J-A07034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

LAVELLE MILLS

                            Appellant                  No. 1675 WDA 2014


         Appeal from the Judgment of Sentence September 11, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0009837-2011


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED APRIL 19, 2016

       Appellant appeals from his judgment of sentence following his bench

trial convictions for possession of firearm with altered manufacturer’s

number, persons not to possess firearms, firearms not to be carried without

a license, registration card to be signed and exhibited on demand,

unauthorized transfer or use of registration, driving while operating privilege

is suspended or revoked, required financial responsibility, and duties at stop

signs and/or yield signs.1 Appellant claims the trial court erred in denying

his motion to suppress evidence found during a search of the vehicle he was

driving and claims the Commonwealth did not present sufficient evidence

that he possessed the firearm.         We affirm.
____________________________________________


1
 18 Pa.C.S. §§ 6110.2(a), 6105(a)(1), 6106(a)(1); 75 Pa.C.S. §§ 1131(b),
1311(b), 1543(a), 1786(f), and 3323, respectfully.
J-A07034-16



     The trial court summarized the factual background as follows:

       This [m]atter arises out [of Appellant’s] arrest on May 18,
       2011[,] following a traffic stop on the North Side of
       Pittsburgh during which a firearm was found in the vehicle
       [Appellant] was operating. [Appellant] filed a [m]otion to
       [s]uppress the firearm on the basis that the police lacked
       probable cause to search the vehicle; there was no consent
       to search the vehicle; and[] the search was not conducted
       pursuant to [a] valid inventory search.

       At the suppression hearing held on July 10, 2013[,] the
       Commonwealth presented the testimony of Allegheny
       County Deputy Sheriff Sean Green[,] who testified that he
       initiated a traffic stop of [Appellant’s] vehicle after it failed
       to stop at a stop sign. ([N.T., 7/10/2013, at] 4 (hereinafter
       “S.H. Transcript”)). After stopping the vehicle, [Appellant]
       jumped out of his vehicle and started moving toward a
       group of people standing on a nearby corner. ([Id. at] 5).
       Sheriff Green ordered [Appellant] back into the vehicle and
       requested his driver’s license and vehicle information.
       Sheriff Green called for backup and City of Pittsburgh
       officers and detectives responded and assisted him.
       [Appellant] produced a non-driver’s identification card and
       it was determined that [Appellant’s] driver’s license was
       suspended and he had several non-traffic and traffic
       magistrate warrants. ([Id. at] 5-7). Although [Appellant]
       was driving a 2004 GMC Yukon, [Appellant] produced an
       insurance card for a 2001 Jeep and it was determined that
       the vehicle was, in fact, registered to an individual from
       Beaver County. ([Id. at] 6). The license plate on the
       vehicle did not match the registration.           After it was
       determined that [Appellant] did not have a driver’s license
       and the plate displayed on the vehicle was for the wrong
       vehicle, the decision was made to have the vehicle towed
       because it could not be legally operated or moved. ([Id.
       at] 7) Deputy Green also described the area where the
       stop occurred as a high crime area. ([Id. at] 8). Deputy
       Green testified that once it was determined that the
       vehicle had to be towed, an inventory search would be
       done that involved searching for any loose items or
       moveable items in the vehicle. ([Id. at] 8). Deputy Green
       testified:


                                     -2-
J-A07034-16


          Q. What are the procedures in regard to inventories?

          A. Well we are supposed to search [the] vehicle for
          any weapons, contraband before it is taken to
          Manchester.

          Q. What is included within that search?

          A. The entire vehicle. We have to -- anything, any
          loose articles, any bags, anything in the vehicle that
          [is] moveable or appears to be moveable is
          searched.

          Q. How about any consoles, any storage places?

          A.    Yes, the glove compartment, console area,
          definitely the console area, that would be loose or
          not properly affixed.

       ([Id. at] 7-8).      Deputy Green testified on cross[-
       ]examination that he prepared a “sheriff’s office tow form,”
       although he did not have a copy of the form. ([Id. at]
       17). He also acknowledged that he did not conduct the
       search of the vehicle but it was done by the City of
       Pittsburgh officers.

       Detective John Henderson from the City of Pittsburgh
       Police testified that he arrived as backup on the stop and
       that Officer Holt obtained consent to search the vehicle.
       ([S.H. Transcript at] 21 -22). Upon opening the passenger
       side door he saw a live .45 caliber round on the floor of the
       front seat. ([Id. at] 22). A loaded .45 caliber semi-
       automatic firearm was found in a void in a molded piece in
       the center console. ([Id. at] 22).

