Com. v. Aursby, J. ( 2021 )

J-S13034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY AURSBY :
:
Appellant : No. 901 EDA 2020
Appeal from the Judgment of Sentence Entered October 21, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006650-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 07, 2021
Jeffrey Aursby (Aursby) appeals from the judgment of sentence of 80 to
160 months’ imprisonment entered in the Court of Common Pleas of
Montgomery County (trial court) after a jury found him guilty of persons not
to possess a firearm and unlawful possession of a controlled substance.1 On
appeal, he challenges (1) the denial of his motion to suppress, and (2) the
sufficiency of the evidence for his convictions. After review, we affirm.
I.
On August 4, 2018, around 12:00 p.m., Officer Jeff Calabrese and his
partner were transporting a prisoner when they came upon a car stopped in
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6105(a)(1) and 35 P.S. § 780-113(a)(16).
J-S13034-21
the middle of the road and causing a backup. Officer Calabrese stopped and
got out to see if the driver needed help. When he looked inside, he saw Aursby
asleep in the driver’s seat; he was the car’s only occupant. Officer Calabrese
knocked on the window but could not wake him up. Officer Calabrese also
detected an “overwhelming” aroma of fresh marijuana coming from the car.
Officer Calabrese walked back and told his partner about what he saw.
Because they needed to leave, the partner radioed for more units. Officer
Calabrese and his partner then went back and “pounded” on the window. This
time, Aursby woke up. When he did, Officer Calabrese asked him to turn off
the car and hand him his keys. Aursby complied.
Officers Michael Young and Alexander Pratt arrived less than ten minutes
later to take over the scene. Officer Young tried to speak with Aursby, but he
had fallen back asleep. When Aursby woke up, he looked at Officer Young
with a “blank stare” and did not appear aware of his surroundings, as he
continued to fall back asleep. When he would respond, he made “unintelligible
mumblings.” During this time, Officer Young smelled an aroma of fresh
marijuana coming from the car. He also noticed several air fresheners in the
interior, some of which were hanging from the ceiling behind the driver’s side.
There was also a burnt air freshener in the CD player; when asked about it,
Aursby said that he burnt it to put out more of an aroma like an incense.
Finally, Officer Young also smelled the odor of cigars coming from the car.
-2-
J-S13034-21
Based on his observations, Officer Young suspected that Aursby was
under the influence of marijuana or a controlled substance causing him to
radio for an officer certified in Advanced Roadside Impaired Driving
Enforcement (ARIDE), which involves field sobriety testing of drivers under
the influence of drugs instead of alcohol. The only ARIDE-certified officer
available that day was Officer Eric Fries. At the time, however, Officer Fries
was at the other end of the township on another traffic stop. Officer Young
had to wait for Officer Fries to become available. In the meantime, Aursby
waited in his car while the officers stood around and talked to him. While they
were waiting, Officer Pratt saw Aursby glance back to the rear passenger side
area of his car about “half a dozen, ten times.”
As soon as he was available, Officer Fries drove directly to Officer
Young’s location. He arrived around 12:53 p.m., about 40 minutes after
Officer Young called for his assistance. As he approached the car, Officer Fries
smelled the odor of fresh marijuana coming from the car. Like Officer Young,
he noticed the many air fresheners in the car’s interior but also that there was
a cigar in the center ashtray. After introducing himself, Officer Fries asked
Aursby to exit the car. After Aursby got out, Officer Fries asked him when
was the last time that he smoked marijuana; he replied around 1:00 a.m. that
morning. He also explained that he worked all night at a 7-Eleven and that
was why he was so tired. Aursby then agreed to take the field sobriety tests
-3-
J-S13034-21
and walked with Officer Fries to a nearby area to take the tests. At the end
of the testing, Officer Fries found no evidence that Aursby was impaired.
Officer Fries, however, still wanted to search the car, telling Aursby that
he could consent to the search or the officers would impound the car and apply
for a search warrant. Officer Fries added that if he found only a small amount
of marijuana or paraphernalia, he would not criminally charge Aursby with
anything. Aursby consented.
Officer Fries and another officer searched the front of the car first.
Officer Fries found marijuana “roaches” inside an ashtray while the other
officer found a digital scale in the glove compartment. Officer Fries then
checked under the driver’s seat and found a plastic bag, at which point Aursby
said, “y’all not checking the back.” Upon hearing this, Officer Fries stopped
the search and walked back to Aursby. After Officer Fries explained consent
searches, Aursby told him that he would need to apply for a search warrant.
