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filed: March 31, 1989.


Appeals from the Order of the Court of Common Pleas of Allegheny County at No. CC 8502043 entered on January 3, 1986, granting, in part, the Defendant's Omnibus Pre-trial Motion to Suppress.


Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com. (at 162) and appellee (at 229).

Charles E. Foerster, Pittsburgh, for appellee (at 162) and appellant (at 229).

Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Beck, Kelly, Popovich and Melinson, JJ. Kelly, J., filed a concurring and dissenting opinion. Wieand and Beck, JJ., filed a concurring and dissenting statement. Popovich, J., did not participate in the consideration or decision of this case.

Author: Melinson

[ 383 Pa. Super. Page 303]

This is an appeal filed by the Commonwealth from an Order of the Court of Common Pleas of Allegheny County granting, in part, Appellee's omnibus pre-trial motion to suppress evidence. Appellee (hereinafter "Slaton") has cross-appealed the portion of the Order denying the suppression of other evidence. We affirm the portion of the trial court's Order granting Slaton's motion to suppress. Slaton's cross-appeal is quashed as interlocutory.

On November 21, 1983, Agent Eugene C. Beard, Jr., of the Bureau of Narcotics of the Commonwealth of Pennsylvania, visited Lou's Pharmacy in East Pittsburgh, Pennsylvania. The purpose of Beard's visit was to search the "Schedule II file"*fn1 of the pharmacy in the course of an investigation into the activities of an individual referred to as "Merriweather." This individual allegedly had been forging prescriptions in the general vicinity of Lou's. Beard notified the pharmacist, Slaton, that he wished to look through his Schedule II file for information on Merriweather. Slaton responded by showing Beard the file.

During the course of searching the file for evidence against Merriweather, Beard found many other forged prescriptions, apparently unrelated to the Merriweather case. He removed these prescriptions from the Schedule II file

[ 383 Pa. Super. Page 304]

    and, in accordance with Bureau of Narcotics policy, left receipts for the removed prescriptions in the file. Within the next few days, Beard contacted the doctors who, according to the confiscated slips, were purported to have written the prescriptions. He learned that the prescriptions were, indeed, forgeries.

On December 6, 1983, Beard, with another narcotics agent, returned to Lou's Pharmacy and, again, notified Slaton that he wished to continue searching his Schedule II file. Beard did not state that he was looking for more information on Merriweather, but neither did he state that he was no longer looking for information on that individual. Read in its totality the record shows that Slaton, on the occasions of the latter two visits, was under the impression that the agents were searching for more information on Merriweather. Under those circumstances, Slaton again permitted Beard to search the file. Additional suspected forged prescriptions were removed by the agents on that date and on the following day, December 7, 1983.

Slaton was arrested on January 16, 1985, and was charged with sixty-one (61) counts of Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: Distribution by Practitioner in Bad Faith. Pa.Stat.Ann. tit. 35, Section 780-113(a)(14) (Purdon 1987 Supp.). Slaton filed an omnibus pre-trial motion, requesting, inter alia, that the prescription slips taken from the Schedule II file be suppressed on the grounds that his consent was improperly obtained.

The trial court denied the motion with regard to the prescription slips seized on Agent Beard's first visit to Lou's Pharmacy. The court found, however, that by December 6, 1983, Slaton had become "the focus of the investigation and that, accordingly, a warrant to search was constitutionally required." The trial court further found that the Commonwealth had not proved that Slaton knowingly and intelligently consented to a search of the premises. Thus, in the absence of a valid search warrant, the prescription slips seized on December 6 and 7 of 1983 were

[ 383 Pa. Super. Page 305]

    illegally seized and, therefore, were inadmissible as evidence against Slaton.*fn2 The Commonwealth has appealed this Order of the trial court. Slaton has cross-appealed, claiming that the prescription slips seized at the time of Beard's first visit should also have been suppressed as the result of an illegal search.


Appeal of the Commonwealth

No. 162 Pittsburgh, 1986

We shall first address the issues raised by the Commonwealth. Initially, the Commonwealth alleges that the trial court incorrectly concluded that Slaton was the focus of the investigation on December 6 and 7. Alternatively, it is asserted that, even if Slaton had been the focus of the investigation on those dates, he voluntarily consented to the search of the Schedule II file.

"[T]he Commonwealth's appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution." Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Commonwealth certified on the record in the trial court, and in the brief submitted on appeal, that the Order suppressing twenty-six (26) of the sixty-one (61) prescription slips "substantially handicaps its ability to prosecute all the instant charges based upon all available evidence."*fn3 Thus, we shall address the merits of this appeal.