       Officer Nicholas Holt testified that he arrived as backup
       and obtained consent to search the vehicle and during the
       search found the firearm as described. ([S.H. Transcript
       at] 27). He testified that [Appellant] never retracted his
       consent to search the vehicle and that the search he
       conducted was pursuant to the consent that was given.
       ([Id. at] 29).

       [Appellant] presented the testimony of       his sister, Kim
       Washington, who testified that she            lived in the
       neighborhood where the stop occurred          and after she
       learned that there were police stopping a    vehicle nearby,

                                   -3-
J-A07034-16


       she went to the scene. ([S.H. Hearing at] 34). When she
       arrived [Appellant] was in the vehicle and then he was told
       to get out of the vehicle. When he was asked if they could
       search the vehicle, he repeatedly told them no, however
       they proceeded with the search. (Id.)

       [Appellant] argued that the officers did not have consent
       to search the vehicle and that there was no basis for an
       inventory search.     After consideration of all of the
       evidence[,] an order was entered denying the motion to
       suppress on the basis that a valid inventory search was
       warranted.

       At the non-jury trial the testimony from the suppression
       hearing was incorporated into the record and Detective
       John Henson also testified that the firearm’s serial
       numbers were scratched out. ([N.T., 6/24/2014, at] 13
       (hereinafter “Tr. Transcript”)). The Commonwealth also
       offered the certification that [Appellant] did not have a
       license to possess the firearm and the lab report regarding
       the firearm. ([Id. at] 21).

       [Appellant] testified that he worked with his brother doing
       repair work on vehicles and that he was driving the vehicle
       at the time of the traffic stop because he was changing the
       oil and had only taken the vehicle from the shop to get
       something to eat for him and his brother. ([Tr.Transript at]
       25). He testified that the vehicle was owned by “a guy,
       Brian -- it was his girlfriend’s car or something like that.”
       ([Id. at] 26). He testified that he tried to buy the vehicle
       but it didn’t work out and that he had possession of the
       vehicle for “[a]bout a week and a half, 2 weeks.” ([Id. at]
       27). He testified that he had never worked on the interior
       of the vehicle and did not know the firearm was in the
       vehicle. ([Id. at] 30). On cross-examination [Appellant]
       testified that he had tried to purchase the vehicle but did
       not have enough money. Furthermore, when he went to
       use the vehicle that day, someone else had placed the
       license plate from the other vehicle that he had owned,
       which was just lying around, on the vehicle when he went
       for the food.        ([Id. at] 37-38).      [Appellant] also
       acknowledged that he did not have a driver’s license and
       there was no insurance on the vehicle. ([Id. at] 49-50).
       Finally, he testified that the owner of the vehicle had taken
       the license plate off the vehicle, presumably so no one

                                   -4-
J-A07034-16


          could take it off the lot while it was being repaired. ([Id.
          at] 44). After consideration of the evidence[, Appellant]
          was found guilty of all charges.

Opinion, 7/14/2015, at 2-5.

       On September 11, 2014, the trial court sentenced Appellant to 35 to

70 months’ imprisonment for the possession of firearm with altered

manufacturer’s number conviction, 5 years’ probation for the persons not to

possess firearms conviction, and 5 years’ probation for the firearms not to

be carried without a license conviction.         The terms of probation were

concurrent to each other, but consecutive to the term of imprisonment. The

trial court imposed no further penalty for the remaining convictions.

       On October 10, 2014, Appellant filed a timely notice of appeal. Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.2

       Appellant raises the following issues on appeal:

          I. Did the trial court err in denying [Appellant’s]
          suppression motion because the police did not have lawful
          custody of the SUV, and, therefore, the inventory search
          was invalid?
____________________________________________


2
  On October 15, 2014, the trial court ordered Appellant to file a statement
of errors complained of on appeal pursuant to Rule 1925(b) within 21 days
of the entry of the order. On November 5, 2014, Appellant requested an
extension, and, on November 6, 2014, the trial court granted Appellant a
sixty-day extension of time to file a Rule 1925(b) statement. On January 5,
2015, Appellant filed a petition for an extension of time to file his Rule
1925(b) statement and, on January 6, 2015, the trial court granted
Appellant a 30-day extension of time. Appellant filed his concise statement
of errors complained of on appeal on February 5, 2015. The trial court
issued its Rule 1925(a) opinion on July 14, 2015.



                                           -5-
J-A07034-16


           II. Did the trial court err in denying [Appellant’s]
           suppression motion because police conducted the search
           for criminal investigatory purposes rather than non-
           criminal inventory purposes?