Officer Fries then had the car towed to an impound lot.
The next day, Officer Fries searched the car after obtaining a warrant.
He first searched the plastic bag under the driver’s seat and found a baggie
containing a substance appearing to be cocaine. He also found Aursby’s
identification card and several car parts that Aursby had said he was delivering
for his job. In the rear of the car, Officer Fries found a bag of men’s clothes
on the floor of the passenger’s side rear. After moving the clothes, he opened
the floorboard compartment and discovered a loaded Smith & Wesson .22
-4-
J-S13034-21
revolver. Aursby was charged with persons not to possess a firearm along
with unlawful possession of a controlled substance (cocaine).
Before trial, Aursby moved to suppress the firearm and cocaine. At the
suppression hearing, Aursby asserted two bases for suppression. First, Aursby
asserted that the police subjected him to the functional equivalent of an arrest
when he was forced to wait over 40 minutes for Officer Fries to perform the
field sobriety tests. Because there was no probable cause to arrest at that
point, he argued that he was unlawfully seized. In response, the
Commonwealth asserted that the delay for the field sobriety testing was
excusable because Officer Fries was the only ARIDE-certified officer on duty
that day and was at the other end of the township at the time of the call.
Second, Aursby asserted that his consent to the warrantless search of
the car was involuntary because it was coerced by the police. The
Commonwealth countered that Aursby’s consent was voluntary, but added
that the police could search the car under the automobile exception to the
warrant requirement adopted in Commonwealth v. Gary, 91 A.3d 102 (Pa.
2014) (plurality). In Gary, a plurality of the Pennsylvania Supreme Court held
that police may conduct a warrantless search of a stopped vehicle if they have
probable cause to do so, regardless of any exigency beyond the vehicle’s
inherent mobility.
After the hearing, the trial court denied Aursby’s motion to suppress. In
its conclusions of law, the trial court rejected his contention that he underwent
-5-
J-S13034-21
an arrest, finding instead that his encounter with the police was an
investigative detention. In so finding, the trial court noted that the police
found Aursby passed out in his car in the middle of a busy road; Aursby could
not stay awake; multiple officers smelled the odor of marijuana; and Aursby
had several air fresheners. For these reasons, the trial court found, the police
had reasonable suspicion that Aursby was both driving under the influence
and in possession of illegal narcotics. As to Aursby’s second argument on
consent, the trial court did not address the issue, instead finding that the
police had probable cause to search Aursby’s car for contraband.
Aursby proceeded to a one-day jury trial that ended with the jury finding
him guilty of persons to not to possess firearms and possession of a controlled
substance. The trial court sentenced him to serve 80 to 160 months’
imprisonment for the firearms and a concurrent 6 to 12 months for the drug
offense. After the denial of a post-sentence motion, he filed this appeal to
raise two issues:
1. Did the suppression court err in denying Mr. Aursby’s motion to
suppress when [he] was subject to the functional equivalent of a
custodial arrest, there was no probable cause to justify such a
detention, and [his] consent to search the vehicle was invalid,
thereby violating his Fourth Amendment rights?
2. Was the evidence insufficient as a matter of law for the trial
court to convict Mr. Aursby of 18 Pa.C.S. § 6105(a)(1), person not
to possess a firearm, when there was insufficient evidence that
[he] “possess[ed], use[d], control[ed], transfer[ed] or
manufacture[d]” a firearm, and of 35 P.S. § 780-113(a)(16),
possession of a controlled substance, when there was insufficient
evidence that [he] “knowingly or intentionally possess[ed] a
controlled or counterfeit substance” on August 4, 2018?
-6-
J-S13034-21
Aursby’s Brief at 3-4.
II.
Aursby first challenges the denial of his motion to suppress the cocaine
and firearm, reasserting the two arguments that he made at the suppression
hearing: (1) that he underwent an arrest without probable cause waiting for
Officer Fries; and (2) his consent was involuntary.2
____________________________________________
2 We review the denial of a suppression motion mindful of the following:
Our 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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. 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.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Harlan, 208 A.3d 497, 499-500 (Pa. Super. 2019)
(citation omitted).
-7-
J-S13034-21
A.
We must first determine whether the police subjected Aursby to an
investigative detention or an arrest while waiting for Officer Fries.
The law recognizes three distinct levels of interaction between
police officers and citizens: (1) a mere encounter; (2) an
investigative detention, often described as a Terry stop, see
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);
and (3) a custodial detention. See Commonwealth v. Jones,
874 A.2d 108, 116 (Pa. Super. 2005).
“A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is that
it carries no official compulsion to stop or respond,”
Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.
