J-S43023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

GENE LIVINGSTON

                            Appellant                     No. 1749 WDA 2016


        Appeal from the Judgment of Sentence Dated October 19, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0002858-2016

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                              FILED NOVEMBER 15, 2017

        Appellant, Gene Livingston, appeals from the judgment of sentence

imposed after the trial court convicted him of two violations of the Uniform

Firearms Act.1 We affirm.

        The trial court stated its factual findings:

        Jeremy Brentley, an armed guard for the Housing Authority,
        testified that on the evening of September 5, 2015, he was
        working in the 1700 block of Belleau Drive in the Fineview area
        of the City of Pittsburgh. During his shift, his attention was
        drawn to a vehicle that had one male, who was later identified as
        [Appellant], sitting in the back seat of the car. A second male,
        later identified as Scott Cutler, approached the car and engaged
        [Appellant] in conversation. [Appellant] then exited the vehicle,
        and began to walk with Mr. Cutler. [Appellant] then removed a
        firearm from his waist area and handed it to Mr. Cutler, who
        proceeded to discharge the firearm at a wall. At that point, Mr.
        Brentley drew his firearm and ordered [Appellant] and Mr. Cutler
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 6105(a)(1) and 6106(a)(1).
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     to the ground. Mr. Cutler complied, but [Appellant] was last
     seen by Mr. Brentley leaning on a railing in between two
     buildings.

            Adam Van Houten, who is an armed security guard for the
     Housing Authority, was working with Mr. Brentley on the night of
     September 5, 2015. Mr. Van Houten testified that he witnessed
     [Appellant] “pass a black semi-automatic handgun to Mr. Cutler,
     before they walked between the two buildings in the 1700-block;
     which at that point Mr. Cutler fired approximately four to five
     rounds into the occupied structure, which has a brick wall.” Mr.
     Van Houten noticed that [Appellant] was bleeding, he told
     [Appellant] to stay there, but [Appellant] fled the scene down a
     stair case that led to Letsche Street. Mr. Van Houten recovered
     the firearm from the area where Mr. Cutler was standing. The
     firearm was tested and found to be in good working condition.

           City of Pittsburgh Police Officer Rufus Jones testified that
     he was working night felony for the City on September 5, 2015.
     He was called regarding the incident on Belleau Street, and came
     upon Pittsburgh EMS on Letsche Street, who found a man who
     had been shot. He followed the blood trail that led to the back
     of Belleau Drive. Officer Jones found and collected five shell
     casings from the area of Belleau Street where this incident
     occurred. All of these casings were tested for fingerprints, but
     were negative. This is not uncommon when a bullet is fired, as
     finger oil is burnt when the firearm discharges.

           Lastly, [Appellant] pled nolo contender[e] to third degree
     murder on February 25, 2004 [and therefore was a convicted
     felon when he carried the firearm], and did not have a license to
     carry a concealed firearm.

Trial Court Opinion, 3/27/17, at 3-4 (citations to notes of testimony

omitted).

     At the conclusion of trial on October 19, 2016, the court sentenced

Appellant to 2½ to 5 years’ incarceration for possessing a firearm while

prohibited from doing so under the Uniform Firearms Act.          The court

imposed no further penalty for the charge of possessing a firearm without a

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J-S43023-17


license.2 Appellant filed timely post-sentence motions on October 26, 2016,

in which he claimed that his convictions were against the weight of the

evidence presented at trial.           The trial court denied the post-sentence

motions on November 1, 2016. Appellant filed a timely notice of appeal on

November 16, 2016.

       Appellant presents a single issue for our review:

       Whether the trial court abused its discretion when it afforded
       significant weight to the testimony of the security guards and
       thus finding [Appellant] guilty of all charges, when that
       testimony was the only evidence connecting [Appellant] to the
       firearm and was contradicted by the video surveillance of the
       event, and other witnesses[?]

Appellant’s Brief at 3.

