J-S49026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DAVID LAUSELL, JR.
Appellant No. 408 MDA 2018
Appeal from the Judgments of Sentence imposed July 21, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at Nos: CP-36-CR-0003033-2016;
CP-36-CR-0003034-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2018
Appellant, David Lausell, Jr., appeals from the judgments of sentence
entered at two dockets numbers on July 21, 2017 in the Court of Common
Pleas of Lancaster County, following a bench trial leading to his conviction on
drug charges and a jury trial resulting in his conviction for firearms violations.
Appellant asserts trial court error for refusing to suppress evidence he claims
was fruit of a search incident to a warrantless arrest. Upon review, we affirm.
A review of the record reveals that on June 3, 2016, a confidential
informant (“CI”) made a controlled purchase of 20 grams of heroin from
Appellant with funds provided by the Lancaster County Drug Task Force (“Drug
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* Former Justice specially assigned to the Superior Court.
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Task Force”). During the purchase, detectives were performing surveillance
on Appellant and an electronic tracking device was installed on Appellant’s
2013 GMC Terrain. In addition, the CI was wearing a recording device.
Detective Michael Vance of the Drug Task Force field-tested the substance,
which tested positive for heroin.
On June 7, 2016, the Drug Task Force secured a search warrant for the
Terrain, which Appellant was driving near the apartment he shared with his
girlfriend. After Appellant attempted to flee the police in the Terrain, he
returned to his residence where he was placed under arrest. Police removed
Appellant from the Terrain and seized property in Appellant’s possession,
including a car key to a 2006 Ford Taurus that was parked at the residence.
The Taurus was seized as a narcotics asset. A search of its trunk was
conducted after a warrant was secured and yielded a Glock semi-automatic
pistol, a Ruger .357 revolver, and ammunition.
The police also conducted a search of the residence. The search, which
was conducted pursuant to a search warrant, yielded approximately 540
grams of suspected heroin, $4,703 in cash, a digital scale, and drug
paraphernalia.
Appellant was charged at Information No. 3033-2016 with two counts
each of persons not to possess, use or control firearms and firearms not to be
carried without a license. 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1),
respectively. At Information No. 3034-2016, he was charged with possession
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with intent to deliver (“PWID”) a controlled substance (heroin), criminal
conspiracy, and possess of drug paraphernalia. 35 P.S. § 780-113(A)(30), 18
Pa.C.S.A. § 903(a)(1), and 35 P.S. § 780-113(A)(32), respectively.
In a counseled omnibus pre-trial motion, Appellant sought to suppress
physical evidence and statements, claiming the searches of Appellant and his
property were illegal. At the conclusion of a January 17, 2017 suppression
hearing, the trial court denied the motion.
A bench trial on the drug charges immediately followed the suppression
hearing, in light of Appellant’s waiver with respect to those charges. The trial
court found Appellant guilty, ordered a pre-sentence investigation, and
deferred sentencing.
On April 17, 2017, Appellant was tried by a jury on two charges of
persons not to possess firearms.1 The trial court considered Appellant’s
motion in limine seeking to preclude the introduction of evidence, including
the heroin seized from Appellant’s apartment, statements by Appellant that
the heroin belonged to him, and “taunting” statements made to police. The
trial court granted the motion with respect to the taunting statements only.
The trial court permitted testimony from a Lancaster City police officer
who pursued the Taurus in November of 2015 and identified Appellant as the
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1The charges of firearms not to be carried without a license were nol prossed
prior to trial.
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operator of the vehicle. The testimony was permitted pursuant to Pa.R.E.
404(b) to establish identity of the perpetrator.2
On July 18, 2017, the jury returned a verdict of guilty on both counts of
persons not to possess firearms. On July 21, 2017, the trial court sentenced
Appellant at No. 3033-2016 to concurrent terms of ten to twenty years in state
prison for each of the two firearms convictions. At No. 3034-2016, the court
imposed consecutive sentences of seven and a half to fifteen years in prison
for PWID and criminal conspiracy as well as a concurrent sentence of six to
twelve months for possession of drug paraphernalia. The firearms sentences
were made consecutive to the drug sentences, resulting in an aggregate
sentence of 25 to 50 years in prison.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.3 Appellant now asks us to consider one issue:
Whether the suppression court erred in refusing to suppress the
fruit[s] of the search incident to the warrantless arrest of
Appellant?
Appellant’s Brief at 4.