           III. Was the evidence insufficient to establish that
           [Appellant] constructively possessed the gun found in a
           closed console of a vehicle that was not his?

Appellant’s Brief at 5.

       Appellant’s first two issues challenge the denial of his suppression

motion.      When reviewing a denial of a suppression motion, we limit our

review to determining whether the record supports the factual findings and

whether      the   legal   conclusions   drawn    from    those     facts   are   correct.

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.Super.2013). We may

only consider evidence presented at the suppression hearing. In re L.J., 79

A.3d 1073, 1085-87 (Pa.2013).            In addition, because the Commonwealth

prevailed in the suppression court, we consider only the Commonwealth’s

evidence and so much of the defense evidence “as remains uncontradicted

when read in the context of the record as a whole.”                 Brown, 64 A.3d at

1104      (quoting    Commonwealth           v.   Cauley,      10    A.3d    321,      325

(Pa.Super.2010)). We may reverse only if the legal conclusions drawn from

the facts are in error. Id.

       The    Commonwealth        contends    Appellant     cannot     prevail    on   the

suppression motion because he lacked a reasonable expectation of privacy in

the vehicle. Appellee Brief at 26-28.

       “[G]enerally under Pennsylvania law, a defendant charged with a

possessory     offense     has   automatic    standing    to   challenge     a    search.”

                                          -6-
J-A07034-16



Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super.2011)

(quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super.2009)

(en banc)).     To prevail on a motion to suppress evidence, however, the

appellant must establish he has a privacy interest in the area searched.3

Id.; Commonwealth v. Jones, 874 A.2d 108, 113 (Pa.Super.2005) (citing

Commonwealth v. Perea, 791 A.2d 427, 429 (Pa.Super.2002)).                This

Court has stated:

          An expectation of privacy is present when the individual,
          by his conduct, exhibits an actual (subjective) expectation
          of privacy and that the subjective expectation is one that
          society is prepared to recognize as reasonable.          The
          constitutional legitimacy of an expectation of privacy is not
          dependent on the subjective intent of the individual
          asserting the right but on whether the expectation is
          reasonable in light of all the surrounding circumstances.

Jones, 874 A.2d at 113 (quoting Commonwealth v. Brundidge, 620 A.2d

1115, 1118 (Pa.1993)).

       On the issue of whether the defendant has a reasonable expectation of

privacy in the area searched, the Commonwealth bears the initial burden of

production.    Enimpah, 106 A.3d at 701.         If the Commonwealth meets its

____________________________________________


3
   The Supreme Court of Pennsylvania has explained:             “[Although] a
defendant’s standing dictates when a claim under Article I, § 8 may be
brought, his privacy interest controls whether the claim will succeed—once a
defendant has shown standing, ‘[h]e must, in short, having brought his
claim, demonstrate its merits by a showing of his reasonable and legitimate
expectation of privacy in the premises.’” Commonwealth v. Enimpah, 106
A.3d 695, 699 (Pa.2014) (quoting Commonwealth v. Peterson, 636 A.2d
615, 618 (Pa.1993)).



                                           -7-
J-A07034-16



burden by showing the defendant lacked a privacy interest, then the

defendant has the burden of persuasion to establish he had a privacy

interest in the area searched. Id.

      In Jones, this Court found the appellant did not have a reasonable

expectation of privacy in a rental vehicle where the return date had expired,

the appellant was not the named lessee, the named lessee was not in the

vehicle, the appellant was not authorized to drive the vehicle, and the

appellant and his passengers did not attempt to explain their connection to

the authorized lessee. 874 A.2d at 120. This Court held that, because the

appellant did not have an expectation of privacy in the vehicle searched, the

trial court properly denied the motion to suppress.

      In Commonwealth v. Brown, this Court found an appellant did not

have an expectation of privacy in the vehicle searched and, therefore, could

not prevail on his suppression motion, where he did not own the vehicle, and

did not introduce evidence he had authority to use the vehicle.     64 A.3d

1101, 1107 (Pa.Super.2013).     Similarly, in Commonwealth v. Cruz, the

Court found the appellant lacked a reasonable expectation of privacy in a

vehicle where he presented no evidence that he owned the vehicle, that it

was registered in his name, or that the registered owner gave him

permission to drive the vehicle. 21 A.3d 1247, 1251 (Pa.Super.2011).

