Com. v. Rivera, G.

J-A04027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GIOVANNI RIVERA :
:
Appellant : No. 786 EDA 2021
Appeal from the Judgment of Sentence Entered April 14, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002123-2020
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 10, 2022
Appellant Giovanni Rivera appeals from the judgment of sentence
imposed following his convictions for possession with intent to deliver a
controlled substance (PWID) and related offenses. Appellant argues that the
trial court erred in denying his motion to suppress and that the Commonwealth
failed to prove constructive possession. We affirm.
The trial court summarized the underlying facts of this matter as follows:
On January 13, 2020, a 2019 Jeep Grand Cherokee went missing
from Avis Rental Car Company. At some point between January
13, 2020 and January 24, 2020, Appellant had obtained
possession of a 2019 Jeep Grand Cherokee. On January 24, 2020,
Police Officer Stephen Mancuso, Detective John Harrigan, and
Detective Stephen Kershaw went to the 2100 block of North Front
Street in the city and county of Philadelphia. The officers had
gone to the area while following a GPS signal from the 2019 Jeep
Grand Cherokee, which had been reported stolen by the manager
at the Avis Rental Car Company. After arriving at the location and
surveying the area, the officers discovered the rental Jeep parked
in front of 2115 North Front Street. Appellant had parked the
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vehicle outside of a barbershop while he had his hair cut.
Appellant was allegedly in the barbershop for forty minutes,
during which time no one approached the rental Jeep. When
Appellant finished his haircut, he approached the rental Jeep
unaccompanied by anyone else. Upon Appellant entering the
driver’s seat of the vehicle, officers converged on Appellant and
placed him into custody. The keys to the vehicle were in the cup
holder when Appellant was apprehended.[1] Officers recovered
$4,074 from Appellant’s person and officers recovered a plastic
bag containing four bundles of heroin from under the rear
passenger seat.[2] Officers also recovered an amber pill bottle
containing 87 pills as well as a firearm from underneath a rug
covering the spare tire in the trunk area of the vehicle.
Trial Ct. Op., 6/25/21, at 1-2.
On January 24, 2020, Appellant was charged with PWID, possession of
a controlled substance, possession of a firearm by a prohibited person,
carrying firearms without a license, and possession of an instrument of crime
(PIC).3
Prior to trial, Appellant filed a motion to suppress the statements that
he made to police during the traffic stop and the physical evidence recovered
from the vehicle. Mot. to Suppress, 9/22/20, at 1. Therein, Appellant argued
that there was no evidence to establish that he possessed the narcotics or the
firearm or that Appellant was aware of their presence in the vehicle. Id. at 3.
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1 The vehicle was a push start car, so the keys did not need to be in the ignition
for Appellant to start it. See N.T. Suppression Hr’g, 10/28/20, at 67.
2 At the suppression hearing, Detective Harrigan testified that he also found
clothing in the backseat of the car that appeared to fit Appellant. See N.T.
Suppression Hr’g, 10/28/20, at 82.
335 P.S. §§ 780-113(a)(30), (a)(16), 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1),
and 907(a), respectively.
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On December 16, 2020, the trial court issued an order granting
Appellant’s motion with respect to the statements he made to police.
However, because the trial court concluded that Appellant did not have an
expectation of privacy in the vehicle, the court denied Appellant’s motion to
suppress the evidence recovered during the warrantless vehicle search.
Ultimately, on February 4, 2021, Appellant was found guilty of PWID
and possession of a controlled substance with respect to the packets of heroin
under the back seat.4 On April 4, 2021, the trial court sentenced Appellant to
an aggregate term of thirty to sixty months’ incarceration.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant raises the following issues:
1. Did the [trial] court err when it denied Appellant’s motion to
suppress the narcotics seized by police during the warrantless
search of the vehicle in which Appellant was seated at the time
of his arrest?
2. Did the [trial] court err when it found Appellant guilty of
possession of narcotics found hidden under the back seat of the
vehicle in which he was seated at the time of his arrest?
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4 The trial court clarified that it found Appellant guilty of PWID and possession
of controlled substance with respect to the heroin packets found under the
backseat only and not with respect to the pills found in the trunk. N.T. Trial,
2/4/21, at 49. Additionally, the trial court found Appellant not guilty with
respect to the charge of carrying a firearm without a license, and the
Commonwealth nolle prossed the charge of possession of a firearm by a
prohibited person.
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Appellant’s Brief at 6 (some formatting altered).
