Com. v. Little, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PAUL LITTLE, :
:
Appellant : No. 1444 EDA 2019
Appeal from the Judgment of Sentence Entered March 28, 2019
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000735-2018
BEFORE: BENDER P.J.E., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 14, 2020
Paul Little (Appellant) appeals from the judgment of sentence of 7½ to
20 years’ imprisonment imposed following his convictions for possession of a
controlled substance, possession with intent to deliver (PWID) a controlled
substance, and possession of drug paraphernalia. Upon review, we affirm.
The evidence presented at Appellant’s jury trial can be summarized as
follows. On December 20, 2017, at about 10:30 a.m., Trooper Brian
Konopka of the Pennsylvania State Police was conducting a stationary patrol
on Interstate 78 in Lehigh County. Trooper Konopka was patrolling in a
marked vehicle and in full uniform, and observing westbound traffic at mile
marker 62.9. Trooper Konopka observed a black Nissan Versa with dark
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* Retired Senior Judge assigned to the Superior Court.
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aftermarket tint on its rear passenger windows and rear windshield in
violation of the Motor Vehicle Code, 75 Pa.C.S. § 4524, traveling westbound
on Interstate 78. Trooper Konopka initiated a traffic stop, utilizing his
emergency lights, in the area of mile marker 61.4. Appellant, the driver of
the Nissan Versa, pulled over without incident.
Trooper Konopka ran Appellant’s New York registration plate and
determined the vehicle was registered to a female. Trooper Konopka
approached the passenger side of the vehicle. Appellant, a male, was the
sole occupant of the vehicle. Appellant lowered both the front and rear
passenger side windows of the vehicle. Trooper Konopka told Appellant why
he initiated the traffic stop, and observed four air fresheners, one in each of
the four individual vents, located in the front dash of the vehicle. Trooper
Konopka requested that Appellant provide his driver’s license, vehicle
registration, and proof of insurance. Appellant provided his license, but he
had difficulty finding the vehicle registration and proof of insurance. In the
meantime, Appellant stated that he frequently drove the vehicle, but his
aunt, Sharon Patterson, with whom he resides in New York, was the owner
of the vehicle.
Trooper Konopka requested that Appellant exit the vehicle, but
Appellant ignored his request and continued to search the vehicle for the
requested documents. It appeared to Trooper Konopka that Appellant was
aimlessly searching in an effort to stall. Trooper Konopka again requested
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Appellant exit the vehicle. Appellant ignored Trooper Konopka and avoided
eye contact as he continued to search for the vehicle registration and proof
of insurance. Appellant eventually found the vehicle registration and
provided it to Trooper Konopka, but continued to search for his proof of
insurance instead of exiting the vehicle as requested. For a third time,
Trooper Konopka requested Appellant exit the vehicle, to which Appellant
inquired if he was required to do so and stated that he did not want to exit
the vehicle. Trooper Konopka replied that he was required to do so by law,
and Appellant complied.
Once outside the vehicle, Appellant avoided eye contact with Trooper
Konopka and stood in a “defensive posture,” where his body was beyond
perpendicular to Trooper Konopka’s body, with his hands in his pockets.
N.T., 2/4/2019, at 44. Trooper Konopka inquired if he could do a pat down
search of Appellant’s person for officer safety reasons. Appellant inquired if
Trooper Konopka asks everyone to consent to a pat down search, to which
Trooper Konopka replied that he does. Appellant nodded affirmatively to
consent to the Terry1 frisk. As he conducted the pat down search, Trooper
Konopka began to inquire about his travels, and Appellant’s demeanor
became more evasive as he started speaking in a lower tone of voice from
his prior communication with Trooper Konopka. Trooper Konopka described
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1 Terry v. Ohio, 392 U.S. 1 (1968).
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Appellant’s demeanor as “I want nothing to do with you; defensive; looking
away from me.” N.T., 2/4/2019, at 50. Appellant stated that he was on his
way to Roanoke, Virginia from New York City, New York, and later added
that it was a business trip. Appellant had a lanyard with "Blue Raven Solar"
on it along with his name and photograph, but there was no other indication
that he was traveling for business. Trooper Konopka completed the pat
down search without incident.