      Appellant did not own the car he was driving, which was registered to

someone who resided in a different county. He provided an insurance card

to the officer, but the card was for another vehicle.       Further, at the

                                     -8-
J-A07034-16



suppression hearing, Officer Green testified Appellant told him that he was

working on the car. S.H. Transcript at 14.4 Placing a car with a repair shop

does not authorize a repair shop owner or employee to use the car, and the

owner or employee of the shop does not have an expectation of privacy in

the car.      The Commonwealth’s evidence showed Appellant lacked a

reasonable expectation of privacy in the vehicle, and Appellant presented no

evidence at the suppression hearing to establish he had such an expectation.

Accordingly, because Appellant lacked a reasonable expectation of privacy in

the car, he cannot establish the search of the car violated his constitutional

rights.5 The trial court did not err in denying the suppression motion.6

       Appellant’s last issue claims the Commonwealth presented insufficient

evidence that he possessed the firearm found in the vehicle.       Appellant’s

Brief at 36-44.

       We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether viewing all the evidence admitted at trial in the

light most favorable to the verdict winner, there is sufficient evidence to
____________________________________________


4
 At trial, Appellant explained that he worked with his brother repairing cars.
Tr. Transcript at 25.
5
  Because we find Appellant lacked a reasonable expectation of privacy in
the vehicle searched, and, therefore, cannot prevail on his suppression
motion, we need not address his claims challenging the search.
6
  This Court can affirm the trial court decision on any basis. In re Jacobs,
15 A.3d 509, 509 n.1 (Pa.Super.2011) (“We are not bound by the rationale
of the trial court, and may affirm on any basis.”).



                                           -9-
J-A07034-16



enable the fact-finder to find every element of the crime beyond a

reasonable doubt.”      Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003),      affirmed,      870   A.2d   818      (Pa.2005)       (quoting

Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we

apply this standard, “we may not weigh the evidence and substitute our

judgment for the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”        Lehman, 820 A.2d at

772. Moreover, “[a]ny 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.” Id. “The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Id.

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

Further, “the trier 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.” Id.

      Appellant    maintains   the    Commonwealth      failed   to   establish   he

possessed the firearm. Appellant’s Brief at 36-44. Because the firearm was

not found on Appellant’s person, the Commonwealth had to establish that

Appellant constructively possessed the firearm. Commonwealth v. Brown,

                                       - 10 -
J-A07034-16



48 A.3d 426, 430 (Pa.Super.2012).               This Court has described constructive

possession as follows:

          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.

Id.    (quoting     Commonwealth               v.   Parker,   847   A.2d   745,   750

(Pa.Super.2004)).

       The Commonwealth presented sufficient evidence to allow the fact-

finder to find beyond a reasonable doubt that Appellant constructively

possessed the gun, i.e., that he had the power to control the firearm and the

intent to exercise that control.       Appellant was driving the vehicle in which

the firearm was found and attempted to distance himself from the vehicle

when pulled over, Appellant had attempted to purchase the vehicle, the

license plate on the car belonged to a car previously owned by Appellant,

and the police found a bullet on the passenger-side floor, which the driver of

the vehicle would have seen.7             See Cruz, 21 A.3d at 1253 (sufficient
____________________________________________


7
  Appellant argues Officer Henson testified that the bullet was “where the
two bolts go down to secure the [passenger] seat to the floor.” Appellant’s
Brief at 38 (citing S.H. Transcript at 25) (alteration in original). The officer,
however, also testified, both at the suppression hearing and at trial, that he
(Footnote Continued Next Page)


                                          - 11 -
J-A07034-16



evidence to find appellant constructively possessed the firearm where

appellant was only person in the vehicle, he was seen moving toward where

gun was found as soon as he was aware that he was being stopped, and he

exhibited a marked consciousness of guilt); Jones, 874 A.2d at 122 (finding

of constructive possession upheld where police found cocaine in the cabin of

car, in plain view, while outside of the rental car, Appellant was “constantly

staring” in the direction of the passenger seat from which the cocaine was

discovered, and Appellant had $481.00 in small denominations, which is

common      for   someone         involved       in    a    drug   distribution   scheme);

Commonwealth            v.   Cruz    Ortega,          539   A.2d   849,   851,    851   n.1

(Pa.Super.1988) (appellant, a passenger in a rented vehicle, constructively

possessed cocaine where cocaine was found under the seat in which

appellant was sitting, before police stopped the vehicle appellant was

observed leaning over in his seat, and there was a money order appellant

purchased in glove compartment).

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

saw the bullet as soon as he opened the door. S.H. Transcript at 25; Tr.
Transcript at 20.



                                           - 12 -
J-A07034-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




                          - 13 -