       In addressing appellate review of a weight claim, the Supreme Court

has explained:

              A motion for a new trial based on a claim that the verdict
       is against the weight of the evidence is addressed to the
       discretion of the trial court. Commonwealth v. Widmer, 560
       Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth
       v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
       new trial should not be granted because of a mere conflict in the
       testimony or because the judge on the same facts would have
       arrived at a different conclusion. Widmer, 560 Pa. at 319–20,
       744 A.2d at 752. Rather, “the role of the trial judge is to
       determine that ‘notwithstanding all the facts, certain facts are so
       clearly of greater weight that to ignore them or to give them
       equal weight with all the facts is to deny justice.’ ” Id. at 320,
       744 A.2d at 752 (citation omitted). It has often been stated that
       “a new trial should be awarded when the jury's verdict is so
       contrary to the evidence as to shock one's sense of justice and
____________________________________________
2
  Appellant waived his right to defer sentencing for the preparation of a pre-
sentence report and chose to proceed directly to sentencing. See N.T.,
10/18-19/16, at 103.

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     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

       Appellate review of a weight claim is a review of the exercise
       of discretion, not of the underlying question of whether the
       verdict is against the weight of the evidence. Brown, 648
       A.2d at 1189. Because the trial judge has had the opportunity
       to hear and see the evidence presented, an appellate court
       will give the gravest consideration to the findings and reasons
       advanced by the trial judge when reviewing a trial court's
       determination that the verdict is against the weight of the
       evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354
       A.2d 545 (Pa. 1976). One of the least assailable reasons for
       granting or denying a new trial is the lower court's conviction
       that the verdict was or was not against the weight of the
       evidence and that a new trial should be granted in the interest
       of justice.
     Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis added).

       This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

       The term “discretion” imports the exercise of judgment,
       wisdom and skill so as to reach a dispassionate conclusion
       within the framework of the law, and is not exercised for the
       purpose of giving effect to the will of the judge. Discretion
       must be exercised on the foundation of reason, as opposed to
       prejudice, personal motivations, caprice or arbitrary actions.
       Discretion is abused where the course pursued represents not
       merely an error of judgment, but where the judgment is
       manifestly unreasonable or where the law is not applied or
       where the record shows that the action is a result of partiality,
       prejudice, bias or ill-will.
     Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184–
     85 (1993)).
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Com. v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).

       Appellant was convicted of unlawfully possessing a firearm in violation

of Section 6105 of the Uniform Firearms Act, which provides:

       (a) Offense defined. —

             (1) 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.
       ...

       (b) Enumerated offenses. — The following offenses shall
       apply to subsection (a):
       ...

       Section 2502 (relating to murder).
       ...

18 Pa. C.S. § 6105.3 Appellant also was convicted of possessing a firearm

without a license in violation of Section 6106(a)(1) of the Act:

       . . . any person who carries a firearm in any vehicle or any
       person who carries a firearm concealed on or about his person,
       except in his place of abode or fixed place of business, without a
       valid and lawfully issued license under this chapter commits a
       felony of the third degree.

18 Pa.C.S. § 6106(a)(1).

       Appellant contends that the weight of the evidence did not support the

trial court’s finding that he possessed a firearm on September 5, 2015, and

therefore did not support his convictions.       He argues that his convictions
____________________________________________
3
  Appellant does not contest that his third-degree murder conviction in 2004
disqualified him from possessing a firearm under this section.

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J-S43023-17


“should shock the conscience of the court” because the evidence that he

possessed a firearm was “meager.”              Appellant’s Brief at 9.   He challenges

the security guards’ testimony that he possessed a firearm and contends

that the guards’ testimony is inconsistent with video evidence from 1:00

a.m. on September 5, 2015, that was presented by the Commonwealth.4

       As noted above, it is not for this Court to determine whether the

verdict is against the weight of the evidence; our review of Appellant’s

weight claim is a review of the trial court’s exercise of its discretion to deny

that claim. In assailing the trial court’s exercise of its discretion, Appellant

states that “[t]he only evidence presented at trial tying [A]ppellant to the

firearm was the eyewitness statements from the security guards,” which

were “wholly inconsistent with the video evidence presented at trial.”             Id.