Nonetheless, based on Trooper Konopka’s experience and training,
Trooper Konopka observed several indicators of drug trafficking during his
interaction with Appellant. Specifically, Trooper Konopka testified that
Appellant was driving a third-party vehicle, which is common when
trafficking narcotics as an attempt to distance the operator of the vehicle
from ownership of contraband that may be found inside the vehicle. Air
fresheners were in every vent of the vehicle, which, according to Trooper
Konopka may be used as a masking agent for narcotics. He further
explained that the tint on the rear passenger windows and rear windshield
can allow cover for drug deals to occur within the rear seat of the vehicle,
and the further concealment of any hidden compartments. Trooper Konopka
also testified that Appellant was traveling from New York City, a common
source city in drug trafficking, to Roanoke, a high crime area and destination
city for drugs, via Interstate 78, which is a highway notorious for trafficking
drugs. Additionally, the vehicle lacked luggage, clothing, and bags that one
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would expect for an overnight business trip. Based upon the aforementioned
observations, Trooper Konopka asked Appellant if there was anything in the
vehicle that would be of concern. Appellant remained defensive and
deflected the question by discussing the tint on his vehicle’s windows.
Trooper Konopka returned to his police vehicle and requested backup
due to Appellant’s defensive demeanor. In the meantime, Trooper Konopka
ran a criminal history check and a National Crime Information Center
(NCIC)2 check on Appellant. Trooper Konopka discovered Appellant was
previously charged with PWID and gun-related offenses. Trooper Konopka
returned to Appellant’s vehicle and asked Appellant specifically if there was
marijuana, heroin, cocaine, a large quantity of U.S. currency, or firearms in
the vehicle that he needed to know about. Appellant said “no” and shook his
head negatively. At this point, 10 to 12 minutes had elapsed from the
initiation of the traffic stop. Believing that Appellant was engaged in
narcotics trafficking, Trooper Konopka asked Appellant if he would consent
to a search of the vehicle. Appellant vehemently refused. Therefore,
Trooper Konopka requested that a state police canine respond to the scene
to conduct a canine search of the exterior of the vehicle. Appellant became
even more defensive and argumentative in response.
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2 NCIC is a database comprised of criminal justice information, i.e., names of
individuals for whom a warrant has been issued, missing persons, and stolen
property.
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At 11:13 a.m.,3 Trooper Daniel Reed arrived on scene with his canine
partner (Canine Edo).4 Canine Edo performed an exterior search of the
vehicle. Canine Edo alerted, which means he relayed to Trooper Reed that
he smelled the presence of drugs, on the exterior of the front driver’s side
door of the vehicle. Trooper Reed advised Trooper Konopka of Canine Edo’s
alert, and Trooper Konopka proceeded to perform a search of the interior of
the vehicle in the vicinity of the driver’s seat. Trooper Konopka observed a
bulge under the carpet running from the console to the rear seat, which he
believed to consist of wires; two bolts screwed into the rear seats; and
carpet glued to the floor. Conspicuously, the rear seat of the vehicle would
not lift up or move at all. Being unable to confirm the presence of what he
believed to be a hidden compartment underneath the rear seat, Trooper
Konopka again requested the assistance of Canine Edo. Canine Edo was
placed inside the rear of the vehicle to conduct a search. Canine Edo alerted
and then indicated, which is when the canine pinpoints the drug’s location,
to the rear floorboard in front of the rear seat. Trooper Konopka used an
upholstery tool to lift between the top of the seat and its base to verify
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3 Trooper Reed was responding from a location 50 miles away, as his
territory is Schuylkill and Lebanon counties.
4 Canine Edo is a Belgian Malinois that started training with Trooper Reed in
September of 2015. Canine Edo is certified in the detection of marijuana,
cocaine, heroin, and methamphetamine. He and Trooper Reed achieved
certification as a team on November 20, 2015.
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whether a hidden after-market compartment existed under the rear
passenger seat. He noted the presence of gray carpet that was atypical for
the space, and a piston-driven actuator5 that extended the seats when
connected to electricity. Trooper Konopka did not possess the tools to open
the compartment on the side of the road, and arranged for the vehicle to be
towed to the Fogelsville Barracks of the Pennsylvania State Police in order to
complete the search with the necessary tools. Consequently, Appellant was
handcuffed, detained, and transported to the barracks along with the
vehicle.
Once at the barracks, a scope was used to see below the rear seat.
Through the scope, Trooper Konopka observed Dinomat, an insulation
material typically used in hidden compartments to protect the items within.
