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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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