[ 383 Pa. Super. Page 306]

The trial court found that by the dates of the latter two searches (December 6th and 7th), Slaton had become the focus of the investigation. The record supports that factual finding. However, that finding is not dispositive of the constitutionality of the searches. The issue to be decided is whether Slaton's consent to the warrantless searches of December 6th and 7th was voluntary under Pennsylvania law.

Initially, we note that Pa.Stat.Ann. tit. 35, Section 780-134 (Purdon 1977) governs the issues in this case. That section provides, in pertinent part:

(b)(1) For the purpose of inspecting, copying, and verifying the correctness of records, reports, or other documents required to be kept or made under this act and otherwise facilitating the carrying out of his functions under this act, the secretary is authorized, in accordance with this section, to enter controlled premises and to conduct administrative inspections thereof, and of the things specified in this section, relevant to those functions.

(2) Such entries and inspections shall be carried out through officers or employes (hereinafter referred to as "officers") designated by the secretary. Any such officer upon stating his purpose and presenting to the owner, operator, or officer in charge of such premises (i) appropriate credentials and (ii) a written notice of his inspection authority. . . shall have the right to enter such premises and conduct such inspection at reasonable times . . . .

(c) A warrant under this section shall not be required for the inspection of books and records pursuant to any administrative subpoena issued in accordance with any provisions of any Act of Assembly nor for entries and administrative inspections (including seizures of property):

[ 383 Pa. Super. Page 307]

(1) With the consent of the owner, operator, or officer in charge of the controlled premises;

(2) In situations presenting imminent danger to health or safety;

(3) In situations involving inspection of conveyances where there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;

(4) In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or

(5) In any other situations where a warrant is not constitutionally required.

Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977) (emphasis added).

We are aware that there is federal case law which holds that statutes authorizing warrantless searches, in some instances, may be reasonable and necessary to further federal interests. Such statutes are not violative of the Fourth Amendment. U.S. Const. amend. IV; see United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (federally licensed firearms dealer is engaged in highly regulated industry; thus, is subject to warrantless searches under statutory scheme); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (holder of federal retail liquor dealer's occupational tax stamp must pay fine for refusal to allow agents to conduct warrantless search under federal statute).

We are, however, not dealing with such a statute in this case. The statute with which we are concerned authorizes a search with, inter alia, the consent of the owner/operator, with a warrant, or in any situation where a warrant is not constitutionally required. Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977). Although the pharmaceutical field is a highly regulated industry, the Pennsylvania legislature has not seen fit to authorize warrantless searches. The statute in question only authorizes warrantless

[ 383 Pa. Super. Page 308]

    searches in specific instances, one of those being with the consent of the owner/operator. The statute further provides that the agent seeking to conduct such an inspection must identify himself and state his purpose. Finally, the statute provides a detailed procedure for obtaining a warrant, and a "probable cause" standard for the issuance of same. Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977). We find that the legislature has not authorized warrantless searches of pharmacies. Moreover, we find that, in this instance, absent any of the statutorily enumerated exceptions, such as consent, a search warrant was required.

The mere fact that Slaton permitted a search is not, however, determinative of the issue. The Supreme Court of this Commonwealth has held that "a mere acquiescence to a claim of lawful authority does not discharge the burden that consent must be freely and voluntarily given." Commonwealth v. Maxwell, 505 Pa. 152, 162, 477 A.2d 1309, 1314, cert. denied 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984), citing Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973), later app. aff'd. 462 Pa. 543, 342 A.2d 67 (1975). Thus, the answer to the suppression question raised in this appeal hinges on whether Slaton's consent to the searches was voluntary. The trial court found that Slaton's consent was not voluntary. There is ample support for this finding; hence, it should not be disturbed.

Our scope of review in a suppression case is a narrow one. The Pennsylvania Supreme Court has recently spoken on this issue.

In reviewing the ruling of a suppression court, the reviewing court's initial task is to determine whether the factual findings are supported by the record.

Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986), citing Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). The Supreme Court has further stated:

[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant's witnesses

[ 383 Pa. Super. Page 309]

    and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.

Commonwealth v. James, 506 Pa. 526, 532-33, 486 A.2d 376, 379 (1985), quoting Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983).

The Commonwealth claims that the trial court erred when it found that Slaton was the focus of the investigation. Although the trial court incorrectly resolved the suppression issue on the basis of "focus," we believe that the court's supporting factual findings are relevant to our conclusion that the agent's actions vitiated any consent. The trial court noted that ". . . Defendant was the focus of the investigation and that, accordingly, a warrant to search was constitutionally required."*fn4 The learned trial judge based this conclusion on his finding that the testimony of the only witness to testify at the suppression hearing, Commonwealth Narcotics Agent Eugene C. Beard, was not credible. There is ample evidence in the record to support this finding. It is well-settled in this Commonwealth that credibility findings are within the sole province of the trial court and will not be disturbed on appeal. 3 See Commonwealth v. Garcia, 370 Pa. Super. 132, 535 A.2d 1186 (1988).