In his first claim, Appellant argues that the trial court erred in denying
his motion to suppress the physical evidence that was recovered from the
rental vehicle. Id. at 15. In support, Appellant argues that he had a
reasonable expectation of privacy in the vehicle because he had a “legitimate
subjective belief that he legally possessed the vehicle at the time of its
seizure.” Id. at 16. Appellant further claims that he believed he was renting
the vehicle from an individual “affiliated with Avis car rental[,] from whom he
had previously rented a vehicle.” Id. Appellant argues that he “had no way
of knowing that the car was stolen or that the person from whom he obtained
the [v]ehicle did not have the authority to rent the [v]ehicle to him.” Id.
The Commonwealth maintains that Appellant did not have a reasonable
expectation of privacy in the rental vehicle. Commonwealth’s Brief at 6. In
support, the Commonwealth argues that “[a]lthough [Appellant] claimed that
he had ‘rented’ the car from an employee of a car rental company, he did not
go through any normal rental process. Instead, by his own account, he had
picked up the car from a friend of a friend in a random parking lot.” Id. The
Commonwealth further notes that “[t]here was no paperwork or other formal
agreement authorizing him to drive the car.” Id. Under these circumstances,
the Commonwealth concludes that “[n]o reasonable person would believe that
they were legitimately renting a car.” Id. at 8.
When reviewing an order denying a motion to suppress, our standard of
review is as follows:
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[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. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation
omitted). Our scope of review is limited to the record from the suppression
hearing. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
“[U]nder Pennsylvania law, a defendant charged with a possessory
offense has automatic standing to challenge a search. However, in order to
prevail, the defendant, as a preliminary matter, must show that he had a
privacy interest in the area searched.” Commonwealth v. Jones, 874 A.2d
108, 117-18 (Pa. Super. 2005) (citations and quotation marks omitted).
This Court has explained:
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.
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Id. at 118 (citation omitted).
However, “Pennsylvania law makes clear there is no legally cognizable
expectation of privacy in a stolen automobile.” Id. (citing Commonwealth
v. Strickland, 707 A.2d 531, 534 (Pa. Super. 1998)). Further, this Court has
held that the unauthorized driver of a rental vehicle does not have a
reasonable expectation of privacy in that vehicle. See id. at 120 (finding that
the defendant did not have an expectation of privacy in a rental car because
the “return date [on the rental automobile] had expired, [the defendant] was
not the named lessee, the named lessee was not in the automobile, and [the
defendant] was not authorized to drive the automobile”); see also
Commonwealth v. Cruz, 21 A.3d 1247, 1251-52 (Pa. Super. 2011)
(concluding that the defendant failed to demonstrate that he had an
expectation of privacy in a vehicle because he “presented no evidence that he
owned the vehicle, that it was registered in his name, or that he was using it
with the permission of the registered owner”).
Here, the trial court addressed Appellant’s claim as follows:
Appellant had no expectation of privacy in the 2019 Jeep Grand
Cherokee. Whereas the appellant in [Jones, 874 A.2d at 112]
was borrowing a legally rented vehicle from a friend, Appellant in
this matter obtained possession of this stolen vehicle at some
point between January 13, 2020 and January 24, 2020 and had
not borrowed the legally rented vehicle from a friend. Further,
this was not a case where Appellant had legally rented the vehicle
himself and had retained the vehicle past the car-rental surrender
date. It is undisputed that this vehicle was, in fact, stolen: Avis
Rental Company reported it stolen after it had disappeared from
their possession. Avis used GPS tracking technology to locate
their vehicle and provided this information to police so the vehicle
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could be retrieved. The parties stipulated that Appellant “did not
have [the rental company’s] permission to be in possession of the
Jeep on the date of January 24, 2020.” Thus, the evidence
presented clearly showed that Avis owned this vehicle, that Avis
reported this vehicle stolen, and through a stipulated “ownership
and non-permission witness” showed that Appellant had no
permission to rent or use this vehicle.
Trial Ct. Op. at 4.
Following our review, we discern no error of law in the trial court’s
conclusions. See Smith, 164 A.3d at 1257. As noted above, at the
suppression hearing, the Commonwealth presented evidence that the rental
vehicle was owned by Avis and that Appellant was not authorized to drive the
vehicle on the date of his arrest. See N.T. Suppression Hr’g, 10/28/20, at 36-
38. Appellant presented no evidence to the contrary. Under these
circumstances, we agree with the trial court that Appellant failed to prove that
he had a privacy interest in the vehicle. See Jones, 874 A.2d at 118.
Therefore, Appellant is not entitled to relief on this issue.
