J-S82019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 AVEK PAILIN                             :
                                         :
                    Appellant            :   No. 1265 EDA 2018

          Appeal from the Judgment of Sentence April 12, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0010227-2016


BEFORE:    LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                          FILED FEBRUARY 28, 2019

     Appellant, Avek Pailin, appeals from the judgment of sentence entered

on April 12, 2018. We affirm.

     Following an early-morning traffic stop, the police arrested Appellant for

violating the Pennsylvania Uniform Firearms Act. See 18 Pa.C.S.A. §§ 6101

et seq.   Appellant filed a pre-trial motion to suppress the firearm that the

police discovered in the vehicle he was driving; within the motion, Appellant

claimed that the trial court must suppress the firearm, as the police did not

have reasonable suspicion or probable cause to stop or search his vehicle.

Appellant’s Motion to Suppress, 9/6/17, at 1-3.

     During the October 11, 2017 suppression hearing, the Commonwealth

presented the testimony of Philadelphia Police Sergeant Daniel Ayers.

Sergeant Ayers testified that, at approximately 2:35 a.m. on March 31, 2016,

he was in full uniform and driving a marked police car when he observed a red

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* Retired Senior Judge assigned to the Superior Court.
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Ford Fusion with an Illinois license plate “make an abrupt turn onto 5200

Poplar Street without signaling. It proceeded westbound on Poplar to 53 rd,

made a quick right turn at a high rate of speed down 53 rd Street onto

Thompson Street.” N.T. Suppression Hearing, 10/11/17, at 5-6. Sergeant

Ayers testified that, when he finally caught up to the vehicle, he saw that the

vehicle “had already pulled over and parked.        [Appellant] was exiting the

driver’s door. There [were] two females and a second male exiting from the

passenger’s side and began walking away from the car.” Id. at 6. Sergeant

Ayers testified that he pulled up to the vehicle and activated the lights on his

patrol car, in order to conduct “a vehicle investigation for the original violation

for failure to signal when [the vehicle] turned onto Poplar Street.” Id.

      Sergeant Ayers testified:

        [Appellant] had no ID on him, he was nervous, kept asking
        questions. He stated it was a rental car, it was rented by his
        cousin, he couldn’t provide a name of his cousin or any
        agreement for the vehicle.

        Based on his nervousness, [my partner and I] placed
        [Appellant] and the other male in our vehicle, and the two
        females stood on the curb.

        At this point, I conducted a quick search inside of the vehicle.
        At which point under the front driver’s seat I observed and
        recovered a black Taurus Millennium PT 111 [nine-millimeter
        semi-automatic pistol]. . . . It was loaded with 11 rounds in
        the magazine and one round in the chamber.

        The firearm was directly under the driver’s seat and the seat
        itself was reclined all the way back to touching the backseat.
        So there was no way for anybody else to get behind that seat.




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          At that point[, Appellant] was placed into custody for a
          firearms violation since it was right where he was at in the
          driver’s seat. . . .

          I conducted a [Department of Motor Vehicles] check on
          [Appellant] and that came back as an expired license. . . .
          Once I got that information, I contacted the Parking Authority
          and the car was live stopped and towed to the Parking
          Authority lot [because Appellant did not have a valid driver’s
          license].

Id. at 6-8.

        The trial court denied Appellant’s suppression motion and Appellant

proceeded to a bench trial. During this trial, the parties incorporated Sergeant

Ayers’ suppression hearing testimony and stipulated that:          the recovered

firearm was operable; Appellant did not have a license to carry a firearm; and,

Appellant had a prior felony, which rendered him ineligible to possess a

firearm. N.T. Trial, 10/11/17, at 39-40.

        The trial court found Appellant guilty of persons not to possess firearms,

firearms not to be carried without a license, and carrying firearms on public

streets in Philadelphia.1 On April 12, 2018, the trial court sentenced Appellant

to serve a term of four to eight years in prison, followed by three years of

probation, for his convictions.

        Appellant filed a timely notice of appeal. He raises two claims to this

Court:

          1. Did the [trial] court err in finding [Appellant] did not have
          standing to argue a motion to suppress in light of the United
          States Supreme Court’s ruling in Byrd v. United States[,
____________________________________________


1   18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.

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        ___ U.S. ___, 138 S.Ct. 1518 (2018)] when there was no
        evidence that [Appellant], who was the undisputed driver of
        the vehicle, did not have permission to drive the vehicle in
        question from the lawful renter[?]

        2. Did the [trial] court err by finding the gun would have been
        “inevitably discovered” when the vehicle was improperly
        live-stopped, there was no indication on the record that the
        vehicle was parked improperly, and no indication that the
        driver did not have permission to possess the vehicle from
        the lawful renter[?]

Appellant’s Brief at 7 (some internal capitalization omitted).

      Appellant claims that the trial court erred when it denied his motion to

suppress. Appellant’s Brief at 12-16. This claim fails.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth's burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant's

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super.

2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal

from the denial of a motion to suppress, our Supreme Court has declared:

        Our standard of review in addressing a challenge to a trial
        court's denial of a suppression motion is whether the factual
        findings are supported by the record and whether the legal
        conclusions drawn from those facts are correct. When
        reviewing the ruling of a suppression court, we must consider
        only the evidence of the prosecution and so much of the
        evidence of the defense as remains uncontradicted when read
        in the context of the record.... Where the record supports the
        findings of the suppression court, we are bound by those facts
        and may reverse only if the legal conclusions drawn
        therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal

citations omitted).   “It is within the suppression court's sole province as

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factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006). Moreover, our scope of review from a suppression ruling is

limited to the evidentiary record that was created at the suppression hearing.

