Com. v. Johnson, M.

J-S47029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE JOHNSON
Appellant No. 3677 EDA 2016
Appeal from the Judgment of Sentence March 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001854-2014
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 28, 2017
Maurice Johnson appeals from the March 13, 2015 judgment of
sentence entered in the Philadelphia County Court of Common Pleas
following his convictions for persons not to possess firearms, carrying a
firearm without a license, and carrying a firearm on the public streets or
public property in Philadelphia.1 We affirm.
The trial court set forth the following factual history:
At approximately 4:15 p.m. on February 2, 2014,
[Philadelphia] Police Officers [Chad] Gugger and [George]
Fox observed a black Pontiac automobile travelling at a
high rate of speed on the 4800 block of North 11th Street
in Philadelphia. While attempting to catch up to the
vehicle, the officers ran the tag through the NCIC
computer revealing that the auto’s registration had expired
five months earlier, in September of 2013. The officers
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1
18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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activated their patrol car’s lights and sirens and
approximately three blocks later pulled [Johnson]’s vehicle
over in the 1000 block of Rockland Street. Officer Gugger,
with ten years’ experience on the force and four and one-
half years in the area of the traffic stop, testified that the
area was a [“]bad area with lots of major crimes,
homicides, robberies, guns, [and] drugs.[” He] stated that
in a normal duty shift, the officers would receive at least
two calls for gun violence. [] Johnson, the sole occupant
of the stopped vehicle, gave police his license and
registration, but not an insurance card when requested.
The office[r]s checked [Johnson]’s history and[, after
seeing from prison records that Johnson had] a history of
gun violence, asked Johnson if he had any weapons in the
vehicle. [Johnson] did not answer that question, but got
nervous, started shaking, breathing heavier and told the
officers that he was on state parole. The patrolmen then
asked [Johnson] to exit his vehicle and sit in the patrol car
while the parking authority was notified as they were “live-
stopping” the vehicle. [Johnson] was not under arrest,
however two citations were issued for driving an
unregistered vehicle in violation of 75 Pa.C.S. §[]1301(a)
and for an invalid inspection in violation of 75 Pa.C.S.
§[]4706(c)(1). When the parking authority tow truck
arrived on the scene, Officer Fox performed an inventory
of the vehicle, finding a black Smith & Wesson [.]32
[caliber] revolver with one live round in the glove box.
[Johnson] was then arrested and transported to the police
district headquarters. [Johnson]’s mother testified on
Johnson’s behalf that she was the owner of the Pontiac
and, that in addition to her and [Johnson] being authorized
to use the vehicle, her daughter and son-in-law were
allowed to use the Pontiac, but that no one had used it
that day.
Opinion, 1/4/17, at 2-4 (“1925(a) Op.”).
On March 12, 2014, Johnson filed a motion to quash and to suppress
the firearm. On April 16, 2014, the trial court denied the motion to quash.
The trial court held hearings on the motion to suppress on July 21, 2014 and
January 16, 2015. On January 16, 2015, the trial court denied the motion to
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suppress and proceeded to a non-jury trial, incorporating the testimony from
the suppression hearing. The trial court convicted Johnson of the
aforementioned offenses. On March 3, 2015, the trial court sentenced
Johnson to an aggregate sentence of five to ten years’ incarceration followed
by three years’ probation.
On March 14, 2016, Johnson filed a timely Post Conviction Relief Act
(“PCRA”) petition seeking reinstatement of his appellate rights nunc pro
tunc. On November 10, 2016, the PCRA court granted the petition and
reinstated Johnson’s appellate rights nunc pro tunc. On November 22, 2016,
Johnson timely filed a notice of appeal.
Johnson raises two issues on appeal:
1. Did the trial court err when it admitted evidence of
the gun found in the glove box?
2. Does sufficient evidence support the trial court’s
findings that [Johnson] possessed or controlled the
gun in the glove box?
Johnson’s Br. at 6.
First, Johnson argues that the trial court erred by not suppressing the
gun recovered from the vehicle. According to Johnson, the officers illegally
inventoried the car because there was no justification to tow and store the
vehicle, as the vehicle was not a public safety hazard. Johnson therefore
asserts that the trial court should have suppressed the gun found in the
glove box incident to that illegal inventory search. The Commonwealth
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responds that Johnson has waived this argument because he did not present
it to the trial court in his suppression motion or at the suppression hearing.
We agree with the Commonwealth. It is well settled that “when 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.” Commonwealth v. Thur, 906 A.2d 552, 566 (Pa.Super.
2006); see Pa.R.A.P. 302(a). Johnson’s claim regarding the illegal inventory
search was not included in his motion to suppress, nor did he argue it at the
suppression hearing. Rather, Johnson argued that the officers lacked
probable cause to search the vehicle and that the officers did not follow the
Live Stop2 protocol. See N.T., 1/15/16, at 17-20. Accordingly, we conclude
that Johnson has waived this argument on appeal.3
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2
“The City of Philadelphia’s ‘Live Stop’ program involves the
immediate immobilization in place or towing at a different location of
vehicles found to be operat[ed] in violation of certain state motor vehicle
statutes.” Commonwealth v. Thompson, 999 A.2d 616, 617 n.1
(Pa.Super. 2010) (internal quotation omitted, alteration in original),
disapproved of on other grounds by Commonwealth v. Lagenella, 83 A.3d
94 (Pa. 2013).
3
In his brief, Johnson supports his claim by arguing that the
Commonwealth presented no evidence that the car posed a risk to public
safety and, as a result, an inventory search pursuant to the Live Stop
protocol was illegal. Johnson’s Br. at 10. Any failure to present such
evidence, however, was undoubtedly the product of Johnson’s failure to raise
this argument in his motion to suppress. Because the Commonwealth
cannot be expected to respond to non-existent claims, a finding of waiver
here is particularly appropriate.
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Next, Johnson argues that the Commonwealth’s evidence was
insufficient to support his convictions. This Court’s standard for reviewing a
sufficiency of the evidence claim is as follows:
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth’s burden may be met by
wholly circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
Johnson argues that the Commonwealth failed to prove that he
constructively possessed the firearm. According to Johnson, the
Commonwealth only presented evidence that the firearm was in the glove
box of a car he borrowed and that Johnson “became nervous when asked if
there were any weapons in the car and he only answered that question by
stating he was on state parole.” Johnson’s Br. at 11. This claim does not
merit relief.
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The doctrine of 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. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013) (quoting
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012)).
Viewing the evidence in the light most favorable to the
Commonwealth, we conclude that the Commonwealth presented sufficient
evidence to prove that Johnson constructively possessed the firearm. The
evidence showed that Johnson was the only person in the vehicle and could
access a firearm located in the glove box using the key to that vehicle. See,
e.g., Commonwealth v. West, 937 A.2d 516, 524 (Pa.Super. 2007)
(concluding that appellant constructively possessed cocaine found in
motorcycle compartment when officer had seen appellant riding motorcycle
approximately one hour before the vehicle was seized and appellant was
moving toward motorcycle when arrested). Further, when asked whether he
had any weapons in the vehicle, Johnson not only refused to answer the
question, but also showed consciousness of guilt by shaking nervously,
breathing heavily, and stating that he was on state parole. See
Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) (“The conduct
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of an accused following a crime, including ‘manifestations of mental
distress,’ is admissible as tending to show guilt.”). Under these
circumstances, we agree with the trial court that the evidence was sufficient
to establish beyond a reasonable doubt that Johnson had the power to
control the firearm and the intent to exercise that control and, therefore,
Johnson had conscious dominion over the firearm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2017
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