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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 codefendant'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 codefendant 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 nonseverable, 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