The most telling part of Agent Beard's testimony was the following:

At this time [after November 21, 1983] this agent [Beard] realized that the pharmacist, Louis Slaton, should have realized that the prescriptions were bad or at least had made an attempt to verify the prescriptions.

(N.T., November 27, 1985, p. 44.) Agent Beard also testified that:


[ 383 Pa. Super. Page 310]

[I]t is generally common practice on Schedule II drugs that most pharmacists will call to verify a Schedule II drug, especially Percoset, Percodan, drugs like that. Number two, there were a lot of scratch outs. I mean, the copies looked like obvious copies from a mimeograph machine or a Xerox machine. Things had been written over, traced, even on the prescriptions themselves.

(N.T., November 27, 1985, p. 46.) He further stated that during the course of his first two visits to the pharmacy, he asked Slaton if he had called the "prescribing doctors" to verify any of the prescriptions in question. Slaton responded that he had not done so. (N.T., November 27, 1985, p. 45.)

Despite Agent Beard's protestations to the contrary, the above-quoted testimony was certainly a sufficient basis for the trial court to find that Slaton had become the focus of the investigation after the November 21, 1983, visit. Beard's testimony that Slaton was not a suspect was belied by his (Beard's) testimony that the prescriptions were obvious forgeries and that he had learned, from the "prescribing doctors," that they were forgeries.

If Slaton was suspected of wrongdoing, but was laboring 5 under the misapprehension that his files were being searched for evidence against a person by the name of Merriweather, his consent was not voluntary. Consent to a search undertaken under false pretenses*fn5 is not truly voluntary. Commonwealth v. Poteete, 274 Pa. Super. 490,

[ 383 Pa. Super. Page 311418]

A.2d 513 (1980).*fn6 Slaton could not voluntarily consent to something of which he was unaware, namely, a search of his Schedule II file for evidence against him.

In this case, as in Poteete, Slaton was misled by an officer of the law, who had identified himself and announced an official purpose for his visits. The officer did not disclose the full purpose of his visits and withheld information indicating that Slaton was suspected of criminal conduct. Whether or not Agent Beard intended to mislead Slaton is irrelevant. Consent turns on the state of mind of the citizen, not that of the officer. Commonwealth v. Poteete, 274 Pa. Super. at 498, 418 A.2d at 517. Although zeal in the performance of one's duties as an officer of the law is generally commendable, such zeal should never be used to excuse a violation of an individual's statutorily protected civil liberties. As that preeminent judicial scholar, Mr.

[ 383 Pa. Super. Page 312]

Justice Brandeis, counseled in his dissenting opinion in Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944, 957 (1928):

We, therefore, find that there was no informed, voluntary consent to the warrantless searches conducted on December 6 and 7, 1983. We affirm the Order of the trial court which suppressed the evidence seized on those days.


Appeal of Louis Slaton

No. 229 Pittsburgh, 1986

We now address Slaton's cross-appeal. We find that there is a threshold issue raised by this cross-appeal. That issue is whether this court has the jurisdiction to hear a criminal defendant's cross-appeal from the denial of a portion of a pretrial suppression motion when the Commonwealth has filed an appeal from the granting of another portion of that same motion. We hold that this court does not have such jurisdiction because such a cross-appeal is interlocutory. Hence, Slaton's cross-appeal is quashed.

We have determined that this court has no jurisdiction to hear a cross-appeal by a criminal defendant from an order denying a motion to suppress. Jurisdiction, generally, is defined as follows: 9

The word is a term of large and comprehensive import, and embraces every kind of judicial action. It is the authority by which courts and judicial officers take cognizance of and decide cases. The legal right by which judges exercise their authority. It exists when court has

[ 383 Pa. Super. Page 313]

    cognizance of class of cases involved, proper parties are present, and point to be decided is within powers of court. Power and authority of a court to hear and determine a judicial proceeding. The right and power of a court to adjudicate concerning the subject matter in a given case.

Black's Law Dictionary 766 (5th ed. 1979) (citations omitted). Subject matter jurisdiction, specifically, is defined as:

Power of a particular court to hear the type of case that is then before it. Term refers to jurisdiction of court over class of cases to which particular case belongs, . . .; jurisdiction over the nature of the cause of action and relief sought, . . .; or the amount for which a court of limited jurisdiction is authorized to enter judgment.

A court is without authority to adjudicate a matter over which it has no jurisdiction even though the court possesses jurisdiction over ...

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