J-A10043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ELI ANTHONY LASTON                         :
                                               :
                       Appellant               :      No. 2343 EDA 2018

         Appeal from the Judgment of Sentence Entered July 23, 2018
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0006987-2017


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.:                           FILED JUNE 07, 2019

       Appellant, Eli Anthony Laston,1 appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his bench

trial convictions for three counts of adulteration of a controlled substance, and

one count each of possession of an adulterated controlled substance,

possession of a controlled substance, possession of drug paraphernalia,

firearms not to be carried without a license, possession of a weapon, and

prohibited offensive weapons.2 We affirm.

       The relevant facts and procedural history of this case are as follows.

          Chief Anthony R. Paparo is currently employed by the
____________________________________________


1 Appellant’s last name is spelled variously throughout the certified record as
“Laston” and “Latson.”

2 35 P.S. §§ 780-113(a)(2), (a)(1), (a)(16), (a)(32); 18 Pa.C.S.A. §§
6106(a)(1), 907(b), 908(a), respectively.
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       Yeadon Borough Police Department and was previously
       employed by the Upper Darby Police Department as a Patrol
       Captain, where he was so employed on September 14,
       2017.

       At approximately 12:30 p.m., on September 14, 2017,
       Captain Paparo was on patrol in an unmarked Dodge
       Charger on Crosley Road, approaching the area of
       Greenwood Avenue and Radbourne Road when he observed
       [Appellant] operating a Dodge Ram pickup truck. The truck
       was coming off of Greenwood Avenue making a right turn
       onto Crosley Road.

       Captain Paparo observed the Dodge Ram drive through the
       intersection, failing to stop at the stop sign at Greenwood
       Avenue and Crosley Road. Captain Paparo estimated the
       Dodge Ram was proceeding at a rate of speed of over 30
       mph, in excess of the speed limit.

       Captain Paparo observed the Dodge Ram fail to stop at the
       following intersection and again at the stop sign at the
       following intersection of Emerson Street and Atlantic
       Avenue. Captain Paparo made a U-turn and pulled up
       behind the Dodge and activated his warning lights.

       Captain Paparo could see through the rear window of
       Appellant’s vehicle, although tinted, and observed Appellant
       moving around the front seat of the vehicle and he appeared
       to be placing some kind of large object into the backseat.
       Due to the tint on the window, Captain Paparo was unable
       to determine with certainty that there were any other
       occupants of the vehicle.

       Captain Paparo the[n] approached driver’s side of the
       vehicle; Appellant rolled down his window and the two
       began to converse. At that time, Captain Paparo was fairly
       certain that Appellant was the only occupant. Captain
       Paparo asked for Appellant’s registration and insurance,
       which Appellant complied with.       Captain Paparo asked
       Appellant what happened with the stop signs to which
       Appellant said that he didn’t see them.

       Captain Paparo asked Appellant about the movements
       Appellant was making in the front seat when he was pulled

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       over and that he made Captain Paparo concerned. Appellant
       stated that he had reached over to open the center console
       to find all of his paperwork as he knew he was being
       stopped. Appellant demonstrated the movement to Captain
       Paparo, which revealed a prescription bottle in the center
       console. Appellant then closed the center console.

       Captain Paparo asked Appellant if he was taking any
       prescription medication and Appellant stated that he was
       taking it but hadn’t for a while. Captain Paparo asked
       Appellant to hand him the prescription bottle, which
       Appellant freely handed over. Captain Paparo observed that
       [t]he name on the bottle did not match Appellant’s name.
       Appellant stated that it was a friend’s bottle.

       At this point, Captain Paparo asked Appellant to step out of
       the vehicle for [officer] safety. As Appellant stepped out,
       Captain Paparo observed another prescription bottle in the
       driver’s [side door] pocket that appeared to have the label
       scraped off.    Captain Paparo led Appellant to [the] back
       area of the truck and conducted a pat down, where [Captain
       Paparo] detected what was immediately apparent to him to
       be pills in Appellant’s pocket in what felt to be an envelope.

       Upon removing the envelope containing the pills, the
       envelope turned out to be a…parking ticket. As [Captain
       Paparo] was removing the envelope, Appellant stated that
       they were his pills and that he did not like to carry his whole
       prescription with him so he carried it like that. Captain
       Paparo was able to identify the pills as oxycodone.

