J-S54005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SIR JOHN WITHROW                           :
                                               :
                       Appellant               :   No. 1287 WDA 2016

              Appeal from the Judgment of Sentence July 25, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013193-2015


BEFORE:      OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 19, 2017

        Sir John Withrow appeals from the judgment of sentence entered on

July 25, 2016, in the Allegheny County Court of Common Pleas, made final by

the denial of post-sentence motions on August 9, 2016.1           The trial court

imposed a term of three to six years’ imprisonment, following a non-jury trial

in which Withrow was convicted of person not to possess a firearm, possession

with intent to deliver (heroin), and driving while his license was suspended.2

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*   Former Justice specially assigned to the Superior Court.

1  Withrow was tried jointly with his co-defendant, Gene Livingston, III, who
was convicted of person not to possess a firearm. Livingston has also
appealed his judgment of sentence, and he raises similar, but not identical
claims, to the one filed by Withrow. See Commonwealth v. Livingston,
792 WDA 2016.

2 See 18 Pa.C.S. § 6105(a), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §
6106(a)(1), respectively.
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On appeal, Withrow contends the trial court erred in denying his motion to

suppress physical evidence and there was insufficient evidence to convict him

of gun possession. 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.
     Officer Coll ordered both males to show their hands and to stop
     making movements.




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             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.

       Withrow was charged with multiple offenses related to the incident.

Withrow filed a suppression motion on April 8, 2016.3 A motion hearing was


____________________________________________


3  In the motion, Withrow 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.




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held on May 2, 2016,4 immediately before a stipulated non-jury trial. The trial

court denied the suppression motion.               The court subsequently convicted

Withrow of the above-stated crimes, and on July 25, 2016, sentenced him to

a term of three to six years’ incarceration. On May 12, 2016, Withrow 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.5

       In his first issue, Withrow contends the trial court erred in denying his

motion to suppress the evidence because he was searched without probable

cause or reasonable suspicion.                 See Withrow’s Brief at 11.      Citing

Commonwealth v. Powell, 934 A.2d 721 (Pa. Super. 2007), he contends

the facts do not support an investigative detention:

       First and foremost, upon arriving at the Escort, the arresting
       officers observed six individuals sleeping in a parked vehicle on
       private property. The Escort was not parked illegally, nor was the
       fact that it was running particularly unusual given the need of the
       occupants to remain warm on a November night. While the
       officers did note that the station is located in a “high crime area,”
       … this is insufficient on its own to sustain the detention. Most
       importantly, the officers did not observe a firearm or contraband
       in the possession of any occupant in the vehicle until after the
____________________________________________


4   At that time, Livingston orally joined Withrow’s suppression motion.

5  On August 30, 2016, the trial court ordered Withrow to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting an extension of time, Withrow complied with the court’s
directive on October 13, 2016. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 19, 2017.

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        investigatory detention had been initiated and Mr. Withrow had
        been removed and searched. At that time, an officer had already
        reached into the vehicle and taken the keys. In doing so he
        observed no contraband, no suspicious bulges, and no weapons
        or other articulable facts to believe anyone was armed. Moreover,
        the officer removed the passenger, but allowed Mr. Withrow to
        remain in the car until [the] officers confirmed his license was
        suspended. The standard relied upon in Powell to establish a
        threat to officer safety is clearly not met in the instant case.
        Officers felt safe enough to allow him to remain in the vehicle.

Withrow’s Brief at 13-14.

        Our standard of review is well-settled:

        [An appellate court’s] 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, [the appellate court] is bound by [those]
        findings and may reverse only if the court’s legal conclusions are
        erroneous. Where ... 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 [ ] plenary review.

Commonwealth v. Mason, 130 A.3d 148, 151–152 (Pa. Super. 2015)

(quotation omitted), appeal denied, 138 A.3d 3 (Pa. 2016).

        Although the police officers did not stop Withrow’s car, the encounter

“must     be   scrutinized   to   see   if   it   passes   constitutional   muster.”

Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000).




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      Both the Fourth Amendment to the United States Constitution and
      Article I, § 8 of the Pennsylvania Constitution protect the people
      from unreasonable searches and seizures. In the Interest of
      D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (Pa. 2001). The Fourth
      Amendment and Article I, § 8 have long been interpreted to
      protect the people from unreasonable government intrusions into
      their privacy. United States v. Chadwick, 433 U.S. 1, 7, 97 S.
      Ct. 2476, 53 L. Ed. 2d 538 (1977); Commonwealth v. Shaw,
      476 Pa. 543, 383 A.2d 496, 499 (Pa. 1978). “The reasonableness
      of a governmental intrusion varies with the degree of privacy
      legitimately expected and the nature of the governmental
      intrusion.” Shaw, at 499 (collecting cases).