2000) (internal citations and quotations omitted), and therefore
need not be justified by any level of police suspicion.
Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372, 375 ([Pa.]
2000).
“In contrast, an ‘investigative detention’ ... carries an official
compulsion to stop and respond.... Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity.” DeHart, 745 A.2d at 636.
***
Finally, “a custodial detention occurs when the nature, duration
and conditions of an investigative detention become so coercive
as to be, practically speaking, the functional equivalent of an
arrest.” [Id.] This level of interaction requires that the police
have probable cause to believe that the person so detained has
committed or is committing a crime.
Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa. Super. 2017).
Aursby asserts that he first faced an investigative detention when Officer
Calabrese asked for his car keys. That detention, he contends, transformed
-8-
J-S13034-21
into an arrest when he was forced to wait in his car for Officer Fries while
being surrounded by several police officers and cars.
We addressed a similar claim in Commonwealth v. Freeman, 150
A.3d 32 (Pa. Super. 2016). In that case, a trooper pulled over a car for unsafe
lane changes at 11:26 a.m. The trooper issued a written warning at 11:52
a.m. but believed that the driver was transporting drugs, causing the trooper
to request a K-9 unit to come to the vehicle. According to the trooper, about
“an hour, hour and fifteen minutes elapsed” from the beginning of the traffic
stop to the K-9 search. Addressing the driver’s argument that the length of
the stop rendered it unreasonable, we first reviewed the law on the length of
an investigative detention.
The United States Supreme Court has explained:
In assessing whether a detention is too long in duration to be
justified as an investigative stop, we consider it appropriate to
examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the
defendant. See Michigan v. Summers, [452 U.S. 692, 701
n.14, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)] (quoting 3 W.
LaFave, Search and Seizure § 9.2, p. 40 (1978)); see also [U.S.
v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110(1983)]; [Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319,
75 L.Ed.2d 229 (1983)]. A court making this assessment should
take care to consider whether the police are acting in a swiftly
developing situation, and in such cases the court should not
indulge in unrealistic second-guessing. .... A creative judge
engaged in post hoc evaluation of police conduct can almost
always imagine some alternative means by which the objectives
of the police might have been accomplished. But “[t]he fact that
the protection of the public might, in the abstract, have been
accomplished by ‘less intrusive’ means does not, itself, render the
search unreasonable.” Cady v. Dombrowski, 413 U.S. 433, 447,
-9-
J-S13034-21
93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973); see also United
States v. Martinez–Fuerte, 428 U.S. 543, 557, n. 12, 96 S.Ct.
3074, 3082, n. 12, 49 L.Ed.2d 1116 (1976). The question is not
simply whether some other alternative was available, but whether
the police acted unreasonably in failing to recognize or to pursue
it.
United States v. Sharpe, 470 U.S. 675, 686–687, 105 S.Ct.
1568, 84 L.Ed.2d 605 (1985).
Freeman, 150 A.3d at 43-44.
Applying these principles, we found that the police diligently pursued its
investigation.
… [T]the record before us shows that, under the circumstances,
the troopers acted reasonably and diligently in pursuing their
suspicions during the one-hour-plus time frame. The vehicle was
stopped in a rural area of the Commonwealth. In the first half
hour after the stop, [the trooper] had Appellant move his car to a
safer location and then questioned Appellant and notified him of
the traffic violation. [The trooper] then called for backup and a
canine unit. Once the dog arrived, the search was conducted
quickly. There is no evidence that the detention was delayed for
any improper reason. It stands to reason that dispatching a
canine unit to a rural location will likely take longer than doing so
in an urban area. We therefore hold that the duration of the
detention was not unreasonable.
Id. at 44.
We conclude the same here. The relevant inquiry is whether the police
“acted reasonably and diligently” in their investigation. Like Freeman, there
is no evidence that the detention was delayed for any improper reason. Officer
Calabrese found Aursby’s car blocking traffic around 12:00 p.m. Officer
Calabrese, however, could stay only a short time because he and his partner
were transporting a prisoner and Officer Young took over the scene at 12:10
- 10 -
J-S13034-21
p.m. Not long after, Officer Young determined that Aursby might be impaired
based on all his observations and needed an officer certified in specialized field
sobriety. At the time, though, there was only one officer able to perform such
testing, Officer Fries, and he was at the other end of the township and busy
finishing another traffic stop. At the suppression hearing, Officer Fries testified
that he drove directly to Officer Young’s location as soon as he completed the
traffic stop. N.T., 4/22/19, at 32.