Appellant references the security guards’ testimony that they observed him

from a distance of “two to three car lengths in a dark area.” Id. at 10. He

asserts that the video shows “the space between [Appellant] and Mr. Cutler

was so large as to preclude [Appellant from] being able to reach across [to

Mr. Cutler to hand him the gun] without extraordinary effort.”              Id. at 12.

Appellant also references his trial testimony, as well as that of Mr. Cutler,

____________________________________________
4
  At trial, counsel stipulated to the video’s authenticity, but never stated the
source(s) of the video. N.T., 10/18-19/17, at 16. The video contains
various frames labeled with street views, for example, “1711 Belleau Rear”
and “Management Office-Belleau Side.” The Commonwealth states that the
parties entered into “an agreement that the video that was played at trial be
made a part of the certified record on appeal.” Commonwealth Brief at 12
n4.

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J-S43023-17


that Appellant never possessed a firearm, which Mr. Cutler said he found

and showed to Appellant immediately prior to the firearm discharging. Id.

at 11-12.     Finally, Appellant notes that there was no forensic or physical

evidence linking him to the firearm.

       The Commonwealth states that the trial court properly assessed the

credibility of the witnesses and “was certainly permitted to reject the

defense     witnesses’    testimony.”          Commonwealth   Brief   at   7.     The

Commonwealth asserts that the trial court’s findings “were not weakened in

any way by video evidence that captured a portion of events of that night,

as that evidence merely showed two male figures in close proximity to one

another walking away from the camera.” Id. With regard to physical and

forensic evidence of Appellant’s firearm possession, the Commonwealth

notes that absence of defendant’s fingerprints is not per se exculpatory and

“might be explained by any number of reasons.” Id. at 13.

       The Commonwealth presented three witnesses at trial.                     Jeremy

Brentley stated that he was working as an armed security guard for the City

of Pittsburgh Housing Authority on September 5, 2015, when he noticed

Appellant sitting alone in the back seat of a parked vehicle on Belleau Drive.5

N.T., 10/18-19/16, at 9-10. He then observed another male, later identified

as Scott Cutler, approach the car and talk with Appellant. Id.             He stated

that the two men then walked together away from the car, “crossed the
____________________________________________
5
  Throughout the record the location is referenced as both Belleau “Drive”
and Belleau “Street.”

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J-S43023-17


street, and once they got onto the sidewalk and by the grass,” he saw

Appellant “hand off” a firearm from his waist to Mr. Cutler. Id. at 9-10. Mr.

Brentley described seeing “a butt of a firearm, and then I s[aw] the whole

firearm come from [Appellant’s] hands, and go into Mr. Cutler’s hands.” Id.

at 11. He testified:

      [Another security guard, Mr. Van Houten] was facing the
      opposite way of me. He s[aw] when [Appellant] had actually
      handed off the firearm, and I told [him] that hey, I think that’s a
      firearm. And then he looked and we both looked and it was a
      firearm. And that’s when we started to — we drew our weapons
      and started to give verbal commands to Mr. Cutler while he was
      actually firing into the building.

Id. at 12.    The Commonwealth introduced, with no objection from

Appellant, a picture of the 1700 block of Belleau Street, where the

incident occurred. Id. at 12; Commonwealth Exhibit 1. While looking

at the picture, Mr. Brentley reiterated:

      They walked across the street, we s[aw] the handoff about right
      here; and then that’s when I told [Mr. Van Houten] hey, there is
      a firearm. And then once we determined it was a firearm, by
      that time they were down there [Mr. Cutler] was shooting into
      the wall as we were drawing our weapons and making our way
      down.

