Com. v. Withrow, S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SIR JOHN WITHROW :
:
Appellant : No. 1287 WDA 2016
Appeal from the Judgment of Sentence July 25, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013193-2015
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2017
Sir John Withrow appeals from the judgment of sentence entered on
July 25, 2016, in the Allegheny County Court of Common Pleas, made final by
the denial of post-sentence motions on August 9, 2016.1 The trial court
imposed a term of three to six years’ imprisonment, following a non-jury trial
in which Withrow was convicted of person not to possess a firearm, possession
with intent to deliver (heroin), and driving while his license was suspended.2
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* Former Justice specially assigned to the Superior Court.
1 Withrow was tried jointly with his co-defendant, Gene Livingston, III, who
was convicted of person not to possess a firearm. Livingston has also
appealed his judgment of sentence, and he raises similar, but not identical
claims, to the one filed by Withrow. See Commonwealth v. Livingston,
792 WDA 2016.
2 See 18 Pa.C.S. § 6105(a), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §
6106(a)(1), respectively.
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On appeal, Withrow contends the trial court erred in denying his motion to
suppress physical evidence and there was insufficient evidence to convict him
of gun possession. 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.
Officer Coll ordered both males to show their hands and to stop
making movements.
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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.
Withrow was charged with multiple offenses related to the incident.
Withrow filed a suppression motion on April 8, 2016.3 A motion hearing was
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3 In the motion, Withrow 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.
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held on May 2, 2016,4 immediately before a stipulated non-jury trial. The trial
court denied the suppression motion. The court subsequently convicted
Withrow of the above-stated crimes, and on July 25, 2016, sentenced him to
a term of three to six years’ incarceration. On May 12, 2016, Withrow 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.5
In his first issue, Withrow contends the trial court erred in denying his
motion to suppress the evidence because he was searched without probable
cause or reasonable suspicion. See Withrow’s Brief at 11. Citing
Commonwealth v. Powell, 934 A.2d 721 (Pa. Super. 2007), he contends
the facts do not support an investigative detention:
First and foremost, upon arriving at the Escort, the arresting
officers observed six individuals sleeping in a parked vehicle on
private property. The Escort was not parked illegally, nor was the
fact that it was running particularly unusual given the need of the
occupants to remain warm on a November night. While the
officers did note that the station is located in a “high crime area,”
… this is insufficient on its own to sustain the detention. Most
importantly, the officers did not observe a firearm or contraband
in the possession of any occupant in the vehicle until after the
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4 At that time, Livingston orally joined Withrow’s suppression motion.
5 On August 30, 2016, the trial court ordered Withrow to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting an extension of time, Withrow complied with the court’s
directive on October 13, 2016. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 19, 2017.
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investigatory detention had been initiated and Mr. Withrow had
been removed and searched. At that time, an officer had already
reached into the vehicle and taken the keys. In doing so he
observed no contraband, no suspicious bulges, and no weapons
or other articulable facts to believe anyone was armed. Moreover,
the officer removed the passenger, but allowed Mr. Withrow to
remain in the car until [the] officers confirmed his license was
suspended. The standard relied upon in Powell to establish a
threat to officer safety is clearly not met in the instant case.
Officers felt safe enough to allow him to remain in the vehicle.
Withrow’s Brief at 13-14.
Our standard of review is well-settled:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court] is bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where ... the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to [ ] plenary review.
Commonwealth v. Mason, 130 A.3d 148, 151–152 (Pa. Super. 2015)
(quotation omitted), appeal denied, 138 A.3d 3 (Pa. 2016).
Although the police officers did not stop Withrow’s car, the encounter
“must be scrutinized to see if it passes constitutional muster.”
Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000).
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Both the Fourth Amendment to the United States Constitution and
Article I, § 8 of the Pennsylvania Constitution protect the people
from unreasonable searches and seizures. In the Interest of
D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (Pa. 2001). The Fourth
Amendment and Article I, § 8 have long been interpreted to
protect the people from unreasonable government intrusions into
their privacy. United States v. Chadwick, 433 U.S. 1, 7, 97 S.
Ct. 2476, 53 L. Ed. 2d 538 (1977); Commonwealth v. Shaw,
476 Pa. 543, 383 A.2d 496, 499 (Pa. 1978). “The reasonableness
of a governmental intrusion varies with the degree of privacy
legitimately expected and the nature of the governmental
intrusion.” Shaw, at 499 (collecting cases).