When he arrived around 12:53 p.m., about 53 minutes had elapsed from
when Officer Calabrese first found the car, and about 40 minutes had elapsed
from when Officer Young had called for the specialized field sobriety testing.
Both are shorter delays than the one we found reasonable in Freeman. Nor
is there any evidence that the police delayed their investigation or
unnecessarily prolonged the duration of the detention. Any delay that
occurred resulted from Officer Fries being the only officer available who was
certified to perform the field sobriety testing and not being readily available
to do so. Given those circumstance, the duration of detention was not
unreasonable, and because the delay was not unreasonable, Aursby’s
investigative detention was never transformed into an arrest requiring
probable cause.
B.
Next, Aursby argues that the warrantless search of his car was illegal
because the police coerced his consent. The trial court did not address consent
- 11 -
J-S13034-21
but instead held that the warrantless search of the car was permissible under
the automobile exception adopted by our Supreme Court in Gary. While this
case was pending on appeal, though, our Supreme Court, in Commonwealth
v. Alexander, 243 A.3d 177 (Pa. 2020), overruled Gary, holding that
warrantless vehicle searches require both probable cause and exigent
circumstances under Article I, Section 8 of the Pennsylvania Constitution. See
id. at 208 (stating the “long history of Article I, Section 8 and its heightened
privacy protections do not permit us to carry forward a bright-line rule that
gives short shrift to citizens’ privacy rights.”). Before we can address Aursby’s
consent argument then, we must first determine whether Alexander applies
to this case, since the trial court held that the warrantless search of the car
was allowed under the automobile exception.
The Commonwealth asserts that Aursby cannot avail himself of
Alexander because he has waived any state constitutional claim pertaining
to the warrantless search. In support, the Commonwealth cites our recent
decision in Commonwealth v. Grooms, 247 A.3d 31 (Pa. Super., filed
February 24, 2021). There, we were faced with a similar scenario where the
trial court denied a suppression motion by finding that the police had probable
cause to search a car without a warrant. Id. at 35. During the appeal,
however, the Supreme Court decided Alexander. In a footnote, we explained
the law on the retroactive application of a new criminal rule:
When a United States Supreme Court decision “results in a ‘new
rule,’ that rule applies to all criminal cases still pending on direct
- 12 -
J-S13034-21
review.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct.
2519, 159 L.Ed.2d 442 (2004) (citing Griffith v. Kentucky, 479
U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). “Case law
is clear, however, that in order for a new rule of law to apply
retroactively to a case pending on direct appeal, the issue had to
be preserved at ‘all stages of adjudication up to and including the
direct appeal.’ ” Commonwealth v. Tilley, 566 Pa. 312, 780
A.2d 649, 652 (2001) (citation omitted); see also
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)
(en banc) (“To be entitled to retroactive application of a new
constitutional rule, a defendant must have raised and preserved
the issue in the court below.”), appeal denied, 632 Pa. 693, 121
A.3d 496 (2015).
Grooms, 247 A.3d at 37 n.6. Based on this, we held that the appellant could
not rely on Alexander to challenge the warrantless search because he never
challenged the application of the Gary automobile exception. Id.
We find the same here, as Aursby has failed to raise and preserve the
issue. In his Pa.R.A.P. 1925(b) statement, Aursby limited his suppression
challenge to the Fourth Amendment, asserting only that his “Fourth
Amendment rights were violated.” Concise Statement, 6/11/2020, at 1. He
does the same on appeal, limiting his argument to the Fourth Amendment in
asserting that his consent was involuntary. Moreover, Aursby did not
challenge the trial court’s application of the Gary automobile exception in his
Pa.R.A.P. 1925 statement, nor does he attempt to do so in this appeal.3 Like
____________________________________________
3 Though Aursby filed his brief before Alexander, the Commonwealth’s brief
was filed after it was decided and cited the decision. Despite this, Aursby did
not file a reply brief or post-submission communications asking this Court to
argue that Alexander is applicable to this case.
- 13 -
J-S13034-21
the defendant Grooms, because Aursby has not preserved this issue, we
cannot apply Alexander to this case.