The hidden compartment was opened using an electronic device. Inside the
compartment were one black and one brown plastic bag, each containing a
clear vacuum-sealed bag stored with dryer sheets. The substances inside
the bags were tested to reveal that one bag contained 574 grams of cocaine,
and the other contained 498.96 grams of phenacetin, a common cutting
agent for cocaine. Also obtained from the vehicle were car maintenance
receipts dated July 2, 2017, and July 28, 2017, and signed by Appellant.
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5 A short cylinder within a tube that moves up and down against a gas to
cause a machine or other device to operate.
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Appellant was charged as indicated hereinabove, as well as for the improper
sunscreening motor vehicle violation.
On April 16, 2018, Appellant filed an omnibus pre-trial motion alleging,
inter alia, that police instituted an illegal traffic stop, and therefore, the
vacuum-sealed bags that the police discovered inside the vehicle required
suppression. Appellant’s Omnibus Pre-Trial Motion, 4/16/2018, at 2-3
(unpaginated). The trial court held a suppression hearing on November 19
and November 28, 2018, where the trial court heard testimony from
Troopers Konopka and Reed. Trooper Konopka testified to his drug
interdiction training and experience, including trainings involving hidden
compartments. Further, he testified to the traffic stop involving Appellant
and the subsequent search of his vehicle. During cross-examination,
Appellant’s counsel assailed Trooper Konopka’s account of the search that
involved Canine Edo. Appellant’s counsel argued during cross-examination
that the canine search was tainted, claiming Trooper Reed provided Trooper
Konopka a treat to put in his pocket, thereby intentionally exciting Canine
Edo around the vehicle to fabricate probable cause to search. Trooper
Konopka denied the accusations. Trooper Reed also testified to his drug
interdiction training and experience, as well as his training as a handler of a
canine and Canine Edo’s training and certifications. He then explained the
manner he and Canine Edo searched the vehicle, and stated that Canine Edo
alerted to the presence of drugs and indicated the rear floorboard in front of
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the rear seat. On cross-examination, Trooper Reed testified that Canine Edo
has a “fantastic alert,” but his indication is not always perfect and he can be
overly excited at times. N.T., 11/28/2018, at 16-17. Appellant’s counsel did
not question Trooper Reed about the alleged treat-giving, and did not
present any additional argument. The trial court took the matter under
advisement, and denied Appellant’s motion on December 21, 2018. In doing
so, the suppression court concluded that (1) the stop and detention were
lawful because they were supported by reasonable suspicion and probable
cause; (2) Trooper Konopka possessed probable cause to search the vehicle;
and (3) Trooper Konopka possessed probable cause to arrest Appellant.
Trial Court Opinion, 12/21/2018, at 8.
Appellant proceeded to a jury trial on February 4-5, 2019, where the
aforementioned facts were established.6 Additionally, the Commonwealth
presented testimony from Detective John Gill as an expert in the field of
narcotics investigation, which the trial court summarized as follows.
Detective Gill[] opined that [Appellant] was in possession of the
cocaine with the intent to deliver it. Indeed, Detective Gill based
his opinion on, inter alia, the large quantity of cocaine located in
the vehicle. He indicated that one-half kilo of cocaine has a
street value between $25,000.00 and $37,500.00 without a
cutting agent, or $50,000.00 to $75,000.00 by combining the
cocaine with phenacetin. In addition, Detective Gill explained
that the absence of use paraphernalia [and] the storage of the
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6 Simultaneously, Appellant proceeded to a nonjury trial on the summary
charge of improper sunscreening. At the conclusion of the trial, the trial
court found Appellant guilty of this summary offense.
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drugs in vacuum[-]sealed bags were further indicia of
[Appellant’s] intent to deliver the controlled substance. Also, the
hidden compartment with the hydraulic pistons in the vehicle
further demonstrated [Appellant’s] intent to deliver the cocaine,
as this device is used to conceal narcotics from the authorities as
well as from rival drug dealers. Detective Gill also discussed that
tinted car windows are [] common in the vehicles driven by drug
dealers, as they prevent people from seeing within the vehicle.
Trial Court Opinion, 4/24/2019, at 10.
In his defense, Appellant presented the testimony of his aunt, the
owner of the vehicle. The trial court provided the following summary of her
testimony.
Sharon Patterson, [Appellant’s] aunt, testified that her now
deceased husband, Alonso Williams, Sr., from whom she
separated in 2016, used the subject Nissan Versa more than
anyone else.[7] She explained that she was suspicious of his
source of funds and feared for her safety due to his associates.
[] Patterson also testified that her husband was an electrician
who was mechanically inclined.
