Com. v. Cottle, A.

J-A25007-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRAY COTTLE, :
:
Appellant : No. 2225 EDA 2013

Appeal from the Judgment of Sentence March 20, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0008226-2012

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 10, 2014

Andray Cottle (“Cottle”) appeals from the judgment of sentence

entered following his convictions of prohibited possession of a firearm,

carrying a firearm without a license and possession of a controlled

substance.1 We affirm.

The trial court summarized the facts underlying Cottle’s convictions as

follows:

Police Officer Kevin McGrorty and his partner, Officer
Fenny, were on duty in an unmarked car in the area
of the 600 block of Garland Street in Philadelphia on
June 20, 2012 around 9:25 p.m. Notes of Testimony
("NT"), 11/21/13 at 6-8. This block is two lanes with
cars going both ways down the street. Id. at 9. The
officers were traveling eastbound when they
observed a black Monte Carlo, being driven by
[Cottle], widely pull out of a legal parking spot on
the side of the road without using a turn signal. Id.

1
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1); 35 P.S. § 780-113(a)(16).

*Retired Senior Judge assigned to the Superior Court.
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at 7. [Cottle] pulled out so widely that ‘he went into
oncoming traffic,’ causing ‘a hazardous condition for
other vehicles.’ Id. at 8. This forced an oncoming
vehicle to swerve out of the way, to avoid being hit.
Id. at 9. In fact, [Cottle] cut off the police cruiser,
causing the officers to slow down to avoid an
accident. Id.

The officers activated their lights and sirens and
pulled [Cottle] over. [Id.] at 9. There were four
passengers in total in the vehicle:[Cottle], a front
seat passenger, and two passengers in the rear. Id.
McGrorty approached the driver side while his
partner approached the passenger side. Id. at 9. The
windows to the Monte Carlo were heavily tinted so
McGrorty ordered the windows down. Id. As the
windows went down, McGrorty smelled a fresh,
strong odor of burnt marijuana. Id. at 10. The
officer then asked [Cottle] for his driver's license,
registration and insurance. Id. [Cottle] produced a
valid state ID to the officer, along with his
registration. Id. at 10, 15. The officer again
requested the insurance. Id. [Cottle] then
proceeded to reach towards the glove box. Id. He
touched the glove box with his fingers, but did not
open it. Id. He reached his hand back, looked over
to McGrorty, and stated that he did not have
insurance. Id. at 10, 28. [Cottle] ‘fumbled over his
words. He didn't know what to say at that point.’ Id.
at 28. This prompted Fenny, who was standing at
the passenger side of the vehicle, to notify McGrorty
that when the officers were first approaching the
vehicle he had observed the passenger shut the
glove box and reach under the passenger seat. Id.
at 10-11.

McGrorty had been on the force for four years. Id.
at 14. He had been assigned to the second district,
where this incident occurred, for over three years.
Id. During his tenure with the Philadelphia Police
Department, he had made fifteen to twenty arrests
for gun violations. Id. About half of those arrests
were from vehicle stops where firearms were
recovered. Id. The officer described the area in and

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around the 700 block of Garland Street as a known
‘hot spot’ with numerous shootings. Id.

For their safety, the officers then removed both
[Cottle] and the front seat passenger. Id. at 11.
Next McGrorty went over to the passenger side of
the vehicle and observed a burnt marijuana cigar
under the seat. Id. at 12. The officer then decided
to remove the two backseat passengers. Id. at 13.
The Monte Carlo is a two-door sedan. Id. 11.
Therefore, the these passengers had to exit the
vehicle through the front. Id. Consequently,
McGrorty did a cursory safety check of the front of
the vehicle. Id. at 13. Upon opening the glove box,
he found a .9 millimeter Ruger loaded with
seventeen rounds and a second magazine loaded
with eight live rounds . Id. The parties stipulated
that [Cottle] was ineligible to possess a handgun on
the day of the incident. Id. at 55-[5]6. After the
gun was recovered, [Cottle] was arrested. Id. at 16.
The officers also recovered $237 U.S. currency from
[Cottle]—eleven $20 bills, one $5 bill, and twelve $1
bills. Id. at 49.

