J. A06003/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
NILES ANTHONY LAVIN, :
:
:
Appellant : No. 912 MDA 2015
Appeal from the Judgement of Sentence February 17, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000837-2014
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 06, 2016
Appellant, Niles Anthony Lavin, appeals from the Judgment of
Sentence entered February 17, 2015, in the Court of Common Pleas of
Cumberland County. After careful review, we affirm the denial of Appellant’s
Motion to Suppress, but find that the trial court improperly imposed a
mandatory minimum sentence under a statute that this Court held
unconstitutional three months prior to Appellant’s sentencing. Therefore, we
vacate and remand for resentencing.
Appellant and the Commonwealth previously stipulated to the following
factual history.
1. On February 25, 2014, members of the Cumberland County
Drug Task Force obtained a search warrant for Apartment 3, 55
West Main Street, Mechanicsburg, Pennsylvania.
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2. [Appellant] resided at that apartment which [his mother]
leased[.]
3. Earlier in the day[,] the members of the Drug Task Force had
served a warrant on the co-defendant's residence.
4. Detective Temple is a member of the Drug Task Force who
assisted in serving the warrants on both [Appellant's] and co-
defendant's residences.
5. At the co-defendant's residence[,] Detective Temple had
personally observed sticks of heroin, several firearms and the
[Appellant’s] scooter.
6. The search warrant for [Appellant’s] residence contained the
following relevant information:
(a) A cooperating individual had made a controlled
purchase of heroin from the co-defendant's residence
within the past five days.
(b) The cooperating individual advised that the co-
defendant was selling three to four sticks (420 to
580 bags) of heroin to [Appellant] every couple [of]
days.
(c) The co-defendant confirmed that he sold
[Appellant] three to four sticks of heroin every
couple [of] days
(d) The co-defendant stated that he had provided
[Appellant] three sticks (420 bags) of heroin the
night before.
(e) The co-defendant stated that [Appellant] uses his
cell phone to communicate with him.
(f) A member of the Drug Task Force had seen
[Appellant] leave the co-defendant's residence within
the past week.
7. Detective Temple participated in a briefing of the officers who
would be involved in serving the search warrant on [Appellant’s]
residence.
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8. When the police arrived to execute the search warrant on
[Appellant’s] residence[,] they found him outside on the front
porch waiting for his mother. The door was locked and he had no
key.
9. [Appellant] was exhibiting obvious signs of intoxication.
10. Detective Temple placed [Appellant] into custody,
handcuffed and searched him.
11. The search of [Appellant] resulted in the seizure of 250 bags
of heroin, a large amount of cash and a cell phone.
12. The search warrant was subsequently served on the
residence resulting in the seizure of additional evidence,
including drugs and drug paraphernalia.
Trial Court Opinion, dated 8/21/15, at 2-3.
Appellant was charged with one count each of Unlawful Delivery or
Manufacture or Possession with Intent to Deliver a Controlled Substance;
Unlawful Possession of a Controlled Substance; Unlawful Possession of Small
Amount of Marijuana; and Unlawful Possession of Drug Paraphernalia.1
Prior to trial, Appellant filed a Motion to Suppress and the Honorable
Edward E. Guido held a hearing on the motion. On September 5, 2014,
Judge Guido denied Appellant’s motion in an Opinion that included the
twelve findings of fact reproduced above. Moreover, Judge Guido concluded
that: (i) there was sufficient probable cause to issue the search warrant for
Appellant’s residence; (ii) the police lacked probable cause to arrest
Appellant for public drunkenness; (iii) the police did have sufficient probable
1
35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); 35 P.S. § 780-
113(a)(31)(i); and 35 P.S. § 780-113(a)(32), respectively.
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cause to arrest Appellant for conspiracy to distribute heroin; and (iv) the
evidence recovered from Appellant’s person was the result of a valid search
incident to a lawful arrest. See Memorandum Opinion, dated 9/5/14, at 2-3.
The parties stipulated to the facts as found by Judge Guido in his
Opinion, and proceeded to a stipulated bench trial before the Honorable
Thomas A. Placey. Trial Court Opinion, dated 8/21/15, at 1. Judge Placey
convicted Appellant of all four charges.
On February 17, 2015, Judge Placey sentenced Appellant to a
mandatory minimum sentence of five to ten years of incarceration pursuant
to 18 Pa.C.S. § 7508(a)(7)(ii). Appellant filed a timely Post-Sentence Motion
on February 26, 2015, again arguing that police lacked probable cause to
arrest Appellant and challenging the admissibility of evidence recovered in a
search incident to that arrest.
On May 7, 2015, Judge Placey denied Appellant’s Post-Sentence
Motion in an Opinion, concluding that, even assuming arguendo that police
lacked probable cause to arrest and search Appellant when they did, the
evidence was admissible under the inevitable discovery doctrine. See
Opinion and Order of Court, dated 5/7/15, at 6.2
2
Judge Placey did not overturn Judge Guido’s determination that police had
sufficient probable cause to arrest Appellant. In fact, Judge Placey noted
that he would have found probable cause to arrest Appellant for public
drunkenness. Opinion and Order of Court, dated 5/7/15, at 6 n.1.