       Appellant was told to sit down at the rear of his vehicle;
       Captain Paparo asked if there were other controlled
       substances in the vehicle to which Appellant responded
       “no.”

       Captain Paparo told Appellant that he was going to look in
       the vehicle based on the fact that [Appellant] had a
       prescription not properly labeled on his person. Captain
       Paparo retrieved the prescription bottle along the [driver’s]
       side door. A search of the remainder of the vehicle resulted
       in “a bunch of empty bottles” notably, a oxycodone bottle,
       one that would hold 100 pills, which [Captain Paparo] knows
       at this time to be in excess of what a pharmacy would

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       dispense to an individual for use.

       In the front portion of the center console, there was another
       compartment, which contained a “fake looking gun that was
       gold in color.” At that time, Captain Paparo told another
       officer who had arrived on scene to watch the gun and
       [Captain Paparo] went and placed Appellant into custody for
       further investigation, telling Appellant that he was under
       arrest for the prescription bottles not having his name on
       them and the firearm. Appellant responded that it was a
       starter gun.

       When Captain Paparo was holding the gun he couldn’t find
       a serial number on it and it felt heavy. Captain Paparo
       noticed that it actually had a magazine in it that had…four
       live 380[-caliber] rounds and [a] round that appeared to be
       a blank. Once he cleared the weapon and inspected it
       further, Captain Paparo noticed that [it] looked like
       someone had actually taken a drill bit and drilled out the
       bore of the barrel and the gun was located with live
       ammunition (the firearm was later sent to a state police
       crime lab and found to be a functioning weapon).

       Appellant advised that he did not have a permit to carry or
       a sportsman permit to carry. A further search of the vehicle
       revealed numerous drug paraphernalia, including multiple
       bottles for various types of different pills[, some of which
       contained controlled substances].

                                *    *      *

       On April 23, 2018, Appellant filed a Motion to Suppress
       seeking to suppress the evidence located in Appellant’s
       vehicle and on his person as the searches were unsupported
       by probable cause or reasonable suspicion. A hearing was
       held on May 7, 2018, at which time the Commonwealth
       presented testimony from Captain Anthony Paparo. Captain
       Paparo testified to the facts as set forth above. [The c]ourt
       took the matter under advisement and permitted both
       parties to file briefs. On June 5, 2018, [the c]ourt issued an
       Order denying the Motion which included extensive Findings
       of Fact and Conclusions of Law….

       On July 3, 2018, the case proceeded to a stipulated non-

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         jury trial. … [The c]ourt took the matter under advisement.
         On July 11, 2018, after reviewing exhibits, [the c]ourt
         issued an order finding Appellant guilty of [nine separate
         counts].

         Appellant was sentenced on July 23, 2018, to an aggregate
         term of 23 months’ intermediate punishment plus seven
         years of probation. No Post-Sentence Motions were filed.

         On August 10, 2018, Appellant filed a timely Notice of
         Appeal and a timely response to [the c]ourt’s [Rule] 1925(b)
         request [on August 31, 2018].

(Trial Court Opinion, filed September 10, 2018, at 1-6) (internal citations

omitted).

      Appellant raises the following issue for our review:

         DID THE COURT ERR IN DENYING THE MOTION TO
         SUPPRESS WHERE THE OFFICER LACKED PROBABLE CAUSE
         TO SEARCH THE VEHICLE?

(Appellant’s Brief at 8).

      Appellant argues the mislabeled prescription pill bottle did not give

Captain Paparo probable cause to search Appellant’s vehicle.        Appellant

contends Captain Paparo could not determine whether the pills contained in

the mislabeled bottle were illegal substances. Appellant posits Captain Paparo

unlawfully searched Appellant’s vehicle without definitive knowledge of

possible contraband and no other facts to give rise to probable cause.

Appellant concludes this Court should vacate the judgment of sentence,

reverse the order denying suppression, and remand for a new trial.        We

disagree.

      Our standard of review of the denial of a motion to suppress evidence



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is as follows:

          [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 [the] 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 [trial court
          are] subject to plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012), appeal

denied, 618 Pa. 684, 57 A.3d 68 (2012).

       An officer may order an occupant to exit his vehicle after the detention

of the vehicle for a violation of traffic law until the traffic stop is completed,

even    absent   reasonable     suspicion    that   criminal   activity    is   afoot.