Having found Alexander inapplicable, we next determine whether the
trial court erred in holding that the consent was immaterial because the police
had probable cause to search Aursby’s car without a warrant. A warrantless
search of a vehicle must be supported by probable cause. Commonwealth
v. Scott, 210 A.3d 359, 363 (Pa. Super. 2019). This Court has stated:
[A] determination of probable cause requires only that the totality
of the circumstances demonstrates a fair probability that
contraband or evidence of a crime will be found in a particular
place. ... [T]he evidence required to establish probable cause for
a warrantless search must be more than a mere suspicion or a
good faith belief on the part of the police officer.
Id. (citations and quotation marks omitted).
The trial court explained its probable cause determination in its
Pa.R.A.P. 1925(a) opinion as follows:
Authorities encountered [Aursby] passed out in his vehicle in the
middle of a busy roadway and [Aursby] could not remain awake
when he spoke with authorities. Multiple officers credibly testified
that [Aursby’s] vehicle had a distinct odor or marijuana and there
were several air fresheners inside the vehicle which the officers
testified were consistent with an attempt to conceal drugs.
Therefore, these factors provided the officers with sufficient facts
demonstrating that contraband would be found within the vehicle
and provided authorities with probable cause to search the
vehicle.
Trial Court Opinion, 9/8/20, at 7-8.
Based on the totality of the circumstances, we conclude the suppression
court properly determined that the police had probable cause to believe that
- 14 -
J-S13034-21
there was “a fair probability” that contraband or evidence would be in found
in Aursby’s car. First, this is not a case involving a warrantless search based
solely on the police officer smelling marijuana. Instead, besides the three
police officers detecting the smell of “fresh marijuana,” Officers Young and
Fries testified that Aursby had several air fresheners in his car. Officer Young
testified that, based on his 24 years’ experience and training, the presence of
numerous air fresheners in a car often indicates the presence of marijuana,
as does the strong odor of cigars. See N.T., 4/22/19, at 16. Moreover, Aursby
admitted to Officer Fries that he smoked marijuana earlier that morning, albeit
around 1:00 a.m. Id. at 34. Even if the field sobriety tests dispelled that
Aursby was impaired, there remained sufficient circumstances for the police
to conclude that there was contraband in Aursby’s car based on (1) the smell
of marijuana, (2) the presence of the air fresheners and cigar odor as masking
agents, and (3) his admission that he had smoked marijuana earlier.
Accordingly, we discern no error in the trial court’s determination that the
police did not violate Aursby’s Fourth Amendment rights by searching his car
without a warrant.4
____________________________________________
4 We may affirm a suppression court’s order “on any valid basis appearing of
record.” In re N.B., 187 A.3d 941, 945 (Pa. Super. 2018).
- 15 -
J-S13034-21
III.
In his second issue, Aursby challenges the sufficiency of evidence for
both of his convictions, arguing that the Commonwealth presented insufficient
evidence that he constructively possessed either the revolver or the cocaine.5
A.
We first consider whether there was sufficient evidence to convict for
persons not to possess a firearm. Section 6105(a)(1) of the Crimes Code
states that:
[a] person who has been convicted of an offense enumerated in
subsection (b) ... 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.
____________________________________________
5 For a sufficiency claim, 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.
The 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
the evidence and substitute our judgment for that of the
factfinder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted and formatting altered).
- 16 -
J-S13034-21
18 Pa.C.S. § 6105(a)(1).6
“Possession” is defined as:
(c) Possession as an act.-Possession is an act, within the
meaning of this section, if the possessor knowingly procured or
received the thing possessed or was aware of his control thereof
for a sufficient period to have been able to terminate his
possession.
18 Pa.C.S. § 301(c).
Illegal possession of a firearm may be established by constructive
possession. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super.
2004). This Court has explained constructive possession:
When contraband is not found on the defendant’s person, the
Commonwealth must establish “constructive possession,” that is,
the power to control the contraband and the intent to exercise
that control. The fact that another person may also have control
and access does not eliminate the defendant’s constructive
possession .... As with any other element of a crime, constructive
possession may be proven by circumstantial evidence. The
requisite knowledge and intent may be inferred from the totality
of the circumstances.
Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018)
(citations omitted). “Constructive possession is an inference arising from a
set of facts that possession of the contraband was more likely than not.” Id.Before addressing Aursby’s argument, we add these facts from his jury
trial. First, as noted above, Officer Pratt saw Aursby glance toward the rear
compartment, the implication being that he knew the revolver was there. At
____________________________________________
6 Aursby does not dispute that he is disqualified from possessing a firearm.
- 17 -
J-S13034-21
trial, however, Officer Pratt admitted that he did not include what he saw in
his initial report. See N.T., 7/30/19, at 109. Second, besides the revolver,
Officer Fries found several other items in the rear compartment, including a
purse and an access card for a woman named “Keeshama Hunter.” Id. at
135. The police tried to locate this woman but failed. Id. at 154. Finally,
after securing the firearm, the police did not submit it for any forensic testing.