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Appellant filed a timely Notice of Appeal. In compliance with the trial
court’s order, Appellant then filed a Rule 1925(b) Statement of Errors
Complained of on Appeal. The trial court filed a Rule 1925(a) Opinion.
On appeal, Appellant raises three issues for our review.
1. Did the suppression court err when it denied Appellant's
Omnibus Pre-Trial Motion given that there was insufficient
evidence to show that the arresting officers had probable cause
to arrest Appellant for conspiracy and search him?
2. Did the post-sentence motion court err or abuse its discretion
when it determined that the illegality of the arrest and search
was harmless error under the inevitable discovery doctrine given
that the court had no facts in the record to support this
conclusion?
3. Did the court impose an illegal sentence given that the statute
mandating the sentence has been found to be constitutionally
infirm?
Appellant’s Brief at 4.
Appellant’s first two issues may be better understood as a single
challenge to the admissibility of evidence recovered from Appellant’s person
in a search incident to a warrantless arrest. After careful review, we agree
with Judge Guido’s and Judge Placey’s determination that police had
sufficient probable cause to arrest Appellant for conspiracy to distribute
heroin. Therefore, we need not reach the issue of whether the heroin
recovered from Appellant’s person is otherwise admissible under the doctrine
of inevitable discovery.
Our standard of review in an appeal from an order denying a Motion to
Suppress is as follows:
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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. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation
omitted).
“To be constitutionally valid, a warrantless arrest must, of course, be
supported by probable cause.” Commonwealth v. Evans, 685 A.2d 535,
537 (Pa. 1996) (citation omitted). Probable cause to stop and arrest a
defendant exists when “the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Rodriguez, 585 A.2d 988, 990
(Pa. 1991) (citation omitted). As our Supreme Court has made clear:
The question we ask is not whether the officer's belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
In determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in
original) (quotations and citations omitted).
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Our Supreme Court has given further guidance in cases where, as
here, one or more informants provide information relevant to establishing
probable cause for a warrantless arrest. In such cases, the totality of the
circumstances to be considered includes “the informant’s veracity, reliability
and basis of knowledge[.]” In the Interest of O.A., 717 A.2d 490, 495-96
(Pa. 1998) (citing Illinois v. Gates, 462 U.S. 213, 233 (1983)). “An
informant’s tip may constitute probable cause where police independently
corroborate the tip, or where the informant has provided accurate
information of criminal activity in the past, or where the informant
himself participated in the criminal activity.” Commonwealth v. Luv,
735 A.2d 87, 90 (Pa. 1999) (emphasis added) (citations omitted).
In the instant case, the totality of the circumstances provides ample
support for the trial court’s determination that police had probable cause to
arrest Appellant for conspiracy to distribute heroin. Two different witnesses,
the co-defendant and the cooperating individual, informed police that
Appellant was buying hundreds of bags of heroin multiple times per week
from the co-defendant. The reliability of these statements was supported by
the fact that: (i) the co-defendant was a participant in the criminal activity,
(ii) a police officer had recently seen Appellant leaving the co-defendant’s
residence, (iii) Appellant’s scooter was found at the co-defendant’s
residence, and (iv) both witnesses gave consistent information to police
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regarding the quantity of heroin Appellant would buy from the co-defendant
and how often those buys would occur.
Therefore, we conclude that under the totality of the circumstances
and based on the information that the co-defendant and cooperating
individual provided, police officers had sufficient probable cause to arrest
Appellant for conspiracy to distribute heroin. Moreover, we conclude that
the trial court did not err in admitting evidence seized as a result of the
search of Appellant incident to his lawful arrest.
In his second issue, Appellant correctly points out that the trial court
imposed an illegal sentence when it sentenced Appellant to a mandatory
minimum pursuant to 18 Pa.C.S. § 7508(a)(7)(ii). “A challenge to the
legality of a sentence . . . may be entertained as long as the reviewing court
has jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8
(Pa. Super. 2011) (citation omitted). The legality of a sentence is a question
of law, and as such our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.
Super. 2012).
This Court has previously held that trial courts may not impose
mandatory minimum sentences under Section 7508, which contains a non-
severable, unconstitutional subsection. Commonwealth v. Cardwell, 105
A.3d 748, 754 (Pa. Super. 2014). In Cardwell, as here, the trial court
convicted the appellant following a bench trial at which he stipulated to the
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weight of the controlled substances he possessed. Id. at 749, 753.
Thereafter, the trial court sentenced him under the mandatory minimum
statute at Section 7508. Id. at 749. This Court vacated the appellant’s
sentence, holding a mandatory minimum sentence imposed under Section
7508 illegal even in cases where an appellant stipulates to the total weight
of the controlled substance at issue. Id. at 754-55.
This Court filed our decision in Cardwell on November 25, 2014.
When the trial court sentenced Appellant some three months after our
decision in Cardwell, it did so subject to our binding precedent holding
mandatory minimum sentences under Section 7508 unconstitutional.
Therefore, we hold that the trial court erred when it sentenced Appellant to a
mandatory minimum sentence under Section 7508 in direct contravention of
our holding in Cardwell. Accordingly, the trial court’s February 17, 2015
Judgment of Sentence is vacated, and the case is remanded for
resentencing.
Judgment of Sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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