McGrorty then contacted Sergeant Barclay, who
arrived on location and requested a K-9 unit. Id. at
49. The K-9 officer and dog arrived, and the dog
began barking, scratching, and attempting to bite
open the door of the Monte Carlo, indicating a
positive reaction for drugs. Id. at 16-17, 25.
McGrorty then contacted the Narcotics Strike Force
and a search warrant was secured and executed on
the car. Id. at 17-18. Recovered from the vehicle
was the marijuana blunt under the passenger seat
and loose marijuana from the floor of the passenger
side. Id. at 18. Additionally, officers found a bag
containing forty-eight jars of marijuana inside the
trunk of the vehicle, as well as a First Judicial Traffic
ticket in the name of [Cottle] which had been issued
prior to the date in question . Id. at 18, 54.

Trial Court Opinion, 11/26/13, at 1-2.

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Cottle filed a motion seeking to suppress the items recovered from the

vehicle. After a hearing, the trial court denied Cottle’s suppression motion

and the case moved immediately to a bench trial. The trial court ultimately

found Cottle guilty of the above-mentioned crimes and sentenced him to

three to six years of incarceration, followed by two years of probation. This

timely appeal followed.

Cottle presents two issues for our review:

1. Was the warrantless search of the glove box
inside the vehicle [Cottle] was driving improper,
such that all of the evidence recovered as a result
of the search should have been suppressed?

2. Was the evidence adduced at trial legally
insufficient to support [Cottle’s] convictions for
firearms offenses and possession of a controlled
substance?

Appellant’s Brief at 4.

Cottle first challenges the trial court’s denial of his motion to suppress.

When reviewing denial of a suppression motion, our review is limited to

determining whether the factual findings are supported by the record and

whether the legal conclusions drawn from those facts are correct.

Commonwealth v. Williams, 73 A.3d 609, 613 (Pa. Super. 2013) (citation

omitted). Additionally, since the Commonwealth prevailed in the

suppression court, we may consider only the evidence of the Commonwealth

and so much of the evidence for the defense as remains uncontradicted

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when read in the context of the record as a whole. Id. We may reverse

only if the legal conclusions drawn therefrom are in error. Id.

Cottle contends that the officers’ warrantless search of the vehicle’s

interior was impermissible because they did not have reasonable suspicion

to believe that Cottle or any other occupant of the vehicle had a weapon,

and therefore, the trial court erred in denying his suppression motion.

Appellant’s Brief at 10.

Until recently, in order for police officers to conduct a
lawful search of an automobile without a warrant,
the officers were required to have probable cause
and exigent circumstances. However, recently, our
Supreme Court … removed the dual requirement of
probable cause and exigency for a warrantless
search of an automobile in Pennsylvania. In
Commonwealth v. Gary, [] 91 A.3d 102 (Pa.
2014), our Supreme Court held as follows:

In sum, our review reveals no compelling
reason to interpret Article I, Section 8 of the
Pennsylvania Constitution as providing greater
protection with regard to warrantless searches
of motor vehicles than does the Fourth
Amendment. Therefore, we hold that, in this
Commonwealth, the law governing warrantless
searches of motor vehicles is coextensive with
federal law under the Fourth Amendment. The
prerequisite for a warrantless search of a
motor vehicle is probable cause to search; no
exigency beyond the inherent mobility of a
motor vehicle is required. The consistent and
firm requirement for probable cause is a strong
and sufficient safeguard against illegal
searches of motor vehicles, whose inherent
mobility and the endless factual circumstances
that such mobility engenders constitute a per
se exigency allowing police officers to make

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the determination of probable cause in the first
instance in the field.

Gary, 91 A.3d at 138 (emphasis added). Thus, the
salient question for the suppression court [is]
whether the police officers had probable cause to
conduct the warrantless search.