Id. at 14. Mr. Brentley stated that after he and Mr. Van Houten called to the

men, Mr. Cutler dropped the firearm and laid on the ground, and Appellant,

who had been leaning on a railing, attempted to leave the area. Id. at 15-

16.

      At this point in the trial, the Commonwealth introduced, again without

objection, the video from Belleau Street recorded around 1:00 a.m.          N.T.,

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J-S43023-17


10/18-19/16, at 16-19; Commonwealth Exhibit 2. Mr. Brentley testified that

although the video showed “two figures” who Mr. Brentley knew from his

firsthand experience to be Appellant and Mr. Cutler, he “wouldn’t be able to

identify” them from the video. Id. at 30. Mr. Brentley also testified that the

video did not show the transfer of the firearm from Appellant to Mr. Cutler.

Id.

      On cross-examination, Mr. Brentley stated that he saw Appellant hand

the gun to Mr. Cutler “[w]hen they get to the sidewalk and are going into

the grass.” N.T., 10/18-19/16, at 21, 31. He said the men were “not far”

from him, “maybe two or three car lengths I would guess.” Id. at 21-22.

He described the exchange of the gun as “very quick.” Id. at 29.

      Next, Adam Van Houten testified that he was working with Mr.

Brentley as an armed security guard for the City of Pittsburgh Housing

Authority on September 5, 2015, when Mr. Brentley told him that he saw the

firearm. N.T., 10/18-19/16, at 34-35. He stated, “[a]s soon as he said that

I turned around and witnessed both [Appellant] and Mr. Cutler in possession

of a firearm.” Id. at 35. He added:

      At that point in time I witnessed, after I turned around, after I
      was alerted by Officer Brentley, [Appellant] passing a black
      semi-automatic handgun to Mr. Cutler, before they walked
      between the two buildings in the 1700-block; which at that point
      Mr. Cutler fired approximately four to five rounds into the
      occupied structure, which was a brick wall.

Id. at 35-36. Mr. Van Houten clarified that he “did not see [Appellant] pull it

out of his waistband, but I did see him pass it to Mr. Cutler.” Id. at 37; see

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J-S43023-17


also 51 (“[t]he firearm was actually still in [Appellant]’s hand”).        He

described the two men as being “within probably a foot, foot and a half”

away from one another during the transfer of the firearm. Id. He testified

that the men were “absolutely” within arms’ length of one another, and that

he “absolutely” saw a black firearm. Id. Mr. Van Houten corroborated Mr.

Brentley’s testimony that Mr. Cutler subsequently fired the firearm, and

dropped the firearm and laid on the ground after Mr. Brentley and Mr. Van

Houten told him to do so. Id. at 38. He testified that he noticed Appellant

“was bleeding profusely” and told him “to stay there, I would go back and

get him aid,” but when Mr. Van Houten “went back to assist [Appellant], he

had fled the scene down the back of the building of 1717 Belleau Drive,

toward the city stairs, which would then take him to Letsche Street.” Id. at

39-40; 49.

      The Commonwealth introduced the firearm without objection.         N.T.,

10/18-19/16, at 41-42; Exhibit 3. Mr. Van Houten identified the firearm as

being the one Appellant passed to Mr. Cutler and which was subsequently

recovered, along with the firearm’s magazine and ammunition, by Mr.

Brentley and Mr. Van Houten.        Id. at 42.     The Commonwealth also

introduced into evidence without objection a certified record of Appellant’s

nolo contendere plea to third degree murder; a report from the Allegheny

County Medical Examiner stating that the recovered firearm was a 40-caliber

Smith and Wesson Taurus pistol, tested and found to be in good operating

condition; and certification from the Pennsylvania State Police that Appellant
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J-S43023-17


did not have a license to carry a concealed firearm on September 5, 2015.

Id. at 43; Exhibits 4, 5 and 6.

