J-S58026-16

* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARCIAL ANTON COOPER, II

Appellant No. 244 MDA 2016

Appeal from the Judgment of Sentence February 4, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0001419-2015

BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2016

Marcial Anton Cooper, II appeals from the judgment of sentence 

imposed following his conviction for the sole count of delivery of a controlled 

substance. We affirm. 

The following facts were adduced at trial. Trooper Noel Velez, a 

member of the Vice Unit of Pennsylvania State Police Troop J, utilized a 

female confidential informant (hereinafter “CI”), to arrange for the purchase 

of an ounce of cocaine. N.T., 12/14/15, at 63. The operation was

conducted on January 31, 2013, at approximately 5:00 p.m. Id. at 95. On 

that date, the CI informed Trooper Velez that an individual known to the CI 

only as “Juan” agreed to sell her cocaine in a Wal-Mart parking lot. Id. at 

67. Trooper Velez, along with Corporal John Comerford, proceeded to the 
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area. The CI, who was driving her own vehicle, met the officers in a parking 

lot across from the Wal-Mart. Trooper Velez conducted the controlled buy 

procedure and gave the CI $800. She then proceeded to the Wal-mart 

parking lot. Id. at 71.

Trooper Velez followed the CI’s vehicle and maintained visual contact. 

He observed her vehicle as she parked next to a silver, four-door vehicle. 

The officer parked where he could see through the target vehicle’s 

windshield. The CI exited her vehicle, approached the silver car, and 

entered the passenger seat. Trooper Velez observed the CI and the driver, 

later identified as Appellant, having a brief conversation. Appellant and the 

CI exchanged unidentified items. Id. at 67-69.

Following the transaction, the CI returned to her vehicle and Appellant 

immediately exited the parking lot. Trooper Velez wrote down the license 

plate and contacted Corporal Comerford, who was in a separate vehicle and 

parked nearby. Id. at 70-71; 109. He related everything he had just 

observed, and described Appellant’s vehicle and its license plate. Id. at 70-

71. The corporal began to follow Appellant’s vehicle and the two cars 

merged onto a highway.

Meanwhile, the CI returned to the original meeting location across the 

street. She handed Trooper Velez a plastic bag of white powder, which was 

determined to contain 28.7 grams of cocaine. Id. at 135. 
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Since the authorities did not know Appellant’s name, Trooper Travis 

Martin, who was part of the police operation and waiting on the highway, 

was instructed to stop the vehicle. Following the drug sale, Corporal 

Comerford called Trooper Martin and told him the sale had been completed, 

and described the seller’s vehicle, including its license plate number. 

Trooper Martin stopped the vehicle, obtained Appellant’s driver’s license and 

information, and allowed him to leave. Id. at 127-129. The plan was to 

continue the investigation, but the CI was unable to make further contact 

with Appellant. Id. at 78.

On December 14, 2015, Appellant was found guilty of delivery of a 

controlled substance. He was sentenced on February 4, 2016, to a period of 

one year less one day to two years less one day incarceration. Appellant 

timely filed a notice of appeal, and complied with the trial court’s order to 

prepare a Pa.R.A.P. 1925(b) statement. The trial court issued an opinion on 

April 5, 2016. The matter is now ready for our review. Appellant raises two 

issues for our consideration. 

I. Whether the trial court erred in denying Appellant's motion 

to suppress the identification of the Appellant following a traffic 

stop conducted by Trooper Martin as the Commonwealth failed 

to offer evidence at the pre-trial hearing to establish articulable 

facts to support reasonable suspicion and/or probable cause that 

the Appellant and his vehicle had been involved in a criminal 

offense?

II. Whether there was sufficient evidence to convict the 

Appellant on the charge of delivery of a controlled substance as 

the Commonwealth failed to offer testimony from the 
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confidential informant that the Appellant had provided her 

cocaine while inside the Appellant's vehicle?

Appellant’s brief at 4. 

The first claim pertains to the denial of Appellant’s motion to suppress. 

Our standard of review of the denial of a suppression motion is well-settled. 

