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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GENE LIVINGSTON, III :
:
Appellant : No. 792 WDA 2016
Appeal from the Judgment of Sentence May 2, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013189-2015
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2017
Gene Livingston, III, appeals from the judgment of sentence entered on
May 2, 2016, in the Allegheny County Court of Common Pleas, made final by
the denial of post-sentence motions on May 17, 2016.1 The trial court imposed
a term of nine to 18 months’ imprisonment, following a non-jury trial in which
Livingston was convicted of persons not to possess firearms.2 On appeal,
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* Former Justice specially assigned to the Superior Court.
1 Livingston was tried jointly with his co-defendant, Sir John Withrow.
Withrow was convicted of the same offense plus two additional charges.
Withrow has also appealed his judgment of sentence, and he raises similar,
but not identical claims, to the one filed by Livingston. See Commonwealth
v. Withrow, 1287 WDA 2016.
2 See 18 Pa.C.S. § 6105(a).
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Livingston contends the trial court erred in denying his motion to suppress
physical evidence and there was insufficient evidence to convict him of gun
possession.3 For the reasons below, we affirm.
The trial court set forth the factual history as follows:
Officer Ryan Coll of the McKees Rocks Police Department
was on duty on November 8, 2015. At approximately 3:55 a.m.,
he received a dispatch that three males were passed out in a Ford
Escort in the parking lot of a CoGo’s convenience store in McKees
Rocks. When he arrived at the CoGo’s, Officer Coll observed the
Ford Escort but there were actually six people inside the vehicle.
The Ford Escort was a small vehicle. The vehicle’s engine was
running. There was one male in the driver’s seat, one male in the
front passenger seat and three females and one male in the rear
seats of the vehicle. All six people were sleeping. Sir John
Withrow was in the driver’s seat. Gene Livingston, who was a
large man, was in the front passenger seat. McKees Rocks police
Officer Roche arrived on the scene. He proceeded to the driver’s
side window. Officer Coll remained at the front passenger window.
Due to the officers’ fear that serious injury could occur to one of
the occupants or a pedestrian if the vehicle was accidentally
placed into gear by one of the sleeping occupants, both officers
began to knock on the windows. Despite the knocking, none of
the occupants woke up. After unsuccessfully attempting to wake
the occupants, Officer Roche checked to see if the passenger door
was unlocked. The passenger door was unlocked so he opened
the door, reached into the vehicle, turned the engine off and
removed the keys from the ignition. Mr. Livingston opened his
eyes briefly then went back to sleep. Eventually, the officers were
able to wake Mr. Withrow and Mr. Livingston. Officer Roche
returned to his patrol vehicle to run a background check on Mr.
Withrow and Mr. Livingston through dispatch. Officer Coll
remained with the vehicle. While Officer Roche was checking with
dispatch, Officer Coll observed Mr. Livingston reaching with his left
hand towards the center console of the vehicle. Mr. Withrow was
also observed making movements with his right hand toward the
console. Officer Coll could not see what they were reaching for.
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3 We have reversed the order of Livingston’s issues for ease of disposition.
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Officer Coll ordered both males to show their hands and to stop
making movements.
Mr. Livingston continued to move around inside the vehicle.
Fearing for his safety, Officer Coll ordered Mr. Livingston out of
the vehicle. He also ordered Mr. Livingston to sit on the sidewalk.
At this point, Officer Roche returned to the vehicle. Based on
Officer Roche’s background check, officers learned that Mr.
Withrow’s driver’s license was suspended. Due to that fact, Officer
Coll called for a tow truck. Officer Roche asked Mr. Withrow to
exit the vehicle. Mr. Withrow refused to exit the vehicle. Mr.
Withrow began to take his jacket off and again reached toward
the center console. Officer Roche then physically removed Mr.