Id.At the conclusion of the trial, the jury found Appellant guilty of the
aforementioned crimes. On March 28, 2019, the trial court sentenced
Appellant to an aggregate term of 7½ to 20 years’ imprisonment for the
charges related to drug possession, and ordered no further penalty on the
charge of improper sunscreening.
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7 Patterson’s husband was deceased at the time of trial but still living at the
time of the traffic stop.
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Appellant timely filed a post-sentence motion, in which he challenged
the sufficiency and weight of the evidence. On April 24, 2019, the trial court
denied Appellant’s post-sentence motion and filed an opinion in support
thereof. This timely-filed notice of appeal followed.8
Appellant raises three issues on appeal, which we have reordered for
ease of disposition: 1) a claim that the suppression court erred in denying
his motion to suppress due to the illegal extension of a valid traffic stop, and
the subsequent warrantless search of his vehicle; 2) a challenge to the
sufficiency of the evidence; and 3) a claim that the verdict was against the
weight of the evidence.9 Appellant’s Brief at 5-6.
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8 Appellant filed his court-ordered Pa.R.A.P. 1925(b) statement on June 10,
2019, wherein he also requested additional time to file a supplemental
1925(b) statement because he had not yet received the entire transcript of
the proceedings. The trial court granted Appellant until July 11, 2019, to file
his supplemental 1925(b) statement. On July 11, 2019, Appellant again
requested additional time. On July 12, 2019, the trial court denied
Appellant’s second request. Having not received a supplemental 1925(b)
statement, the trial court issued an order directing this Court to its April 24,
2019 opinion, in compliance with Pa.R.A.P. 1925(a). Order, 7/29/2019.
9 Appellant also raises two additional claims: that the trial court erred when
excluding hearsay testimony and that the trial court violated Appellant’s due
process rights when it cross-examined a defense witness and purportedly
indicated that it did not find the witness credible. These issues are waived
because Appellant failed to raise them in his Pa.R.A.P. 1925(b) statement.
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues
not raised in a 1925(b) statement will be deemed waived.”).
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Motion to Suppress
We begin with Appellant’s claim that the trial court erred in denying his
motion to suppress. Specifically, Appellant argues that Trooper Konopka
impermissibly extended the traffic stop past its initial purpose of
investigating improper sunscreening, and conducted a warrantless search of
the vehicle with no applicable exception. Appellant’s Brief at 30, 36.
When reviewing the denial of a suppression motion, the appellate court
may only determine if the record supports the trial court’s factual findings
and whether the legal conclusions drawn therefrom are correct. See
Commonwealth v. Smith, 177 A.3d 915, 918 (Pa. Super. 2017). We may
consider only the evidence of the Commonwealth and so much of the
evidence for the defense as remains uncontradicted, because the
Commonwealth was the verdict winner. Id. Our review of suppression
rulings includes only the suppression hearing record itself. See In re L.J.,
79 A.3d 1073, 1085 (Pa. 2013).
Instantly, Appellant does not challenge the initial traffic stop.
Therefore, we address instead whether Trooper Konopka possessed the
requisite reasonable suspicion to extend the stop beyond investigating the
illegal sunscreening. After a traffic stop that was justified at its inception by
a perceived traffic violation, an officer who develops a reasonable,
articulable suspicion of criminal activity may expand the scope of an inquiry
beyond the reason for the stop and detain the vehicle and its occupants for
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further investigation. Commonwealth v. Jones, 874 A.2d 108, 117 (Pa.
Super. 2005). We must look to the totality of the circumstances when
determining whether a reasonable suspicion exists. Commonwealth v.
Riley, 715 A.2d 1131, 1135 (Pa. Super. 1998). “Merely because a suspect’s
activity may be consistent with innocent behavior does not alone make
detention and limited investigation illegal. Rather, we view the
circumstances through the eyes of a trained officer, not an ordinary citizen.”
Id. (citations omitted).
During Trooper Konopka’s initial investigation into the improper
sunscreening, he observed the tint and its location on the vehicle, the
registration of the vehicle to a third-party, and the presence of several air
fresheners. When Trooper Konopka twice asked Appellant to exit his
vehicle, he ignored both requests and avoided eye contact. He did not exit
the vehicle until Trooper Konopka specified law required it. While outside
the vehicle, Trooper Konopka observed Appellant avoiding eye contact and
standing in a defensive posture. Appellant indicated that he was traveling
from New York City to Roanoke for a business trip, but Trooper Konopka
observed Appellant’s vehicle was lacking luggage or clothing necessary for
an overnight business trip. During the suppression hearing, Trooper
Konopka stated several times that Appellant appeared nervous, and his
nervousness escalated during the stop. N.T., 11/19/2018, at 15, 51, 72-73.