We are limited to

determining whether the factual findings are supported by the 

record and whether the legal conclusions drawn from those facts 

are correct. [Since] the prosecution prevailed in the suppression 

court, we may consider only the evidence of the prosecution 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 record supports the factual findings of the trial 

court, we are bound by those facts and may reverse only if the 

legal conclusions drawn therefrom are in error.

Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015) (citation 

omitted). When this Court evaluates the propriety of an officer detaining a 

citizen for investigative purposes, we apply the following principles: 

A police officer may detain an individual in order to conduct an 

investigation if that officer reasonably suspects that the 

individual is engaging in criminal conduct. This standard, less 

stringent than probable cause, is commonly known as 

reasonable suspicion. In order to determine whether the police 

officer had reasonable suspicion, the totality of the 

circumstances must be considered. In making this 

determination, we must give due weight to the specific 

reasonable inferences the police officer is entitled to draw from 

the facts in light of his experience. 

Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa.Super. 2016) (citing 

Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa.Super. 2014)). When a 

motion to suppress has been filed, the burden is on the Commonwealth to 
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establish by a preponderance of the evidence that the challenged evidence is 

admissible. Commonwealth v. Joseph, 34 A.3d 855, 860 (Pa.Super. 

2011). 

Appellant asserts that the trial court should have suppressed the 

identification evidence1 because the Commonwealth failed to call any witness 

who directly observed the controlled buy. According to Appellant, Trooper 

Martin’s testimony was insufficient to satisfy the Commonwealth’s burden to 

supply articulable facts justifying the seizure, and the Commonwealth was 

required to call one of the troopers who witnessed the actual drug sale. In 

urging affirmance of the trial court’s order, the Commonwealth cites to the 

principle that officers may rely on information from their fellow officers in 

effectuating a seizure, and argues that Trooper Martin was permitted to 

seize the vehicle since Corporal Comerford clearly would have been able to 

do so. 

It is well-settled that a police officer may validly rely on information 

related by a fellow officer in effectuating a seizure. The officer who actually 

makes the stop need not have personal knowledge of the facts justifying the 

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1

 Appellant does not clarify whether he means Trooper Martin should have 

been precluded from identifying Appellant at trial, or that the case should be 

entirely dismissed, as the police learned Appellant’s name from that 

encounter. We need not resolve that question given our disposition of the 

claim. 
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seizure. We summarized this concept in Commonwealth v. Chernosky, 

874 A.2d 123 (Pa.Super. 2005) (en banc):

It is entirely permissible for an officer to engage in the 

investigation of a suspect based on the observations of another 

officer even when the officer conducting the investigation has 

not been supplied with the specific facts needed to support the 

seizure; however, the officer who made the observations must 

have the necessary facts to support the ordered interdiction. 

See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 

83 L.Ed.2d 604 (1985) (police may conduct investigatory stop in 

reliance on another police department's wanted flyer as long as 

flyer was issued based on articulable facts supporting reasonable 

suspicion); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 

794 (1972) (officer making warrantless arrest pursuant to order 

from superior need not have probable cause for arrest provided 

superior had information necessary to support probable cause to 

order arrest). This precept flows from the realities of police 

investigation, which often relies upon the cooperation of many 

police officers.

Id. at 126. 

We briefly examine Hensley. Therein, an officer with the St. Bernard, 

Ohio police department received information on December 10, 1981 from an 

informant, who told the officer that Thomas Hensley had recently 

participated in an armed robbery of a tavern. Based on this information, the 

officer distributed a “wanted flyer” to other police departments in the area. 

The flyer simply stated that Hensley was wanted for investigation of a 

robbery and gave a description. Id. at 223.

The Covington Police Department, located approximately five miles 

from St. Bernard, received the flyer on December 10, 1981. Several officers 

were acquainted with Hensley and began periodically checking areas he was 
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known to frequent. On December 16, 1981, several officers saw Hensley 

driving in the area, and stopped him. Firearms were recovered, leading to 

federal charges and a conviction. 

