defendant exhibited suspicious


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gestures and movements in officer’s presence, officer testified size, shape,

color and packaging of substance on defendant’s person was consistent with

crack cocaine, and defendant admitted substance looked like cocaine and

that he planned to knowingly sell substance to support drug addiction). As a

result, no attempt at the underlying felony occurred to support McCullough’s

conviction for use of a communication facility.             18 Pa.C.S. § 7512.

Therefore, Officer Gula did not have probable cause to arrest McCullough,

and any drugs uncovered from his arrest and subsequent search of the car

should have been suppressed.               Because the suppression court’s legal

conclusions are not supported by the facts of record, the court erred in

denying McCullough’s suppression motion.            Accordingly, I would reverse.

Commonwealth v. Taggart, 997 A.2d 1189, 1193 (Pa. Super. 2010).2




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2
  However, if McCullough’s convictions were not infirm, I agree with the
majority that the imposition of the mandatory sentencing provision of
section 7508 violated the rule in Apprendi as interpreted by Alleyne.



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