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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 fol lowing his bench trial convictions for possession of firearm with al tered manufacturer’s number, persons not to possess firearms, firearms n ot to be carried without a license, registration card to be signed and exhib ited on demand, unauthorized transfer or use of registration, drivi ng while operating privilege is suspended or revoked, required financial respons ibility, 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 sear ch 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); 7 5 Pa.C.S. §§ 1131(b), 1311(b), 1543(a), 1786(f), and 3323, respectfully.J-A07034-16

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The trial court summarized the factual background a s 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 con ducted 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 t hat he initiated a traffic stop of [Appellant’s] vehicle a fter it failed to stop at a stop sign. ([N.T., 7/10/2013, at] 4 (h ereinafter “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 veh icle and requested his driver’s license and vehicle informat ion. Sheriff Green called for backup and City of Pittsbu rgh officers and detectives responded and assisted him. [Appellant] produced a non-driver’s identification card and it was determined that [Appellant’s] driver’s licen se was suspended and he had several non-traffic and traffi c 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 determine d that the vehicle was, in fact, registered to an individu al from Beaver County. ([ Id. at] 6). The license plate on the vehicle did not match the registration. After it w as 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 th e 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:J-A07034-16

- 3 - 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 t hat [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 t ow 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 o f Pittsburgh officers. Detective John Henderson from the City of Pittsburg h Police testified that he arrived as backup on the s top and that Officer Holt obtained consent to search the ve hicle. ([S.H. Transcript at] 21 -22). Upon opening the pa ssenger side door he saw a live .45 caliber round on the fl oor of the front seat. ([ Id. at] 22). A loaded .45 caliber semiautomatic firearm was found in a void in a molded p iece in the center console. ([ Id. at] 22). Officer Nicholas Holt testified that he arrived as backup and obtained consent to search the vehicle and duri ng the search found the firearm as described. ([S.H. Trans cript at] 27). He testified that [Appellant] never retra cted his consent to search the vehicle and that the search h e conducted was pursuant to the consent that was give n. ([ 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 n earby,J-A07034-16

- 4 - she went to the scene. ([S.H. Hearing at] 34). Wh en she arrived [Appellant] was in the vehicle and then he was told to get out of the vehicle. When he was asked if th ey could search the vehicle, he repeatedly told them no, how ever they proceeded with the search. ( Id. ) [Appellant] argued that the officers did not have c onsent to search the vehicle and that there was no basis f or an inventory search. After consideration of all of th e 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 suppre ssion hearing was incorporated into the record and Detect ive John Henson also testified that the firearm’s seria l numbers were scratched out. ([N.T., 6/24/2014, at] 13 (hereinafter “Tr. Transcript”)). The Commonwealth a lso offered the certification that [Appellant] did not have a license to possess the firearm and the lab report r egarding the firearm. ([ Id. at] 21). [Appellant] testified that he worked with his broth er doing repair work on vehicles and that he was driving the vehicle at the time of the traffic stop because he was chan ging the oil and had only taken the vehicle from the shop to get something to eat for him and his brother. ([Tr.Tran sript at] 25). He testified that the vehicle was owned by “a guy, Brian -- it was his girlfriend’s car or something l ike that.” ([ Id. at] 26). He testified that he tried to buy the ve hicle but it didn’t work out and that he had possession o f 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 t o use the vehicle that day, someone else had placed t he license plate from the other vehicle that he had ow ned, 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 lice nse 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 oneJ-A07034-16

- 5 - could take it off the lot while it was being repair ed. ([ Id. at] 44). After consideration of the evidence[, App ellant] was found guilty of all charges. Opinion, 7/14/2015, at 2-5. On September 11, 2014, the trial court sentenced Ap pellant to 35 to 70 months’ imprisonment for the possession of firea rm with altered manufacturer’s number conviction, 5 years’ probatio n 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 te rm of imprisonment. The trial court imposed no further penalty for the rema ining convictions. On October 10, 2014, Appellant filed a timely notic e of appeal. Both Appellant and the trial court complied with Pennsyl vania 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 s earch was invalid?