Commonwealth v. McCree, 924 A.2d 621, 626 (Pa. 2007). There are three
types of interactions between citizens and police officers, which require
different levels of validation based upon the nature of the interaction.
These categories include (1) a mere encounter, (2) an
investigative detention, and (3) custodial detentions. The first of
these, a “mere encounter” (or request for information), which
need not be supported by any level of suspicion, but carries no
official compulsion to stop or to respond. The second, an
“investigative detention” must be supported by reasonable
suspicion; it subjects a suspect to a stop and a period of detention,
but does not involve such coercive conditions as to constitute the
functional equivalent of an arrest. Finally, an arrest or “custodial
detention” must be supported by probable cause.
Commonwealth v. Baldwin, 147 A.3d 1200, 1202-1203 (Pa. Super. 2016)
(citation omitted).
Pertinent to this appeal, we note that when analyzing whether police
activity constitutes a mere encounter or an investigatory detention, we are
guided by the following:
To determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of
law, the police conducted a seizure of the person involved. To
decide whether a seizure has occurred, a court must consider all
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the circumstances surrounding the encounter to determine
whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not free
to decline the officers’ request or otherwise terminate the
encounter. Thus, the focal point of our inquiry must be whether,
considering the circumstances surrounding the incident, a
reasonable person innocent of any crime, would have thought he
was being restrained had he been in the defendant’s shoes.
Commonwealth v. Collins, 950 A.2d 1041, 1046-1047 (Pa. Super. 2008)
(citation omitted).
Here, the court found the following:
The interaction between the police officers and Mr. Withrow
began as a mere encounter. The officers responded to a police
dispatch advising them that three males were “passed out” in a
running vehicle in the CoGo’s parking lot at 3:55 a.m. The officers
responded to the scene and initially began to conduct a welfare
check to determine whether the occupants of the vehicle were in
any physical distress. The officers repeatedly attempted to wake
the occupants by knocking on the windows of the vehicle but the
occupants would not wake up. In an effort to erase any risk of
physical harm that could result if one of the occupants accidentally
shifted the vehicle into gear, Officer Coll opened the car door and
turned off the ignition. The officers had [a] duty to check on the
safety of the occupants of the Ford Escort[.] See Commonwealth
v. Conte, 2007 Pa. Super. 232, 931 A.2d 690, 693-694 (Pa. Super.
2007)(“Indeed, our expectation as a society is that a police
officer’s duty to serve and protect the community he or she patrols
extends beyond enforcement of the Crimes Code or Motor Vehicle
Code and includes helping citizens….”). The police officers were
well within their province to approach the vehicle, attempt to
make contact with the occupants and attempt to diffuse any
dangerous situation[s] that affected the safety of the occupants
or the public. There was nothing unlawful about the officers
approaching the vehicle and turning the ignition off.
Soon after the ignition was turned off, both Mr. Livingston
and Mr. Withrow woke up. The officers obtained the identity of
both men and Officer Roche returned to his vehicle to conduct a
background check of the men. While Officer Roche was running
the background check, both men began to make furtive
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movements toward the center console of the vehicle. After Mr.
Livingston ignored Officer Coll’s demand to show his hands and
stop moving around the interior of the vehicle, Officer Coll
removed Mr. Livingston from the vehicle and had him sit on the
sidewalk. Mr. Withrow was determined to have been driving with
a suspended driver’s license. He refused to voluntarily exit the
vehicle and was then forcibly removed from the vehicle. As he
was being removed from the vehicle, Mr. Withrow continued to
make movements toward the center console. He was placed into
custody at that point. The actions of each defendant warranted
the police officers fearing for their safety and/or a belief that the
defendants were attempting to conceal contraband in the console.
The unusual furtive actions of Mr. Livingston and Mr. Withrow,
combined with their refusal to submit to the officers’ requests,
created sufficient reasonable suspicion to permit the police officers
to conduct an investigatory detention.
Once all of the other occupants were removed from the
vehicle, Officer Coll determined he was going to conduct an
inventory search. However, prior to the inventory search and
right after Mr. Livingston and Mr. Withrow were removed from the
vehicle, Officer Coll observed, in plain view, the firearm resting on
the top of the console. Mr. Withrow does not challenge the fact
that Officer Coll observed the weapon in plain view.
Trial Court Opinion, 1/19/2017, at 7-8.
