J-S08040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD KYLE EBERLIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 822 MDA 2023

Appeal from the Judgment of Sentence Entered May 2, 2023

In the Court of Common Pleas of Sullivan County Criminal Division at 

No(s): CP-57-CR-0000027-2021

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: APRIL 16, 2024

Appellant, Richard Kyle Eberlin, appeals from the judgment of sentence 

entered in the Sullivan County Court of Common Pleas on May 2, 2023. We 

affirm.

The relevant facts and procedural history as summarized by the trial 

court are as follows: 

On or about September 20, 2021, a Criminal Information 

was filed against Defendant Richard Kyle Eberlin (hereinafter 

“Defendant”) charging Defendant with the following: [one felony 

count of possession with intent to deliver methamphetamine, 

eight misdemeanor counts of drug paraphernalia, and four vehicle 

code violations]. 

The charges against Defendant stem from an incident that 

occurred on July 15, 2021 in Davidson Township, Sullivan County, 

Pennsylvania. On that date at approximately 7:30 p.m. Defendant 

was operating a motor vehicle when he was stopped by officers 

from the Pennsylvania State Police for various Vehicle Code 

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* Former Justice specially assigned to the Superior Court.
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violations. (H.T. 8/2/22, pp. 7-9). After the vehicle was stopped, 

Defendant was ordered to exit the vehicle and a pat-down search 

for weapons was conducted during which the officers found a box 

of cigarettes. (H.T. 8/2/22, pp. 24-25). Pennsylvania State Master 

Trooper Derrek Martin (hereinafter “Trooper Martin” had 

previously arrested individuals who purchased Methamphetamine 

from Defendant. (H.T. 8/2/22, pp. 20-21). Trooper Martin 

observed a bulky white vaporizer in the cupholder that could be 

used for things other than vaping nicotine. (H.T. 8/2/22, p. 21).

When asked if the officers could search his vehicle, 

Defendant refused. (H.T. 8/2/22, p. 27). The officers called for the 

K9 unit approximately nine (9) minutes after the initial stop. (H.T. 

8/2/22, pp. 27-28). The K9 unit arrived approximately forty to 

forty-five (40-45) minutes later. (H.T. 8/2/22, p. 29). During that 

time Defendant was not handcuffed and was sitting on the bumper 

of the patrol vehicle. (H.T. 8/2/22, pp. 27, 29-30).

Trooper Matthew Klaips (hereinafter “Trooper Klaips”) 

testified that he is the Trooper with the Bureau of Emergency 

Special Operations within the State Police of the Drug Protection 

K9 Handler's Station. Trooper Klaips was called out to conduct a 

K9 search of Defendant's vehicle on July 15, 2021. While 

conducting the search, Joi, the K9, showed an alert by the driver's 

door in that he began heavy nose breathing. (H.T. 8/2/22, p. 60). 

Joi was trained to smell cocaine, methamphetamine, heroin and 

marijuana. (H.T. 8/2/22, p. 61). This provided probable cause for 

Trooper Martin to tow Defendant's vehicle. (H.T. 8/2/22, p. 32).

On July 16, 2021, the police requested a search warrant 

which was issued for a search of the vehicle. As a result of the 

search, various items of controlled substances, drugs and drug 

paraphernalia were seized from the vehicle and form the basis for 

the charges against Defendant. On or about October 21, 2022, 

Defendant filed a Motion to Suppress asserting the police did not 

have reasonable suspicion to detain Defendant and/or the vehicle 

pending the arrival of the K9 unit and that the impoundment of 

the vehicle without a warrant was improper. Hearings thereon 

were conducted on August 2, 2022 and October 4, 2022. Following 

the same, the Motion to Suppress was denied by Court Order 

November 3, 2022.

A bench trial was held on March 27, 2023 and following the 

same the [c]ourt found Defendant guilty of Counts 2, 3, 4, 5, 6, 

7, 8, 9, 10, 11, 12 and 13. Sentencing was held on May 2, 2023 

and based upon an extensive and thorough Pre-Sentence 

Investigation, Defendant was sentenced [to an aggregate of 
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sixteen months to eighty-four months, incarceration, followed by 

one year probation].

Defendant filed a Post-Sentence Motion which was denied 

by [the trial court] on May 12, 2023. Defendant has filed an appeal 

to the Pennsylvania Superior Court asserting [the trial court’s] 

denial of his Motion to Suppress was improper and that several of 

the counts of the possession of drug paraphernalia should have 

merged for sentencing purposes and as such, this matter is now 

ripe for discussion.

Tr. Ct. Op. at 1-6.

Appellant raises one question for our review:

WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS PERSON 

AND FROM A VEHICLE THAT HE WAS OPERATING?

Appellant’s Br. at 15.

In reviewing the denial of a suppression motion, we must determine:

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. Where, 

as here, 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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal quotations 

and citations omitted). In reviewing the denial of a suppression motion, we 

may only consider evidence presented at the suppression hearing. In re L.J., 

79 A.3d 1073, 1085-87 (Pa. 2013).
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Appellant argues that the police did not have reasonable suspicion to 

detain him pending the arrival of the K9 unit, that the pat-down of Appellant 

and the seizure of the cigarettes from his person were a constitutional 

violation, and that the impoundment of his vehicle was improper. Appellant’s 

Br. at 17. The Commonwealth contends that Appellant failed to establish that 

he had a reasonable expectation of privacy in the vehicle he was operating. 