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2 On October 15, 2014, the trial court ordered Appel lant 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, Ap pellant requested an extension, and, on November 6, 2014, the trial cour t 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 o f time to file his Rule 1925(b) statement and, on January 6, 2015, the tria l court granted Appellant a 30-day extension of time. Appellant fi led his concise statement of errors complained of on appeal on February 5, 20 15. The trial court issued its Rule 1925(a) opinion on July 14, 2015.J-A07034-16

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

criminal inventory purposes? III. Was the evidence insufficient to establish tha t [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 o f his suppression motion. When reviewing a denial of a suppression m otion, we limit our review to determining whether the record supports t he factual findings and whether the legal conclusions drawn from those fact s 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 onl y the Commonwealth’s evidence and so much of the defense evidence “as re mains 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 e xpectation of privacy in the vehicle. Appellee Brief at 26-28. “[G]enerally under Pennsylvania law, a defendant ch arged with a possessory offense has automatic standing to challe nge a search.”J-A07034-16

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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, h owever, 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 indiv idual, by his conduct, exhibits an actual (subjective) exp ectation of privacy and that the subjective expectation is o ne that society is prepared to recognize as reasonable. Th e constitutional legitimacy of an expectation of priv acy is not dependent on the subjective intent of the individua l asserting the right but on whether the expectation is reasonable in light of all the surrounding circumst ances. 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 reason able expectation of privacy in the area searched, the Commonwealth bear s 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 Ar ticle 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 r easonable 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)).J-A07034-16

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burden by showing the defendant lacked a privacy in terest, 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 rea sonable expectation of privacy in a rental vehicle where th e return date had expired, the appellant was not the named lessee, the named l essee was not in the vehicle, the appellant was not authorized to drive the vehicle, and the appellant and his passengers did not attempt to exp lain their connection to the authorized lessee. 874 A.2d at 120. This Cour t 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 searc hed 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 expec tation of privacy in a vehicle where he presented no evidence that he owne d 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, 125 1 (Pa.Super.2011). Appellant did not own the car he was driving, which was registered to someone who resided in a different county. He prov ided an insurance card to the officer, but the card was for another vehicl e. Further, at theJ-A07034-16

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suppression hearing, Officer Green testified Appell ant 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 expe ctation of privacy in the car. The Commonwealth’s evidence showed Appell ant lacked a reasonable expectation of privacy in the vehicle, a nd 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 suppre ssion motion. 6 Appellant’s last issue claims the Commonwealth pres ented 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 su fficiency of the evidence claim: “[W]hether viewing all the evidenc e admitted at trial in the light most favorable to the verdict winner, there i s 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 expe ctation of privacy in the vehicle searched, and, therefore, cannot prevai l 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 b ound by the rationale of the trial court, and may affirm on any basis.”).J-A07034-16

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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 C ommonwealth need not preclude every possibility of innocence.” Lehman , 820 A.2d at
772. Moreover, “[a]ny doubts regarding a defendant’s gui lt may be resolved by the fact-finder unless the evidence is so weak a nd inconclusive that as a matter of law no probability of fact may be drawn f rom the combined circumstances.” Id. “The Commonwealth may sustain its burden of provi ng every element of the crime beyond a reasonable doub t by means of wholly circumstantial evidence.” Id. In applying the above test, we must evaluate the en tire 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 bel ieve all, part or none of the evidence.” Id. Appellant maintains the Commonwealth failed to esta blish he possessed the firearm. Appellant’s Brief at 36-44. Because the firearm was not found on Appellant’s person, the Commonwealth h ad to establish that Appellant constructively possessed the firearm. Commonwealth v. Brown ,J-A07034-16

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48 A.3d 426, 430 (Pa.Super.2012). This Court has d escribed constructive possession as follows:

Constructive possession is a legal fiction, a pragm atic construct to deal with the realities of criminal la w enforcement. Constructive possession is an inferenc e arising from a set of facts that possession of the contraband was more likely than not. We have define d constructive possession as “conscious dominion.” We subsequently defined “conscious dominion” as “the p ower to control the contraband and the intent to exercis e that control.” To aid application, we have held that constructive possession may be established by the t otality of the circumstances. Id. (quoting Commonwealth v. Parker , 847 A.2d 745, 750 (Pa.Super.2004)). The Commonwealth presented sufficient evidence to allow the factfinder to find beyond a reasonable doubt that Appel lant constructively possessed the gun, i.e., that he had the power to c ontrol the firearm and the intent to exercise that control. Appellant was dri ving the vehicle in which the firearm was found and attempted to distance him self from the vehicle when pulled over, Appellant had attempted to purcha se the vehicle, the license plate on the car belonged to a car previous ly 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) (alterat ion in original). The officer, however, also testified, both at the suppression he aring and at trial, that he (Footnote Continued Next Page)J-A07034-16

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evidence to find appellant constructively possessed the firearm where appellant was only person in the vehicle, he was se en moving toward where gun was found as soon as he was aware that he was b eing stopped, and he exhibited a marked consciousness of guilt); Jones , 874 A.2d at 122 (finding of constructive possession upheld where police foun d 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 fro m which the cocaine was discovered, and Appellant had $481.00 in small deno minations, 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 ve hicle 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.J-A07034-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/19/2016