Withrow from the vehicle. After Officer Roche conducted a pat-
down search of Mr. Withrow for weapons, Mr. Withrow consented
to a search of his person. Heroin and crack cocaine were
discovered. Mr. Withrow was taken into custody and placed into
Officer Roche’s patrol vehicle. The remaining occupants of the
vehicle woke up. They were each checked by other officers who
responded to the scene and told they were free to go.
Officer Coll was about to begin conducting an inventory
search of the vehicle before the tow truck arrived. Prior to
beginning the inventory search, Officer Coll noticed a firearm on
the top of the console between the driver’s and front passenger’s
seats. The firearm was in plain view and he was able to observe
it from outside the vehicle. He did not see the firearm when he
turned the ignition off. He immediately took possession of the
firearm and he found it to be loaded. At this point, Mr. Livingston
was also placed under arrest.
Trial Court Opinion, 1/19/2017, at 1-3.
Livingston was charged with carrying a firearm without a license and
persons not to possess a firearm. A suppression hearing was held on May 2,
2016, immediately before a stipulated non-jury trial and sentencing. At that
time, Livingston orally joined Withrow’s suppression motion, which had been
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filed on April 8, 2016.4 See N.T., 5/20/2016, at 4-5. The trial court denied
the suppression motion. The court subsequently convicted Livingston of
person not to possess a firearm,5 and sentenced him to a term of nine to 18
months’ incarceration, followed by two years of probation. On May 12, 2016,
Livingston filed a post-sentence motion, alleging: (1) there was insufficient
evidence to support his conviction; (2) the verdict was against the weight of
the evidence; and (3) the trial court should modify his sentence. On May 17,
2016, the trial court denied his motion. This timely appeal followed.6
In his first issue, Livingston argues the trial court erred in denying his
motion to suppress because the police did not have lawful custody of the car,
and therefore, the inventory search was improper. See Livingston’s Brief at
24. Specifically, he states:
[T]he police did not wait 24 hours after immobilizing the vehicle,
as 75 Pa.C.S.A. § 6309.2(b) requires, and there was no public-
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4 In the motion, the co-defendants argued: (1) the officers lacked the
necessary reasonable suspicion to detain them after completing the original
purpose of the investigatory detention; and (2) following the impermissible
further delay and detention, the police lacked the necessary probable cause
to perform the search of their persons or the motor vehicle.
5 The court acquitted him of carrying a firearm without a license.
6 On June 6, 2016, the trial court ordered Livingston to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting multiple extensions of time, Livingston complied with the
court’s directive on October 12, 2016, and also filed an amended concise
statement on the same day. He also filed a notice of intent to abandon “Issue
E” from his amended concise statement on December 14, 2016. The trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 19, 2017.
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safety concern that allowed them to immediately tow the car.
Under [Section] 6309.2(a)(1), officers must wait 24 hours before
conducting an inventory search of a vehicle if the driver does not
have a valid license unless there is an overriding public-safety
concern. 75 Pa.C.S.A. § 6309.2(a)(1). As the officers failed to
follow this procedure, this Honorable Court must reverse the Trial
Court’s suppression ruling.
Livingston’s Brief at 24.7
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7 Section 6309.2 provides, in relevant part:
(a) General rule. — Subject to subsection (d), the following
shall apply:
(1) If a person operates a motor vehicle or combination on a
highway or trafficway of this Commonwealth while the person’s
operating privilege is suspended, revoked, canceled, recalled or
disqualified or where the person is unlicensed, as verified by an
appropriate law enforcement officer in cooperation with the
department, the law enforcement officer shall immobilize the
vehicle or combination or, in the interest of public safety, direct
that the vehicle be towed and stored by the appropriate towing
and storage agent pursuant to subsection (c), and the appropriate
judicial authority shall be so notified.
…
(b) Procedure upon immobilization.