Id. at 148.
Aursby asserts that the only evidence tying him to the revolver was his
presence in the car, equating himself to someone merely in proximity to
contraband. He notes that he never reached for the revolver, nor was it within
his reach. He also minimizes the significance of Officer Pratt seeing him glance
to the rear compartment, pointing out that the officer failed to include the
information in his report. As to the contents of the compartment, Aursby
asserts that it is just as likely that the revolver belonged to a woman—if not
“Keeshama Hunter” herself. Similarly, he notes that he was not the sole owner
of the car, as it was registered to both him and his mother. Finally, he faults
the police for not submitting the revolver for forensic testing, arguing that if
they had done so they would have easily confirmed whether he possessed the
firearm.
Viewed in the light most favorable to the Commonwealth as the verdict
winner, we do not agree with his characterization of himself as someone
merely in proximity to the firearm because the evidence was sufficient to
- 18 -
J-S13034-21
establish that Aursby constructively possessed the revolver. First, he was the
co-owner and sole occupant of the car. The police also found not only his
identification in the car, but also several automobile parts that he admitted he
was delivering as part of his job. Along with the bag of men’s clothes found
in the back, the jury could infer that the car was Aursby’s car that he used
day-to-day as part of his work. That Aursby’s mother was registered as a co-
owner of the car does little to detract from this conclusion.
Officer Pratt’s observation also supported the inference that Aursby
knew that the revolver was in the rear. As noted above, Aursby asserts that
this evidence lacks credibility because Officer Pratt waited until trial to disclose
what he saw. At trial, however, the Commonwealth clarified that Officer Pratt
wrote his report before Officer Fries found the revolver the next day. See
N.T., 7/30/19, at 112-13. The significance of Aursby’s behavior then may not
have been apparent to Officer Pratt at the time of his observation.
Finally, the jury was free to take all this into consideration in
determining whether Aursby’s behavior evidenced that he acknowledged that
the revolver was in the rear compartment.
The same is true of the police not finding Keeshama Hunter or
submitting the revolver for forensic testing. While either may have helped the
jury in its determination of constructive possession, neither was required for
the Commonwealth to establish that Aursby was aware of and had control
over the revolver. Instead, it was sufficient that Aursby was the sole occupant
- 19 -
J-S13034-21
of a car that he co-owned; that the revolver was found inside the car; and
that Aursby continually glanced at the revolver’s location while waiting to take
field sobriety tests. Based on these facts, the jury had sufficient evidence to
find that Aursby constructively possessed the revolver and, therefore, convict
him of persons not to possess a firearm. See Commonwealth v. Cruz, 21
A.3d 1247, 1253 (Pa. Super. 2011) (finding sufficient evidence to convict for
illegal possession of firearm where defendant was only person in car in which
firearms was found in passenger side compartment and police saw him move
toward compartment when he realized he was being pulled over for a traffic
stop).
B.
For the same reasons, we conclude that there was sufficient evidence to
convict Aursby of unlawful possession of a controlled substance. To prove
that offense, the Commonwealth must prove that the defendant “[k]nowingly
or intentionally possess[ed] a controlled or counterfeit substance” and that he
was “a person not registered under this act.” 35 P.S. § 780-113(a)(16). Like
Section 6105, the Commonwealth may prove possession by showing actual,
constructive or joint constructive possession. Commonwealth v. Vargas,
108 A.3d 858, 868 (Pa. Super. 2014) (en banc).
As reviewed above, Aursby was the sole occupant of a car that he co-
owned. The police found items showing that he used the car day-to-day: his
identification, automobile parts that he was delivering for his job, and a bag
- 20 -
J-S13034-21
of men’s clothing in the back. This evidence dispelled any notion that someone
else put the contraband under the driver’s seat. Viewing the evidence in the
light most favorable to the Commonwealth, the jury could reasonably conclude
that Aursby had the ability and intent to exercise control over the cocaine
found under the driver’s seat. See Commonwealth v. Dix, 207 A.3d 383,
390-391 (Pa. Super. 2019) (evidence sufficient to find constructive possession
of drugs where defendant was driver of car and police found drugs on floor in
front of driver’s seat). Accordingly, there was sufficient evidence to support
his conviction for unlawful possession of a controlled substance.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2021
- 21 -