J-S10035-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH ALAN DAVIS : : Appellant : No. 1085 WDA 2022
Appeal from the Judgment of Sentence Entered July 19, 2022 In the Court of Common Pleas of Cameron County Criminal Division at No(s): CP-12-CR-0000064-2021
BEFORE: OLSON, J., KING, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED: June 7, 2024
Joseph Alan Davis (“Davis”) appeals from the judgment of sentence
imposed following his conviction for possession of a firearm prohibited.1 We
affirm.
The relevant factual and procedural history underlying this matter is as
follows. In 2020, Davis shared an apartment with his girlfriend, Maci Lyon
(“Lyon”) in Emporium, Pennsylvania. In 2021, while Lyon was in jail,
authorities recorded telephone conversations she had with her grandmother
wherein they discussed the whereabouts of a baby stroller which the
grandmother wanted to retrieve. Lyon stated that the stroller was in the trunk
of a little black car owned by Davis, which had been towed by police. See
N.T. Suppression, 2/22/22, at 6, 12. Lyon further indicated that there was a
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1 See 18 Pa.C.S.A. § 6105(a)(1). J-S10035-24
firearm in the little black car. See id. at 10, 12. Lyon stated that the firearm
“obviously . . . has to be hers because [Davis] isn’t allowed to own one.” Id.
at 13-14. Lyon then indicated that she did not want to discuss the firearm
any further because she was on a recorded telephone line. See id. at 14.
The contents of the recorded jail conversations were provided to Chief
David Merritt of the Emporium Borough Police Department. See id. at 5. Only
one little black car had been towed by Emporium police in 2020; namely, a
2006 Chevy Cobalt which had been towed from North Cherry Street, an alley
located fifty to 100 feet from the apartment building in which Davis and Lyon
were then living. See id. at 6, 15. The towed vehicle had a Texas license
plate; however, a search of the vehicle’s VIN number yielded outdated
information. See id. at 8, 9, 24. The vehicle was towed to Ramsey’s Garage
in Emporium, and thereafter placed in a secured, fenced-in lot, where it
remained. See id. at 8.
After receiving the recorded jail conversations, Chief Merritt conducted
a subsequent search of the Texas license plate which revealed an owner in St.
Mary’s, Pennsylvania, who lived down the street from Davis’ mother. See id.
at 9, 16. The chief contacted that individual, who informed him that he sold
a van to Davis, and the Texas license plate had been in the back of the van at
the time of sale. See id. at 9. The chief determined that Davis was not able
to possess a firearm because he had a prior conviction for burglary. See id.
at 11. The chief applied for and obtained a warrant to search the vehicle. See
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id. at 10. Police subsequently searched the vehicle and found a shotgun in
the trunk. See id. at 24.
Police thereafter charged Davis with possession of a firearm prohibited.
At the preliminary hearing, the chief presented a video statement provided by
Lyon in which she indicated that Davis purchased the firearm from a pawn
shop. See id. at 23. Lyon further indicated that she objected to the firearm
in their home, and Davis thereafter removed the firearm from the home and
placed it in the trunk of the little black car. See id. Davis then moved to
suppress the firearm on the basis that the search warrant lacked probable
cause.2 Following a hearing, the trial court denied suppression.
2 We observe that a defendant moving to suppress evidence has the preliminary burden of establishing standing and a legitimate expectation of privacy. See Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998). Generally, a defendant does not have an expectation of privacy in a vehicle where he does not own the vehicle and offers no evidence of his connection to the vehicle or to his connection to the registered owner of the vehicle. See Commonwealth v. Burton, 973 A.2d 428, 436 (Pa. Super. 2009) (en banc). Nonetheless, such standing may be established when the defendant demonstrates, inter alia, that the offense charged includes, as an essential element of the prosecution’s case, the element of possession at the time of the contested search and seizure. See Commonwealth v. Peterkin, 513 A.2d 373, 378 (Pa. 1986); see also Commonwealth v. Jacoby, 170 A.3d 1065, 1088 (Pa. 2017) (explaining that the possessory offense, in and of itself, is not dispositive; rather, Peterkin requires us to focus upon whether the defendant is charged with possessing a certain item or contraband at the time of the contested search and seizure). Here, the sole crime for which Davis was charged included, as an essential element, the element of possession of a firearm at the time of the contested search of the 2006 Chevy Cobalt and seizure of the firearm. Thus, despite the lack of evidence of his ownership of the vehicle or connection its registered owner, Davis had standing to challenge the search of the vehicle.
