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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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