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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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