In his second claim, Appellant argues that there was insufficient
evidence to prove that he constructively possessed the heroin recovered from
under the rear passenger-side seat of the vehicle. Appellant’s Brief at 17. In
support, Appellant claims that “the narcotics were not in plain view or within
arms-length” of Appellant at the time of his arrest. Id. at 18. Appellant
further claims that because “there was no indicia of [Appellant’s] ownership
of any items in close proximity to the contraband,” the Commonwealth was
required to prove that “at some point in time he physically viewed or
possessed the narcotics prior to his arrest.” Id. Appellant asserts that there
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was no evidence connecting him “to the vehicle or the narcotics hidden
therein.” Id. at 19. Further, Appellant argues that although he was arrested
immediately after he entered the vehicle, there was no evidence that Appellant
was in the vehicle at any time before his arrest. Id.
The Commonwealth responds that there was sufficient evidence to
establish that Appellant constructively possessed the contraband recovered
from the rental vehicle. Commonwealth’s Brief at 9. In support, the
Commonwealth notes that Appellant was the sole occupant of the vehicle
where the contraband was found. Id. at 11. Further, the Commonwealth
emphasizes that Appellant had a “large amount of cash in his pocket in small
denominations[, which was] consistent with selling the bundle of small packets
of heroin found under the backseat of the car.” Id. The Commonwealth also
notes that there was clothing in the vehicle that appeared to fit Appellant. Id.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
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the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018).
In drug possession cases, the Commonwealth must prove that a
defendant knowingly or intentionally possessed a controlled substance. See
35 P.S. §§ 780-113(a)(30), (a)(16). Possession can be established by
“proving actual possession, constructive possession, or joint constructive
possession.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018)
(citation omitted).
“Constructive possession is an inference arising from a set of facts that
possession of the contraband was more likely than not.” Commonwealth v.
McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation omitted).
This Court has explained:
Where a defendant is not in actual possession of the prohibited
items, the Commonwealth must establish that the defendant had
constructive possession to support the conviction. Constructive
possession is a legal fiction, a pragmatic construct to deal with the
realities of criminal law enforcement. We have defined
constructive possession as conscious dominion, meaning that the
defendant has 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.
It is well established that, as with any other element of a crime,
constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.
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Parrish, 191 A.3d at 36-37 (citations, brackets, and quotation marks
omitted); see also Commonwealth v. Santiesteban, 552 A.2d 1072, 1074
(Pa. Super. 1988) (explaining that constructive possession may be established
if contraband is located in an area where the individual has control and
access).
Here, the trial court addressed constructive possession as follows:
Here, Appellant had obtained possession of the stolen vehicle at
some point between January 13, 2020 and January 24, 2020.
Appellant was in sole possession of the vehicle when confronted
by police outside of the barbershop. Appellant was apprehended
while sitting in the driver’s seat of the vehicle with the vehicle’s
keys in the cupholder. Although there was conflicting testimony
as to whether the vehicle’s engine was on or off, Appellant had
actual possession of the vehicle at the time he was arrested.
It is certainly true that at the time of his arrest, Appellant did not
have actual possession of the narcotics: they were not on his
person, but rather under the rear passenger seat in the vehicle.
However, Appellant had possession of the stolen vehicle at the
very least on the date in question. There was no testimony that
anyone else drove the vehicle while Appellant had possession of
the vehicle. Based on both the direct evidence and the
circumstantial evidence, Appellant had actual possession over the
rental vehicle and constructive possession over the narcotics that
were in the cabin of the vehicle. This, together with the large
amount of money in various denominations found on Appellant at
the time of his arrest,[5] contributed to the court’s finding that
based on the totality of the circumstances, Appellant had
constructive possession of the narcotics found under the rear
passenger seat of the vehicle.
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5 We note that, at trial, the Commonwealth’s narcotics expert testified that
the average weight of the drug packets recovered from the vehicle was 45
milligrams, which was “consistent with a $10 packet of heroin.” See N.T.
Trial, 2/4/21, at 19. With respect to the currency, the expert stated that “the
denominations [were] consistent with the sales of $10 packets.” Id.- 10 -
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Trial Ct. Op. at 5-6 (citation omitted).
Based on our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, we find no error in
the trial court’s conclusions. See Palmer, 192 A.3d at 89. As noted
previously, Appellant had exclusive possession of the vehicle at the time of his
arrest. See Santiesteban, 552 A.2d at 1074. In addition to the heroin
recovered from the vehicle, police also recovered $4,074 directly from
Appellant’s pockets. At trial, the Commonwealth’s expert testified that the
large amount of cash was in small denominations that were consistent with
the sale of the $10 bags of heroin that were recovered from under the rear
passenger side seat. See N.T. Trial, 2/4/21, at 19. When viewed together,
these factors are sufficient to establish that Appellant constructively possessed
the heroin. See McClellan, 178 A.3d at 878; see also Parrish, 191 A.3d at
36-37. Therefore, Appellant is not entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2022
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