Commonwealth v. Hudson, 92 A.3d 1235, 1241-42 (Pa. Super. 2014).

In this case, the evidence establishes that the officers pulled over

Cottle’s vehicle for traffic violations (including failing to use a turn signal

when pulling out of a parking place and driving in an on-coming lane of

traffic). As they approached the car and Cottle lowered the window, Officer

McGrorty smelled freshly burnt marijuana. N.T., 11/21/11, at 7-10. This

provided probable cause that criminal activity (i.e., the ingestion of an illegal

substance) was afoot, establishing probable cause for the search of the

vehicle. See Commonwealth v. El, 933 A.2d 657, 661 (Pa. Super. 2007),

aff'd, 602 Pa. 126, 977 A.2d 1158 (2009) (“The standard for probable cause

is whether the facts and circumstances within the officer's knowledge are

sufficient to warrant a reasonably cautious person to believe that an offense

has been or is being committed.”). Accordingly, as there was probable

cause to conduct the warrantless search, we find no error in the trial court’s

ruling.2

2
We note that in contrast to the analysis we have employed, the trial court
explained its ruling in terms of the prior standard for warrantless searches of
automobiles. Trial Court Opinion, 11/26/13, at 4-6. However, “[i]t is well
settled that where the result is correct, an appellate court may affirm a
lower court's decision on any ground without regard to the ground relied

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In his second issue, Cottle challenges the sufficiency of the evidence

establishing his possession of the firearm or drugs found in the vehicle.

When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable
inferences in the light most favorable to the
Commonwealth, the fact[-]finder reasonably could
have determined that each element of the crime was
established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to
any claim that some of the evidence was wrongly
allowed. We do not weigh the evidence or make
credibility determinations. Moreover, any doubts
concerning a defendant's guilt were to be resolved by
the fact[-]finder unless the evidence was so weak
and inconclusive that no probability of fact could be
drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).

The trial court found that Cottle had constructive possession of both

the firearm and the marijuana found in the vehicle’s trunk. Trial Court

Opinion, 11/26/13, at 9-10.

Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an
inference arising from a set of facts that possession
of the contraband was more likely than not. We
have defined constructive possession as ‘conscious
dominion.’ We subsequently defined ‘conscious
dominion’ as ‘the power to control the contraband
and the intent to exercise that control.’ To aid
application, we have held that constructive
possession may be established by the totality of the
circumstances.

upon by the lower court itself.” Commonwealth v. Singletary, 803 A.2d
769, 772-73 (Pa. Super. 2002).

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Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

omitted).

The evidence and all reasonable inferences therefrom, when viewed in

the light most favorable to the Commonwealth, established that the vehicle

Cottle was driving on the night in question belonged to his fiancée, Tahyna

Jimenez. N.T., 11/21/12, at 58. The car had deeply tinted windows through

which the officers could not easily see. Id. at 9-10. When pulled over and

asked for his license, registration and insurance information, Cottle gave

Officer McGrorty a state issued identification card and the vehicle’s

registration, but no proof of insurance. Id. at 10. Officer McGrorty again

asked for the insurance card. Id. Cottle then reached across the vehicle,

touched the glove box, paused, pulled his hand away from the glove box and

told Officer McGrorty that he did not have insurance. Id. At that point,

Officer Finney told Officer McGrorty that as they were approaching the

vehicle, he saw the person seated in the passenger seat shut the glove box

and reach under the seat. Id. at 10-11. The firearm was found, fully loaded

with 17 rounds of ammunition, in the glove box, along with another

magazine loaded with eight rounds of ammunition. Id. at 13. The firearm,

like the vehicle, belonged to Cottle’s fiancée. Id. at 59. She kept the

firearm in an unlocked case in the home she shares with Cottle and their

children. Id. at 68-69. Cottle knew that his fiancée owned this gun. Id. at

65. Cottle’s fiancée did not know any of the other people that were in her

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vehicle when Cottle was stopped by the police. Id. at 69. Cottle’s fiancée

denied knowing anything about the marijuana found in the passenger

compartment or trunk of her car. Id. at 63. The marijuana in the trunk was

found in a bag that also contained Cottle’s driver’s license and a ticket issued

in his name. Id. at 54, 63.