In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      We have explained:

        A defendant moving to suppress evidence has the preliminary
        burden of establishing standing and a legitimate expectation
        of privacy.

        Standing requires a defendant to demonstrate one of the
        following: (1) his presence on the premises at the time of
        the search and seizure; (2) a possessory interest in the
        evidence improperly seized; (3) that the offense charged
        includes as an essential element the element of possession;
        or (4) a proprietary or possessory interest in the searched
        premises. A defendant must separately establish a legitimate
        expectation of privacy in the area searched or thing seized.
        Whether defendant has a legitimate expectation of privacy is
        a component of the merits analysis of the suppression
        motion. The determination whether defendant has met this
        burden is made upon evaluation of the evidence presented
        by the Commonwealth and the defendant.

        With more specific reference to an automobile search, this
        Court has explained as follows: generally under Pennsylvania
        law, a defendant charged with a possessory offense has
        automatic standing to challenge a search. However, in order
        to prevail, the defendant, as a preliminary matter, must show
        that he had a privacy interest in the area searched.

Commonwealth v. Maldonado, 14 A.3d 907, 910-911 (Pa. Super. 2011)

(internal quotations and citations omitted); see also Commonwealth v.

Jones, 874 A.2d 108, 120 (Pa. Super. 2005) (holding: where the defendant

was the driver of a rental car, the defendant did not have an expectation of

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privacy in the car because the “return date [on the rental automobile] had

expired, [the defendant] was not the named lessee, the named lessee was

not in the automobile, and [the defendant] was not authorized to drive the

automobile”); Commonwealth v. Burton, 973 A.2d 428, 436 (Pa. Super.

2009) (en banc) (holding that the defendant did not have an expectation of

privacy in a vehicle, where he did not own the vehicle and where he “offered

no evidence to explain his connection to the vehicle or his connection to the

registered owner of the vehicle”); Commonwealth v. Cruz, 21 A.3d 1247,

1251–1252 (Pa.     Super. 2011) (holding that the defendant did not

demonstrate that he had an expectation of privacy in the vehicle he was

driving at the time of the valid stop because the defendant “presented no

evidence that he owned the vehicle, that it was registered in his name, or that

he was using it with the permission of the registered owner”).

      The Commonwealth charged Appellant with possessory offenses; hence,

Appellant   had   automatic   standing   to   challenge   the   vehicle   search.

Nevertheless, in order to prevail on his suppression motion, Appellant bore

the burden of establishing a reasonable expectation of privacy in the vehicle.

See Maldonado, 14 A.3d at 911.        Appellant did not satisfy his burden of

production in this case.

      During the suppression hearing, the Commonwealth presented evidence

tending to show that Appellant was not the owner of the vehicle, did not rent




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the vehicle, did not know the individual who rented the vehicle, 2 and had no

authority to drive the vehicle. See N.T. Suppression Hearing, 10/11/17, at

6-8. Appellant presented no evidence to the contrary. Therefore, in this case,

there was no evidence that Appellant or his passengers owned or rented the

vehicle. Likewise, there was no evidence that Appellant or his passengers had

authorization or permission from the registered owner or renter to operate the

vehicle. As such, Appellant failed to prove he had a privacy interest in the




____________________________________________


2 As Sergeant Ayers testified, Appellant claimed that his cousin rented the
vehicle. However, Appellant “couldn’t provide a name of his cousin or any
agreement for the vehicle.” N.T. Suppression Hearing, 10/11/17, at 6. We
conclude that Appellant’s invocation of an unnamed individual and his
unsubstantiated claim of permission by that unnamed person do not establish
that Appellant had permission to operate the vehicle and, thus, do not
establish that Appellant had a reasonable expectation of privacy in the vehicle.
See Maldonado, 14 A.3d at 911-912 (holding that the defendant failed to
satisfy his burden of establishing a reasonable expectation of privacy in the
vehicle, where the vehicle was owned by his girlfriend and where the
defendant did not put forth any evidence that his girlfriend gave him
permission to drive her vehicle). Moreover, we note that the trial court
expressly held: “[b]ased on the totality of the [] circumstances, [Appellant’s]
expired license, no rental agreement[,] and inability to provide the name of
the authorized renter of the vehicle to corroborate that he had permission to
drive the vehicle, [Appellant] in this case does not have a reasonable
subjective expectation of privacy shielding him from the search done by the
officer.” Trial Court Opinion, 7/20/18, at 4-5.




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vehicle and, therefore, the trial court did not err in denying Appellant’s

suppression motion.3, 4 Appellant’s claim to the contrary fails.

       Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/19




____________________________________________


3 Within Appellant’s brief, Appellant claims that the United States Supreme
Court’s recent opinion in Byrd entitles him to relief because, in Byrd, the
Supreme Court held: “as a general rule, someone in otherwise lawful
possession and control of a rental car has a reasonable expectation of privacy
in it even if the rental agreement does not list him or her as an authorized
driver.” Appellant’s Brief at 13, quoting Byrd, 138 S.Ct. at 1524. Appellant’s
quotation of Byrd is accurate. However, Byrd does not provide Appellant
with an avenue of relief because, as we have explained above, Appellant failed
to establish that he was in “lawful possession and control of” the vehicle. See
Byrd, 138 S.Ct. at 1524 and 1529 (noting that “[n]o matter the degree of
possession and control, the car thief would not have a reasonable expectation
of privacy in a stolen car”).

4 In light of our disposition, Appellant’s second claim – that the trial court
“erred in finding the gun would have been ‘inevitably discovered’” – is moot.
See Appellant’s Brief at 14-16.

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