When Trooper Konopka ran Appellant’s information, he discovered Appellant
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had a criminal history that included drug offenses and gun-related charges.
Based upon these factors together along with Trooper Konopka’s drug
trafficking experience and training, Trooper Konopka believed criminal
activity was afoot. Specifically, he believed that Appellant was carrying
drugs from New York City to sell elsewhere. Based on the totality of the
circumstances, viewed through the eyes of a trained officer, we conclude the
suppression court properly determined Trooper Konopka had specific and
articulable facts to substantiate a reasonable suspicion of criminal activity,
warranting an extension of the initial traffic stop. See Commonwealth v.
Green, 168 A.3d 180, 185 (Pa. Super. 2017) (holding based on trooper’s
training and experience, a combination of observations made by trooper
during routine traffic stop provided basis for reasonable suspicion of criminal
activity, including Green’s nervousness, third-party vehicle ownership, travel
from a source city of drugs, and Green’s criminal background check that
revealed a criminal history of drug offenses).
Appellant next challenges the canine search of the exterior of the
vehicle and the subsequent search of the interior by Trooper Konopka on
scene and at the barracks.
“[A] search warrant is required before police may conduct a search.”
Commonwealth v. White, 669 A.2d 896, 900 (Pa. 1995). As an exception
to this rule, police may search a vehicle where there is probable cause to
believe that an automobile contains contraband. Commonwealth v. Gary,
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91 A.3d 102, 242 (Pa. 2014). Pursuant to the Constitution of this
Commonwealth, a canine sniff is a search, but “considering the relatively
minor privacy interest in the exterior of the vehicle and the minimal intrusion
occasioned by a canine sniff ... mere reasonable suspicion, rather than
probable cause, is required prior to a dog sniffing the exterior of a vehicle.”
Commonwealth v. Harris, 176 A.3d 1009, 1021 (Pa. Super. 2017)
(citation omitted). A positive alert following a police dog sniff, standing
alone, provides a police officer with probable cause to conduct a warrantless
drug search of a vehicle that was validly detained. Green, 168 A.3d at 187.
With this background, we examine whether the trial court erred in
concluding that Canine Edo’s sniffing of the exterior and subsequent search
by the troopers of the interior of the vehicle passed constitutional muster.
As discussed supra, Trooper Konopka had reasonable suspicion before
Canine Edo arrived at the scene. Accordingly, the trial court did not err in
denying Appellant’s motion to suppress based on the canine search. After
Canine Edo alerted to the driver’s side door, which indicated to the officers
that he had detected the presence of drugs, reasonable suspicion ripened
into probable cause. Id. Because Trooper Konopka possessed probable
cause, the trial court did not err in denying Appellant’s motion to suppress
the evidence seized as a result of Trooper Konopka’s search of the interior of
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the vehicle. See Gary, 91 A.3d at 242. Accordingly, Appellant is not
entitled to relief on this claim.10
Sufficiency of the Evidence
On appeal, Appellant challenges the sufficiency of the evidence to
support his possession, PWID, and possession of drug paraphernalia
convictions because the Commonwealth did not prove that he was aware of
the presence of the cocaine and phenacetin in the hidden compartment of
his aunt’s vehicle, and therefore failed to prove he possessed the items.
Appellant’s Brief at 18-25.
“Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017).
Further, to address a challenge to the sufficiency of the evidence, we must
determine
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10 Appellant argues for the first time on appeal that a warrant was required
to search the vehicle after it was impounded. Appellant’s Brief at 37-38. He
claims the automobile exception to the warrant requirement does not apply
because the vehicle was taken out of the field, and the inventory search
exception does not apply because it was an ongoing criminal investigation
when the vehicle was impounded and searched. Id. Appellant was required
to raise this argument in his suppression motion or at the suppression
hearing, not for the first time on appeal. See Pa.R.C.P. 581(D) (“The motion
shall state specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in
support thereof.”); see also Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Therefore, Appellant failed to preserve this argument and we do not address
it.
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whether, viewing all the evidence admitted at trial in the light
most favorable to the Commonwealth as verdict winner, [is]
sufficient to establish all elements of the offense beyond a
reasonable doubt. We may not weigh the evidence or substitute
our judgment for that of the fact-finder. Additionally, the
evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts
regarding a defendant’s guilt unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. When evaluating the
credibility and weight of the evidence, the fact-finder is free to
believe all, part or none of the evidence. For purposes of our
review under these principles, we must review the entire record
and consider all of the evidence introduced.