       City of Pittsburgh Police Officer Rufus Jones testified to responding to a

report of a “man shot up in the area of Belleau and Letsche Street.” N.T.,

10/18-19/16, at 54. Officer Jones stated that he took photographs of the

scene, including photos of five shell casings. Id. at 55-56. He collected the

shell casings and, before sending them to the Crime Lab, tested them for

fingerprints. Officer Jones explained that obtaining fingerprints from “[s]hell

casings [is] really hard, because once a bullet is fired it burns off the oil from

the fingerprints.” Id. at 56-57. He said that, “[u]fortunately, pretty much

the only time I have ever gotten fingerprints off a casing, it was [when]

police picked it up and dropped it back down.” Id. at 57. No fingerprints

were found on the five shell casings collected by Officer Jones. Id. Officer

Jones did not test the firearm for fingerprints and explained that fingerprints

on firearms are also difficult to obtain. Id. at 57-58.

       Scott Cutler testified for Appellant.6 He stated that Appellant was his

cousin, and that on September 5, 2015, the two men left a bar and “went up

to Belleau” so that Mr. Cutler could buy some marijuana.            N.T., 10/18-

19/16, at 70-73. He said that Appellant remained in the car and the men

“separated.” Id. at 71. He testified that neither he nor Appellant possessed
____________________________________________
6
  The trial was continued from October 18, 2016 to October 19, 2016 so that
Mr. Cutler could testify with the benefit of counsel, who stated on the record
that he advised Mr. Cutler of his right to remain silent and not testify. Id. at
68.

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J-S43023-17


a firearm. Id. He clarified that Appellant did not hand him a firearm, and

he never saw Appellant in possession of a firearm.     Id. at 72. Mr. Cutler

testified that he “found a gun” and asked Appellant “was it real”? Id. at 75.

He said Appellant “never said nothing.       He never touched it, never said

nothing.” Id. Mr. Cutler also testified that he did not shoot the firearm, but

“[t]he gun went off.” Id. at 76.

      Appellant testified that on September 5, 2015, he left a bar with his

cousin, Cutler, and drove to Belleau Drive. N.T., 10/18-19/16, at 83. He

stated that Mr. Cutler left the parked car and he remained in the car

listening to music. Id. He said that Mr. Cutler returned “half way” and told

him “to come here” and “check it out.” Id. at 84-86. He said he started

walking toward Mr. Cutler, who showed him the firearm.         Id.   Appellant

denied ever possessing a firearm. Id.

      At the conclusion of trial and after argument by counsel, the trial court

concluded, “having reviewed the exhibits and the evidence, I found the

security officers, Officer Brentley and Officer Van Houten, to be credible.”

N.T., 10/19/16, at 101.     The trial court subsequently denied Appellant’s

weight claim, and explained its rationale:

      In this matter, the only facts that were clearly of greater weight
      than the other facts was [sic] was the testimony of the security
      guards. Their testimony was entirely consistent with each other
      and the video evidence that was presented at trial. Mr. Brentley
      and Mr. Van Houten testified that they witnessed [Appellant] in
      possession of a firearm and witnessed him hand it directly to Mr.
      Cutler.  Mr. Cutler’s testimony that [Appellant] was not in
      possession of the firearm was not credible.

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Trial Court Opinion, 3/27/17, at 4-5.

      On this record, we discern no abuse of discretion or error of judgment

by the trial court.   Contrary to Appellant’s argument, the video evidence,

which we have reviewed, does not compel a different conclusion.           It is

undisputed that the video does not show Appellant possessing or handing a

firearm to Mr. Cutler, but it is clear that the video did not record all of the

events that occurred at the time of the incident.          Relying on verbal

testimony, the trial court found the two security guards — who testified that

the firearm was exchanged but that the exchange was not documented on

the video — to be credible; the trial court also found Appellant and Mr.

Cutler not credible.      Accordingly, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




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