Com. v. Pailin, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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