Commonwealth v. Carr, 227 A.3d 11, 19 (Pa. Super. 2020). Additionally,
the Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super.
2015).
The only element Appellant challenges is whether the Commonwealth
proved that he possessed the contraband found in the vehicle. Appellant’s
Brief at 18. Specifially, Appellant assails Trooper Konopka’s testimony
concerning Appellant’s behavior during the traffic stop and states that he
“conducted no investigation whatsoever” into whether Appellant had any
knowledge of the after-market compartment. Id. at 22. Moreover,
Appellant argues that Patterson’s trial testimony leads to “the reasonable
inference” that her “husband was using the car for running drugs.” Id. at
23. Appellant asserts that he “had no reason to know about the hidden
compartment in the car, and even if this Court determines the evidence
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sufficient on that point, he had no reason to know what was inside of it.”
Id. at 24.
Because Appellant was not in actual possession of the contraband, the
Commonwealth needed to prove that he had constructive possession.
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.
[A] defendant’s mere presence at a place where
contraband is found or secreted is insufficient, standing alone, to
prove that he exercised dominion and control over those items.
Thus, the location and proximity of an actor to the contraband
alone is not conclusive of guilt. Rather, knowledge of the
existence and location of the contraband is a necessary
prerequisite to proving the defendant’s intent to control, and,
thus, his constructive possession.
Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018)
(quotation marks and citations omitted).
Here, the evidence presented at trial related to possession includes the
following: 1) Appellant was the driver and only person in the vehicle when it
was stopped; 2) Appellant stated that he frequently drives the vehicle; 3)
receipts for car maintenance were located in the vehicle and signed by
Appellant; 4) Trooper Konopka’s testimony that Appellant was nervous,
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defensive, and evasive during the traffic stop; 5) the presence of several air
fresheners, which are commonly used by drug couriers as masking agents;
6) his travel from a source city of drugs to a drug destination; 7) his lack of
luggage, clothing, or bags despite claiming he was on a business trip; and 8)
the fact finder was free to disbelieve Patterson’s testimony blaming her
husband. Accordingly, based on the totality of the circumstances and when
viewed in the light most favorable to the verdict winner, the Commonwealth
set forth sufficient evidence to prove that Appellant was aware of the
presence of contraband in the vehicle, and thus established constructive
possession.
Weight of the Evidence
Finally, Appellant contends that his convictions were against the
weight of the evidence because the testimony of Patterson and Trooper
Konopka tended to show Patterson’s deceased husband was the owner of the
contraband rather than Appellant. Appellant’s Brief at 27-29. Appellant also
attempts to discredit portions of Trooper Konopka’s testimony, claiming that
Appellant acted differently from the testimony Trooper Konopka provided.
Id. at 28-29.
Our standard of review when examining a challenge to the weight of
the evidence is as follows.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
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facts would have arrived at a different conclusion. When a trial
court considers a motion for a new trial based upon a weight of
the evidence claim, the trial court may award relief only when
the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail. The
inquiry is not the same for an appellate court. Rather, when an
appellate court reviews a weight claim, the court is reviewing the
exercise of discretion by the trial court, not the underlying
question of whether the verdict was against the weight of the
evidence. The appellate court reviews a weight claim using an
abuse of discretion standard.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and
quotation marks omitted).
Patterson testified that her husband used the vehicle more than
anyone else, had unexplained funds, and possessed a mechanical
background. Despite this testimony, the jury determined Appellant
possessed the cocaine and the drug paraphernalia, i.e., the vacuum-sealed
bags. The jury was free to determine the credibility of Patterson. Jacoby,
170 A.3d at 1078. Appellant’s assertion that the evidence points to the guilt
of Patterson’s husband is a claim that essentially amounts to asking us to
reweigh the evidence in his favor, substituting our judgment for that of the
jury and the trial court. We cannot do so. Id. Moreover, even if the jury
inferred from Patterson’s testimony that her husband installed the
compartment and was involved in drug trafficking, that did not preclude it
from also concluding that Appellant was aware of the compartment and was
involved in this specific drug trafficking. Therefore, after examining the
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J-A13045-20
evidence in this case, we conclude that the trial court did not abuse its
discretion in denying Appellant’s weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2020
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