(1) When a vehicle is immobilized pursuant to subsection
(a)(1), the operator of the vehicle may appear before the
appropriate judicial authority within 24 hours from the time
the vehicle was immobilized. The appropriate judicial
authority may issue a certificate of release upon:
(i) the furnishing of proof of registration and financial
responsibility by the owner of the vehicle; and
(ii) receipt of evidence that the operator of the
vehicle has complied with the pertinent provisions of
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A review of the record, particularly the joint motion to suppress and
notes of testimony from the May 2, 2016, suppression hearing, reveal that
Livingston did not preserve this claim. See Commonwealth v. Little, 903
A.2d 1269, 1272-1273 (Pa. Super. 2006) (“[A]ppellate review of an order
denying suppression is limited to examination of the precise basis under which
suppression initially was sought; no new theories of relief may be considered
on appeal”); see also Commonwealth v. Thur, 906 A.2d 552, 566 (Pa.
Super. 2006) (“[w]hen a defendant raises a suppression claim to the trial court
and supports that claim with a particular argument or arguments, the
defendant cannot then raise for the first time on appeal different arguments
supporting suppression[]”). Rather, the suppression motion alleged: “The
Motor Vehicle was legally parked in an open business and not on the roadway
of the Commonwealth … and the officers had no authority to remove
Defendant from the vehicle and commence the towing of the vehicle from a
private business.” Defendant’s Omnibus Pre-Trial Motion, 4/8/2016, at
unnumbered 6, n.3. Co-defendant Withrow’s counsel argued that the officers
conducted the search based on a hunch and Livingston’s counsel joined in the
argument, emphasizing the officers had no reasonable suspicion of criminal
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Title 42 (relating to judiciary and judicial procedure)
and this title.
75 Pa.C.S. § 6309.2(a)(1), (b)(1).
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activity. See N.T., 5/2/2016, 64-65, 66-68. Notably, neither attorney argued
the police violated the 24-hour rule pursuant to Section 6309.2.8 Accordingly,
we find Livingston has waived this argument for appellate review purposes.
Therefore, we need not address the claim further.
Next, Livingston argues there was insufficient evidence to support his
firearms conviction because the Commonwealth failed to prove he had actual
or constructive possession of the gun found in the center console of the car.
Livingston’s Brief at 16. He points to the following:
Withrow drove the car, and the car was registered to Withrow’s
father. Withrow remained in the car and made suspicious
movements towards its center console after Mr. Livingston had
exited the vehicle. In addition to Withrow, four other passengers
remained in the car after Mr. Livingston had exited. No officer
saw the gun when Mr. Livingston was in the car, and there was no
testimony that his DNA or fingerprints were on it. The gun was
not found in an area where Mr. Livingston had exclusive control,
and there was no testimony that any indicia of Mr. Livinston’s was
found in the car. The gun was not registered to Mr. Livingston.
Id. at 16 (record citations omitted). Moreover, Livingston alleges:
[T]he Commonwealth did not establish, beyond a reasonable
doubt, that Mr. Livingston had power and intent to control the gun
that Officer Coll found on the center console of the car that
Withrow was driving. The only relevant evidence that the
Commonwealth put forth was that Mr. Livingston reached his left
hand towards the center console of the car after Officer Coll woke
him up. It is mere speculation to argue that Mr. Livingston moved
his hand because he knew of a gun or wanted to control it.
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8 Furthermore, it merits mention the statute does not state that officers must
wait 24 hours before conducting an inventory search. Rather, it provides the
owner of the vehicle may appear before a judicial authority within 24 hours
from the time the car was immobilized to seek release. See 75 Pa.C.S. §
6309.2(b)(1).
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Indeed, neither police officer located the gun when Mr. Livingston
was in the vehicle. Officer Coll even reached over Mr. Livingston
and the center console to get the keys from the ignition and
acknowledged that the interior light of the car likely came on when
he opened the door, but he still did not see the gun when Mr.
Livingston was in the car.
Id. at 18-19 (record citations omitted). Additionally, Livingston contends the
“overwhelming evidence showed that Withrow controlled the gun and put it
on the center console.” Id.
