Com. v. Livingston, G.
792 WDA 2016
| Pa. Super. Ct. | Dec 19, 2017Background
- Early-morning police responded to a report of apparently sleeping occupants in a small Ford Escort parked at a convenience store; six people were inside and the engine was running.
- Officers knocked, woke occupants, and one officer opened the unlocked passenger door, turned off the engine, and removed the keys for safety concerns.
- After awakening, officers observed Livingston and driver Withrow make repeated furtive movements toward the center console; officers ordered hands shown and ordered Livingston out of the car.
- Withrow was removed, searched, and found to have drugs; a tow was called because Withrow’s license was suspended.
- Before performing an inventory, Officer Coll saw a loaded handgun in plain view on top of the center console (between driver and front passenger) and seized it; Livingston was arrested and charged under 18 Pa.C.S. § 6105(a)(1).
- After a suppression hearing and a stipulated non-jury trial, the trial court convicted Livingston of persons not to possess a firearm and sentenced him to 9–18 months; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to suppress/inventory search legality | Commonwealth: search and seizure lawful; gun in plain view during police custody of vehicle | Livingston: police violated 75 Pa.C.S. § 6309.2 (24‑hour/tow procedure) and thus inventory/search improper | Waived: Livingston did not raise the 24‑hour statute argument below; claim forfeited on appeal |
| Sufficiency of evidence for constructive possession | Commonwealth: circumstantial evidence (gun in plain view on console between driver and passenger; both made furtive movements) suffices to show conscious dominion or joint possession | Livingston: no actual possession; gun not seen while he was in car; no fingerprints/DNA; Withrow more likely controller | Affirmed: evidence sufficient to support constructive (including joint) possession; fact‑finder could infer power and intent to control |
Key Cases Cited
- Brown v. Pennsylvania, 48 A.3d 426 (Pa. Super. 2012) (constructive possession defined as conscious dominion; power and intent to control contraband)
- Sanes v. Pennsylvania, 955 A.2d 369 (Pa. Super. 2008) (recognizes joint constructive possession)
- Hopkins v. Pennsylvania, 67 A.3d 817 (Pa. Super. 2013) (totality of circumstances can establish intent to maintain conscious dominion)
- Melvin v. Pennsylvania, 103 A.3d 1 (Pa. Super. 2014) (standard of review for sufficiency of the evidence)
- Hughes v. Pennsylvania, 908 A.2d 924 (Pa. Super. 2006) (fact‑finder may resolve doubts unless evidence is so weak that no inference of guilt can be drawn)
- Harvard v. Pennsylvania, 64 A.3d 690 (Pa. Super. 2013) (circumstantial evidence may establish possession)
- Kinard v. Pennsylvania, 95 A.3d 279 (Pa. Super. 2014) (reiterates possibility of joint constructive possession)
- Lopez v. Pennsylvania, 57 A.3d 74 (Pa. Super. 2012) (lack of forensic evidence does not preclude conviction when circumstantial evidence suffices)
- Flythe v. Pennsylvania, 417 A.2d 633 (Pa. Super. 1979) (pistol within inches of defendant supports knowledge of its presence)
- Little v. Pennsylvania, 903 A.2d 1269 (Pa. Super. 2006) (appellate review of suppression limited to grounds raised below)
- Thur v. Pennsylvania, 906 A.2d 552 (Pa. Super. 2006) (claims not argued below are waived on appeal)