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The matter then proceeded to a non-jury trial at which Davis stipulated
that he was ineligible to possess a firearm based on his prior convictions for
burglary and receiving stolen property. See N.T. Trial, 3/29/22, at 3-4. The
Commonwealth presented the testimony of Lyon, who indicated that in 2020
she and Davis had lived together in Emporium and that a “long” firearm
“showed up” on her bed in their apartment. Id. at 8. Lyon indicated that she
“freaked out” and told Davis to “get it out of my house.” Id. According to
Lyon, an argument ensued, but Davis took the firearm outside. See id. Lyon
testified that Davis had a “little black car” that he parked “[i]n the alleyway
beside [their] apartment.” Id. at 9. Lyon was shown a photograph of the
contents of the trunk of the black 2006 Chevy Cobalt towed from the alley and
she identified therein the firearm that had been on her bed, their child’s
stroller, and one of Davis’ shirts. See id. at 9-10. Lyon indicated that she
had never driven the little black car or been inside it. See id. at 10. On cross-
examination, Lyon was questioned regarding her statement to her
grandmother in the recorded jail conversation that the firearm was hers, as
well as whether she received any consideration from the prosecution based
on her assistance in this case. See id. at 13-16. Lyon explained that a charge
against her for endangering the welfare of children had been withdrawn, and
further explained that “I didn’t want [Davis] to get in trouble, so I was going
to just say that it was my gun” due to her knowledge that Davis was not
permitted to have one. Id. at 18, 19.
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Chief Merritt testified that upon listening to the recorded jail
conversations, he determined that the little black car mentioned by Lyon as
having a firearm in it was the same vehicle that had been towed by Emporium
police in October 2020. See id. at 25. The chief explained that he then
applied for a search warrant for the little black car and, upon its execution,
found a twelve-gauge double barrel shotgun in the trunk, which had been
wrapped in a man’s flannel shirt, as depicted in the photograph of the trunk
of the vehicle, as well as a stroller. See id. at 25, 27, 29. The chief noted
that Emporium police towed onlyone little black car in 2020, and it was towed
from the alley located approximately 100 feet from the apartment that Davis
and Lyon shared. See id. at 26-27. The chief further noted that he
determined that the firearm was operable after he took it to a range and fired
two rounds through it. See id. The trial court then admitted into evidence a
video of the chief firing two rounds from the shotgun. See id. at 27-28. At
the conclusion of the non-jury trial, the court found Davis guilty of possession
of a firearm prohibited. On July 19, 2022, the trial court sentenced Davis to
three and one-half to ten years in prison. Davis filed a timely notice of appeal,
and both he and the trial court complied with Pa.R.A.P. 1925.
Davis raises the following issues for our review:
1. Whether there was sufficient evidence presented by the Commonwealth at the time of the bench trial upon which the court could have found [Davis] guilty of 18 Pa.C.S.[A.] § 6105(a)(1) – possession of a firearm prohibited?
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2. Whether the trial court abused its discretion by denying [Davis’] motion for suppression of evidence by failing to find that the alleged firearm was obtained by virtue of a search warrant that lacked probable cause?
Davis’ Brief at 5 (unnecessary capitalization omitted).
In his first issue, Davis challenges the sufficiency of the evidence
supporting his conviction. Our standard of review of a sufficiency challenge is
well-settled:
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, is sufficient to prove every element of the offense beyond a reasonable doubt. As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the factfinder. Any question of doubt is for 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. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009) (citations
omitted). The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of circumstantial
evidence. See Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super.
2011).
Section 6105 of the Pennsylvania Crimes Code defines a person not to
possess firearms, in relevant part, as follows: “[a] person who has been
convicted of [certain enumerated offenses] shall not possess, use, control,
sell, transfer or manufacture or obtain a license to possess, use, control, sell,
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transfer or manufacture a firearm in this Commonwealth.” 18 Pa.C.S.A. §
6105(a)(1).3
Possession can be found by actual possession or constructive
possession. See Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super.
2018). When there is no direct evidence the person was in physical possession
of the firearm, the Commonwealth must prove the element of possession
through what has been described as the “legal fiction” of constructive
possession. See id. This Court has stated that a defendant has constructive
possession of contraband if he has conscious dominion of it, that is, he has
the “power to control the contraband and the intent to exercise that control.”
Id. (citation omitted). Constructive possession is “an inference arising from
a set of facts that possession of the contraband was more likely than not[,]”
see Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013)
(citation omitted) and may be established by the totality of the circumstances,
see Parrish, 191 A.3d at 36; see also Commonwealth v. Harvard, 64 A.3d
690, 699 (Pa. Super. 2013) (holding that an intent to maintain 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).
3 As indicated above, Davis stipulated at trial that he was ineligible to possess
a firearm due to his prior convictions. See N.T. Trial, 3/29/22, at 3-4.
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Davis concedes that his prior convictions for burglary and receiving
stolen property rendered him ineligible to possess a firearm pursuant to
section 6105(a)(1). Accordingly, his sufficiency challenge pertains solely to
the possessory element of his conviction.4 In this regard, Davis contends that
the evidence presented at trial reflected that, on an unspecified date and in
an unknown manner, a weapon appeared in the apartment he shared with
Lyon, and Davis removed the weapon from the home. However, he argues
that no evidence was presented regarding what happened to that weapon.