The Court of Appeals for the Sixth Circuit reversed the conviction, 

finding that the flyer omitted a description of the specific and articulable 

facts which led the St. Bernard Police to suspect Hensley’s involvement in a 

completed crime. The Supreme Court reversed, holding that “if a flyer or 

bulletin has been issued on the basis of articulable facts supporting a 

reasonable suspicion that the wanted person has committed an offense, then 

reliance on that flyer or bulletin justifies a stop to check identification.” Id. 

at 232. Therefore, provided the St. Bernard authorities who issued the 

bulletin possessed reasonable suspicion, based on specific and articulable 

facts, the Covington authorities were permitted to briefly detain Hensley. 

Id. at 233-34. 

Our Supreme Court discussed Hensley in Commonwealth v. Queen, 

639 A.2d 443 (Pa. 1994), which Appellant relies upon. In Queen, Officer 

Bryant of the Philadelphia Police Department proceeded to a scene following 

a police radio request. When he arrived, three detectives were standing 

behind a vehicle occupied by Queen. One of these detectives, Mr. Mango, 

approached Officer Bryant and stated that Queen “resembled a male wanted 

for robbery.” Id. at 444. Based on this information, Officer Bryant seized 

Queen, which ultimately led to the recovery of a firearm. Id. At the 
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suppression hearing, the Commonwealth called only Officer Bryant. The 

High Court concluded that the Commonwealth was required to call Detective 

Mango to sustain its burden, relying in part on Hensley:

. . . Hensley clearly supports the proposition that a stop and 

frisk may be supported by a police radio bulletin only if evidence 

is offered at the suppression hearing establishing the articulable 

facts which support the reasonable suspicion. To hold otherwise 

would permit the government to bypass the protections of the 

Fourth Amendment and Article I, Section 8, of the Pennsylvania 

Constitution by always having a second police officer summoned 

for assistance for the purpose of making the inquiry of a suspect 

on the basis of an initial police officer's suspicion. At no time 

would the government have to establish any articulable facts, 

thus completely emasculating the protections against illegal 

searches and seizures.

Applying the above principles to this record, it is clear that the 

suppression court erred in refusing to suppress Appellant's 

weapon. The suppression court assumed that Detective 

Mango possessed the required facts to conduct an 

investigatory stop.

Id. at 445-46 (emphasis added). 

By relying on Queen, Appellant argues that the Commonwealth was 

required to call the witnesses who directly observed the conduct. We 

disagree. Neither Hensley nor Queen commands that the prosecution 

present the testimony of the officer who directly observed the conduct in 

question. Queen’s holding that the Commonwealth was required to call 

Detective Mango to sustain its burden simply reflected the reality that only

Detective Mango possessed the relevant information. The focus is not on 

the person who observed the conduct, but rather upon the requirement that 
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the “evidence . . . offered at the suppression hearing establish[es] the 

articulable facts.” Id. at 445. Herein, the Commonwealth clearly satisfied 

that requirement by establishing that officers visually observed a CI 

purchasing drugs from Appellant, and stopped Appellant’s vehicle shortly 

thereafter. Those facts simply came in through Trooper Martin.2 

We note that Trooper Martin was directly involved in the investigation 

of the criminal conduct. He was part and parcel of the investigation, and 

was therefore permitted to rely upon, and testify to, his fellow officer’s 

observations. See United States v. Ventresca, 380 U.S. 102, 111 (1965) 

(“Observations of fellow officers of the Government engaged in a common 

investigation are plainly a reliable basis for a warrant applied for by one of 

their number.”); Hensley, supra at 231 (“[E]ffective law enforcement 

cannot be conducted unless police officers can act on directions and 

information transmitted by one officer to another and that officers, who 

must often act swiftly, cannot be expected to cross-examine their fellow 

officers about the foundation for the transmitted information.”) (citation 

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2

 We are mindful that our scope of review limits our analysis to the evidence 

presented at the suppression hearing. In re L.J., 79 A.3d 1073 (Pa. 2013).

At the suppression hearing, Trooper Martin testified that Corporal Comerford 

told him of the pending controlled buy, and, following the sale, called 

Trooper Martin. The corporal described a 2001 Chrysler Sebring, bearing a 

particular license plate, told the trooper the driver had just sold drugs to a 

CI, and told him the direction it was traveling on a particular highway. N.T. 

12/14/15, at 7. 
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omitted).3 Thus, the Commonwealth satisfied its burden and offered 

articulable facts justifying the seizure. 

