Dissenting.
¶ 11 disagree with the majority that the trial court erred in refusing to suppress the evidence obtained in this consensual search. Because I find the trial court properly analyzed the traffic stop as a single event, I respectfully dissent.
¶ 2 Appellant argues the trial court should have excluded the evidence seized after this traffic stop because police had no warrant or valid consent to search. He admits he was the subject of a traffic stop, was 'given a warning, and was told he was free to leave. Appellant’s Brief at 13. However, he claims he then became the subject of a second investigative detention when the officer asked him to consent to a search. He argues the mere fact he was nervous and sweating does not provide the requisite suspicion for a further investigative detention. Based on his allegation that there was a second investigative detention which was not supported by reasonable suspicion, appellant claims the resulting search vitiated his consent.
¶ 3 The majority makes no mention of our en banc decision in Commonwealth v. Hoak, 700 A.2d 1263 (Pa.Super.1997), aff'd by an equally divided court, 557 Pa. 496, 734 A.2d 1275 (1999). There we addressed the issue of whether, after concluding a lawful traffic stop, returning the driver’s license and registration and stating “you are free to leave,” a police officer’s followup question constituted an investigative detention unsupported by reasonable suspicion, which vitiated a defendant’s consent to search. We found it did not. We reasoned:
Not all personal intercourse between police and citizens involved seizures of persons. There is no constitutional prohibition against the police questioning an individual in a public place. So long as a reasonable person would feel free to go about his or her business, the encounter is consensual and no reasonable suspicion is required. Only when the officer, by means’ of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.
Thus, individuals have been seized only if there is an objective reason to believe they are not free to end their conversation with police and proceed on their way.
Id. at 1266. In Hook, the officer made a valid traffic stop, issued a warning, returned the driver’s registration and license *268to the defendant and specifically advised him he was free to leave. Id. at 1267. We found this clearly communicated to the defendant, or any reasonable person in his position, that all business was done and the stop was concluded. Applying the test set forth in U.S. v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870, 64 L.Ed.2d 497, we held once the traffic stop was over, there was no show of force, no threatening presence, no display of weapon, no physical touching or use of language or tone to communicate that compliance with the officer’s request to search was compelled. We concluded absent some coercive conduct by police, a request for cooperation or consent to search does not automatically convert an undeniably permissible encounter into an illegal seizure. Accordingly, in Hoak, the subsequent consent to search was valid.
¶ 4 In my view, Appellant presents this Court with no different fact situation than Hoak. He admits he was told he was free to leave, his documents had been returned to him and the stop was over. It was only when Appellant tried to drive away, having been warned that his license was suspended and he was free to leave, albeit on foot, that the Officer asked to search the vehicle.
¶ 5 The majority accepts Appellant’s reliance on the holding in Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000) and his attempts to distinguish Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). However, I am not persuaded. In Freeman, after a traffic stop was concluded, the officer continued to question the defendant, and when the officer determined she had lied to him, he ordered her out of the ear. As she walked to the rear of the vehicle with the officer, he asked if he could search the vehicle. The officer ordered the defendant and her passengers to move away from the vehicle. When they failed to obey his orders and began to remove items from the vehicle, the officer asked the other officers on the scene for assistance. Accordingly, our Supreme Court determined the first investigative detention ended with the officer telling the defendant she was free to leave, but when he approached again, a second investigative detention began. Our Supreme Court found:
The transition to and character of the subsequent interaction, however, supports the conclusion that Freeman was subject to a second seizure. Since the trooper had accomplished the purpose of the stop, as he expressly indicated, Freeman would have been entirely within her rights to drive away at that point. Nevertheless, the trooper’s subsequent actions were inconsistent with his statement to Freeman that she was free to leave, as he: returned to Freeman’s vehicle; questioned her about the second vehicle; pointed out the inconsistent statements from the vehicle’s occupants when she denied traveling with that vehicle; and, ultimately and most significantly, asked her to step out of the vehicle prior to the request for consent. Such directive constituted a greater show of authority than had previously been made (other than the physical stop of Freeman’s vehicle itself.)
Freeman, 563 Pa. at 89-90, 757 A.2d at 907-908.
¶ 6 The facts of the companion case, Strickler, however, lead to a different outcome. In Strickler, a uniformed officer on routine patrol noticed a vehicle left unattended at the side of the road, alongside the lawn in front of a farmhouse and barn. Strickler at 53, 757 A.2d at 886. The officer also noted two men standing approximately fifteen feet from the vehicle apparently urinating. The officer approached to investigate. After verifying *269his drivers’ license information and no warrant status, the officer returned the license, warned the defendant his conduct was inappropriate and thanked him for his cooperation. Id. After taking a few steps away, the officer turned back and asked the defendant if he had anything illegal in the car. Although he had not been told he was free to go after the initial stop, the officer did advise the defendant he was free to refuse a search. The defendant hesitated at first but then consented, and the officer eventually found contraband in the vehicle. After Superior and Supreme Court review, the ultimate holding in Strickler is the evidence under these facts should not have been suppressed because the initial detention was lawful; there was no further detention, and the consent was not tainted.
