Com. v. Little, P.

J-A13045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A13045-20

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.

____________________________________________

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
____________________________________________

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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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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