Before addressing Appellant’s issue, we first note that Appellant filed a
single notice of appeal after the trial court entered a single order, despite entry
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2 The Commonwealth gave notice of its intent to introduce evidence of bad
acts under Pa.R.E. 404(b) on April 7, 2017.
3A number of communications issues caused delays at the beginning of the
appeals process. However, those issues are irrelevant to the pending appeal
and do not merit discussion beyond mentioning the fact of such issues here.
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of two separate sentencing orders at two separate dockets numbers. In
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court
announced, “[I]n future cases Rule 341(a) will, in accordance with its Official
Note, require that when a single order resolves issues arising on more than
one docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted). Walker was
decided on June 1, 2018, after Appellant filed his appeal in the cases before
us. Therefore, Walker does not require us to quash his appeal.
Again, Appellant challenges the trial court’s denial of his motion to
suppress. As a challenge to denial of suppression, we apply the following
standard of review:
[An appellate court’s] 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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where . . . 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. Thus, the conclusions
of law of the courts below are subject to [ ] plenary review.
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Commonwealth v. Smith, 164 A.3d 1255, 1256 (Pa. Super. 2017) (quoting
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)
(alterations in original) (additional citations omitted)).
Appellant argues that the police lacked probable cause to arrest him
without a warrant and that the fruits of that arrest should have been
suppressed. As required by Smith and Jones, we must first consider the
Commonwealth’s uncontradicted evidence to determine whether the
suppression court’s factual findings are supported by the record.
At the suppression hearing, Detective Vance testified on behalf of the
Commonwealth. The trial court summarized Detective Vance’s testimony in
its Rule 1925(b) opinion. See Trial Court Opinion, 4/16/18, at 7-10. As the
trial court recognized, Detective Vance explained that Appellant was arrested
as a result of a “probable cause” controlled buy from the CI. He detailed the
events surrounding the controlled buy that resulted in the issuance of search
warrants for Appellant’s Terrain and apartment. Notes of Testimony,
Suppression Hearing, 1/17/17, at 45-53. Detective Vance explained that he
was able to recognize Appellant’s voice from the recorded conversations
between Appellant and the CI prior to and at the time of the purchase. Id.
He also testified as to his background and qualifications, including his field-
testing training, id. at 6-7, and stated that the substance later positively
tested as heroin. Id. at 50. We find that the record supports the trial court’s
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factual findings relating to Detective Vance’s testimony at the suppression
hearing. Therefore, we are bound by those facts.
Because we are bound by the suppression court’s factual findings, we
may reverse its ruling only if its legal conclusions are erroneous. Here, the
suppression court concluded there was probable cause to arrest Appellant
without a warrant.
In Commonwealth v. Martin, 101 A.3d 706 (Pa. 2014), our Supreme
Court instructed:
In order to determine whether probable cause exists to justify a
warrantless arrest, we must consider the totality of the
circumstances. [Commonwealth v Clark, 735 A.2d 1248, 1252
(Pa. 1999)]; see also Illinois v. Gates, 462 U.S. 213, 233, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause exists where
the facts and circumstances within the officer’s knowledge are
sufficient to warrant a person of reasonable caution in the belief
that an offense has been or is being committed,” and must be
“viewed from the vantage point of a prudent, reasonable, cautious
police officer on the scene at the time of the arrest guided by his
experience and training.” Clark, supra at 1252 (quotation
omitted). As we have stated:
Probable cause is made out 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. 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, 604 Pa. 198, 985 A.2d 928, 931
(2009) (emphasis in original; citations and quotation marks
omitted).
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Id. at 721.
We conclude, as did the suppression court, that there was probable
cause to arrest Appellant without a warrant. Based on his experience and the
totality of the circumstances, Detective Vance properly concluded there was a
probability that Appellant was engaging in criminal activity. As the
Commonwealth correctly recognized:
During th[e] controlled buy, the Drug task Force members were
conducting surveillance and the confidential informant was
wearing a body recording device allowing Detective Vance to hear
the buy and identify Appellant’s voice on the recording.
Additionally, the Drug task Force members installed an electronic
tracking device on Appellant’s GMC Terrain. After the controlled
buy, Detective Vance field[-tested] the controlled substance
purchased from Appellant and it tested positive for heroin.
Commonwealth Brief at 17-18 (references to Notes of Testimony omitted).
Finding no error in the suppression court’s legal conclusions, we affirm
its order denying suppression of evidence obtained as a result of Appellant’s
arrest.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2018
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