According to Davis, the evidence presented at trial established only that, at
some unspecified point in the past and for an unknown duration of time, Davis
had a non-descript little black car, but the Commonwealth failed to offer any
evidence that Davis had accessed this car at any certain point in time, or that
he had accessed the vehicle at or around the time, or at any time after, a
firearm was allegedly removed from their apartment.
Davis further argues that, aside from Chief Merritt’s supposition, there
was no connection made between the non-descript little black car Lyon
4 Notably, in order to preserve a sufficiency challenge, an appellant must identify in the Rule 1925(b) concise statement the specific element(s) of the crime that were allegedly unproven at trial. See Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (holding sufficiency challenge waived where the appellant did not specify the allegedly unproven elements in his concise statement). While Davis did not specify in his concise statement his claim that the possessory element was unproven, we decline to find waiver on this basis because there are only two elements for the crime in question, and Davis stipulated to the other element.
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described as being owned by Davis and the towed car which was later
searched by police. Davis points out that Lyon never testified that she knew
the car which she associated with Davis to have ever been parked in a certain
location on a certain day, nor did she testify to ever knowing the vehicle to
have been towed. Davis claims that no testimony or other evidence was
offered regarding what happened to the “little black car” between the time it
was towed in October 2020 and the date the search warrant was executed.
Davis asserts that it was not clear where the vehicle was located at the time
it was searched, nor whether that vehicle, or any part of it, had been accessed
by anyone between the two dates. On this basis, Davis contends that the
evidence was insufficient to connect the recovered firearm in the vehicle to
the firearm that was in their apartment.
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we conclude that the evidence presented at trial, along with
all reasonable inferences deduced therefrom, was sufficient to sustain Davis’
conviction under section 6105(a)(1).5 Davis conceded that he was ineligible
to possess a firearm. See N.T. Trial, 3/29/22, at 3-4. Thus, the
Commonwealth needed only to prove that Davis constructively possessed the
5 The trial court considered Davis’ sufficiency challenge and concluded that it
lacked merit. See Trial Court Opinion, 10/11/22, at 1. However, the trial court did not specifically explain its reasoning, and merely referred this Court to the transcript of trial testimony provided by Lyon, whom the trial court found to be credible. See id.
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shotgun found in the trunk of the black 2006 Chevy Cobalt. In this regard,
the Commonwealth presented the testimony of Lyon, who confirmed that in
2020, while she and Davis lived together in Emporium, a “long” firearm
“showed up” on her bed in their apartment. Id. at 8. Lyon explained that
she “freaked out” and told Davis to “get it out of [her] house,” whereupon
Davis took the firearm outside. Id. Lyon further testified that Davis had a
“little black car” that he parked “[i]n the alleyway beside [their] apartment.”
Id. at 9. Lyon was shown a photograph of the contents of the trunk of the
black 2006 Chevy Cobalt towed from the alley and searched by police and
identified therein the firearm that had been on her bed, their child’s stroller,
and one of Davis’ shirts. See id. at 9-10. Lyon indicated that she had never
driven the little black car or been inside it. See id. at 10.
Additionally, Chief Merritt testified that he determined that the little
black car—mentioned by Lyon in her recorded jail conversations as having a
firearm in it—was the same vehicle that had been towed by police in October
2020. See id. at 25. The chief explained that he then applied for a search
warrant for the little black car and, upon its execution, found a stroller and a
twelve-gauge double barrel shotgun in the trunk, which had been wrapped in
a men’s flannel shirt, as depicted in the photograph of the trunk of the vehicle.
See id. at 25, 27, 29. The chief noted that Emporium police only towed one
little black car in 2020, and it was towed from the alley located approximately
100 feet from the apartment that Davis and Lyon shared. See id. at 26-27.
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The chief further noted that he determined that the firearm was operable after
he took it to a range and fired two rounds through it. Id.
Based on our review, we conclude that this evidence was sufficient to
support the possessory element of Davis’ conviction for possession of a
firearm prohibited. The trial court, sitting as the finder of fact, was entitled to
find that the combined testimony provided by Lyon and Chief Merritt
established that Davis possessed the shotgun located in the apartment he
shared with Lyon, that he owned (or at least had access to) the black 2006
Chevy Cobalt, that he wrapped the shotgun in one of his flannel shirts, and
thereafter placed it in the trunk of his little black car alongside his child’s
stroller. Although the evidence was circumstantial, the finder of fact was
permitted to infer from the totality of the evidence presented that it was more
likely than not that Davis had the power to control the firearm and the intent
to exercise control of the firearm. See Hopkins, 67 A.3d at 820. Accordingly,
we conclude that the totality of the circumstantial evidence presented was
sufficient to prove beyond a reasonable doubt that Davis constructively
possessed the firearm in violation of section 6105(a)(1). See id. As such,
Davis’ sufficiency challenge merits no relief.