¶ 7 Comparing the present case to Strickler and Freeman, there is no dispute in any of these cases that the initial encounter with the police constituted a lawful investigative detention. However, I find Strickler and Freeman differ because in Freeman, after the initial stop was concluded, the trooper returned to question Ms. Freeman further. Although he said the stop was over and she was free to leave, his conduct conveyed otherwise. The additional questioning. in Freeman, and most significantly ordering her out of the car, was viewed as a second seizure, unsupported by reasonable suspicion that criminal activity was afoot. Contrary to the majority, I find the traffic stop in the present case, more factually aligned with Strickler than Freeman. Appellant, in the present case, was told he was free to leave, and the officer did nothing to convey otherwise. He did, however, advise the appellant he could not drive the car away from the scene because the officer had already determined from the license check that the appellant’s license was suspended. The officer issued only a warning for the vehicle code violation concerning the tinted windows and did not immediately cite appellant for driving under suspension. The officer did not order appellant out of the car, nor did he escalate the encounter with further questioning. The record reflects the car was lawfully parked in the parking lot of a convenience store where appellant could have easily walked away. Accordingly, I respectfully dissent on this issue.
¶ 8 Furthermore, appellant’s argument that there was a second seizure unsupported by reasonable suspicion that criminal activity was afoot, conveniently ignores the fact that Officer Baur only discovered appellant was driving under suspension after he made a record’s check. Upon determining the appellant was driving under suspension, the officer had new reasonable suspicion that additional criminal activity was afoot beyond the tinted window violation. I question what else the officer was to do when he saw the Appellant attempting to drive away. If he made a second traffic stop, he did so with probable cause to believe Appellant was driving under suspension, even after he was advised not to do so. Accordingly, were I to agree there was a second detention, the further detention appellant complains of was not unlawful and thus did not vitiate his consent.
¶ 9 Finally, I write further to point out that I believe it is necessary to examine the sufficiency of the evidence for if the evidence is insufficient, Appellant must be discharged. See Commonwealth v. Palmer, 751 A.2d 228 (Pa.Super.2000) (where even if the ultimate outcome is suppression of the evidence which supported the conviction, the appellate court must still address a challenge to the sufficiency issue because a retrial would be precluded in the event the sufficiency issue has merit). In reviewing such a challenge, the test we apply is whether the evidence, and all rea*270sonable inferences taken from the evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, was sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Williams, 554 Pa. 1, 3, 720 A.2d 679, 682-683, (1998), cert. denied, 526 U.S. 1161, 119 S.Ct. 2052, 144 L.Ed.2d 219 (1999). The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. However, any questions or doubts are to be resolved by the factfinder, unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the circumstances. Commonwealth v. Morales, 447 Pa.Super. 491, 669 A.2d 1003, 1005 (1996).
The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. George, 705 A.2d 916, 918 (Pa.Super.1998) appeal denied, 555 Pa. 740, 725 A.2d 1218 (1998) (quoting Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted)).
¶ 10 Appellant claims the Commonwealth failed to establish he had the requisite dominion and control of the drugs that were discovered hidden in the console of the vehicle he was driving. He concedes “the element of proximity to the drugs was thus established.” Appellant’s Brief at 14. However, he claims the Commonwealth failed to prove he knew of their presence. He claims we must presume the drugs belong to the owner of the car and points to the fact the vehicle belongs to another person. I do not find his argument persuasive.
When the contraband a person is charged with possessing is not found on the person of the defendant, the Commonwealth must establish that the defendant had constructive possession of it. Our Supreme Court has defined constructive possession as the power to control the contraband and the intent to exercise that control. Constructive possession can be proven by circumstantial evidence and the “requisite knowledge and intent may be inferred from examination of the totality of the circumstances.”
Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa.Super.2000) (Citations omitted).
¶ 11 In Commonwealth v. Ortega, 372 Pa.Super. 389, 539 A.2d 849 (1988), a panel of this court was asked to review a nearly identical fact situation. There, as here, the defendant claimed the Commonwealth failed to prove beyond a reasonable doubt that he possessed the contraband found in a car he was driving but did not own. The drugs in Ortega were found under the passenger’s seat of a rented car, and the drugs in the present case were found in the middle console of a car registered to another person. In Ortega, appellate analysis began with first recognizing constructive possession has been defined by our Supreme Court as follows:
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.” Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). We subse*271quently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983)...
To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).
Ortega at 851 (citing Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986)).
¶ 12 As in Ortega, the totality of the circumstances in the present case supports a finding of constructive possession. Appellant was driving the vehicle immediately before the traffic stop. He was alone in the car. During the encounter with police, the officer noted appellant was sweating heavily despite the fact it was only 60 degrees outside that night. The drugs were found in a center console, which would be just at his right elbow as he was driving the vehicle. Most significantly, appellant attempted to distance himself from the car at least four times, and even asked the officer “is everything okay? Am I going home tonight?” Such behavior is evidence of appellant’s consciousness of guilt and fear of discovery. Accordingly, I would find the Commonwealth sufficiently established constructive possession.
¶ 13 In light of the findings of fact, I find this Court overstepped its review, and the Order denying suppression should be affirmed. Accordingly, I respectfully dissent.