Commonwealth v. Harris, 176 A.3d 1009, 1020-21 (Pa.Super. 2017). The

officer can conduct a pat-down of a suspect’s outer garments if the officer

observes conduct that leads him to reasonably believe the suspect may be

armed and dangerous.        Commonwealth v. Mack, 953 A.2d 587, 590

(Pa.Super.   2008)    (noting   officer’s   observation   of   suspect’s    reaching

movements while suspect was in vehicle can lead officer to reasonably


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conclude his safety is in jeopardy).

      “[T]he Fourth Amendment to the United States Constitution and Article

I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable

searches and seizures and, to that end, a search conducted without a warrant

is generally presumed unreasonable unless it is undertaken pursuant to a

recognized exception to the warrant requirement.”        Commonwealth v.

Lechner, 685 A.2d 1014, 1016 (Pa.Super. 1996).

         The level of probable cause necessary for warrantless
         searches of automobiles is the same as that required to
         obtain a search warrant. The well-established standard for
         evaluating whether probable cause exists is the “totality of
         the circumstances” test. This test allows for a flexible,
         common-sense approach to all circumstances presented.
         Probable cause typically 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. The evidence
         required to establish probable cause for a warrantless
         search must be more than a mere suspicion or a good faith
         belief on the part of the police officer.

Id. (internal citations omitted). “[P]robable cause does not require certainty,

but rather exists when criminality is one reasonable inference, not necessarily

even the most likely inference.” Commonwealth v. Spieler, 887 A.2d 1271,

1275 (Pa.Super. 2005).

      Article I, Section 8 of the Pennsylvania Constitution affords no greater

protection with respect to warrantless searches of motor vehicles than does

the Fourth Amendment to the United States Constitution. Commonwealth

v. Gary, 625 Pa. 183, 242, 91 A.3d 102, 138 (2014).              Under either


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constitutional provision, “[t]he prerequisite for a warrantless search of a motor

vehicle is probable cause to search; no exigency beyond the inherent mobility

of a motor vehicle is required.” Id. Additionally, “[i]f a car is readily mobile

and probable cause exists to believe it contains contraband, the Fourth

Amendment permits police to search the vehicle without more.” Id. at 199,

91 A.3d at 111-12 (quoting Pennsylvania v. Labron, 518 U.S. 938, 940,

116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, ___ (1996)).

      Instantly, Captain Paparo witnessed Appellant disregard multiple stop

signs and stopped his vehicle. Captain Paparo then saw Appellant place a

large object in the rear of his vehicle. The captain approached the vehicle and

asked Appellant about his movements; Appellant stated he had searched for

his registration and insurance.     Appellant opened the center console to

demonstrate his earlier movements, and Captain Paparo noticed a prescription

pill bottle in the console. The captain asked Appellant to hand over the pill

bottle, and Appellant complied. The captain observed that the name on the

pill bottle was not Appellant’s name.

      Captain Paparo asked Appellant to exit his vehicle. Upon Appellant’s exit,

the captain saw another prescription pill bottle in the driver’s-side door pocket

with the label torn off. Captain Paparo conducted a pat down for officer safety

and detected pills, which the captain later determined to be oxycodone, in an

envelope in Appellant’s pants pocket. Appellant denied having any more pills

in his vehicle. Captain Paparo searched Appellant’s vehicle and discovered


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multiple prescription bottles for other pills, some of which contained controlled

substances, and a firearm in the center console. Appellant filed a motion to

suppress the items found on his person and in the vehicle based on an illegal

search   without   reasonable    suspicion   or   probable    cause;   the   court

subsequently denied Appellant’s motion to suppress.

      Here, Captain Paparo legally stopped Appellant after he disregarded

several stop signs and asked Appellant to exit his vehicle for officer safety.

See Harris, supra. Captain Paparo’s observation of Appellant moving a large

object in the back seat gave the captain a reasonable belief that his safety

was in jeopardy, which justified his pat down of Appellant and the seizure of

the loose oxycodone pills on Appellant’s person. See Mack, supra. Further,

under the totality of the circumstances, Captain Paparo had probable cause to

believe Appellant’s vehicle contained contraband, after he saw a mislabeled

prescription pill bottle, a prescription pill bottle with the label ripped off, and

recovered loose oxycodone pills from Appellant’s person. See Gary, supra;

Spieler, supra; Lechner, supra. Therefore, Captain Paparo legally searched

Appellant’s vehicle; and the court properly denied Appellant’s motion to

suppress.   See Hoppert, supra.        Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




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