Com. v. Mills, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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:
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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,
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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
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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?
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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.
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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.”
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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
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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)).
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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
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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
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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.”).
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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,
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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
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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)
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2016
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