Commonwealth v. McCree, 924 A.2d 621, 626 (Pa. 2007). There are three

types of interactions between citizens and police officers, which require

different levels of validation based upon the nature of the interaction.

      These categories include (1) a mere encounter, (2) an
      investigative detention, and (3) custodial detentions. The first of
      these, a “mere encounter” (or request for information), which
      need not be supported by any level of suspicion, but carries no
      official compulsion to stop or to respond.         The second, an
      “investigative detention” must be supported by reasonable
      suspicion; it subjects a suspect to a stop and a period of detention,
      but does not involve such coercive conditions as to constitute the
      functional equivalent of an arrest. Finally, an arrest or “custodial
      detention” must be supported by probable cause.

Commonwealth v. Baldwin, 147 A.3d 1200, 1202-1203 (Pa. Super. 2016)

(citation omitted).

      Pertinent to this appeal, we note that when analyzing whether police

activity constitutes a mere encounter or an investigatory detention, we are

guided by the following:

      To determine whether a mere encounter rises to the level of an
      investigatory detention, we must discern whether, as a matter of
      law, the police conducted a seizure of the person involved. To
      decide whether a seizure has occurred, a court must consider all

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      the circumstances surrounding the encounter to determine
      whether the demeanor and conduct of the police would have
      communicated to a reasonable person that he or she was not free
      to decline the officers’ request or otherwise terminate the
      encounter. Thus, the focal point of our inquiry must be whether,
      considering the circumstances surrounding the incident, a
      reasonable person innocent of any crime, would have thought he
      was being restrained had he been in the defendant’s shoes.

Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)

(citation omitted).

      Here, the court found the following:

             The interaction between the police officers and Mr. Withrow
      began as a mere encounter. The officers responded to a police
      dispatch advising them that three males were “passed out” in a
      running vehicle in the CoGo’s parking lot at 3:55 a.m. The officers
      responded to the scene and initially began to conduct a welfare
      check to determine whether the occupants of the vehicle were in
      any physical distress. The officers repeatedly attempted to wake
      the occupants by knocking on the windows of the vehicle but the
      occupants would not wake up. In an effort to erase any risk of
      physical harm that could result if one of the occupants accidentally
      shifted the vehicle into gear, Officer Coll opened the car door and
      turned off the ignition. The officers had [a] duty to check on the
      safety of the occupants of the Ford Escort[.] See Commonwealth
      v. Conte, 2007 PA Super 232, 931 A.2d 690, 693-694 (Pa. Super.
      2007)(“Indeed, our expectation as a society is that a police
      officer’s duty to serve and protect the community he or she patrols
      extends beyond enforcement of the Crimes Code or Motor Vehicle
      Code and includes helping citizens….”). The police officers were
      well within their province to approach the vehicle, attempt to
      make contact with the occupants and attempt to diffuse any
      dangerous situation[s] that affected the safety of the occupants
      or the public. There was nothing unlawful about the officers
      approaching the vehicle and turning the ignition off.

           Soon after the ignition was turned off, both Mr. Livingston
      and Mr. Withrow woke up. The officers obtained the identity of
      both men and Officer Roche returned to his vehicle to conduct a
      background check of the men. While Officer Roche was running
      the background check, both men began to make furtive

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      movements toward the center console of the vehicle. After Mr.
      Livingston ignored Officer Coll’s demand to show his hands and
      stop moving around the interior of the vehicle, Officer Coll
      removed Mr. Livingston from the vehicle and had him sit on the
      sidewalk. Mr. Withrow was determined to have been driving with
      a suspended driver’s license. He refused to voluntarily exit the
      vehicle and was then forcibly removed from the vehicle. As he
      was being removed from the vehicle, Mr. Withrow continued to
      make movements toward the center console. He was placed into
      custody at that point. The actions of each defendant warranted
      the police officers fearing for their safety and/or a belief that the
      defendants were attempting to conceal contraband in the console.
      The unusual furtive actions of Mr. Livingston and Mr. Withrow,
      combined with their refusal to submit to the officers’ requests,
      created sufficient reasonable suspicion to permit the police officers
      to conduct an investigatory detention.

             Once all of the other occupants were removed from the
      vehicle, Officer Coll determined he was going to conduct an
      inventory search. However, prior to the inventory search and
      right after Mr. Livingston and Mr. Withrow were removed from the
      vehicle, Officer Coll observed, in plain view, the firearm resting on
      the top of the console. Mr. Withrow does not challenge the fact
      that Officer Coll observed the weapon in plain view.