Appellant’s second claim pertains to the sufficiency of the evidence. 

The standard we apply is well-settled.

In reviewing the sufficiency of the evidence, we consider 

whether the evidence presented at trial, and all reasonable 

inferences drawn therefrom, viewed in a light most favorable to 

the Commonwealth as the verdict winner, support the jury's 

verdict beyond a reasonable doubt. The Commonwealth can 

meet its burden by wholly circumstantial evidence and any doubt 

about the defendant's guilt is to be resolved by the fact finder 

unless the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the 

combined circumstances. As an appellate court, we must review 

the entire record and all evidence actually received. 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 

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3

 We note that in Commonwealth v. Yong, 120 A.3d 299 (Pa.Super. 

2015), appeal granted, 137 A.3d 573 (Pa. 2016), we rejected an extension 

of the fellow-officer rule to the situation where knowledge of one officer is 

imputed to another. Therein, Officer Gerald Gibson arrested Yong while 

executing a search warrant. The Commonwealth presented Officer Joseph 

McCook, who had observed Yong participate in a controlled buy two days 

before the execution of the warrant. The Commonwealth did not present 

any evidence that Officer McCook shared his knowledge with Officer Gibson 

or directed him to take any action, instead arguing that his knowledge could 

be imputed to Officer Gibson. 

We reversed the trial court’s denial of suppression, concluding that imputing 

knowledge under those facts stretched the fellow officer doctrine to its 

breaking point. “At Yong's suppression hearing, it was the Commonwealth's 

burden to establish that Officer McCook directed Officer Gibson to arrest 

Yong.” Herein, the Commonwealth established that Corporal Comerford 

directed Trooper Martin to effectuate the stop, and that the two officers were 

in communication regarding a joint investigation. Those actions comfortably 

fit within the fellow-officer rule. 
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none of the evidence. Because evidentiary sufficiency is a 

question of law, our standard of review is de novo and our scope 

of review is plenary.

Commonwealth v. Dawson, 132 A.3d 996, 1001-02 (Pa.Super. 2016) 

(citation omitted). 

Instantly, Appellant’s sole conviction was for delivery of a controlled 

substance, codified at 35 P.S. § 780–113(a)(30) of The Controlled 

Substance, Drug, Device and Cosmetic Act, which states in relevant part: 

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

. . . .

(30) Except as authorized by this act, the 

manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance by a 

person not registered under this act, or a practitioner 

not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or 

possessing with intent to deliver, a counterfeit 

controlled substance.

35 P.S. § 780-113. Delivery is defined as “the 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. 

Herein, the Commonwealth’s theory of delivery derived from the CI’s 

exchange of currency for the plastic bag that was turned over to the police. 

Since Appellant stipulated at trial that the substance in that bag was 

cocaine, the only element at issue was the delivery. Appellant maintains 
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that the absence of the CI’s testimony is fatal to the Commonwealth’s ability 

to prove the charge beyond a reasonable doubt.

We disagree. The Commonwealth may secure a conviction through 

circumstantial evidence. Trooper Velez testified that, immediately prior to 

the controlled buy, he searched both the CI and her vehicle with negative 

results. She was wearing skintight clothing that, in the Trooper’s estimation, 

could not possibly have concealed drugs on her person without his 

knowledge. N.T., 12/14/15, at 100. Moreover, Appellant left the Wal-Mart 

parking lot immediately after finishing the observed exchange and did not go 

into the Wal-Mart. The Trooper maintained constant visual contact 

throughout the entire encounter. While the Trooper admitted he could not 

see exactly what was exchanged in the vehicle, he saw something being 

passed between Appellant and the CI. The jury was permitted to infer that 

the object Appellant transferred to the CI was the cocaine that was turned 

over to Trooper Velez. 

Appellant argued at trial and in this appeal that the authorities could 

have strip-searched the CI and failed to check for traps in her vehicle that 

may have contained drugs. Those asserted deficiencies clearly go to the 

weight of the evidence, not its sufficiency. Therefore, this evidence, deemed 

credible by the jury in its role as fact-finder and viewed in the light most 

favorable to the Commonwealth, was sufficient to sustain the conviction for 

delivery of a controlled substance. 
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016