J-S47029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MAURICE JOHNSON

                            Appellant                   No. 3677 EDA 2016


              Appeal from the Judgment of Sentence March 13, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0001854-2014


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                        FILED SEPTEMBER 28, 2017

       Maurice Johnson appeals from the March 13, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following his convictions for persons not to possess firearms, carrying a

firearm without a license, and carrying a firearm on the public streets or

public property in Philadelphia.1 We affirm.

       The trial court set forth the following factual history:

               At approximately 4:15 p.m. on February 2, 2014,
            [Philadelphia] Police Officers [Chad] Gugger and [George]
            Fox observed a black Pontiac automobile travelling at a
            high rate of speed on the 4800 block of North 11th Street
            in Philadelphia.    While attempting to catch up to the
            vehicle, the officers ran the tag through the NCIC
            computer revealing that the auto’s registration had expired
            five months earlier, in September of 2013. The officers
____________________________________________


       1
           18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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        activated their patrol car’s lights and sirens and
        approximately three blocks later pulled [Johnson]’s vehicle
        over in the 1000 block of Rockland Street. Officer Gugger,
        with ten years’ experience on the force and four and one-
        half years in the area of the traffic stop, testified that the
        area was a [“]bad area with lots of major crimes,
        homicides, robberies, guns, [and] drugs.[” He] stated that
        in a normal duty shift, the officers would receive at least
        two calls for gun violence. [] Johnson, the sole occupant
        of the stopped vehicle, gave police his license and
        registration, but not an insurance card when requested.
        The office[r]s checked [Johnson]’s history and[, after
        seeing from prison records that Johnson had] a history of
        gun violence, asked Johnson if he had any weapons in the
        vehicle. [Johnson] did not answer that question, but got
        nervous, started shaking, breathing heavier and told the
        officers that he was on state parole. The patrolmen then
        asked [Johnson] to exit his vehicle and sit in the patrol car
        while the parking authority was notified as they were “live-
        stopping” the vehicle. [Johnson] was not under arrest,
        however two citations were issued for driving an
        unregistered vehicle in violation of 75 Pa.C.S. §[]1301(a)
        and for an invalid inspection in violation of 75 Pa.C.S.
        §[]4706(c)(1).     When the parking authority tow truck
        arrived on the scene, Officer Fox performed an inventory
        of the vehicle, finding a black Smith & Wesson [.]32
        [caliber] revolver with one live round in the glove box.
        [Johnson] was then arrested and transported to the police
        district headquarters.    [Johnson]’s mother testified on
        Johnson’s behalf that she was the owner of the Pontiac
        and, that in addition to her and [Johnson] being authorized
        to use the vehicle, her daughter and son-in-law were
        allowed to use the Pontiac, but that no one had used it
        that day.

Opinion, 1/4/17, at 2-4 (“1925(a) Op.”).

     On March 12, 2014, Johnson filed a motion to quash and to suppress

the firearm. On April 16, 2014, the trial court denied the motion to quash.

The trial court held hearings on the motion to suppress on July 21, 2014 and

January 16, 2015. On January 16, 2015, the trial court denied the motion to


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suppress and proceeded to a non-jury trial, incorporating the testimony from

the suppression hearing.        The trial court convicted Johnson of the

aforementioned offenses.      On March 3, 2015, the trial court sentenced

Johnson to an aggregate sentence of five to ten years’ incarceration followed

by three years’ probation.

        On March 14, 2016, Johnson filed a timely Post Conviction Relief Act

(“PCRA”) petition seeking reinstatement of his appellate rights nunc pro

tunc.    On November 10, 2016, the PCRA court granted the petition and

reinstated Johnson’s appellate rights nunc pro tunc. On November 22, 2016,

Johnson timely filed a notice of appeal.

        Johnson raises two issues on appeal:

             1. Did the trial court err when it admitted evidence of
                the gun found in the glove box?

             2. Does sufficient evidence support the trial court’s
                findings that [Johnson] possessed or controlled the
                gun in the glove box?

Johnson’s Br. at 6.

        First, Johnson argues that the trial court erred by not suppressing the

gun recovered from the vehicle. According to Johnson, the officers illegally

inventoried the car because there was no justification to tow and store the

vehicle, as the vehicle was not a public safety hazard.     Johnson therefore

asserts that the trial court should have suppressed the gun found in the

glove box incident to that illegal inventory search.      The Commonwealth




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responds that Johnson has waived this argument because he did not present

it to the trial court in his suppression motion or at the suppression hearing.