Trial Court Opinion, 1/19/2017, at 7-8.

      We agree with the trial court’s well-reasoned analysis. The interaction

between the officers and the co-defendants began as a mere encounter.

Officers Coll and Roche were dispatched to the convenience store for a welfare

check on several individuals who all appeared to be passed out in a vehicle

with the engine running. N.T., 5/2/2016, at 7-9. The officers did not turn

their lights and sirens on at that time. Id. at 8. The officers tried numerous

times to wake up Withrow and his passengers. Id. at 10, 12. Out of concern

for the position of the car in relation to the business, and the safety of its

occupants, the officers were justified in checking on the welfare of the

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occupants and reaching in to turn off the engine. See Commonwealth v.

Collins, 950 A.2d 1041 (Pa. Super. 2008) (concluded officer was permitted

to check on the welfare of occupants of a legally parked car at night even with

no outward signs of distress and he did not observe anything that led him to

believe that something illegal was going on at that point in time).

       Additionally, at that point, the officers did not search for or seize

anything. After the officers were finally able to wake the individuals, they

obtained Withrow’s name and date of birth as well as the same information

from the front seat passenger and co-defendant, Livingston. N.T., 5/2/2016,

at 12. Again, one can reasonably infer that nothing intrusive was occurring

regarding the officer’s interaction with the individuals.

       While Officer Roche went to run their information, Officer Coll observed

both Withrow and Livingston make furtive movements towards the center

console of the vehicle. Id. at 13. He ordered them both to show their hands

and neither defendant complied. Id. at 13-14. Officer Coll then decided to

remove Livingston from the car but Withrow was permitted to remain in the

car. It was not until after the officers learned that Withrow’s driver license

had been suspended, and he continued to reach toward the center console did

Officer Roche remove him from the car and conducted a pat-down search for

the officers’ safety. Id. at 14-15.6 Nevertheless, it was at this point that the


____________________________________________


6  Withrow also gave the officer consent to search his person.        See N.T.,
5/2/2016, at 15-16.

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officers were justified in detaining and arresting Withrow as they learned he

was driving with a suspended license, a violation of the Motor Vehicle Code.

See 75 Pa.C.S. § 1501(a) (drivers required to be licensed).        Additionally,

Withrow kept making furtive movements after he had been told to stop and

show his hands.    The subsequent pat-down search of his person was well

within the officers’ permitted conduct as it was out concern for their own

safety. See Commonwealth v. Rodriguez, 614 A.2d 1378, 1383-1384 (Pa.

1992) (“Even if probable cause to arrest is absent, the police officer may still

legitimately seize a person, and conduct a limited search of the individual’s

outer clothing in an attempt to discover the presence of weapons which might

be used to endanger the safety of the police officer and others, if the police

officer observes unusual and suspicious conduct on the part of the individual

seized which leads him reasonably to conclude that criminal activity may be

afoot and that the person with whom he is dealing may be armed and

dangerous.”). Accordingly, the trial court did not err in denying Withrow’s

motion to suppress as the officers’ actions were justified. Therefore, his first

argument fails.

      In his second issue, Withrow argues there was insufficient evidence to

support his firearms conviction because he was merely present in a vehicle in

which a gun was recovered. Withrow’s Brief at 15. Specifically, he states:

      While a firearm was found in the vehicle, that firearm was not in
      Mr. Withrow’s possession. The firearm was not registered to Mr.
      Withrow, nor was he observed attempting to control or hide the
      firearm by either of the two officers present. While Mr. Withrow

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      had made “movements” toward the center console, those
      observations are insufficient as a matter of law … to sustain a
      conviction under 18 Pa.C.S. [§] 6105(a)(1).

Withrow’s Brief at 16.

      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
      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).




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     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:

           In this case, the Commonwealth proved beyond a
     reasonable doubt that [Withrow] 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


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      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 Withrow constructively possessed the weapon. 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. Withrow made additional

movements toward the area at issue even after Livingston had been removed

from car. Id. at 15. Moreover, 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 Withrow and Livingston were sitting. See N.T.,

5/2/2016, at 17.    As such, the trial court, sitting as the fact-finder, could

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reasonably infer the firearm was well within Withrow’s reach and he had the

power and intent to control the gun.7 See Hopkins, supra. Furthermore, “it

is possible for two people to have joint constructive possession of an item of

contraband.”     Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super.

2014). Accordingly, we conclude there was sufficient evidence to enable the

trial court to find Withrow constructively possessed a firearm.     Therefore,

Withrow is not entitled to relief with respect to his sufficiency challenge

regarding the firearms conviction.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




____________________________________________


7 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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