We conclude that this evidence is sufficient to establish an inference

that Cottle’s possession of the items at issue was more likely than not, and

that he had “the power to control the contraband and the intent to exercise

that control.” Cruz, 21 A.3d at 1253. Cottle knew of his fiancée’s firearm.

It was kept in an unlocked case in his home, allowing for easy access

thereto. The gun was fully loaded and found with additional ammunition. It

was found in a location that Officer Finney saw the passenger access

moments before the vehicle’s tinted windows were rolled down. Under the

gaze of Officer McGrorty, Cottle reached for the glove box but stopped short

of opening it. The totality of these circumstances give rise to the inference

that Cottle brought the gun into the vehicle and that he had the passenger

place the gun and ammunition in the glove box as the police approached the

car. Furthermore, the fact that Cottle’s driver’s license and a traffic citation

issued to him were found with the bag containing the 48-individually

packaged bottles of marijuana in the trunk of the vehicle supports the

inference that Cottle constructively possessed the marijuana recovered from

the vehicle.

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In support of his argument to the contrary, Cottle attempts to

analogize the facts of his case to the facts in Commonwealth v. Juliano,

490 A.2d 891 (Pa. Super. 1985) and Commonwealth v. Boatwright, 4523

A.2d 1058 (Pa. Super. 1982), in which this Court found the evidence

insufficient to establish constructive possession. Cottle’s argument is

unavailing, as these cases are readily distinguishable.

Juliano involved a situation where police, alerted by an informant,

observed two targets as they picked up luggage containing illegal drugs at

Philadelphia International Airport. Before the targets collected the luggage

from baggage claim, they observed them speaking with a third man. When

the targets left the airport, with the luggage, they drove a short distance to

a hotel, where they picked up the third man and the appellant, Juliano. The

police subsequently pulled the car over and arrested the occupants. The

trial court concluded that Juliano constructively possessed the luggage,

which had been found “in front of the left rear seat which [he] had been

occupying.” Juliano, 490 A.2d at 893. This Court reversed that

determination because there was no evidence that established – directly or

by inference – that the appellant knew what the bag contained. Id. at 894.

In contrast, as outlined above, the evidence sufficiently supports the finding

that Cottle knew of and exercised control over both the firearm and the

marijuana.

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In Boatwright, the police received a radio call reporting three

“suspicious” men sitting in a car at a particular location. Officers responded

and as they approached the vehicle, they observed Boatwright, who was

seated in the front passenger’s seat, “moving towards his left rear. The

officer could not see appellant's hand or arm, only a movement of his body.”

Boatwright, 453 A.2d at 1058. After removing Boatwright from the

vehicle, the officer observed a firearm on the left rear floor of the vehicle.

There were also men seated in the driver’s seat and the left rear seat. The

car was registered to the driver’s girlfriend and the firearm was registered to

a woman unknown to any of the men. We concluded that these facts could

establish no more than Boatwright’s mere presence at the scene where the

gun was found, and that mere presence was not sufficient to establish

constructive possession. Id. at 1059. These facts are markedly different

from the facts of the present case, in which there is evidence tying Cottle to

the firearm, the vehicle, and the marijuana discovered in the vehicle’s trunk;

in other words, evidence beyond Cottle’s mere presence at the scene where

the contraband was discovered.3

Judgment of sentence affirmed.

3
To the extent that Cottle’s arguments are based on his girlfriend’s
testimony that she left the firearm in the glove box, we note that the trial
court expressly rejected this testimony as incredible. See Trial Court
Opinion, 11/26/13, at 9. Accordingly, we are bound by this credibility
determination. See Commonwealth v. Lutes, 793 A.2d 949, 960
(Pa. Super. 2002).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014

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