We agree with the trial court’s well-reasoned analysis. The interaction
between the officers and the co-defendants began as a mere encounter.
Officers Coll and Roche were dispatched to the convenience store for a welfare
check on several individuals who all appeared to be passed out in a vehicle
with the engine running. N.T., 5/2/2016, at 7-9. The officers did not turn
their lights and sirens on at that time. Id. at 8. The officers tried numerous
times to wake up Withrow and his passengers. Id. at 10, 12. Out of concern
for the position of the car in relation to the business, and the safety of its
occupants, the officers were justified in checking on the welfare of the
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occupants and reaching in to turn off the engine. See Commonwealth v.
Collins, 950 A.2d 1041 (Pa. Super. 2008) (concluded officer was permitted
to check on the welfare of occupants of a legally parked car at night even with
no outward signs of distress and he did not observe anything that led him to
believe that something illegal was going on at that point in time).
Additionally, at that point, the officers did not search for or seize
anything. After the officers were finally able to wake the individuals, they
obtained Withrow’s name and date of birth as well as the same information
from the front seat passenger and co-defendant, Livingston. N.T., 5/2/2016,
at 12. Again, one can reasonably infer that nothing intrusive was occurring
regarding the officer’s interaction with the individuals.
While Officer Roche went to run their information, Officer Coll observed
both Withrow and Livingston make furtive movements towards the center
console of the vehicle. Id. at 13. He ordered them both to show their hands
and neither defendant complied. Id. at 13-14. Officer Coll then decided to
remove Livingston from the car but Withrow was permitted to remain in the
car. It was not until after the officers learned that Withrow’s driver license
had been suspended, and he continued to reach toward the center console did
Officer Roche remove him from the car and conducted a pat-down search for
the officers’ safety. Id. at 14-15.6 Nevertheless, it was at this point that the
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6 Withrow also gave the officer consent to search his person. See N.T.,
5/2/2016, at 15-16.
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officers were justified in detaining and arresting Withrow as they learned he
was driving with a suspended license, a violation of the Motor Vehicle Code.
See 75 Pa.C.S. § 1501(a) (drivers required to be licensed). Additionally,
Withrow kept making furtive movements after he had been told to stop and
show his hands. The subsequent pat-down search of his person was well
within the officers’ permitted conduct as it was out concern for their own
safety. See Commonwealth v. Rodriguez, 614 A.2d 1378, 1383-1384 (Pa.
1992) (“Even if probable cause to arrest is absent, the police officer may still
legitimately seize a person, and conduct a limited search of the individual’s
outer clothing in an attempt to discover the presence of weapons which might
be used to endanger the safety of the police officer and others, if the police
officer observes unusual and suspicious conduct on the part of the individual
seized which leads him reasonably to conclude that criminal activity may be
afoot and that the person with whom he is dealing may be armed and
dangerous.”). Accordingly, the trial court did not err in denying Withrow’s
motion to suppress as the officers’ actions were justified. Therefore, his first
argument fails.
In his second issue, Withrow argues there was insufficient evidence to
support his firearms conviction because he was merely present in a vehicle in
which a gun was recovered. Withrow’s Brief at 15. Specifically, he states:
While a firearm was found in the vehicle, that firearm was not in
Mr. Withrow’s possession. The firearm was not registered to Mr.
Withrow, nor was he observed attempting to control or hide the
firearm by either of the two officers present. While Mr. Withrow
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had made “movements” toward the center console, those
observations are insufficient as a matter of law … to sustain a
conviction under 18 Pa.C.S. [§] 6105(a)(1).
Withrow’s Brief at 16.
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
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).
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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:
In this case, the Commonwealth proved beyond a
reasonable doubt that [Withrow] 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
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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 Withrow constructively possessed the weapon. 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. Withrow made additional
movements toward the area at issue even after Livingston had been removed
from car. Id. at 15. Moreover, 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 Withrow and Livingston were sitting. See N.T.,
5/2/2016, at 17. As such, the trial court, sitting as the fact-finder, could
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reasonably infer the firearm was well within Withrow’s reach and he had the
power and intent to control the gun.7 See Hopkins, supra. Furthermore, “it
is possible for two people to have joint constructive possession of an item of
contraband.” Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super.
2014). Accordingly, we conclude there was sufficient evidence to enable the
trial court to find Withrow constructively possessed a firearm. Therefore,
Withrow is not entitled to relief with respect to his sufficiency challenge
regarding the firearms conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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7 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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