We begin with our well-settled standard of review:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
The crime of persons not to possess firearms is defined as follows:
A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
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subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1).
When a prohibited item is not discovered on a defendant’s person, or in
his actual possession, as is the case here, the Commonwealth may prove the
defendant had constructive possession of the item.
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an inference
arising from a set of facts that possession of the contraband
was more likely than not. We have defined constructive
possession as conscious dominion. We subsequently
defined conscious dominion as the power to control the
contraband and the intent to exercise that control. To aid
application, we have held that constructive possession may
be established by the totality of the circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super.2012),
appeal denied, [] 63 A.3d 1243 (2013) (internal quotation marks
and citation omitted). Additionally, it is possible for two people to
have joint constructive possession of an item of contraband.
Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super. 2008),
appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Commonwealth v. Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013),
appeal denied, 78 A.3d 1090 (Pa. 2013). “An intent to maintain a conscious
dominion may be inferred from the totality of the circumstances, and
circumstantial evidence may be used to establish a defendant’s possession of
drugs or contraband.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.
Super. 2013) (citation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).
The trial court analyzed the claim as follows:
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In this case, the Commonwealth proved beyond a
reasonable doubt that [Livingston] possessed the firearm in
question. Both men were in a deep sleep when the officers
approached the Ford Escort. As soon as they were awakened by
the officers, both men ignored the warnings of the police officers
and made repeated furtive movements toward the center console
of the Ford Escort. Mr. Livingston specifically ignored demands
that he show his hands and not make any movements inside the
vehicle. Despite these demands, he reached toward the center
console. Mr. Withrow continued to reach toward the center
console as he was being removed from the vehicle. The firearm
was recovered within inches of where both men were sitting in the
vehicle. Both men had the power and ability to control the
firearm. Their repeated movements toward the location where
the firearm was found proves their intent to maintain control over
the firearm.
Trial Court Opinion, 1/19/2017, at 11.
We agree with the court’s well-reasoned analysis. Furthermore, "the
evidence at trial need not preclude every possibility of innocence, and the fact-
finder is free to resolve any doubts regarding a defendant’s guilt unless the
evidence is so weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances.” Commonwealth v.
Hughes, 908 A.2d 924, 928 (Pa. Super. 2006).
Here, viewed in the light most favorable to the Commonwealth as the
verdict winner, the evidence was sufficient to sustain the trial court’s finding
that Livingston constructively possessed the weapon. The gun, which was in
plain view, was located on top of the center console that was between the
driver’s and front passenger’s seats, where both Livingston and Withrow were
sitting. See N.T., 5/2/2016, at 17. Furthermore, “it is possible for two people
to have joint constructive possession of an item of contraband.”
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Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014). After being
awoken by police, both men were observed making repeated furtive
movements towards the center console area. See N.T., 5/2/2016, at 13. As
such, the trial court, sitting as the fact-finder, could reasonably infer the
firearm was well within Livingston’s reach and he had the power and intent to
control the gun.9 See Hopkins, supra.
Lastly, to the extent Livingston argues there was no DNA evidence
connecting him to the gun, we find this of no consequence based on the
remaining circumstantial evidence. See Commonwealth v. Lopez, 57 A.3d
74, 80 (Pa. Super. 2012) (holding that the lack of forensic evidence was not
fatal to the prosecution’s case based on wholly circumstantial evidence),
appeal denied, 62 A.3d 379 (Pa. 2013). Accordingly, we conclude there was
sufficient evidence to enable the trial court to find Livingston constructively
possessed a firearm. Therefore, Livingston is not entitled to relief with respect
to his sufficiency challenge regarding the firearms conviction.
Judgment of sentence affirmed.
Judge Moulton joins the memorandum.
Justice Fitzgerald concurs in the result.
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9 See Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa. Super. 1979) (“It
strains the imagination to believe that defendant innocently entered this
vehicle having no knowledge of the items found therein when, the pistol at
least, was within a few inches of him and a portion of it was in plain view.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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