        We agree with the Commonwealth.                It is well settled that “when 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.”           Commonwealth v. Thur, 906 A.2d 552, 566 (Pa.Super.

2006); see Pa.R.A.P. 302(a). Johnson’s claim regarding the illegal inventory

search was not included in his motion to suppress, nor did he argue it at the

suppression hearing.             Rather, Johnson argued that the officers lacked

probable cause to search the vehicle and that the officers did not follow the

Live Stop2 protocol. See N.T., 1/15/16, at 17-20. Accordingly, we conclude

that Johnson has waived this argument on appeal.3
____________________________________________


        2
         “The City of Philadelphia’s ‘Live Stop’ program involves the
immediate immobilization in place or towing at a different location of
vehicles found to be operat[ed] in violation of certain state motor vehicle
statutes.”   Commonwealth v. Thompson, 999 A.2d 616, 617 n.1
(Pa.Super. 2010) (internal quotation omitted, alteration in original),
disapproved of on other grounds by Commonwealth v. Lagenella, 83 A.3d
94 (Pa. 2013).
        3
         In his brief, Johnson supports his claim by arguing that the
Commonwealth presented no evidence that the car posed a risk to public
safety and, as a result, an inventory search pursuant to the Live Stop
protocol was illegal. Johnson’s Br. at 10. Any failure to present such
evidence, however, was undoubtedly the product of Johnson’s failure to raise
this argument in his motion to suppress. Because the Commonwealth
cannot be expected to respond to non-existent claims, a finding of waiver
here is particularly appropriate.



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      Next,     Johnson   argues    that    the   Commonwealth’s     evidence   was

insufficient to support his convictions. This Court’s standard for reviewing a

sufficiency of the evidence claim is as follows:

             We must determine whether the evidence admitted at
         trial, and all reasonable inferences drawn therefrom, when
         viewed in a light most favorable to the Commonwealth as
         verdict winner, support the conviction beyond a reasonable
         doubt. Where there is sufficient evidence to enable the
         trier of fact to find every element of the crime has been
         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

            The evidence established at trial need not preclude
         every possibility of innocence and the fact-finder is free to
         believe all, part, or none of the evidence presented. It is
         not within the province of this Court to re-weigh the
         evidence and substitute our judgment for that of the fact-
         finder.   The Commonwealth’s burden may be met by
         wholly circumstantial evidence and any doubt about the
         defendant's guilt is to be resolved by the fact[-]finder
         unless the evidence is so weak and inconclusive that, as a
         matter of law, no probability of fact can be drawn from the
         combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      Johnson argues that the Commonwealth failed to prove that he

constructively    possessed   the    firearm.       According   to   Johnson,   the

Commonwealth only presented evidence that the firearm was in the glove

box of a car he borrowed and that Johnson “became nervous when asked if

there were any weapons in the car and he only answered that question by

stating he was on state parole.” Johnson’s Br. at 11. This claim does not

merit relief.


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     The doctrine of 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. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) (quoting

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012)).

     Viewing    the   evidence   in   the   light   most   favorable   to   the

Commonwealth, we conclude that the Commonwealth presented sufficient

evidence to prove that Johnson constructively possessed the firearm.        The

evidence showed that Johnson was the only person in the vehicle and could

access a firearm located in the glove box using the key to that vehicle. See,

e.g., Commonwealth v. West, 937 A.2d 516, 524 (Pa.Super. 2007)

(concluding that appellant constructively possessed cocaine found in

motorcycle compartment when officer had seen appellant riding motorcycle

approximately one hour before the vehicle was seized and appellant was

moving toward motorcycle when arrested). Further, when asked whether he

had any weapons in the vehicle, Johnson not only refused to answer the

question, but also showed consciousness of guilt by shaking nervously,

breathing heavily, and stating that he was on state parole.                 See

Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) (“The conduct


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of an accused following a crime, including ‘manifestations of mental

distress,’   is   admissible   as   tending   to   show   guilt.”).   Under   these

circumstances, we agree with the trial court that the evidence was sufficient

to establish beyond a reasonable doubt that Johnson had the power to

control the firearm and the intent to exercise that control and, therefore,

Johnson had conscious dominion over the firearm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2017




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