Appellee’s Br. at 11-12. We agree. 

“A defendant moving to suppress evidence has the preliminary burden 

of establishing standing and a legitimate expectation of privacy.” 

Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc).

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.

Id. (citations omitted).
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In Burton, the driver was stopped for a routine traffic violation. When 

asked for his driver’s license, registration, and insurance information, the 

driver presented a non-driver’s license identification card and an expired 

rental agreement for the car. None of the car’s occupants were the named 

lessee and none could establish their connection to the car or the named 

lessee. There we held: 

In the instant case, the vehicle was not owned by [Burton]. The 

vehicle was not registered in [Burton's] name. [Burton] offered no 

evidence that he was using the vehicle with the authorization or 

permission of the registered owner. [Burton] offered no evidence 

to explain his connection to the vehicle or his connection to the 

registered owner of the vehicle. [Burton] failed to demonstrate 

that he had a reasonably cognizable expectation of privacy in a 

vehicle that he did not own, that was not registered to him, and 

for which he has not shown authority to operate.

Id. at 436.

Similarly, in Commonwealth v. Maldonado, 14 A.3d 907 (Pa. Super. 

2011), an officer observed a car driving in front of him with an expired 

registration sticker and stopped the vehicle. The officer learned that the driver 

did not have a valid driver’s license or proof of insurance for the vehicle, and 

the car was not registered to him. Id. at 909. Because the driver had no proof 

of ownership of the car and there were outstanding warrants for him, the 

officer arrested the driver and impounded the car. During an inventory search, 

a firearm and narcotics, inter alia, were uncovered. Id. We opined: 

At the suppression hearing, Maldonado bore the burden of 

establishing that he had a reasonable expectation of privacy in the 

automobile. At the suppression hearing, the Commonwealth 

presented only the testimony of Officer Buckman, and Maldonado 
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did not present any witnesses. The evidence elicited at that time 

establishes that the vehicle was owned by Vasquez [his girlfriend]. 

Officer Buckland testified, on cross-examination, that Maldonado 

told him that Vasquez was his girlfriend and that they lived 

together at the address to which the vehicle was registered. 

However, there was no evidence that Maldonado had permission 

from Vasquez to drive the car. When Maldonado's counsel asked 

Officer Buckman whether Maldonado told him that Vasquez had 

given him permission to drive her car, Officer Buckman stated only 

that he did not recall asking Maldonado that question. Of note, 

although it appears that Vasquez attended the suppression 

hearing, Maldonado did not call her to testify that she had given 

Maldonado permission to drive her car on the day in question. 

The fact that Maldonado and Vasquez might have lived 

together and had a romantic relationship does not foreclose the 

possibility that Maldonado was driving Vasquez's vehicle without 

her knowledge or permission. For that reason, we conclude that 

Maldonado failed to establish an expectation of privacy in the 

vehicle he was driving, which “he did not own, that was not 

registered to him, and for which he has not shown authority to 

operate.” 

Id. at 911-12 (internal citations omitted).

Instantly, Appellant failed to make a showing that he had a reasonable 

privacy interest in the area searched. At the suppression hearings, Trooper 

Martin, Trooper Klaips, and Trooper Shipman testified. The testimony revealed 

that Appellant was stopped for traffic violations: an expired inspection sticker, 

illegally tinted windows, and an inoperable brake light. N.T. at 9-10, R.R. 48a49a. Like the defendants’ vehicles in Burton and Maldonado, the car 

Appellant was driving had an expired registration and he had no proof of 

ownership. N.T. at 17, R.R. 56a. Troopers Martin and Shipman both testified 

that they discovered that the car was registered to Charles Eberlin, Appellant’s 

father, but neither Trooper stated Appellant apprised them of this fact. N.T. 
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at 40, R.R. 79a; N.T. at 82, R.R. 121a. There is no testimony that Appellant 

had his father’s permission to use the car, that Appellant and his father reside 

together, or that his father was even aware of Appellant’s use. Appellant did 

not testify, Appellant’s father did not testify, and even if they resided at the 

same address, it would not foreclose the possibility that Appellant was driving 

his father’s car without his father’s knowledge or permission. Maldonado, 

supra. Appellant having his father’s permission becomes even less likely given 

that the father could have been charged with violating the vehicle code had 

he permitted Appellant to drive the car in its condition. See 75 Pa.C.S. §

1575. 

For these reasons, we conclude that Appellant failed to establish an 

expectation of privacy in the vehicle he was driving, which “he did not own, 

that was not registered to him, and for which he has not shown authority to 

operate.” Burton, Maldonado, supra. Accordingly, we affirm the judgment 

of sentence and do not reach the issue presented by Appellant. 

Judgment of sentence affirmed. 

Judge Murray joins the memorandum.

Judge Olson concurs in the result.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/16/2024