In his second issue, Davis challenges the denial of his suppression
motion. Our standard of review of an order denying suppression is to
determine:
whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those
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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, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Where, as here, 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 our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (quotations and
citations omitted). Our scope of review is limited to the evidence presented
at the suppression hearing. See In re L.J., 79 A.3d 1073, 1080 (Pa. 2013).
Search warrants must be supported by probable cause. See
Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012). Probable
cause exists where the facts and circumstances within the affiant’s knowledge
and of which he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that a search
should be conducted. See id. In considering an affidavit of probable cause,
the issuing magistrate must apply a “totality of the circumstances test” which
requires the magistrate to “make a practical, common-sense decision
whether, given all of the circumstances set forth in the affidavit . . . including
the veracity and basis of knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Id. (citations omitted). A court reviewing a search
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warrant determines only if a substantial basis existed for the magistrate to
find probable cause. See id.
Davis contends that, while evidence was offered to support a fair
probability that he operated the little black car where it was anticipated to be
found, no fair probability was established that he possessed a firearm prior to
the issuance of the warrant. Davis asserts, at the time the warrant was
issued, Lyon admitted ownership of the firearm, never alleged Davis had
previously possessed or even knew of the gun’s existence, and the car was
held on a lot where Davis could not access it. On this basis, Davis argues that
the firearm was in a location over which he lacked control and there is no
evidence that he even knew that the firearm was there. Davis maintains that
the record does not support the trial court’s conclusion that the warrant was
supported by probable cause.
The trial court considered Davis’ second issue and determined that it
lacked merit. See Trial Court Opinion, 10/11/22, at 1 (concluding that the
suppression issue was meritless and referring this Court to its March 17, 2022
opinion). The trial court reasoned that “there was sufficient probable cause
for [the magistrate judge] to authorize the search warrant . . . for Chief Merritt
to search the ‘little black car,’ namely a 2006 Chevy Cobalt for a gun.” Trial
Court Opinion, 3/17/22, at 3 (unnecessary capitalization omitted).
Reviewing the affidavit prepared by Chief Merritt, we conclude that the
trial court’s determination that there was a substantial basis for the issuing
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magistrate to conclude that probable cause existed is supported by the
suppression record. In his affidavit, the chief indicated that, in the recorded
jail conversations, Lyon spoke of a small black vehicle belonging to Davis
which had been towed by police and which had a gun in it. See Affidavit of
Probable Cause, 3/17/21, at 2. The affidavit stated that, during one
conversation, a woman asked Lyon where the small black car was located
because she wanted to get the stroller from the trunk of the car. See id.
Lyon indicated that she did not know because the police took the car because
they were looking for a gun in their apartment. See id. When asked if there
was a gun in the car, Lyon responded “yes, ‘one.’” Id. The chief then noted
that he had tagged a small black Chevy car in October 2020 which was leaking
fuel and had a Texas license plate. See id. The chief explained that, at that
time, he was unable to identify the owner of the vehicle or determine where
it came from. See id. The chief attested that the vehicle had been towed to
a secured location where it had remained in a secured state ever since. See
id. The chief indicated that his subsequent search of the Texas license plate
identified “Smith” as the registered owner of the Texas license plate on the
2006 Chevy Cobalt. Id. According to the affidavit, the chief contacted “Smith
[who] stated that he sold a van to . . . Davis last summer and that the Texas
license plate was inside the van. Smith said that the van was broken down
and was parked at Davis’ family member’s home.” Id. The affidavit
continued, “This would indicate that the black Chevy Cobalt that was towed
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belongs to Davis and or Lyon who lived together . . . in October 2020.” Id.
at 3.
Based on these averments, we conclude that the totality of the facts and
circumstances within Chief Merritt’s knowledge and of which he had
reasonably trustworthy information were sufficient to warrant a man of
reasonable caution in the belief that a search should be conducted. See
Johnson, 42 A.3d at 1031. Moreover, the circumstances set forth in the
affidavit as well as the basis of knowledge of the persons supplying hearsay
information therein (i.e., Lyon) created a fair probability that contraband or
evidence of a crime would be found in the black 2006 Chevy Cobalt. See id.
Accordingly, we conclude that the affidavit provided a substantial basis for the
magistrate to find probable cause to search the black 2006 Chevy Cobalt.
Consequently, Davis’ second issue merits no relief.
As neither of Davis’ issues entitle him to relief, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judge King joins the memorandum.
Judge Olson concurs in the result.
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DATE: 06/07/2024
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